Monday, December 16, 2013

CP FRA



IN THE HIGH COURT OF SINDH AT KARACHI
(Constitutional jurisdiction)
Constitution Petition #-D-                   /2013

ABDUL SATTAR ……...................………………………….....................… PETITIONER

VERSUS

1.      MUHAMMAD SHAHZAD

2.      III rd. Rent Controller Karachi Central
Having its Office at
City Courts Karachi…………………..…............................…………………...... RESPONDENTS
           


CONSTITUTION  PETITION  UNDER  ARTICLE   199
OF   THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973

The Petitioner above named beseeches as under:-


1.           That the Petitioner is tenant of father of the respondent No. 1 since 45 years  in respect of Shop measuring ‘4 X 6’ situated eastern side of ground floor of the demised building bearing No. 8/203, Liaqatabad, Karachi, on basis of oral agreement, the petitioner regularly paid rent and never committed default but after the death of father of respondent No.1 who did not issued receipts regularly despite receiving rent due to this practice and unfair demands,  in the year 2008, the petitioner filed a Miscellaneous Rent Case #. 296/08 in the court of III rd. Rent Controller Karachi Central against the respondent # 1 and deposited rent thereon in the name of respondent # 1, who admitted that the respondent # 1 is Co-Sharer. (Photocopies of rent paid through MRC #. 296/08 are appended herewith and marked as “P/1” to “P/64”).

2.           That  in the year 2010, respondent # 1 filed a Rent Case # 181/2010 before the respondent # 2, where  he malafidely succeeded in his evil design to get order (Certified copy of Rent Order dated 15.10.2012 is appended herewith and marked as   A).

3.           That the petitioner being aggrieved preferred First Rent Appeal # 239/2012, wherein this Honorable may be pleased to pass an order of injunction (Photocopy of the order dated 05-11-2013 is appended herewith and marked as B).

4.           Hence this Constitution Petition, the petitioner has no other alternate remedy on the following ground amongst others inter alia.

GROUNDS
1.                 That the petitioner paid rent regularly since filing of MRC in court, since 2008 the petitioner depositing rent through MRC 296/2008 in III rd.  Rent Controller Karachi Central, while the respondent # 1 field ejectment application in 2010 for proceeding against the petitioner. After order of Rent Controller the petitioner started depositing rent in Rent Case No. 181/2010.

2.                 That the impugned order passed by respondent # 2 is arbitrary, perverse, whimsical bad in the eyes of law and the same is liable to be set aside as the learned Rent Controller has not applied its mind to specific facts of the case.

3.                 That impugned order was passed in rent Case thus  no other adequate remedy is available to the petitioner either in shape of appeal or revision for seeking direction/setting aside same except by filling this Constitution Petition in this  Honorable Court.

4.                 That Judgment dated 15.10.2012, appended above marked as annexure “A” is impugned order in this constitution petition, and the petitioner has not filed any other petition prior to this constitution petition in this Honorable Court for the relief prayed in this Constitution Petition.

5.                 That the impugned judgment of the learned Trial Court is the result of patent illegality.

6.                 That the impugned judgment and Decree is against the facts of the case and the law applicable hereto.

7.                 That the impugned judgment and Decree is bad in law and on facts. The same is completely without jurisdiction, illegal, unlawful, unconstitutional, void ab initio and of no legal effect.

8.                 That the Learned Court passed the impugned judgment and Decree without keeping into mind the facts of the case, hence the same having no legal value in eyes of law.

9.                 That the Learned Court has failed to understand that the petitioner has not committed any default and was liable to be dismissed on this score alone.

10.           That the Learned Court erred/has totally failed to look into the proper provision of law and observation.

11.           That upon bare perusal of the plaint and the documents appended therewith it is clear and obvious that the claim of respondent is discrepant and deficient in material details. The Hon’ble Court in chambers has not considered the said discrepancies/inadequacies in the claim. It is well settled law that the court is under an obligation to examine and verify the claim of the claimant irrespective of the weakness and strength of the defence raised by the opposite person. In view of the above, the Order dated 15-10-2012 is illegal and unlawful.

12.           That the Hon’ble Court while passing the impugned Order dated 15-10-2012 failed to appreciate/consider apparent discrepancies in the pleading and the alleged documents appended therewith. In the circumstances, the claim of the Respondent No.2 could not be passed the impugned Order.

13.           That with prejudice to the above, it is submitted that the Petitioners is even otherwise entitled to a fair trial with respect to the determination of its civil rights and obligations in terms of Article 10-A of the Constitution of Islamic republic of Pakistan 1973, which has been incorporated by virtue of Eighteenth Amendment in the Constitution.

14.           That the order passed the learned Trial Court is quite illegal, arbitrary & against the principal of natural justice, law and equity.

15.           That the learned Lower Court has committed serious error in law holding the impugned Judgment/Order is to be set aside.

16.           That the appeal is within time and no appeal has been preferred against the impugned order except the present one.

17.           That the Petitioners crave permission to raise/urge any other ground at the time of hearing.


PRAYER
In view of the above stated facts and grounds, it is respectfully prayed that this Hon’ble Court may graciously be pleased to:

a)    Call (R & P) record and proceedings of Rent Case No.181/10 from IIIrd. Rent Controller at Karachi Central;

b)    Set aside the impugned Judgment dated 15-10-2012 passed by IIIrd. Rent Controller at Karachi Central; Or

c)     Remand the said Case to hear leave to defend application according to law and consider each and every legal and factual points raised by the Petitioners thereon and also decide the matter in accordance with law.
                        
d)   Costs of the Constitution Petition.
Karachi.
Dated: __________/2013.
 PETITIONER


Advocate for the Petitioner


VERIFICATION
I, Abdul Sattar, Muslim, adult, Resident of Karachi, do hereby state and verify on oath that whatever has been stated above is true and correct to the best of   my knowledge, information and belief.
Karachi.
Dated:                 -2013.                                       
                              Deponent/Petitioner

The deponent identified by me


(ADVOCATE)
 Solemnly affirmed on oath before me at Karachi on this __ th day of _______ 2013, by the deponent abovenamed who is identified by Mr. S M ZUBAIR, Advocate whom I know personally.
COMMISSIONER FOR TAKING AFFIDAVITS



DOCUMENTS FILED
Annexure “P/1 to P/64”, “A” to “B” .
DOCUMENTS RELIED UPON
All Relevant Documents
ADDRESS OF DEFENDANT FOR SERVICE
As Per Title Of The Memo
ADDRESS OF THE COUNSEL
ZUBAIR LAW ASSOCIATES
31, Bari Chambers, Karachi.


XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX


AFFIDAVIT IN SUPPORT OF  CONSTITUTION PETITION UNDER ARTICLE  199

            I, Abdul Sattar Muslim, adult, Resident of Karachi, do hereby state on oath as under:-

1.                 That I am Petitioner in above titled CONSTITUTION PETITION and deponent of this affidavit, as such am fully conversant with the facts of the matter deposed herein:

2.                 That the accompanying CONSTITUTION PETITION UNDER ARTICLE  199 has been drafted and filed under my express instructions and contents whereof are true and correct and the same alongwith contents of the memo of plaint may please be treated as part of this affidavit for the sake of brevity.

3.                 That I say that I have a good prima facie case, and balance of convenience lies in my favour and until and unless accompanying application is granted as prayed I will be seriously prejudiced and shall suffer irreparable loss.

4.                 That I say that whatever stated above is true and correct to the best of my knowledge and belief.

Karachi.
Date:________________/2013.
Deponent/Petitioner


The deponent identified by me


(ADVOCATE)
Solemnly affirmed on oath before me at Karachi on this __ th day of _______ 2013, by the deponent abovenamed who is identified by Mr. S M ZUBAIR, Advocate whom I know personally.

COMMISSIONER FOR TAKING AFFIDAVITS
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
         
APPLICATION TO EXEMPT FILLING ORIGINAL DOCUMENTS UNDER SECTION 151 CPC

On behalf of the Petitioner, it is respectfully submitted that this Hon’ble Court may be pleased to exempt the Petitioner from filling original documents/certified copies as well as translation into English of the documents as the same are not available as this juncture, therefore, allow him to file photocopies of the documents as annexed.
Prayed accordingly in interest of justice, equity and good conscience and shortage of time.

Karachi.
Dated: 16-12-2013.                       Advocate for the petitioner   

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX


APPLICATION FOR SUSPENSION OF JUDGMENT/
ORDER UNDER ORDER 39, RULE 1& 2
READ WITH SECTION 151 CPC

 

For the facts and reasons disclosed in accompanying affidavit,   memo of Constitution Petition, it is respectfully prayed on behalf of the Petitioner abovenamed that this Hon’ble Court may graciously be pleased to suspend the Judgment/Order dated 15-10-2012, and grant injunction, restraining, therein to the respondent 2 from further proceeding execution  in Rent Case #   181/10 pending disposal of this constitution petition, and also stay the Execution Proceedings of the above Judgment till disposal of this Constitution Petition.

An ad interim order is solicited meanwhile in terms of main prayer in the greater interest of justice and equity.

Karachi.
Dated: 16/12/13.                                             
SMZUBAIR
Advocate For The Petitioner
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

APPLICATION UNDER RULE IX CHAPTER III-A
VOLUME –V OF THE SINDH HIGH COURT RULES

On behalf of the Petitioner, it is respectfully submitted that this Hon’ble Court may be pleased to treat this matter as urgent motion and hear the APPLICATION FOR SUSPENSION OF JUDGMENT/ORDER dated 15-10-2010 U/O. 39, Rule 1 & 2, R/W. 151 on ______________, as if immediate action is not taken, the respondents will do illegal actions over the said Shop and this will hamper the rights of the people of   vicinity and particularly of the petitioner.
            The prayer is made most earnestly in the greater interest of Justice and equity.

Karachi.
Dated: __________/2013.                                   
SMZUBAIR
Advocate For The Petitioner

Application U/S. 7 & 8 G & W Act 1980



It most respectfully submitted on behalf of the applicant abovenamed as under:-
1.     That the applicant married with the respondent at Karachi on ________, according to Muslim Family Law on consideration of dower amount of Rs. ___________, which is still unpaid. Photo copy of Nikahnama is annexed herewith as Annexure “A”.

2.     That out of this wedlock a issue namely __________ was born who is presently residing with the applicant at abovementioned address. Photo copy of Nikahnama is annexed herewith as Annexure “B”.

3.     That the respondent has dual citizenship of Pakistan and U.S.A, and he is used to quarrel, misbehave, insult and abuse the applicant on petty domestic matter and baseless issues.

4.     That the respondent became very aggrieved at the birth of female minor and refused to maintain her bear delivery expenses.

5.     That the respondent visited Karachi but met with the minor only twice.

6.     That on ________, before departure to U.S, the respondent told the applicant that he is going to U.S Embassy to apply for the visa for both i.e. the applicant and the minor but did not so.

7.     That the applicant is well educated lady, she belongs to respectable family, and the minor is under the care and custody of the applicant, studying properly in a reputable school of Karachi, closely attached to the applicant who is affectionately looking after her.

8.      That the respondent proved himself to be tyrant husband and callous father. He has no love and affection towards his wife and daughter and never cared about the daughter’s education and completely failed/neglected to maintain his wife and daughter.

9.     That no guardian of the said minor has been appointed by any person entitled or claiming to be entitled by law, hence by virtue of the above application the applicant applying for appointment/declaration of guardian of the said minor which will include sole responsibility to take all decision for the welfare of the child including the right to live wherever desired.

10.                         That the applicant is real mother of the said minor namely ______, and being a real mother is natural guardian bestowed by Al-Mighty Allah and is fit person to be appointed as guardian of the said minor, and is a fit person to be appointed as guardian of the said minor.

11.                         That cause of action arose for filling of this application is that the custody of the minor will remain with the applicant without dispute and problem to move in any part of our country or even in U.S. in search of the respondent. Moreover besides Pakistani Nationality. The respondent has American nationality, also and being his daughter the minor also has a vested right to have the same. So the applicant is solely responsible about all sort  of decision for the welfare of the minor.

12.                         That the applicant and minor are residing within the territorial limits of P.S. _______, which is within the jurisdiction of this Hon’ble Court.

PRAYER
It is, therefore, prayed that this Hon’ble Court may be pleased to pass the judgment and decree as under:-
a.)  To appoint/declare the applicant as sole guardian of the minor namely _____, which will include having her custody, responsibility to take all sorts of decision for the welfare of the child including health, education and right to live wherever desired.
b.)  To grant any other relief that this Hon’ble Court may deem fit and proper under the circumstances of the case.
Karachi.
Dated:                                                                                 
 APPLICANT

SM ZUBAIR  
Advocate for the Applicant