2009 PLP 2234 (YLR)

ANWAR ZAHEER JAMALI, C.J.--The petitioner claiming himself to be the tenant in Shop No.3-A, situated at ground floor on Plot No.BC-4, Block-7, Clifton Karachi, has preferred this Constitutional Petition to challenge the order of IV-Rent Controller Karachi South, dated 3-3-2008 in Rent Case No.86 of 2006, whereby ejectment application filed by respondent No.2 against him in respect of the said shop, on the grounds of default in the payment of rent and personal need as allowed; and the other order dated 26-11-2008 passed by the District Judge, Karachi (South) in F.R.A. No.42 of 2008, whereby the appeal preferred by the petitioner against the earlier order was also dismissed.

2. Briefly stated, relevant facts leading to this litigation are that on 18-1-2006. Respondent No.2 had filed an ejectment application against the petitioner in respect of Shop No.3-A, ground floor on Plot No.BC-4, Block-7, Clifton Karachi, admeasuring 58.75 square yards. (hereinafter referred to as the rented shop), stating therein that he had purchased it from its previous owner Muhammad Islam son of Qamaruddin through-registered Conveyance Deed dated 14-10-2005. Further case of the respondent No.2 was that after acquiring ownership of the rented shop he had served notice under section 18 of the Sindh Rented Premises Ordinance, 1979, on the petitioner on 21-11-2005, being tenant in it, which was replied by him, but he failed to tender or make payment of rent to him. In the rent application, ejectment of the petitioner was sought on the grounds of commission of default in the payment of rent, after service of notice dated 14-10-2005 and the personal need of respondent No.2, who was occupying adjoining shop and wanted the possession of rented shop to extend his business.

3. In the written objections submitted by the petitioner, he admitted his status as tenant in the rented shop, but disputed the relationship of landlord and tenant with the respondent No.2 on the plea that rented shop in his possession was not owned by him, which was a separate and independent shop, while respondent No.2 had purchased Shop No.3 and not Shop No.3-A.

4. During the proceeding in the rent case before the Rent Controller, respondent No.2 (landlord) examined himself and produced relevant title documents in his favour and other documents marked (Annexure A to A-7), while the opponent examined himself and produced two rent receipts to show that he was depositing rent of the Shop in a Miscellaneous Rent Case filed by him before the institution of Rent Application.

5. The Rent Controller in his impugned order dated 3-3-2008 answered the point of existence of relationship of landlord and tenant between the parties in the affirmative as well as the other two points of default in payment of rent, and personal need and consequently, ordered' ejectment of the petitioner from the rented Shop.

6. In the appeal preferred by the petitioner, the Appellate Court concurred with the findings of the Rent Controller and thus dismissed the appeal.

7. In the petition before me,, the only contention raised by the learned counsel for the petitioner was that Shop No.3-A, situated at the ground floor on Plot No.BC-4, Block-7, Clifton Karachi, was an independent Shop, which was not owned by the respondent No.2, therefore, there was no relationship of landlord and tenant between the parties, but both the Courts below misread the evidence in this regard to arrive at a conclusion that the Shop in his possession was part and parcel of the Shop No.3. Admeasuring 58.75 square yards 528.75 square feet purchased by respondent No.2 under the registered Conveyance Deed dated 14-10-2005.

8. Making his submissions on same lines, Mr. Kanjoo did not dispute that the petitioner has not placed on record any document before the Rent Controller to show that Mr. Shahid Mehmood son of Misbah-ul-Islam, who had let out the rented Shop to the petitioner ever held ownership rights in it, while his status/position as registered general attorney of Mst. Atiqah Abbasi daughter of Sadiq Muhammad Khan Abbasi in respect of the rented Shop is established from the copy of the registered Sale-deed dated 27-10-2001 showing the dimensions of Shop No.3, bounded by Flat No.21 above, Shop No.2 on one side, shop No.4 on the other side, and no Shop No.3-A, adjoining to it, as claimed by the petitioner, obviously a person cannot be the attorney in respect of a shop owned by himself. Advancing his further arguments that in the circumstances when the issue regarding the landlord and tenant was raised between the petitioner and the respondent No.2, the two Courts below were not justified in holding the relationship of landlord and tenant between them, he had placed reliance on the cases of 2001 SCMR 1434, 2008 SCMR 152, 1981 CLC 327, PLD 2003 Kar. 444, 2007 SCMR 1357, 2007 SCMR 1835, 2001 SCMR 1434 and 2001 SCMR 338.

9. On the other hand, Mr. Liaquat Ali, Advocate for respondent No.2, in his arguments strongly challenged the maintainability of this petition against the concurrent findings of the two Courts below on the ground that re-appraisal of evidence was beyond the scope of this petition, unless it could be shown that the impugned order was without jurisdiction or was fanciful and arbitrary, which is not the position in the present case. He also contended that the false plea of separate and independent Shop No.3-A, allegedly not owned by the respondent No.2, was completely exposed from the evidence brought on record by the respondent No.2 before the Rent Controller and further the report of the Commissioner dated 25-2-2009 has also proved the position of Shop No.3-A, as part and parcel of Shop No.3, beyond any shadow of doubt, therefore, the findings of the two Courts below are unexceptionable and this petition is liable to be dismissed.

10. Though both the Courts below, for valid reasons, have concurrently arrived at the conclusion that Shop No.3-A, was not an independent shop but a shop carved out of the. area of original shop No.3 admeasuring 58.75 square yards, still to ensure that no injustice is done to the petitioner, vide order dated 9-2-2009. I had appointed an officer of this Court as Commissioner in the matter to visit the two shops in question and submit his detailed report about the position of Shops Nos.3 and 3-A with its measurement, sketch and photograph so that the issue as regards the identity of the rented shop is resolved.

11. Learned Commissioner has taken pains to make strict compliance of such order and submitted his detailed report which shows that the total area of Shop No.3 in possession of respondent No.2 is 339 square feet, while area of Shop No.3-A in possession of the petitioner, which is adjoining to Shop No.3 and only divided by an intervening wall is 223 square feet, thus the total area covered by these two shops is approximately 52 square yards i.e. 33 square feet more than the area shown in the registered Conveyance Deed of respondent No.2

12. Keeping in such view measurement vis-a-vis site sketch and photographs of the shops, it is evident that shop 3-A in possession of the petitioner is also part and parcel of the Area of Shop No.3, which was purchased by respondent No.2 through registered Deed from its previous owner and the little discrepancy in the total area may be the result of some unauthorized extension, either in the area of Shop No.3 or shop No.3-A in possession of respondent No.2 and the petitioner respectively. In any case, the petitioner has no claim of ownership over such extra area, if any, attached to Shop No.3 or Shop No.3-A, which is part and parcel of the rented shop in his possession. Thus on the basis of such discrepancy in the area also the petitioner cannot justifiably dispute the relationship of the landlord and tenant between him and respondent No.2. It is an admitted position that the petitioner is tenant in respect of Shop No.3-A and after the execution of registered Conveyance Deed of Shop No.3 in favour of respondent No.2, nobody else has come forward to claim the ownership of that shop or collected/demanded rent from him in respect of the rented shop, except respondent No.2, who has acquire such title from its previous owner Muhammad Islam son of Qamaruddin. If the three registered Conveyance Deeds dated 27th October, 2001, 30th September, 2004 and 14th September, 2005 -are placed in juxtaposition then the whole position is clarified that through first registered sale-deed Shahid Mehmood son of Misbah-ul-Islam, in his capacity as lawful registered General Attorney of Mst. Atiqah Abbasi d/o Sadiq Muhammad Khan had sold the rented shop to Mr. Abdul Rehman Khan s/o Abdul Aziz Khan: by second Sale-deed said buyer had sold the rented shop to Mr. Muhammad Islam son of Qamaruddin and thereafter Mr. Muhammad Ismail son of Qamaruddin had sold the Shop No.3, including the area of rented shop No.3-A to the respondent No.2 by registered deed dated 14-9-2005. Admittedly, as per petitioner's own case, the rented shop was let out to him by Shahid Mehmood son of Misbah-ul-Islam. Who was only attorney of Mst. Atiqah Abbasi. Thus there was no occasion for the petitioner to have disputed the relationship of landlord and tenant between himself and respondent No.2, on the false and concocted plea that respondent No.2 was not the purchaser of Shop No.3-A. This position further stands clarified in the cross-examination of respondent No.2 when in reply to a question put to him by the learned counsel for the petitioner, he had disclosed that the Shop No.3 was divided by intervening wall and was assigned No.3-A. Not only this but even the petitioner in his cross-examination before the Rent Controller had admitted that it was in his knowledge that demised premises was purchased by respondent No.2.

13. From the above discussion it is evident that on a false, concocted and baseless plea the petitioner has resisted and dragged the ejectment application filed by respondent No.2 against him in respect of the rented shop for a considerable period. The two Courts below have rightly appreciated the evidence adduced before them and their orders/ judgments, therefore, need no interference from this Court in exercise of its Constitutional jurisdiction.

14. Leaving apart the above discussion, it may also be observed here that the jurisdiction of this Court under Article 199 of the Constitution is not meant to serve the purpose of second appeal against the order of the Rent Controller and the Appellate Court, therefore, it would not be justified for this Court to embark upon re-examination of the evidence for the purpose of evaluating the merits of the impugned judgments. If any case-law is needed to fortify this view, reference may be made to the case of Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 SBLR 391 and Mst. Sughran and 11 others v. Muhammad Ishaque and another PLD 2004 Kar. 48.

15. Forgoing are the reasons for the short order passed in this petition on 16-3-2009. H.B.T./M-171/K Petition dismissed.