2016 PLP 51 (CLCN)

AFTAB AHMED GORAR, J.

By this single order I propose to dispose of abovesaid two Constitutional Petitions as in both the petitions petitioners as well as the respondents are the same. Besides, the facts as well as the law involved are also almost same. Through these Constitutional Petitions, the petitioner Habib Hashim has impugned the Judgment dated 01.07.2008 passed by VIIth Additional District Judge, Karachi South whereby he dismissed two appeals viz. FRA No.161/2004 and FRA No.162/2004 filed by the petitioner/tenant and upheld the Judgment dated 14.09.2004 passed by IInd Rent Controller, Karachi South whereby he allowed the two rent applications bearing No.1209/2009 and 1210/2009 filed by respondents Nos.1 to 4, hereinafter referred to as the respondents. Brief facts giving rise to the filing of instant petitions are that the respondents filed two Rent Cases bearing Nos.1209/2001 and 1210/2009 stating therein that they are owner of the premises bearing Office No.5, MR-1/46 and Shop No.3 MR-1-147/148 respectively both situated in Hamid Building No.2. Ground floor over Plot No.MR-1-146 which they inherit from their ancestor Habib Haroon. Respondent No.1 is widow of Habib Haroon, whereas rest of the respondents are his sons and daughter respectively. Habib Haroon had rented out the premises to the petitioner and after his demise, on 11.03.1989 the respondents came up as his successors. The petitioner is occupying both the premises as tenant on monthly rents of Rs.358 and 688 respectively which was enhanced to Rs.3000/- w.e.f. 04.8.1998 vide order of the Rent Controller. The respondents in their rent cases took up the plea that the demised premises were needed for their own personal occupation for establishment of their show room in good faith for their partnership trading concern namely M/s. Wasatch Pakistan Trading. They also alleged against the petitioners to have impaired materially the value and utility of the demised premises by digging well in violation of section 15(2)(4) of the Sindh Rented Premises Ordinance, 1979 and also failed to pay the water conservancy charges thereby the petitioners defaulted in terms of clause (ii) of sub-clause (2) of section 15 of S.R.P.O., 1979. The petitioner filed written statement in both the rent cases wherein he denied the case of the respondents, inter alia on the ground that the respondents were American citizens and their requirement of the premises was only to eject the petitioner. The allegations of alteration and addition, non-payment of water and conservancy charges were also denied. The parties led their respective evidence and consolidated points of personal bona fide use in good faith, default in payment of rent regarding water and conservancy charges and impairing the value of the premises by the petitioner tenant were framed for determination out of abovesaid points, the point of personal bona fide use in good faith was decided in favour of the respondents whereas other two points were decided in favour of the petitioner, however, in consequence of decision on the point of personal bona fide need, ejectment applications were allowed vide judgment dated 14.9.2004 and the petitioner was directed to handover vacant and peaceful possession of the premises in question to the respondents within ninety days. Appeal was preferred against the said judgment which was also dismissed vide order dated 01.7.2009, hence these petitions. Learned counsel for the petitioner contended that the courts below seriously erred in law in not differentiating the personal need of the landlord vis- -vis need for a partnership firm, that section 2(g) of S.R.P.O., 1979 defines the person in connection with personal bona fide need as owner, his wife or husband, son or daughter and not a partnership concern; that the demised premises has been declared as heritage property and any alteration therein is punishable under the Sindh Cultural Heritage Preservation Act, 1994 but the respondents have obtained no approval in this respect, therefore they cannot use the premises in question for their partnership business as alleged; that the judgments of the courts below suffer from gross misreading of evidence. He prayed for allowing the petitions and setting aside of the judgments of the courts below. Conversely, learned counsel for the respondents contended that the rent applications were filed by the respondents in their individual capacity and not as partners of any partnership concern and the premises in question is required for their personal bona fide need to improve their business, as such the findings of the courts below on this point are just and proper. He further contended that the learned Rent Controller after considering all the aspects of the case has passed a proper order giving cogent and sound reasons for his findings. Likewise the appellate court has also committed no illegality, perversity, material irregularity or any jurisdiction error while passing the impugned judgment, as such the concurrent findings of the two courts below need no interference under the constitutional jurisdiction of this court. According to him, on identical facts and grounds in respect of another tenement in the same building respondents had filed ejectment application against another tenant which was allowed, however, appeal was decided against the respondents against which they filed constitutional petition which was decided in favour of the respondents and ultimately Supreme Court also upheld the judgment of High Court, therefore, these petitions are also liable to be dismissed as per rule of consistency. He prayed for dismissal of the petitions. I have heard learned counsel for the parties and perused the material available on record with the assistance of the learned counsel. The respondents' case, as per rent applications, is that they require the premises in question for their personal bona fide need in good faith for their own occupation in connection with the establishment of a store room for herbal cosnietics sample for their partnership trading concern namely M/s. Wasatch Pakistan Trading which is duly registered with the Registrar. From the perusal of the title of the rent applications filed by the respondents, it is manifestly clear that there is, at all, no mention of any partnership concern, rather they have filed the rent applications in their individual capacity. Same stand was taken during the evidence adduced before the learned Rent Controller and their evidence was not materially shaken. In the circumstances, the plea raised by the petitioners' counsel that the respondents need the premises in question for their partnership concern which does not fall within the definition of person under section 2(g) of S.R.P.O., 1979, is devoid of force. It is well settled principle of law that sole testimony of the landlord is sufficient to establish his personal bona fide need if the statement of the landlord on oath is consistent with his averments made in the ejectment application. If any case-law is needed, reference can be made to 1997 SCMR 1062, 1980 SCMR 593, 1996 SCMR 1178 and 2000 SCMR 1292. During cross-examination learned counsel for the petitioner/tenant has not been able to establish that the statement of the respondents/landlords made on oath is not consistent with the averments made in the ejectment application. It is also now well settled that merely because the landlord has other tenements in the same area, would not disentitle him to seek eviction of the tenant on the ground of personal need as it is for a landlord to select as to which of the tenements would be more suitable for his personal bona fide use, therefore, such plea taken by the petitioners is of no help to him. There is yet another aspect of the case i.e. the respondents had also filed two other rent cases bearing Nos.516 of 2001 and 517 of 2001 against their other tenants namely H.M. Ishaque M. Yaqoob and Haroon Siddique respectively, in the same building, on identical facts and grounds as in the present case. The said rent applications were allowed by the learned Rent Controller on the ground of personal bona fide need of the respondents. The tenants preferred appeals viz. F.R.As. Nos.114/2007 and 115/2007 which were allowed by the appellate court vide Judgment dated 07.11.2008 and eviction orders were set aside. Against the judgment of the appellate court, respondents filed C.Ps. Nos.D-66/2009 and D-67/2009 which were allowed vide two separate Judgments dated 01.6.2011 and 03.6.2011 respectively. M/s. H.M. Ishaque and Haroon Siddique challenged the said judgments before the Honourable Supreme Court in Civil Petitions Nos.583-K and 584-K of 2011. The Honourable Supreme Court vide order dated 08.7.2011 disposed of the petitions by directing the petitioners/tenants to handover vacant possession of the premises to the respondents within one year. In respect of the ground of personal bona fide use, the Honourable Supreme Court held as under:- "Besides the issue of non-payment of rent the Respondents have also claimed personal bona fide use regarding vacation of the premises in question. We are of the opinion that such case has been made out by the Respondents and consequently we had issued notice on the last date to the Respondents for the purpose of fixing the time within which the petitioner could vacate the premises which is a commercial one." From above, it is clear that the Honourable Supreme Court in the identical case relating to the tenement in the same building has given clear finding regarding personal bona fide need in favour of the landlords who are also respondents in the instant case. As in para 16 of the memo of petitions the present petitioner himself asserted that the abovesaid case is "on identical facts and ground" as the present case, therefore now he cannot take a different stand and the judgment of the honourable Supreme Court given in the abovesaid case is binding with full force in the present case. So far as the contention of petitioners' counsel that the demised premises has been declared as heritage property and any alteration therein is punishable under the Sindh Cultural Heritage (Preservation) Act, 1994 but the respondents have obtained no approval in this respect, therefore they cannot use the premises in question for their partnership business as alleged is concerned, it may be observed that this has no concern with the tenants and such affairs are between the landlord/owner and the concerned authorities under the Sindh Cultural Heritage (Preservation) Act and a tenant cannot escape eviction on such ground if otherwise he is liable to be evicted under the law. Such view was taken in similar case by me in C.Ps. Nos. 105, 106 and 107 of 2006. Even in the identical case of M.M. Ishaq M. Yaqoob, as stated above, this court in C.Ps. Nos.S-66/2009 and 67/2009 has also taken the same view: In the instant case there are concurrent findings of the learned Rent Controller as well as the Appellate Court. Needless to emphasize that constitutional jurisdiction of this Court in rent matters is very much limited and confined only to ascertain whether the appellate court has not flouted provisions relating to the statute or failed to follow the law relating thereto. In the case reported as Hafiz Shafatullah v. Mst. Shamim Khan and another (PLD 2004 Karachi 502) this Court held as under: "By conferring only one right of appeal under section 21 of Sindh Rented Premises Ordinance, 1979, Legislature in its wisdom seemed to have tried to shorten the span of litigation in rent case and in such circumstances interference by High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial order passed by Tribunal of competent jurisdiction, merely on ground that another view of the matter was also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute." In 2010 SCMR 1025 the Honourable Supreme Court held as under:- "....jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of the appellate Court. Therefore, mere fact that upon perusal of evidence, High Court came to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws i.e. Sindh Rented Premises Ordinance, 1979." The upshot of above discussion is that the constitutional petitions are dismissed and the judgments passed by the Appellate Court as well as the Rent Controller are upheld. The petitioner/tenant is directed to vacate the premises in question and hand over its vacant and peaceful possession to respondents Nos.1 to 4 within 30 days. ZC/H-9/K Petitions dismissed.