' SADIQ HUSSAIN BHATTI, J.---The petitioners are aggrieved by the judgment dated 21.10.2014 passed by II Additional District Judge, Karachi Central, in FRA No, 05 of 2012, whereby the said FRA, filed by the present petitioners was dismissed.
2. Facts of the case are that respondent No, 1 gave on rent a portion of his plot No, 12-B, Khandoo Goth, Block B, North Nazimabad, Karachi to the predecessor of the petitioners vide tenancy agreement dated 29.6.1974. In the year 1998, the respondent No,1 filed Rent Case No, 384 of 1998 seeking ejectment of the tenant on the ground of default in payment of rent from 1.1.1998 to 30.6.1998. The petitioners filed their written statement wherein they denied the averments made in the rent case. They also denied existence of relationship of landlord and tenant between the parties and pleaded that the disputed premises was purchased by them from the respondent No,1 vide sale agreement dated 8.4.1976. Vide order dated 19.1.2009, VI Senior Civil Judge and Rent Controller, Karachi Central, allowed the rent case and the tenants were directed to handover peaceful vacant possession of the premises to the landlord/respondent No,1 within 60 days. This order of eviction was challenged by the petitioners by filing FRA No, 56 of 2009 which was subsequently withdrawn and an application under section 12(2), C.P.C. Was filed to assail the said order of ejectment on the ground that the same was obtained by concealment and misrepresentation of facts as well as by playing fraud which was dismissed by IV Senior Civil Judge and Rent Controller, Karachi Central vide order dated 19.12.2011. The petitioners, feeling aggrieved, challenged the order dated 19.12.2011 by filing F.R.A. No, 5 of 2012, which, too, was dismissed vide the impugned judgment, hence, the present petition.
3. Mr. Mobarak Ahmed, learned counsel for the petitioners, submitted that the impugned judgment is perverse, illegal and without jurisdiction and, therefore, is liable to be set aside. Learned counsel submitted that the Courts below have completely ignored that the respondent No,1 concealed material facts that a suit for cancellation of the sale agreement between the parties was filed by respondent No,1 in which he failed upto this Court, thus the sale agreement dated 08.04.1976, whereby the petitioners claimed to have purchased the disputed premises, attained finality and the tenancy between the parties stood terminated. Per learned counsel, in view of the above facts, the concurrent findings of the Courts below are not based on the material on record but contrary to the same and are perverse and illegal and are liable to be set aside.
4. On the other hand. Mr. Munir Ahmed Gilal, learned counsel for the respondent No,1, submitted that this petition is not maintainable as it has been filed against an ejectment order which is appealable under section 21 of the Sindh Rented Premises Ordinance, 1979, thus adequate remedy was available to the petitioners, which was initially availed but, after pursuing the same for two years, was abandoned by withdrawing the appeal and filing an application under section 12(2), C.P.C., just to delay the matter. Learned counsel relied on the case of Messrs Ilyas Marine and Associates v. Amin Lasania and another (2004 M LD 1008). Learned counsel further argued that if the petitioners are denying the relationship of landlord and tenant between the parties on the basis of an alleged agreement between the parties, then they should have filed a suit for specific performance for enforcing the same. Learned counsel denied that any fraud was committed or misrepresentation made by the respondent No,1 as the ejectment order was passed by the Rent Controller after hearing both the parties.
5. First, I will take the question of maintainability of this petition. Under section 21 of the Sindh Rented Premises Ordinance, 1979, any party aggrieved by an order, not being an interim order, made by the Rent Controller can prefer an appeal against such order to the appellate Court. Under subsection (3) of Section 21 ibid, the appellate court shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final. Thus, if the petitioners were aggrieved by the order of eviction dated 19.1.2009, an adequate remedy by way of an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 was available to them. This remedy was availed by them by filing an FRA bearing FRA No,56 of 2009. Which was subsequently dismissed as not pressed vide order dated 10.5.2011 and an application under section 12(2), C.P.C. Was filed, which was dismissed vide the impugned Judgment. Thus, it is evident that the petitioners, instead of availing the adequate and efficacious remedy available to them under section 21 of A the Ordinance, and filed an application under section 12(2), C.P.C. In the case of Messrs Ilyas Marine and Associates (supra), it has been held that "Section 12(2), C.P.C. Is not substitute of appeal and can only be invoked if it is shown that the judgment / decree has been obtained on the back of a party by playing fraud upon the Court." No clarification has been given in the application under section 12(2), C.P.C. As to why the appeal was withdrawn and the application under section 12(2), C.P.C. Was filed. It is also evident that none of the impugned orders were passed behind the back of the petitioners and in each case their counsel was present.
6. In this regard, it may also be observed that the facts which are alleged to have been suppressed / concealed by the respondent No,1, were well within the knowledge of the petitioners and they were not precluded from bringing the same on record. All the pleas- raised in the application under section 12(2), C.P.C. Could have been agitated in the appeal, which has a far wider scope than an application under section 12(2), C.P.C., but the same was withdrawn. Even otherwise, it is mentioned in the impugned Judgment (at page 163 of the file) that "Although the applicant has not disclosed in the plaint that he filed a Civil Suit for cancellation of the alleged sale agreement but attorney of the applicant namely Muhammad Amin has clearly stated in his affidavit-in- evidence that the applicant has filed a Civil Suit No,596 of 1999 for declaration, injunction and cancellation of the Sale Agreement dated 8.4.1976." (emphasis supplied)
7. It may be mentioned here that the rent case was filed in the year 1998 while the suit was filed in the year 1999, thus, logically it was not possible that such fact could have been disclosed in the rent case filed earlier than the date of institution of the suit. It is also noteworthy that the suit filed by the respondent No,1 was dismissed for non-prosecution and, thus, there was no finding, either in the affirmative or negative, on the veracity of the alleged sale agreement.
8. So far as the question of relationship of landlord and tenant between the parties is concerned, it is clear that while the respondent No,1 is denying the genuineness of the alleged sale agreement, the petitioners are not denying that their predecessor-in-interest was put in possession of the disputed premises as tenant by the respondent No,
1. Thus, they admit that there was relationship of landlord and tenant between the parties, but they claim that subsequently the demised premises was purchased by them from respondent No,1, and thus the relationship of landlord and tenant between the parties stood terminated. This is denied by the respondent No,
1. It is not the case of the petitioners that they were put in possession of the demised premises as part performance of the sale agreement. In this view of the matter, it was for the petitioners to have filed a suit for specific performance to enforce the sale agreement and once they succeeded therein, they should be put in possession of the demised premises as owners. But till such time that they have not obtained specific performance of such sale agreement they cannot deny the relationship of landlord and tenant between the parties. In case the demised premises was a leased property and pursuant to the sale agreement the same was transferred and mutated in the name of the petitioners in the relevant record, then they would have been justified in denying the existence of relationship of landlord and tenant between the parties.
9. In the case of Haji Muhammad Saeed v. Additional District Judge (2005 YLR 1985), it was held that the tenant had not moved the Rent Tribunal in writing for revoking tenancy, thus, he could not take benefit of sale agreement yet to be proved before competent civil Court. It was further held that the tenant had to surrender possession of demised premises to landlord, and if tenant later on succeeded in obtaining decree in such suit, then he might pray for restoration of its possession.
10. In view of the above, this petition is not maintainable and is also devoid of merits and is, therefore, dismissed.