1980 PLP 897 (CLC)

(3) Whether the ejectment application is bad for non-joinder of necessary parties ? (4) Relief.

4. On behalf of the landlords Homi. K. Randerai entered the witness box and on behalf of the tenants evidence was furnished by Zaboor Muhammad, the tenant. The tenants also examined Asghar Ali, Liaquat Ali Shah, Sheikh Ahmed and Muhammad Abdul Quddus. Several documents were produced by the parties to which reference would be made in the latter part of this judgment.

5. At the time of hearing of this second appeal Mr. Nasir Aslam Zahid and Mr. Afzal Nabi, the learned advocates on either side, made a statement that on account of change in ownership they , would not advance any arguments on the issue whether the premises in question were bona fide required by the landlords. 1n fact, such argument would have been irrelevant in the changed state of circumstances in relation to eviction on the ground that the premises was required by the landlord ground for eviction of a tenant by its very nature involves examination of the bona fide underlying that demand of the landlord based on his necessity and that the landlord divesting himself of the property in question his successor cannot utilise such ground. Since both the parties had agreed not to advance any argument on that point I would not be dealing with that point and would record a finding on the statement of the parties that to such extent the order of ejectment of the tenants on such ground was not tenable. In regard to the remaining two issues namely, application of the premises to a use other than the use for which they were let out and non-maintain ability of the application for reason of all the tenants not having been joined, arguments have been heard. Since I have arrived at the conclu sion that the tenants have not put the premises to a use different from the use for which the premises had been let out, I have not thought it fit to consider the other issue arising out of non-joinder of the two other tenants, namely, the sons of Zahoor Muhammad Qureshi.

6. The Controller dealt with the issue of misutilization of the pre mises and disposed of the same by a bare five-line passage which reads as follows :-- "In this case there is no tenancy agreement but the rent receipt in dicated that the premises in question was godown. The opponent admittedly is running factory in the premises. Thus it is clear that the permises are used in a way for which the premises were not let out."

7. The Additional District Judge did no better than the Controller except to write a little longer on the point. The appellate judgment in that regard reads as follows :- "With regard to the, second contention of the learned counsel it is admitted by the appellant No. 1 that the premises in question are used as factory for manufacturing pipes etc. but the only evidence available on record are the rent receipts issued by the respondents/landlord to the appellant No.

1. Zahoor Muhammad from the year 1962 upto the filing of the present Rent Case which clearly show that the premises in question were rented to the appellant No. 1 of Latif Industries as go down. It is significant to note that the appellant never objected for years that the receipts were being issued by the respondent/landlord in respect the premises let out as godown stand not as factory. Above all the appellant No. 1 clearly stated the premises are used as factory manufacturing pipes etc. In this view of the matter there is no denying of the fact that the said premises are used as factory and not as godown admittedly for purposes other than for which they were rented out to the appellant No. 1 thus rendering him liable to be ejected from the said premises on this ground. There is no other evidence in writing, etc. between the parties to indicate to the contrary." $. It would seem that the only point which the Courts below have taken into consideration is the counter-foils of the rent receipts of the previous Hindu landlord as also the landlords Burjoji and another. Such rent receipts were produced by the landlords in evidence. The same bear number 601 to 613 in one book and No. 1 to 100 in the second book. The first book relates to the year 1962 viz. the time when the premises were owned by the previous Hindu landlord. Out of the 13 receipts 3 relate to the tenants. In one out of these 3 receipts, namely No. 606 dated 19th September 1962, in the column entitled "house No. l," the word "godown" appears. In the remaining two receipts in this book such word does not appear. From out of the second book the 14 coun terfoils relate to the period preceding 1st June, 1963, viz. when the premises were owned by the previous Hindu landlord, premises in occupation of the tenant has not been referred to as "godown" However, after the present landlords purchased the property from the previous Hindu owner the word "godown" appears after the name of "Latif Industries", the firm owned by the tenants. In each one of the receipts whether issued by the previous Hindu landlord or the present landlords the name of the tenant is shown as Latif Industries. The word `industry' in common parlance would in most cases mean a concern engaged in manufacture of goods out of raw material. In spite of the word "godown" being used in some of the rent receipts I have no hesita tion in stating that almost every Industrial concern needs to have a go down for the storage either of its material or manufactured goods. The mere fact of some out of the many receipts that have been produced show ing the premises of the tenants as a godown is not conclusive proof that the premises were allowed only for use as a godown or that the premises used as industry had been permitted or not permitted. To that extent I am unable to agree with the process of reasoning adopted by the Courts below that by mere use of the word `godown' in some of the rent receipts it can be conclusively stated that the tenants were misutilizing the pre mises. It would also be profitable to examine the evidence from that angle, ant Zahoor Muhammad in his evidence has stated that in 1947, viz. 16 years before the purchase of the premises by the present landlords, he along with his uncle Rahim Bux had started the business of marble and slate in partnership. This partnership was dissolved, in 1950 and since April 1951, he is carrying on manufacture of pipes in the premises. It would seem that even manufacture of marble and slate would involve a process of manufacture and therefore between 1947 and 1950, the tenant Zahoor Muhammad was carrying on an industry on the pre mises. Further in his evidence Zahoor Muhammad has stated as follows :- "In April 1951 I took the electric power for factory. We manu facture the pipes, K. M. C. gave licence to me. I produce the K M C notice dated 3rd July 1957 and 13th December 1957 (Exhs. DI/3 and 131;4). 1 then made payment for licence. I produce the receipt dated 4th February, 1958 (Exh. Dl /5). I got the licence. I produce the photo copy of the licence dated 27th February 1959 (Exh. D1/6). Original seen and return ed. I pay Income-Tax. I produce the certificate from Income tax office dated 7th August, 1959 (Exh. D1/7). 1 also produce the assessment order of Income-tax dated 8th April 1959 (Exh. D1/8). The Latif factory is run by electric power. I produce K E S C receipt dated 1953 for wiring (Exh. DI/9). The meter was fixed in April 1951. 1 produce the Certificate

9. All the documents referred to in the above-quoted passage from the evidence of Zahoor Muhammad are on the referred and reception of such evidence was not objected to. Each one of these documents indi cates that the tenant was carrying on a factory on the premises. Exh. D1/3 is a notice from the Karachi Municipal Corporation to tenant Zahoor Muhammad which refers to a factory at plot No. 6/17 in Kaka Street which was being run without a valid licence. Similarly, Exh. D1/4 is also a letter from the said corporation to tenant Zahoor Muhammad in which the same is alleged to be an unlicensed iron pipe manufacturing workshop. Exh. D1/5 is a receipt from the Karachi Municipal Corporation showing that tenant Zahoor Muhammad had paid licence fee for pipe manufacturing work shop for the year 1957-58. Exh. D1/9 is a letter dated 13th September 1955 from Karachi Electric Supply Corporation to tenant Zahoor Muhammad asking him to deposit an amount for re-inforcing the electric service connection. Exh. D1/11 is a written statement filed by Homi Renderai, in a suit bearing No. 778/1970 of the Court of Vth Civil Judge, 1st Class, Karachi, instituted by the landlords against him and Sadrud din, the present owners of the premises. In para. 5 of this written state ment Homi Randerai has clearly stated that the previous Hindu landlord had admitted tenant Zahoor Muhammad in the premises and "he (tenant Zahoor Muhammad)" started a pipe manufacturing industry under the name and style of Latif Industries as sole proprietor thereof. This admission would clearly indicate that much before the purchase of the premises by the landlords tenant Zahoor Muhammad was carrying on pipe manufacturing industry on the premises. Witnesses Asghar Ali and Liaquat Shah have also supported tenant Zahoor Muhammad on the point that he had started the industry for manufacture of pipes in 1950 or 1951. On the other hand, Homi Randerai in his evidence has also clearly stated that tenant Zahoor Muhammad was using the premises as a factory for manufacture of pipes. Further, in his evidence, Homi Randerai has stated as follows :- "It is not a fact that Zahoor Muhammad came in occupation of this portion in 1947. He came in 1960. I know Latif Industries are using electric but I do not know whether it was sanctioned. It is correct that meter of Latif Industries is along with our meter at the outer gate. There was no power in Latif Industries before 1950." Still further in his evidence Homi Randerai stated that Zahoor Muhammad tenant's area of 34-43 feet was being used for factory since 1945.

10. There in abundant evidence on the record to show that far earlier than 1963 when the landlords purchased the premises tenant Zahoor Muhammad was occupying a portion of the same and he had been carrying on the business of manufacture of pipes. If tenant Zaboor Muhammad had not been engaged in the process of manufacture of pipes there would hardly be an occasion for the Karachi Municipal Corporation giving a notice to him as early as in 1957 asking him to obtain licence for his industry. Apart from this there would hardly be a necessity for the tenant to spend a substantial amount for obtaining electric power from the Karachi Electric Supply Corporation as early as in 1953. The landlord Homi Randerai has also stated in his evidence as follows :

"After I became landlord I did not settle any terms of tenancy with the opponent. I did not know that what were the terms of tenancy between opponent and previous landlord. Till today I did not know what were the terms of tenancy between the opponent and the previous landlord."

11. On a consideration of all the material available on the record the conclusion is inescapable that much before 1963 when the landlords purchased the premises tenant Zahoor Muhammad was occupying a Pion of the same and utilized it for manufacture of pipes. In fact, or Randerai has clearly Hom stated in his evidence that he did not even know what were the terms of tenancy between Tenant Zahoor Muhammad and the previous landlord.

12. The learned Advocate for the respondents/landlord has urged before me that while dealing with second appeals the High Court would not set aside or interfere with findings of fact recorded by the Courts below, more so, when such findings are concurrent. I am afraid the purport of law enunciated is very broad based. I am conscious that in second appeals under section IOJ of the Code of Civil Procedure the High Court would always be slow to interfere with findings of fact but surely it cannot be laid down as a rule that regardless of the Courts below having misread the evidence or not having considered the relevant evidence on the record, the High Court would stand denuded of its powers to grant relief. I am fortified in that view by several judgments of the superior Courts in this country. In the case of Mst. Bibi Jan v. Habib Khan and another (P L D 1975 S C 295) it was stated that there was ample authority for the purpose that no sanctity attaches even to concurrent finding of fact based on misreading or misrepresentation of evidence. In the case of Federa tion of Pakistan v. Ali Ihsan (P L D 1967 S C 249) Hamoodur Rahman, J., (as he then was), considered the scope of interference on questions of fact. He referred to the cases of Bibhabati v. Ramendra Naravan (A I R 1947 P C 19) and Allen v. Cuebec Ware. house Company ((1887) 12 A C 101). Applying the principles in those cases his Lordship stated that the rule as to sanctity of concurrent findings of fact could be legitimately departed from when the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it would amount to perpetuating a grave miscarriage of justice, In the case of Muhammad Afsar and 7 others v. Allah Ditta and 13 others (1970 SC M R 118), Hamoodur Rahman, J. (as he then was) stated the same principles in the following words :- "It is true that in a second appeal a finding of fact cannot be reversed unless that finding is vitiated by a misreading of evidence or non-consideration of material evidence. In the present case important material evidence had been ignored. The Courts below, the High Court had failed to take into account the entries in the revenue records which consistently showed the respondents as tenants and even mutated the names of the heirs of a tenant upon his death."

13. A learned Single Judge of the erstwhile High Court of Sind and Baluchistan in.the case of H. Rashiduddin and 2 others v. Muhammad Habib and 2 others (P L 13 1976 Kar. 142) also took the same view that the failure of the Courts below to examine such documents which disclosed material facts would always attract the jurisdiction of the High Court under section 100 of the Code of Civil Procedure.

14. It is not every concurrent finding of the Courts below that can escape scrutiny or interference by the High Courts for the mere reason that erroneous findings are not liable to correction by the High Courts. On the other hand, if erroneous finding has been recorded by misread ing of the relevant evidence or non-consideration of the material facts. circumstances and documents available, it is patently the duty of the High Court to consider such impacts and omission and correct the mis takes so that the case of justice is advanced and not defeated. No doubt, such findings as could be justified on consideration of all the 9 material on record would not be easily liable to interference. In the present case, I find that the Courts below have just picked out a word "godown" as appears in some of the receipts and even without applying their mind as to whether a godown may well imply the existence of a factory, a finding has been recorded that the premises were being mis-1 utilized. A vast bulk of evidence, documentary and oral as well as some admissions by the opposite party have been completely kept out of consideration by the Courts below. Indeed, on a reading of the judgments cannot escape a feeling that the Courts below have overlooked all the material circumstances of the case. In a case of this nature the principle of slowness in interference by the High Court would clot by attracted as, thereby only injustice would result, the result I allow this appeal with costs. Appeal allowed,