2018 MLD 976 KARACHI-HIGH-COURT-SINDH

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Mrs. ASMA MAKHDOOM VS Mrs. YASMEEN AZAM 1971 SCMR 83, 1984 CLC 2599, 1988 CLC 402, 1989 CLC 247, 1990 MLD 1164, 1991 SCMR 850, 1992 SCMR 1352, 1993 CLC 1602, 1999 MLD 1342, 2000 MLD 82, 2002 SCMR 203, 2008 CLC 87, PLD 1986 Karachi 258, PLD 2009 Karachi 268, S. 15--- Qanun-e-Shahadat (10 of 1984), Art. 115--- eviction petition---Ground of wilful default of rent---Denial of relationship of landlord and tenant---Agreement of sale-cum-tenancy of the rented premises between the parties---Effect---Previous admission by the tenant---Effect---Tenant contended that landlady had an agreement to sell with tenant regarding rented premises which was not fulfilled and thus rent was adjusted in security amount and that a civil suit was pending between the parties so eviction orders by the two courts below were unjustified---Landlady contended that eviction order was rightly passed, as neither tenant had paid the balance sale consideration according to agreement nor had paid monthly rent since long---Validity---Admittedly respondent was the owner of demised premises and the petitioner was in possession of the same---Record showed that the parties had agreed to enter into sale-cum-tenancy agreement in the year 2011---Said agreement revealed that up to the date of full and final payment/settlement the vendee/petitioner had agreed to pay monthly rent and part payment of the sale consideration was also paid and remaining amount of sale consideration was to be paid within one year from the date of execution of agreement---Respondent contended that the petitioner did not pay the balance sale consideration and had also stopped the payment of mutually agreed rent since May 2014, therefore, respondent filed suit for declaration and rescission of contract and also filed eviction petition---Petitioner in her cross-examination had admitted that in a previous civil suit she herself had pleaded that she was bona fide and dutiful tenant in respect of demised premises---Petitioner could not show that she had filed suit for specific performance of contract in respect of demised premises---In view of admissions of the petitioner in acknowledging her as tenant of landlord/respondent, principle of estopple in terms of Article 115 of Qanun-e-Shahadat, 1984 would automatically come into play and thereby the petitioner was debarred from denying relationship as a tenant---Landlord had pleaded that the petitioner had paid her the rent up to April, 2014---Onus placed on landlord to prove the default, stood sufficiently discharged when landlord had deposed on oath that tenant had not paid rent for the given period, burden, therefore, shifted to the tenant to prove affirmatively that she had paid the rent for the period in question---Tenant in her written statement, filed in eviction petition, denied the default in payment of rent and stated the advance payment/security amount paid by the tenant was to be adjusted towards monthly rent amount---Tenant had examined herself and had only spoken about adjustment of advance security towards rent without any documentary proof and independent corroboration---Judgments passed by two Courts below on the point of relationship of landlord and tenant and default were based on admitted facts---No illegality having been noticed, High Court directed the tenant to vacate the demised premises within 60 days---Constitutional petition was dismissed.