2025 PLP 789 (MLD)

Shamsuddin Abbasi, J.

The Petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1979, impugning the order dated 31.01.2022, penned down by the learned Additional District Judge-XII (Model Civil Appellate Court), Karachi (South) dismissing First Rent Appeal No.208 of 2021, filed by the petitioner against the order passed by the learned Senior Civil Judge /Rent Controller-II, Karachi (South) on 14.10.2021 dismissing his application under Section 12(2) read with Order I, Rule 10(2), C.P.C. filed in Rent Case No.1031 of 2016.

2. Respondent No.1 Syeda Tatheer Fatima filed ejectment application vide Rent Case No.1031 of 2016 against Respondent No.2 Mazhar Ali seeking his eviction from demised premises viz Flat No.A-23, 6th floor, Super Place, Civil Lines Quarters, Dr. Ziauddin Ahmed Road, Karachi, on the ground of personal bona fide need. The learned Rent Controller allowed the eviction application by way an ex parte order dated 19.04.2017. The petitioner filed an application under Section 12(2) read with Order I, Rule 10(2), C.P.C., seeking recall of the ex parte ejectment order dated 19.04.2017 on the ground that the same was obtained by way of fraud, misrepresentation and concealment of true facts. The learned Rent Controller by an order dated 14.10.2021 dismissed the application. Impugning the order of the learned Rent Controller, the petitioner filed First Rent Appeal No.208 of 2024, which was dismissed vide order dated 31.01.2022, passed by the learned Additional District Judge-XII (MCAC), Karachi (South) and feeling aggrieved by the orders of the two Courts below, the petitioner has filed this petition.

3. It is contended on behalf of the petitioner that the respondent No.1 has obtained ex parte ejectment order dated 19.04.2017 by way of fraud, misrepresentation and concealment of true facts; that the petitioner filed Suit No.30 of 2014 for specific performance and permanent injunction, which was dismissed by learned Senior Civil Judge-II, Karachi (South) and appeal preferred against the order of the learned trial Court was also dismissed by learned Appellate Court and against the orders of the two Courts below the petitioner has filed Civil Revision, which is pending adjudication before this Court; that it is a clear cut case of fraud but the two Courts below dismissed the application under Section 12(2) read with Order I, Rule 10(2), C.P.C. without appreciating the material placed on record and application of judicial mind; that the respondent No.1 has admitted that respondent No.2 is her tenant since 2008 when she was neither attorney nor holder of title documents of the demised premises; that possession of the demised premises was handed over to the petitioner at the time of signing of sale agreement and payment of Rs.3 million in cash and Rs.1 million through cheque to the respondent No.1; that the respondent No.1 became attorney in the year 2014 and rent proceedings against respondent No.2 as her tenant are not maintainable; that the respondent No.1 has managed forged documents just to deprive the petitioner from his legal right. The learned counsel for the petitioner has lastly submitted that impugned orders passed by the two Courts below are without appreciating the facts and circumstances of the case and application of judicial mind, hence the same are liable to be reversed and prayed that the petition may be allowed as prayed.

4. The learned counsel appearing on behalf of the respondent No.1 has submitted that the petitioner and respondent No.2 are real brothers and they have managed a false and fabricated sale agreement just to usurp the property of the respondent No.1; that respondent No.1 is owner of the property in question and her eviction application was allowed by the learned Rent Controller and such an order has been maintained by the learned Appellate Court; that the suit filed by the petitioner for specific performance and permanent injunction was dismissed by the learned trial Court and Appellate Court has maintained the order of the learned trial Court in appeal; that the petitioner and respondent No.2 have managed a false and fabricated sale agreement and based on such agreement the petitioner filed application under Section 12(2) read with Order I, Rule 10, C.P.C., which were rightly dismissed by the learned Courts below. The learned counsel lastly submitted that scope of writ jurisdiction in rent matters is limited and the petitioner has failed to make out a case for interference, hence prayed for dismissal of appeal.

5. The respondent No.2, Aga Muhammad Khan, who is also a practicing advocate, present in person has supported the case of the petitioner and adopted the same arguments as advance by the learned counsel for the petitioner.

6. Heard learned counsel for the petitioner, learned counsel for the respondent No.1 and respondent No.2 in person as well as perused the entire material available before me with their able assistance.

7. Record demonstrates that suit filed by the respondent No.1 seeking specific performance and permanent injunction was dismissed by the learned Senior Civil Judge-II, Karachi (South) vide order dated 18.03.2017 and Civil Appeal No.59 of 2017 preferred against the order of the learned trial Court was also dismissed by the learned Appellate Court. The record is suggestive of the fact that the petitioner filed suit for specific performance and permanent injunction in the year 2015 whereas the respondent No.1 filed ejectment application against respondent No.2, who is real brother of the petitioner in 2016, however, the petitioner did not bother to bring on record true facts as to tenancy between respondents 1 and 2 and he (petitioner) used to deposit the rent in bank on behalf of his brother (respondent No.2) through cheques as admitted by him in cross-examination. The case of the petitioner hinges merely on a sale agreement said to have been executed in his favour by the respondent No.1 for which he availed civil remedy by filing a suit for specific performance and permanent injunction, but failed to succeed either before the learned trial Court or before the learned Appellate Court, whereby the claim of the petitioner as to purchase of the demised premises from the respondent No.1 was declined. The record is suggestive of the fact that the learned Rent Controller has dismissed the application under Section 12(2) read with Order 1 Rule 10(2), C.P.C. after recording evidence and hearing the parties' respective counsel observing that the petitioner has failed to prove that ex parte ejectment order was obtained by the respondent No.1 by way of fraud, misrepresentation and concealment of true facts. The order of the learned Rent Controller has been maintained by the learned Appellate Court observing that the petitioner has already availed civil remedy as to his claim with regard to purchase of the demised premises and allowing the fate of the application under Section 12(2) read with Order I, Rule 10(2), C.P.C. and recording any finding as to the title /ownership of the demised premises is beyond the domain of the learned Rent Controller.

8. Findings of fact given by the learned Rent Controller are concurred by the learned Appellate Court. On query posed as to what perversity or illegality afflicted the orders of the two Courts below, the learned counsel for the petitioner failed to advance any cogent argument in that regard, therefore, at this juncture, under the Constitutional Jurisdiction, this Court avoid to give contrary findings until and unless the same are prove to be perverse, based on misreading or non-reading of evidence. Even otherwise, the powers in rent matters under Constitutional Jurisdiction of this Court are limited and confined only to ascertain whether the learned Courts below have flouted the statute or failed to follow the law relating thereto. Reliance in this behalf may well be made to the case of Mst. Mahmooda Begum and another v. Taj Din reported (1992 SCMR 809), wherein the Hon'ble Apex Court held as under:- "In normal circumstances, the High Court is not supposed to interfere with a finding of fact recorded by a tribunal of special Jurisdiction in respect of matters exclusively within its competence, unless there has been a serious misreading or misappreciation of the evidence on the part of the said tribunal, or there has been failure on its part to take into consideration material facts or to apply the statutory law or any principle or rule of law as laid down by the superior Courts". In another case, similar view was followed by this Court in the case of Muhammad Iqbal v Mst. Zahidan and 2 others (2013 CLC 1780) observing as follows:- "It is settled proposition of law that Courts below, in its original and appellate jurisdiction are competent to draw inference, while delivering the judgment and it is not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition, thus, High Court would not normally interfere in judgment and decree passed by court of competent jurisdiction for the reason that it was within their exclusive jurisdiction, to believe and disbelieve the evidence, it is worth to add that no Constitutional petition lies when evidence in the case has been properly appreciated and analyzed."

9. In view of the analysis and combined study of the entire material available before me by way of reappraisal, with such care and caution, I find no infirmity or illegality in the impugned orders (concurrent findings of the two Courts below). This Constitutional Petition is, therefore, bereft of merit stands dismissed along with all pending application(s) with no order as to costs. JK/I-4/Sindh Petition dismissed.