' SADIQ HUSSAIN BHATTI, J.---Through instant petition, the petitioner has assailed the order dated 27.11.2014 passed by IV Additional District Judge, Karachi East in FRA No. 08 of 2014, whereby thesaid FRA was dismissed and the order of the II Rent Controller, Karachi East, passed in Rent Case No. 380 of 2009, directing eviction of the petitioner from the demised premises, was maintained.
2. Facts of the case, in brief, are thatrespondent No.1 purchased the entire building constructed on Plot No. 35-A, Commercial Area, Block 2, PECHS, Karachi, from its previous owner, namely, Mst.
Khatoon Begum, who introduced the present petitioner, who was a tenant in one of the shops in the said building, to the respondent and requested him to vacate the shop in his possession as the same was needed by the respondent No.1/new purchaser for his personal use. The petitioner, according to the averments in the rent case, promised to vacate the shop before 5.7.2009 but the petitioner not only did vacate the shop by the stipulated date but also stopped paying rent to the new owner. Thereafter, the respondent No.1 filed Rent Case No. 380 of 2009, seeking eviction of the petitioner from the shop in his possession as tenant of the previous owner on the ground that the same was needed for his personal bona fide use as well as on the ground of default in payment of rent. The rent case was allowed vide order dated 2-12-2013 and the FRA filed to assail the said order of eviction was also dismissed by the appellate Court vide the impugned order. Hence, this petition.
3. Learned counsel at the very outset submitted that since there was no relationship of landlord and tenant between the parties, therefore, the Rent Controller has no jurisdiction to entertain the rent case filed by the respondent No.1. In this regard the learned counsel referred to the various payments made and the agreements executed between the petitioner and the previous owner.
Learned counsel further submitted that both the agreement to sell dated 5.10.2008 and the sale deed dated 18.5.2009, on the basis of which the -respondent No.1 is alleging ownership of the demised premises, are fake documents and are outcome of fraud and misrepresentation. Learned counsel submitted that the sale deed is, in fact, without any sale consideration as the previous owner of the building, namely, Mst. Khatoon Begum, was an illiterate person and was fraudulently deprived of her property by respondent No.!. Learned counsel stated that since the petitioner was in possession of the said shop in pursuance of valid agreement of sale, therefore, he was not liable to pay any rent and, consequently, has not committed any default in payment of rent. In this regard the learned counsel also referred to the statement of Mst. Razia Gul, daughter of the former owner of the building, who stated that her mother, being an illiterate and pardanshin lady, was taken to the office of Registrar by her brother in law on the pretext of getting her signature on a power of attorney for collecting rent from the tenants of the said building, and her signatures were fraudulently taken on the sale deed.
4. On the other hand, learned counsel for respondent No.1 submitted that there are concurrent judgments against the petitioner and, therefore, this Court, while exercising jurisdiction under Article 199 of the Constitution, cannot interfere in the same. Learned counsel further submitted that the respondent No.1 is claiming ownership of the demised premises on the basis of registered documents while the petitioner, in support of his case, is relying on unregistered documents. He also submitted that the attesting witnesses of the sale agreement were not examined.
Learnedcounsel also stated that pendency of suit for specific performance could not arrest the eviction procedure initiated by the landlord and till such time that the tenant is able to establish his claim for specific performance on the basis of alleged sale agreement, the landlord can continue to enjoy the status of owner/landlord of the demised premises and relationship between the parties would be that of landlord and tenant. Lastly, the learned counsel submitted that mere agreement to sell would not be sufficient to establish transfer of title in the immovable property.
Learned counsel also argued that once the respondent No.1 became the owner of property through registered sale deed he can file ejectment application on the ground of default in payment if the tenant fails to pay rent to him. In support of his contentions, the learned counsel relied on the following case law:
(1) Abdul Hamid v. Abbas Bhai Abdul Hussain (PLD 1959 (WP) Kar. 629),
(2) Janzaluddin v. Saghir Ahmed Warsi (1993 M LD 1809), (3') Malik Ghulam Murtaza v. Rent Controller, CBMC,(2005 CLC 1070),
(4) Sh. Manzoor Ahmed and others v. Mst. Jabal Begum and others (1989 SCM R 949),
(5) Hail Juma Khan v. Haji Zarin Khan (PLD 1999 SC 1101),
(6) Abdul Ghani v. Hafiz Jalaluddin (1995 CLC 348),
(7) Mst. Azeemunnisa Begum v. Ali Muhammad (PLD 1990 SC 382),
(8) Muhair,, Rafique v. Habib BankLimited (1994 SCM R 1012),
(9) Afzal Ali v. Azhar lqbal (1997 M LD 2262).
(10) lqbal Shah and others v.Mst. Abida Bi (1994 CLC 1891).
5. I have heard the learned counsel for the parties; perused the record and the case law cited before me.
6. Learned counsel for the petitioner has assailed the impugned orders on grounds: (i) that there is no relationship of landlord and tenant between the parties and (2) that the sale agreement on the basis of which respondent No.1 is claiming himself to be owner of the demised premises is fake and
(3) that the petitioner has purchased the demised premises from the previous owner.
7. So far as the first two grounds are concerned, the Appellate Court observed the respondent No.1 claimed ownership of the demised premises on the basis of registered sale deed executed by the previous owner in his favour which was produced by him in evidence. Though signatures of the previous owner on the sale deed were not denied but it was contended that the same were procured by fraud. In this regard real daughter of the previous owner was produced as witness by the petitioner, who deposed that her brother in law, Arshad Ali on the pretext of getting her mother's signature on a power of attorney for collecting rent, fraudulently got her signature on the sale deed. However, this was not believed by the Appellate Court on the ground that if any fraud was played by Arshad Ali with his mother in law why she kept silent and never filed any proceedings for cancellation of the sale deed allegedly obtained by fraud. Thus, the sale deed executed in favour of the respondent No.1 was never objected to by the previous owner. This clearly shows that the stand taken by the petitioner was totally wrong and the Courts below rightly disbelieved the same.
8. So far as the reliance by the petitioner on the sale agreement executed between him and the previous landlord is concerned, suffice it to say that the Hon'ble Supreme Court in the case of HO Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101), has held that a tenant cannot resist maintainability of ejectment proceedings pending against him on the ground of sale agreement and further held that genuincness or otherwise of alleged agreement and its consequential effect would be independently determined by the Civil Court. In the present case, while the respondent No.1 claims ownership of the demised property on the basis of registered sale deed, the petitioner is resisting his eviction on the basis of an un- registered sale deed. Thus, in view of the law laid down by the Hon'ble Supreme Court, the petitioner cannot rely on such sale agreement till he gets its genuineness verified by a Civil Court. The petitioner has also filed Suit No. 866 of 2009 for specific performance, mesne profit and cancellation of sale deed executed in favour of the respondent No.
1. Therefore, at this stage, the petitioner cannot' rely on such agreement to deny existence of relationship of landlord and tenant. The appellate court as well as the trial court has rightly rejected such plea of the petitioner.
9. In view of the fact that there are concurrent findings against the petitioner and in favour of the respondent No.1, the :impugned orders are unexceptionable and do not call for any interference from this Court. Accordingly, this petition isdismissed and the impugned orders are IB maintained.