The Supreme Court of Pakistan dismissed the petitioner's appeal seeking leave to challenge a High Court judgment. The High Court had dismissed the petitioner's constitutional petition against a Rent Controller's order directing the petitioner to pay outstanding and future rent. The Supreme Court held that it had previously examined and definitively ruled on the issues raised by the petitioner regarding the relationship between the parties and the legality of the rent order. As these questions were already decided, the Court declined to revisit the same issues.
The Supreme Court of Pakistan dismissed the petitioner's appeal seeking leave to challenge a High Court judgment. The High Court had dismissed the petitioner's constitutional petition against a Rent Controller's order directing the petitioner to pay outstanding and future rent. The Supreme Court held that it had previously examined and definitively ruled on the issues raised by the petitioner regarding the relationship between the parties and the legality of the rent order. As these questions were already decided, the Court declined to revisit the same issues.
The Supreme Court of Pakistan dismissed the petitioner's appeal seeking leave to challenge a High Court judgment. The High Court had dismissed the petitioner's constitutional petition against a Rent Controller's order directing the petitioner to pay outstanding and future rent. The Supreme Court held that it had previously examined and definitively ruled on the issues raised by the petitioner regarding the relationship between the parties and the legality of the rent order. As these questions were already decided, the Court declined to revisit the same issues.
The Supreme Court of Pakistan dismissed the petitioner's appeal seeking leave to challenge a High Court judgment. The High Court had dismissed the petitioner's constitutional petition against a Rent Controller's order directing the petitioner to pay outstanding and future rent. The Supreme Court held that it had previously examined and definitively ruled on the issues raised by the petitioner regarding the relationship between the parties and the legality of the rent order. As these questions were already decided, the Court declined to revisit the same issues.
PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE QAZI FAEZ ISA. MR. JUSTICE IJAZ UL AHSAN.
Civil Petition No.3068 of 2017
Against judgment dated 04.08.2017 of High Court of Sindh at Karachi, passed in Constitution Petition No.S-303 of 2010.
Muhammad Iqbal Haider Petitioner(s)
VERSUS 1st ADJ, Karachi Central & others Respondent(s)
For the Petitioner(s): Raja M. Ibrahim Satti, Sr.ASC
Syed Rafaqat H. Shah, AOR
For Respondent No.3: In person.
Date of Hearing : 27.09.2017.
ORDER
IJAZ UL AHSAN, J-. The petitioner seeks leave to
appeal against judgment dated 04.08.2007 rendered by High
Court of Sindh at Karachi. Through the impugned judgment,
a Constitution Petition bearing No.S-303 of 2010 filed by the
petitioner was dismissed.
2. Briefly stated the facts necessary for decision of
this lis are that Respondent No.3 filed an application under
Section 15(2) of the Sindh Rented Premises Ordinance, 1979
(SRPO) against the petitioner claiming to be owner of the
rented premises (subject matter of the dispute). She sought his
eviction on the grounds of default in payment of rent and
unauthorized commercial use of the rented premises. The
Rent Controller seized of the matter passed an order dated
Civil Petition No.3068 of 2017 2
17.07.2008 under Section 16(1) of the SRPO (“tentative rent
order”) directing the petitioner to deposit arrears of rent for
the past three years amounting to Rs.450,000/- within a
period of 25 days of the date of the order and also to deposit
future rent. This order was assailed by the petitioner before
the High Court of Sindh at Karachi through a Constitution
Petition bearing No.S-346 of 2008. Initially, operation of the
order of the Rent Controller dated 17.07.2008 was suspended
vide order dated 11.08.2008. (This was the last day for
deposit of rent as ordered by the Rent Controller). However,
subsequently the Constitution Petition was dismissed on
29.08.2008. Aggrieved of such dismissal, the petitioner
approached this Court through Civil Petition No.1193 of 2008
in which vide order dated 22.09.2008, the order of the High
Court as well as that of the Rent Controller were suspended.
Subsequently, the Civil Petition was also dismissed in terms
of judgment dated 09.06.2009. A Review Petition (CRP No.33-
K of 2009) was filed but the same was withdrawn on
02.02.2010.
3. It appears that while the aforenoted matters were
pending, Respondent No.3 filed an application under Section
16(2) of the SRPO before the Rent Controller praying that the
defence of the petitioner may be struck off as he had failed to
comply with the order for deposit of tentative rent. Vide order
dated 03.12.2009, the Rent Controller accepted the
application, struck off the defence of the petitioner and
directed him to handover vacant physical possession of the
Civil Petition No.3068 of 2017 3
rented premises to Respondent No.3 within a period of 45
days from the date of the order.
4. The petitioner being aggrieved of this order filed an
appeal which was dismissed. The Constitution Petition filed
before the High Court to assail the appellate judgment also
met the same fate. Hence, this Civil Petition for Leave to
Appeal.
5. The learned counsel for the petitioner contends
that the Rent Controller as well as the High Court erred in
law in passing and upholding the order relating to payment of
tentative rent without first deciding the question of ownership
of Respondent No.3 and her title in the property in question.
He maintains that admittedly suits for specific performance
as well as cancellation of sale deed had been filed by the
mother of the petitioner against Mst. Nasreen Jehan Ghori
(Respondent No.4). She had agreed to sell the property and
had entered into an agreement to sell as well as an additional
agreement to sell on the basis of which the former had paid
certain amounts. She had also, with the consent of
Respondent No.4, retained possession of the premises. He
submits that relationship of landlord and tenant had been
denied by the petitioner and without resolving the said
question, the order for payment of tentative rent could not
have been passed.
6. The learned ASC further submits that although
default had been committed in compliance of the order for
deposit of tentative rent, the said amount was ultimately
Civil Petition No.3068 of 2017 4
deposited on 15.06.2009 in consequence of which in his
opinion the default stood cured. In this context, he has drawn
our attention to an order passed by this Court in Review
Petition No.33-K of 2009 to argue that this Court had
permitted him to agitate all such points relating to timely
deposit of tentative rent before the Executing Court. He has
finally argued that notwithstanding the adverse findings
recorded by this Court in its order dated 09.06.2009 in Civil
Petition No.1193 of 2008, his right to agitate the same
questions again in the second round of litigation when he was
challenging his eviction order was still alive. In support of his
contentions, the learned counsel has placed reliance on
Rehmatullah v. Ali Muhammad (PLD 1983 Supreme Court
1064); Miskina Jan v. Rehmat Din (1992 SCMR 1149); Umar
Hayat Khan v. Inayatullah Butt (1994 SCMR 572); and
Muhammad Afzal v. Virbai (1993 CLC 1702).
7. We have heard the learned ASC for the petitioner
and considered his arguments. The main thrust of the
arguments advanced by him is that the relationship of
landlord and tenant had been denied on the basis of the
agreements to sell executed between Respondent No.4 and
the mother of the petitioner. That being so and the ownership
of the property being in dispute, an order for payment of
tentative rent under Section 16(1) of the SRPO could not have
been passed. Consequently, his defence could not have been
struck off for non compliance of the said order. However, we
have noted that this aspect of the matter was fully addressed
by this Court in the earlier round of litigation. The
Civil Petition No.3068 of 2017 5
controversy relating to denial of relationship of landlord &
tenant and pendency of litigation between the parties and the
legality of the order for deposit of rent was examined and
definitive findings were recorded by this Court in its judgment
dated 09.06.2009 in Civil Petition No.1193 of 2008 in the
following terms:-
4. We have heard the petitioner as well as the learned
counsel for the contesting respondent No.2 at length and have also perused the available record. We find that the institution of two civil suits by the petitioner; one for specific performance of agreement and the other for cancellation of sale deed of the respondent No.2 per se, would not be sufficient to refuse compliance of an order of the Rent Controller under Section 16(1) of the Ordinance pending final determination. Reliance can be placed on the cases of Nazir Ahmed V. Mst. Sardar Bibi & others (1989 SCMR 913), Mst. Bor Bibi V. Abdul Qadir (1996 SCMR 87), Waheedullah V. Mst. Rehana Nasim & others (2004 SCMR 1568), Haji Jumma Khan V. Haji Zarin Khan (PLD 1999 SC 1101), Khawaja Ammar Hussain V. Muhammad Shabbiruddin Khan (PLD 1986 Karachi 74), Habib Khan V. Haji Haroon-ur- Rasheed (1989 CLC 783), Gohar Ali Shah V. Shahzada Alam (NLR 1999 Civil 419), Iqbal and others V. Mst. Rabia Bibi and another (PLD 1991 SC 242) and Syed Imran Ahmed V. Bilal and another (Civil Appeal No.2230 of 2008 decided by this Court on 9.6.2009). Once the petitioner was, prima facie, shown to be inducted as a tenant of the demised premises, he could not claim any exemption from payment of rent on account of institution of suits for specific performance and for cancellation of sale deed. Article 115 of the Qanoon-e- Shahadat Order, 1984 lays down that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that his landlord had a title to such property. The relationship of landlord and a tenant is not severed even if the execution of an agreement to sell is admitted. The petitioner was not absolved of his responsibility of compliance of order passed by the Rent Controller under the provisions of Section 16 of the Ordinance for making of payment of arrears and future rent. In our view, the impugned judgment of the High Court is plainly correct to which no exception can be taken.
5. For the foregoing reasons, we do not find any merit in
this petition which is dismissed and leave to appeal is refused accordingly.
8. These questions having been finally determined
between the parties by this Court, we are not persuaded to
revisit the same. Further, once it was held by this Court in
this very case that petitioner did not have any reason for non
compliance of the order of the Rent Controller pending final
Civil Petition No.3068 of 2017 6
determination of the lis, the trial Court as well as the
appellate fora had no choice but to pass appropriate orders
on the basis of non compliance of order for deposit of rent
(which has not seriously been disputed) and in light of the
judgment of this Court on 09.06.2009 in Civil Petition
No.1193 of 2008.
9. We have repeatedly asked the learned counsel for
the petitioner to explain the delay which occurred in
compliance of the order dated 17.07.2008 passed by the Rent
Controller directing for payment of tentative rent. We have
also asked him to show us from the record if any attempt was
made by the petitioner at any stage of the proceedings to give
any reason which prevented him from complying with the
order in question. However, he has been unable either to
explain the delay or point to any material on record that may
indicate that any attempt was made to explain such delay
before any forum. It is settled law that an order passed by a
Court (whether or not a party considers it just, valid and fair)
has to be complied with subject to his right to challenge the
same before the fora provided in law. In case of non
compliance, the consequences provided in law are bound to
follow. In the instant case, the order for deposit of rent passed
by the Rent Controller was challenged and upheld upto this
Court and it was unequivocally held that, “we find that the
institution of two civil suits by the petitioner; one for specific
performance of agreement and the other for cancellation of sale
deed of the respondent No.2 per se would not be sufficient to
refuse compliance of an order of the Rent Controller under
Civil Petition No.3068 of 2017 7
Section 16(1) of the Ordinance pending final determination.” As
such, the petitioner has no body but himself to blame if his
defence was struck off on account of his admitted failure to
comply with the order leading to an order for his ejectment
from the rented premises.
10. As far as the argument of the learned counsel that
delay in compliance of the order was condoned or stood cured
by reason of an order passed by this Court in CRP No.33-K of
2009 is concerned, we are unable to subscribe to the same.
Perusal of the order passed by this Court on 02.02.2010 by
no stretch of interpretation supports the conclusion
canvassed by the learned counsel. Likewise, we are unable to
agree that the effect of the interim order passed by this Court
in Civil Petition No.1193 of 2008 dated 22.09.2008 furnished
any justification for delay in compliance of the order of the
Rent Controller relating to deposit of tentative rent. It is clear
and obvious that the words, “till then, subject to all just
exceptions” saved the rights that had already accrued in
favour of Respondent No.3 by reason of default on the part of
the petitioner to deposit tentative rent as ordered by the Rent
Controller.
11. Further, Civil Petition No.1193 of 2008 was
ultimately dismissed on 09.06.2009 with the finding that the
petitioner had no justification for non compliance of the order
of the Rent Controller dated 17.07.2008. As such, we are in
no manner of doubt that default on the part of the petitioner
Civil Petition No.3068 of 2017 8
had neither been cured nor condoned by any Court in any
proceedings. We have gone through the case law cited at the
bar. We find that the said judgments have been rendered in a
different set of facts and circumstances, are not intended to
lay down the entire law on the subject and are clearly
distinguishable. These are irrelevant and of no help to the
case of the petitioner.
12. The impugned judgment of the High Court is, in
our opinion, well reasoned and based upon the correct
interpretation of the applicable principles of law on the
subject and is unexceptionable. As such, no interference is
required in exercise of our jurisdiction under Article 185(3) of
the Constitution of Islamic Republic of Pakistan, 1973.
