' All these eight appeals have been preferred by the occupants of different apartments in Ruby Center Talpur Road opposite City Post Office Karachi who appear to be aggrieved by two similar orders passed by the IVth Rent Controller Karachi East dated 17-3-1999 directing their ejectment from the respective tenements presently in their occupation. Since the respondents in all the appeals are the same and the facts are almost identical, all the appeals are being disposed by this common order. The appellants in First Pent Appeals Nos.254 and 255 is Syed Mukhtar Hussain Naqvi an Advocate 4nd First Rent Appeal No,252 has been filed in the name of Naqvi Law Associates which is apparently a trade name used by Mr. Naqvi for his legal practice. First Rent Appeals Nos.256 to 259 have been filed in the name of Mrs. Tahira Naqvi through her husband Syed Mukhtar Hussain Naqvi. First Rent Appeal No,253 has been filed in the name of one A.S.K Construction through Syed Mukhtar Hussain Naqvi though no nexus between the aforesaid construction company/firm with Mr. Naqvi has been disclosed.
2 . Briefly the facts leading to the filing of the above appeals seem to be that five persons namely Abdul Rauf, Abdul Razak, Muhammad Farooq, Ghulam Hussain and Muhammad Iqbal (hereinafter cumulatively mentioned as landlords) moved separate applications for ejectment of the appellants alleging that they had failed to pay rent since September, 1992 and had also sub-let the premises to some other person without the landlord's consent. It was stated by the landlords that they purchased the building known as Ruby Center from the original owners one Hajiani Zubeda and her son Nauman (hereinafter mentioned as original owners) through a registered sale-deed dated 19-10-1993. It was contended that prior to the sale-deed the owners had executed a registered general power of attorney in favour of landlord Abdul Raid on 15-11-1992, who was authorized to collect rent from different tenants. It has further been stated that the owners served a notice, dated 28-2-1993 upon the tenants under section 18 of the Sindh Rented Premises Ordinance informing them that they (landlords) had purchased the property and that tenants should attorn to them. The appellants, however, failed to disburse any rent and even proceeded to sub-let the tanements in their possession.
3. In his written statement the appellant Mukhtar Hussain Naqvi contended that he had been given possession of 16 apartments by the previous owners through Haji Ismail, the husband of Zubeda and father of Nauman after receiving the substantial amounts of Pugri. It was further contended that he had acquired an implied right to sub-let as obviously he did not need 16 tenements for personal occupation. He further disclosed that Haji Ismail who was the attorney of the owners had agreed to sell the building to him and' upon formers having backed out, he had filed Suit No,476 of 1992 for specific performance of the contract of sale on the original side of this Court. Moreover, it was stated that the appellant Mukhtar Hussain Naqvi had also filed Suit No,1064 of 1994 before this Court seeking cancellation of the sale deed in favour of the landlords. In a nut-shell it may be stated that the appellants did not dispute the allegations of non-payment of rent or sub-letting the premises, but only contested the issue of landlord-tenant relationship between the parties.
4 . It may be observed at this stage that the appellants have taken different pleas in support of their assertion as mentioned above. In the written statements it was only urged that the appellants had acquired the premises on Pugri basis and the landlord could not eject them in terms of section 15 of the Sindh Rented Premises Ordinance. These written statements were filed on 10-10-1997. In his plaint in Suit No,476 of 1992 appellant Mukhtar Hussain Naqvi alleged that on 6-6-1992 he had entered into an agreement with Haji Ismail the husband and father of the previous owners Zubeda and Nauman respectively who was also their attorney for purchase of the entire property measuring 557 Sq. Yds for a total consideration of Rs,1,600,000. Rs,2,00,000 were paid instantly, another Rs,2,00,000 were to be paid by 30-6-1992 and the remaining 75% by November, 1992. It is further stated in the plaint that the plaintiff (Mukhtar Hussain Naqvi) came to know the owners were attempting to sell the property to some other party, and therefore, he filed the suit for specific performance of the so-called agreement and permanent injunction against the then owners Zubeda and Nauman. On 22-7-1992 an interim injunction was granted in favour of Mukhtar Hussain Naqvi and the matter was subsequently, referred to the arbitration of Justice (Rtd.) Zafar Hussain Mirza by an order, dated 11-7-1993. The Arbitrator made his award against Mukhtar Hussain Naqvi and filed it in Court which has been registered as Suit No,434 of 1993 to which he has filed objections, and the matter is still pending. Subsequently, Mukhtar Hussain Naqvi also filed a Suit No,1014 of 1996 on the original side of this Court seeking cancellation of the sale-deed in favour of the present appellants which is also stated to be pending. The learned Rent Controller vide his order date 19-5-1998 passed on an application under section 16(1) of the Sindh Rented Premises Ordinance observed that once the status of being tentant of the original owners as well as the existence of a register sale-deed in favour of the respondents was admitted the appellants could not dispute the landlord/tenant relationship. In the final order, dated 17-3-1999 it was held that there was no need for the respondent to establish their title through civil Court inter alia in view of the fact that the Arbitrator had found that Mr. Naqvi had failed to prove the execution of an agreement of sale in his favour and had no locus standi to question the validity of a sale-deed between the previous owner and the respondents. It was further held that service of notice under section 18 of the Sindh Rent Premises Ordinance and the factum of sub-letting stood proved.
Accordingly the appellants were directed to vacate the premises in their possession.
5. Mr. Muhammad Sharif learned counsel for the appellants with his usual thoroughness addressed detailed arguments and questioned the validity of the impugned order on number of grounds. In the first place he argued that the learned Rent Controller was not justified in failing to bringing the existence of a lndlord/tenant relationship on the ground that it stood decided by an earlier order against which no appeal had been preferred. He pointed out that such determination while passing an order under section 16(1) of the Sindh Rented Premises Ordinance was by its very nature tentative and no appeal can be preferred against an interim order. There appears force in the contention and I would, therefore, examine this question on merits assuming that the finding recorded in the order dated 19-5-1998 has also been called in question in this appeal.
6. Realising that the appellants could not possibly succeed in establishing non existence of landlord/tenant relationship and the non maintainability of the application for ejectment merely on the basis of the assertion that the appellants acquired possession after paying substantial amount of pugri to previous tenants, Mr. Sharif laid great emphasis on the fact that the title of the respondents was under serious dispute in more than one suit. He argued that the Rent Controller was required 'to stay his hands and await the decision of the Civil Court in the suits filed by Mukhtar Hussain Naqvi. In the first instance learned counsel relied upon the celebrated judgement of Honourable Supreme Court in Rehmatullah v. Ali Muhammad 1983 SCM R 1064 to contend that whenever the tenant questioned the landlords title as to ownership of the premises in his occupation, the Rent Controller could not decide the question of such title in the limited jurisdiction or the summary proceedings for authoritatively pronouncing upon such question. The proper course for him, therefore, was to advise the parties to approach a competent Civil Court for adjudicating the question of title. Learned counsel laid particular emphasis on the following observation of Muhammad Afzal Zullah, J, (as his Lordship then was) in the abovementioned case:- - "Whether it is the forum of Rent Controller or a Court exercising its appellate or Constitutional jurisdiction, there is no scope for the argument that even if a landlord fails to establish the relationship of landlord and tenant beyond reasonable doubt he would still be allowed the benefit of affirmative finding on this issue. There is neither any general principle nor the relevant law governing proceedings either before the Controller as a special tribunal or the Appellate Court that when a party is required to establish a fact, positively it shall be deemed to have discharged its burden only by obtaining a tentative opinion and not a finding beyond a reasonable doubt."
7. Mr. Sharif argued that since the doubt existed as to the title of the respondents which was inter alia evident from the case set up by Mukhtar Hussain Naqvi in the two suits pending before this Court, the Rent Controller was not justified in ordering ejectment on the basis of tentative findings as to the existence of landlord/tenant relationship but should have dismissed the application requiring the respondents to get the question of their title resolved in the civil suits. Indeed there can be no serious cavil with the proposition that when complicated questions regarding the title of the person claiming to be the landlord are involved, the proper course is to allow such question to be resolved in a civil suit rather than a summary enquiry under the rent law. Nevertheless, with profound respects it may be observed that as can be seen from several subsequent judgments of the Honourable Supreme Court, it is not the law that whenever the tenant questions the title of the landlord or defends his occupation in terms of section 53-A of the Transfer of Property Act, the Rent Controller must invariably require the landlord to establish his title before a Civil Court. In the aforesaid case of Rehmatullah, the tenant was the original owner of the disputed shop and the case set up by the landlord was that the tenant had sold the same to the applicant/landlord for Rs,2,500 and executed a rent note committing himself to pay rent. The "tenant" alleged that he intended to send his son to England and his nephew who was residing there undertook to pay his travel and living expenses of his cousin had asked him to sign certain documents. He further stated that there could be no question of sale of a shop of a market value of more than Rs,30,000 for Rs,2,500. The Rent Controller held that there is no evidence of payment, of sale price or execution of rent note in the presence of eye-witnesses and dismissed the ejectment application. In appeal the District Judge while acknowledging that there was some grain of truth in the allegation of fraud made by the tenant reversed the findings and directed the ejectment observing that the tenant could file civil suit for cancellation of the sale-deed. A Constitutional petition impugning the appellate order was also dismissed. It is against this background that the Honourable Supreme Court held that the appellate Court should have maintained the findings of the Rent Controller and allowed "landlord" to establish his title before a Civil Court as complicated questions were involved.
8. Nevertheless in Allahyar and others v. Additional District Judge and others 1984 SCM R 741, the landlord after serving a notice under section 13-A of the Punjab Urban Rent Restriction Ordinance filed an application for ejectment of his tenants on the ground of default, the tenants denied the landlord/tenant relationship contending that one of them had entered into an agreement to purchase from its previous owner and relied upon a receipt of payment of earnest money.
Accordingly, the right to remain in possession was defended on the basis of section 53-A of the Transfer of Property Act and it was also pointed out that a suit for specific performance of the agreement to sale had already been filed. The same learned Judge (Muhammad Afzal Zullah, J.) speaking for a three members Bench of the Supreme Court repelled the tenants contention holding that they could not lawfully deny landlord/tenant relationship until they obtained a decree for specific performance from the Civil Court. In Iqbal and others v. Rabia Bibi and another PLD 1991 SC 242 the same view was reiterated and once again Muhammad Afzal Zullah, C.J. Speaking for the Bench of the Supreme Court observed:- "Be that as it may, in some recent judgments this Court has taken the view that in case like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation, It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness. To both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against him own landlord. See Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17, Allah Yar and others v. Additional District Judge and others 1984 SCM R 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1."
9. In view of the above reported precedents I am unable to agree with Mr. Sharif to the extent that the Rent Controller must invariably reject an application for ejectment of a tenant and require the parties to get the question of title adjudicated by a civil Court whenever the tenant raises a question of title. Perhaps a correct view of the law can be gleaned from the concurring observation of Naseem Hassan Shah, J. (the other learned Judge adorning the Bench) in Rehmatullah's case to the following effect:-- ' I may, however, usefully add that any Tribunal or a statutory Authority exercising quasi judicial functions when required to determine any question, which under the law, it was the authority to determine should decide all the questions arising before it and thereby spare the parties from the ordeal of rushing from one forum to another. The findings recorded by such Tribunals on the questions adjudicated by the, subject' to correction or alteration by the Appellate or Constitutional forum are final and on the general principles of res judicata are not open to be re-agitated before a Civil Court. Thus, the findings recorded by a Tribunal of limited jurisdiction like the Rent Controller would also be final, if they are given on the merits of the plea raised before it and will operate as res judicata. However, in the event where the Rent Controller feels that a complicated question requiring a protracted inquiry would be necessary for deciding a particular question such as for instance whether a party claiming to be the owner of a property and is, therefore, the landlord of the person occupying it, cannot in view of the demands of the law to decide questions of the existence of their relationship of the landlord and tenant expeditiously be undertaken by him, he can observe that such question should be decide by a Court of general jurisdiction, namely, the ordinary Civil Court and this finding should be specifically recorded by him in his order.
' In a case like the present when the appellate authority of the Rent Controller was of the view that the respondent herein, who was claiming to be the landlord on the basis of ownership but this claim did suffer from some doubt, the proper course for the appellate authority was to have decided the issue, of the existence of the relationship of landlord and tenant against him, but at the same time permitted him to get his title established in a civil Court adding that he can again move for ejectment of the occupant from the property in question if the same is found by the Civil Court to belong to him. An ejectment petition as decided in these terms would entitle the alleged landlord to reagitate the matter before the Rent Controller again and the decision of the Rent Controller taken earlier by him would not constitute res judicata or preclude him from reagitating the matter before him once again.
' The result in practical terms accordingly may be summed up as follows-- ' The Rent Controller who was dealing with a petition for ejectment of an occupant of a property by a party claiming to be his landlord, a claim which was based on the plea of ownership, should have proceeded to decide all the issues relevant to the said question, which incidentally may also have included a decision on the question of title. This was done by the Rent Controller. If this appellate authority considered that a deeper and a more detailed examination of the last mentioned question was necessary for wetting this matter and also found that the title of the alleged landlord did suffer from some doubt, he should in these circumstances, have dismissed the ejectment petition, leaving the appellant before him to move the Civil Court for a declaration of his title."
10. Coming to the facts of the present case it may be observed that the appellants did not even specifically claim title or right to possess the property under section 53-A of the Transfer of Property Act in their written statements. The Rent Controller, therefore, had hardly any option, but to decide the question against them. Indeed Mr. Sharif laid great emphasis on the so-called agreement dated 6-6-1992 and pointed out that the findings of the Rent Controller as to non- existence of the aforesaid agreement recorded by the Arbitrator were unwarranted because no decree based on the award had been made so Tar. He is right to the extent that no enforceable decree has been made. At the same time I am doubtful whether the findings of a person of such eminence who had adorned the Bench of the Supreme Court with great distinction, recorded after hearing both the parties and careful consideration of evidence before him could be altogether ignored for the purpose of determination whether the defence of the appellants was genuine or sham. Moreover, Mr. K.A. Wahab learned counsel for the respondents relied upon inter alia judgment of the Honourable Supreme Court in Tahir Hussain Malik v. Najma Rafi 1996 SCMR 1407 wherein it was held that a registered sale-deed always had precedence over a prior unregistered agreement to sale and once the landlord had produced such sale-deed in his favour the tenant could not escape liability to pay rent on the basis of an unregistered prior agreement and was liable to be ejected for default. In view of the above I find no substance in Mr. Sharif's contention.
11. Mr. Sharif then attempted to attack the sale-deed in favour of the respondents on a number of grounds. Since this matter is already pending adjudication, I would not undertake a detailed examination of those grounds. At the same time it may be pertinent to refer to the judgment of the Honourable Supreme Court in Pervaiz Akhtar v. Dr. Muhammad Ahsan and others PLD 1988 SC 734 and Muhammad Ishaque v. Khursheed Alam PLD 1989 SC 353. In the first case the title of the landlord was challenged by the tenants on the ground that the gift made by their mother in their favour was invalid as it had not been approved by the Cantonment Board. Their Lordships held that the validity or otherwise of the gift was a matter between the landlord and the Cantonment Board and the tenant being an outsider had no locus standi to question the same. Similarly in the second case it was held that once the property was transferred by the registered gift deed the donee had become owner thereof and was entitled to receive the rent and the tenant could not question the validity of the gift which could only be challenged by the heir to the donor. Upon the same principle I do not think it is possible for the appellants to challenge the validity of the sale in favour of the respondents at least in these proceedings. In view of the above all these eight appeals are dismissed with costs.
' I am nevertheless grateful to the learned counsel for both the parties for their inordinate assistance. Sixty days time from today is granted for vacating the premises.