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
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