ABDUL RASOOL MEMON, J.---Through this constitutional petition the petitioner has impugned the judgment dated 15.10.2016 passed by IVth Additional District Judge, Karachi East in FRA No.88 of 2016 wherein appeal filed by the petitioner was dismissed and the order dated 26.07.2016 passed by IVth Senior Civil Judge/Rent Controller Karachi East in Rent Case No.355 of 2014 was maintained whereby the petitioner was directed to vacate the demised premises viz. Flat No.2, 1st Floor, Mahrukh Homes, Plot No.85-L, Block-II, PECHS, Karachi within thirty days.
2. Facts of the case gleaned from the record, briefly stated are that respondent No.1 filed an application under section 15(2)(ii)(iii)(b) of Sindh Rented Premises Ordinance, 1979 for ejectment of the petitioner/ tenant on the grounds of default in payment of rent from the month of May, 2014 to November, 2014 and so also alteration made in the demised premises thereby impaired the utility and value of the demised premises.
3. It is the case of respondent No.1 that she and the petitioner mutually entered into an agreement of sale cum tenancy on 20.04.2011, whereby respondent No.1/landlord offered to sell the demised premises for total sale consideration of Rs.106,00,000/- (rupees one crore six lacs only) out of which Rs.10,60,000/- were paid to her as part performance besides this the petitioner paid Rs.2,80,000/- out of which Rs.40,000/- as one month's advance rent/- as fixed security deposit adjustable to remaining sale consideration at the time of final payment and till then the petitioner was to pay mutually agreed rent of Rs.40,000/- and balance consideration of Rs.95,40,000/- was agreed to be paid by the petitioner within one year from 1st May, 2011 at the time of registration of sale deed. It is further pleaded that the petitioner has failed to pay the remaining amount of sale consideration within the stipulated period, therefore, respondent No.1 filed suit No.969 of 2014 against the petitioner for declaration, rescission of contract, damages in the sum of Rs.30,00,000/- and permanent injunction and rent application on the ground of default in payment of rent from May, 2014 to November, 2014 and also impairing the value and utility of the demised premises.
4. The petitioner filed written statement wherein challenged the maintainability of the rent application and further stated that tenancy/ sale agreement was for the sale of the demised premises and till the final payment she (petitioner) was agreed to pay monthly rent to the respondent No.1 and for default thereof no penal clause was mentioned in the agreement. The default in payment of rent was also denied that attorney of respondent No.1 and her husband visited the house of the petitioner and agreed to adjust Rs.280,000/- paid as security deposit towards the rent for the alleged period of default. The allegation of addition and alteration in the demised premises has also been denied.
5. In order to prove her case respondent No. 1 landlord filed affidavit of her attorney Sher Azam and one of Saleem Danish. In rebuttal the petitioner filed her affidavit in evidence. Both the parties were cross-examined by each other at length.
6. The learned Rent Controller framed three points one relating to relationship of landlord and tenant, the other on the ground of default and alteration in the demised premises without consent of the applicant/ respondent No. 1. Both these points were decided against the petitioner while answering point No.3 learned Rent Controller allowed the rent application vide order dated 26.07.2016. The said order was assailed in PRA No.88 of 2016 and learned IVth Additional District Judge, Karachi East vide impugned judgment dated 15.10.2016 maintained the findings of Rent Controller on points Nos.1 and 2 and dismissed the appeal, hence this petition.
7. The main crux of the arguments of learned counsel for the petitioner is that the learned Rent Controller did not appreciate the evidence of the petitioner wherein she has denied the relationship of landlord and tenant as the petitioner has purchased the demised premises through valid agreement from respondent No.1 and a suit for specific performance of contract filed by the petitioner is sub judice in civil court, therefore, petitioner is entitled to retain the possession of the demised premises under Section 53-A of Transfer of Property Act, 1882, but the rent controller did not give any finding on the said agreement of sale; that in case of any delay of payment of rent the tenant cannot be punished as there was no penal clause in the agreement, therefore, no default could be attributed to the petitioner. On the point of addition, alteration and damage to the demised premises, it is contended that nothing has been brought on record by cogent and convincing evidence that any damage was caused to the demised premises and only the renovation and repair work was done by the petitioner which does not come within the meaning of impairing the utility of the demised premises. Lastly, she prays for setting aside orders of both the courts. In support of her contentions she has placed reliance on the following case law.
1. Rashid Ahmed v. Messrs Friends Match Works (PLD 1986 Karachi 258)
2. Aleemuddin and another v. Muhammad Aslam and 2 others (1991 SCMR 850)
3. Muhammad Sher and another v. Mian Kamal Shah and 11 others (1987 CLC Lahore page 47)
4. Bahadur Khan v. Qabool Ahmed and 4 others (2005 CLC 1942. Lahore)
5. Messrs Fateh Textile Mills Ltd. Hyderabad v. The West Pakistan Industrial Development Corporation, Karachi (PLD 1976 Karachi 148 page 149)
6. Abdul Ali v. Haji Bismillah (2002 SCMR 203)
7. Ghulam Haider v. The State (1990 MLD 1164, Karachi)
8. Saeed Ahmad Khan alias Sheno and others v. The state and others (1971 SCMR 83)
9. Hafeezuddin and 2 others v. Badaruddin and 2 others (PLD 2003 Karachi 444)
10. Mirza Yawar Bain v. Usman Ghani Chippa (1989 CLC 247)
11. Rashid Ahmad v. Messrs Friends Match Works (1986 CLC 258 Quetta)
12. Muhammad Anwar Khan v. Mian Asghar Ali (1988 CLC 402)
13. Syed Izharul Hassan Rizvi v. Mian Abdur Rahman and others (1992 SCMR 1352 1357)
14. Muhammad Naeem v. Abdul Wahid and others (1999 MLD 1342 Lahore)
6(sic) Learned counsel for the respondent No.1 has contended that relationship of landlord and tenant so also rate of the rent and filing of Suit No.261of 2013 have been admitted by the petitioner in the written statement and in her cross-examination. He has further submitted that in the said suit (copy whereof is placed on record), the petitioner in clear terms has admitted the tenancy and has also pleaded the payment of rent; that the petitioner in cross-examination has admitted that she has not paid the rent since May, 2014, therefore, default on the part of petitioner (tenant) has been established. It is vigorously argued that agreement for sale in question does not create any title and interest in the suit property. Per learned counsel the suit for specific performance has been filed after the orders passed by the appellate Court in January, 2017 and ultimately if the petitioner succeeds in getting the relief against the respondent No.1 by getting a decree from the civil court she can enforce the same according to law with all its consequences. He has further contended that there are concurrent findings of two courts below on the point of existence of relationship of landlord, default and impairing the utility of the demised premises and causing damage, therefore, orders passed by the Rent Controller and appellant court are in accordance with law and facts and it is not a fit case for interference by this Court in exercise of powers conferred under writ jurisdiction. He has placed reliance on the following case law.
1. Gohar Ali Shah v. Shahzada Alam (2000 MLD 82 Karachi)
2. Syed Asghar Ali Imam v. Muhammad Ali (PLD 1988 Supreme Court 228)
3. Mumtaz Ahmed v. Mst. Razia Zaheer (1993 CLC 1602 Karachi)
4. Almas Khan v. Mrs. Bano through attorney and 2 others (PLD 2009 Karachi 268)
5. Baboo Khan v. Maqbool Ahmed (1984 CLC 2599 Karachi)
6. Shahid Mehboob v. Muhammad Ismail (2008 CLC 87 Karachi)
7(sic) I have considered the submissions made by the learned counsel for the parties and have gone through the relevant record.
8. Admittedly the respondent No.1 is the owner of demised premises and the petitioner is in possession of the same. It is an admitted fact on the record that the parties mutually agreed to enter into tenancycum-agreement of sale dated 20.04.2011. The paragraph 3 of the agreement in question reads as under: "3. That as has been mutually agreed between both the parties, the Vendor in consideration of above mentioned part payment - shall handover peaceful and vacant possession of the said property to the Vendee and the Vendee will thenceforth shall have, hold, occupy and enjoy peaceful possession. However, upto the date of full and final payment/settlement the Vendee will be responsible to pay mutually agreed rent of Rs.40,000/- (rupees forty thousand only). The vendee has further pay to the Vendor a sum of Rs.2,80,000/- (rupees two lac eighty thousand only) through cheque No.6982014 dated 20.04.2011 drawn on Habib Bank Ltd. Community Centre Branch, PECHS, Karachi out of which Rs.40,000/- (rupees forty thousand only) on account of one month's advance rent and Rs.2,40,000/- (rupees two lac forty thousand only) being fixed security deposit which will adjusted in the remaining sale consideration at the time of full and final payment of the said property by the vendee to the vendor."
9. A bare perusal of the above paragraph of the agreement clearly reveals that up to the date of full and final payment/settlement the vendee/petitioner had agreed to pay rent of Rs.40,000/- per month. As per paragraphs 1 and 2 of the said agreement a sum of Rs.10,60,000/- were paid to respondent No.1 towards part payment of the sale consideration and remaining amount of Rs.95,40,000/- was to be paid within one year from 1st May, 2011. It is the case of the respondent No.1 that the petitioner did not pay the balance sale consideration and also stopped the payment of mutual agreed rent of Rs.40,000/- from May, 2014, therefore, she/respondent No.1 filed a suit for declaration rescission of contract and damages in the sum of Rs.30,00,000/- and permanent injunction and also filed rent case No.355 of 2014.
10. The petitioner in her cross-examination in clear terms has admitted that she has filed Suit No.261 of 2013 in the Court of IIIrd Civil Judge, Karachi East, copy whereof is available on record, wherein she herself has pleaded that she is bona fide and dutiful tenant in respect of the demised premises. Besides, this, in cross-examination the petitioner has also admitted the tenancy in the following terms:-- "In 2011 the tenancy agreement was executed between us and the applicant whereas I do not remember about its actual date and month. It is fact that the agreement executed between us an applicant pertains to tenancy agreement/agreement of sale. I am graduate. It is fact that clause 3 of tenancy agreement/agreement of sale shows that Rs.2,40,000/- being fixed as security deposit.
It is fact Civil Suit No.261 of 2013 was filed by me in the Court of Civil Judge-III, Karachi East for permanent injunction. It is fact that the contents of Para 2 of plaint in C.S. No.261 of 2013 shows that Rs.2,40,000/- as refundable fixed deposit which is adjusted in the remaining sale consideration."
11. Nothing is brought on record to show, that before passing of the impugned order in FRA, the petitioner had filed any suit for specific performance of contract in respect of demised premises.
However, during arguments learned counsel for the petitioner placed on record a copy of the plaint wherein neither name of the court is mentioned nor any suit number is mentioned therein while in the end of the plaint of the said suit, the date "_.01.2017" is mentioned so it is not clear whether the said suit of the petitioner has been admitted or otherwise. Furthermore, the petitioner in cross- examination has already admitted that she has filed a Suit No.261 of 2013 which is only for permanent injunction. Copy of the said suit is available on the record, wherein the plaintiff in Para 3 has admitted the relationship of respondent No.1 as landlord and tenant, which is reproduced hereunder.
"3. That the plaintiff always remained punctual and dutiful and proved to be a good tenant in respect of the demised property."
In view of the above admissions of the petitioner in acknowledging her as tenant of landlord/respondent No.1, the principle of estoppel as annunciated in Article 115 of Qanun-e- Shahadat Order, 1984 would automatically come into play and thereby the petitioner is debarred from denying relationship as a tenant.
12. So far the contentions of learned counsel for the petitioner regarding purchase of demised premises by petitioner through agreement and retention of possession under the garb of it is concerned, it has come on record that the petitioner has filed her suit for permanent injunction on the basis of her tenancy without prayer of specific performance of contract. Even in her written statement in Suit No.969 of 2014 and rent Application No.355 of 2004 filed by respondent No.1 she did not specifically claim title or right to possess the property under section 53-A of the Transfer of Property Act. Even otherwise, this plea was not available to the petitioner for the reason that as per title the agreement in question is tenancy/sale agreement, wherein it is in clear terms mentioned that till the final payment of the sale consideration within one year, she would pay the monthly rent at the rate of Rs.40,000/- and no clause is mentioned therein to the effect that the relationship of landlord and tenant shall be ceased after the expiry of the said period, therefore, the above contentions of learned applicant's counsel is devoid of force.
13. Now reverting to the issue of default in payment of rent and alteration in the demised premises respondent No.1 has pleaded that the petitioner paid the rent to her at the rate of 40,000/- per month up to the month of April, 2014 after that she failed to pay the rent. It is settled law that the onus placed on landlord to prove the default, stands sufficiently discharged when landlord depose on oath that tenant has not paid rent for the given period or time. In the case in hand the attorney of respondent No.1 in his affidavit in evidence has clearly stated about the default committed by petitioner in payment of rent then the burden was shifted to the tenant to prove affirmatively that she had paid or tendered the rent for the period in question. The petitioner in her written statement filed in rent application denied the default in payment of rent and stated that respondent No. 1 's husband/attorney visited her house and told her to stop the payment of rents and further said that the advance of Rs.2,80,000/- be adjusted towards rents of May, 2014. The petitioner has examined herself and there is only her simple word about adjustment of advance security towards rent without any documentary proof and independent corroboration. On the contrary, she in her cross has admitted to have not produced any documentary proof to show that she has been depositing or paying the rent. She has also admitted to have not sent the rent to the applicant/respondent No.1 through money order. Answering to a question in respect of undertaking given by the husband of respondent No.1 for adjusting rent amount to security deposit, she stated that "1 do not remember as to in which year the husband of applicant came our house. I do not remember whether I paid the rent in cash to the applicant".
14. In these circumstances the findings of the Courts below are based on admission of the petitioner regarding existence of relationship of landlord and tenant and default in payment of rent.
15. However, regarding alteration in the premises in question without consent of the applicant/respondent No.1 the petitioner in cross-examination stated that she spent Rs.3,60,000/- over the demised premises but no evidence is on record by respondent No.1 showing that what type of addition or alteration was made by the tenant which has caused any damage to the demised premises to reduce its value or utility, therefore findings of both the Courts below to the extent of causing damage to the demised premises due to alleged addition and alteration appears to be contrary to the provisions of section 15(2)(iii) of Sindh Rented Premises Ordinance, 1979 which refers to the acts likely to impair materially the value of utility of the building.
16. The case law relied by the learned counsel for the petitioner is distinguishable and not applicable to the facts and circumstances of this case.
17. For the foregoing reasons I am of the opinion that the findings of Rent Controller and appellate Court on the point of default in payment of rent from May to November, 2014 are based on right conclusion. Learned counsel for the petitioner has failed to point out any misreading or non- reading of any evidence or any illegality or irregularity committed by both the courts below. The impugned judgment on the point of relationship of landlord and tenant and default are based on admitted facts and no exceptions can be made to the same. Consequently, this constitution petition is dismissed with no orders as to cost. The petitioner is directed to vacate the demised premises within 60 days' from the date of this order.