2017 PLP 197 (CLCN)

AFTAB AHMED GORAR, J.

Through the instant Constitution Petition appellant has assailed the Judgment passed by the two courts below i.e. Judgment delivered by the learned court of learned VII-Additional District Judge Karachi East in First Rent Appeal No. 35 of 2013 and the Order passed by learned Court of IV-Rent Controller Karachi Last in Rent Case No. 359 of 2011 in, hence this Petition. ("For the sake of convenience the appellant hereinafter referred to as the Opponent and the Respondent hereinafter referred to as the Applicant")

2. Briefly, the facts leading to the instant Constitution Petition as is envisaged in the Rent Case No. 359 of 2011 are that applicant is the owner/landlady of building constructed on Plot No.1/7-B Muhammad Ali Cooperative Housing Society, Karachi, that premises on first floor of the building has been rented out to the opponent which consists upon six rooms, three attach bath, kitchen, store with all electricity and sanitary fittings complete in all respect through an agreement of tenancy executed on 01.02.2008 for a period of eleven months at monthly rent of Rs.23,l00/= withholding Tax 5% of rent amount shall be deposited by opponent in the name of landlady, thereafter tenancy agreement has been renewed from time to time and tenancy agreement has to expired on 30.09.2011 and previously the rent is Rs.27,500/=, as per clause 1 of the tenancy agreement rent was payable in advance on or before 10th of every month and in case of failure to pay the same the opponent shall be liable to pay 2% per month of the rent as penalty with outstanding amount. That non-payment of late fee will be finally deducted from security deposited alongwith other charges if any at the time of refund of security amount, that as per clause 2 of the said agreement opponent was liable to pay Rs.500/= towards maintenance charges. It was also agreed that security deposited of Rs.54,000/- which have been paid by the opponent shall be refundable to opponent at the time of handing over the vacant possession of the premises after deducting cost of the damages and replaceable fitting and fixture and as per clause 5 of the tenancy agreement the opponent was liable to pay electricity, gas, telephone bills directly to the concerned company, agency and shall produce copies of the paid utility bills every months to the applicant.

3. Furthermore since the opponent was defaulter in payment of rent he has been given notice on 05.09.2011 to the opponent to vacate the premises occupied by him as the same is required by the applicant for her personal use. It was further intimated that tenancy agreement is expiring on 30.09.2011, he was also asked to clear all the dues such as result, utility bills before vacating the apartment, opponent in compliance of the said notice remitted rent for the month of September 2011 alleging that he sent the rent which was refused by the applicant. In the preamble of the agreement the Opponent has to deposit 5% withholding tax in NBP in the name of landlady and paid challan had to deliver to her for every month but till date he has not submitted the challan of deposit of rent to the applicant, the opponent has also failed to pay rent within time and used to pay after default as such he was put on notice that the rent should be paid in accordance with tenancy agreement. Applicant has sent a bill for the month of July 2009 on 01.07.2009 for Rs.77,275/- including arrears of rent for the months of May and June 2009, the bill was received by the opponent on 02.07.2009, the rent from July 2011 to September 2011 have not been paid by the opponent, applicant issued letter on 25.08.2011 cancelling the tenancy agreement and asked him to pay dues of rent utility bills etc. but he failed to do so. The applicant again sent a notice on 05.09.2011 by registered post A/D calling upon him to vacate the premises and also clear the arrears of rent, however, opponent has sent a cheque drawn on Allied Bank Limited for Rs.27,500/- with covering letter that this amount is rent for the month of September 2011, but he failed to pay rent for the month of July and August 2011 as such has committed willful default in payment of rent. It has been contended in the Ejectment Application that applicant required the premises for her own personal use in order to accommodate her daughter who is living in a rented premises. The rent of the said premises is very high and she cannot offer to pay the same after retirement of her husband from PTCL. She is residing at N-10 Hassan Apartments, Gulshan-e-Iqbal. It has been prayed that to direct the opponents to vacate and handover vacant and peaceful possession of the first floor of Plot No.1/7-B Muhammad Ali Cooperative Housing Society Karachi to the applicant. The applicant prayed for the cost of proceedings"

4. On the other hand, Opponent filed written statement and had denied the allegations leveled in the Ejectment Application and submitted that the opponent is occupying the premises in question since 1991 as per rent agreements from time to time and lastly as per rent agreement annexure "A" with the rent application section 15 filed by the applicant. The said agreement expired on 31.12.2008 and from 01.01.2009 the opponent is occupying the office premises as a statutory tenant and the opponent has had no authority under the Income Tax Ordinance 2001 to deduct income tax from rent, therefore no income tax was deducted on the rent paid to the applicant/landlady, opponent paid rent up to August 2011 @ Rs.27,500/= per month to the applicant who has issued receipt of rent for the month of July and did not issued receipt for August, 2011. However rent for the month of September to December 2011 has been deposited in MRC No.202 of 2011 in this court, the applicant with mala fide intentions did not issue rent receipt for the month of August 2011 and refused to accept rent for the month of August 2011 which was sent to her through pay order CDR No.10181366 dated 07.09.2011 and was returned by applicant vide letter dated 15.09.2011, the opponent then sent the rent for the month of September 2011 through money orders by post which were returned by the postal authorities as the applicant did not accept the money orders therefore, with no option left the opponent has deposited the monthly rent for September to December 2011 in MRC No. 202 of 2011 with the permission of the Court, hence no default committed. There is no default on the part of the opponent in the payment of rent and from the conduct of the applicant it is clear that she was refusing to accept and avoiding to receive the rent, thereby creating a situation of default on the part of opponent. The opponent is paying all other bills including water and conservancy charges in respect of demised premises regularly and nothing is outstanding; opponent lastly stated in his written statement that the demised premises in possession of the opponent and the entire building owned by the applicant is a commercial building and folk occupied by various commercial establishments as terms and cannot be used for residential purpose as is apparent from clauses 12 and 13 of the rent agreement. The applicant in order to get vacated the premises from the opponent has malafidely moved this application for the personal use of her married daughter who is not dependent of the applicant nor is residing with the applicant, furthermore the applicant and her husband are American National and the daughter is also holder of Green card of USA and they want to settle in the USA. The applicant's daughter is a well of lady as the applicant's grandson Ahsan holding MBA degree is in service of Pakistan Petroleum Ltd drawing a very handsome salary, as such claim of the applicant is false and mala fide; hence the ejectment application is liable to be dismissed.

5. Consequent upon pleadings of the parties, learned trial Court framed the following points to resolve the controversy between applicant and the opponent:- a. Whether the opponent has committed default in payment of rent for the month of July and August 2011 at the rate of Rs.27,275/= including maintenance charges of Rs.500/= per month? b. Whether the applicant requires the premises in question reasonable and in good faith for personal bona fide need? c. What should the order be?

6. Both parties led their respective evidences and had filed their affidavit-in-evidence and had exhibited necessary documents. Applicant examined her attorney namely Shaikh Abdul Mateen and he had filed his affidavit-in-evidence and same was exhibited as Exh.A. Photostat copy of General Power of Attorney vide Exh-A/1, Photostat copy of lease agreement as Exh-A/2, Photostat copy of the renewal dated 04.02.2008 as Exh-A/3, Photostat copy of electricity bill as Exh-A/4, Photostat copy of two rent bills dated 01.07.2009 and dated 03.08.2009 as Exh-A/5 and Exh A/6, Photostat copy of the letter dated 15.09.2011, addressed to the opponent as Exh-A/8, Photostat copy of the pay order dated 07.09.2011 amounting to Rs.27,500/= as Exh-A/9, Photostat copy of another letter addressed to the opponent dated 05.08.2011, alongwith postal receipt as Exh/10 and Exh.A/10(a), photostat copy of another letter dated 05.09.2011 as Exh-A/11 and thereafter applicant closed his side after cross-examination. In rebuttal thereof opponent examined himself and produced affidavit-in-evidence as Exh-O, Photostat copy of payment receipt dated 10.07.2011 as Exh-O/1 and the phosotat copy of the renewed tenancy agreement dated 30.09.2010 as Exh-O/2 and thereafter opponent's counsel closed the side after cross examination. 6(sic.) Learned counsel for the appellant contended that the courts below utterly failed to consider invalid and illegal Power of Attorney of the witness in terms of section 2 and section 4 of Power of Attorney Act, 1882 and Articles 84, 95, 117 and 119 of Qanun-e-Shahadat Order, 1984; per learned counsel impugned order passed by the learned two courts below is against the provisions of applicable law, hence without lawful jurisdiction there is patently illegal and absolute nullity in law; per learned counsel two courts below also did not consider the appellant's advocate's written submission which is against the principle of Audi Alteram Partem, hence the impugned order passed by the learned Rent Controller is liable to be set aside: per learned counsel the law primarily applicable in the case on the points of facts and law have been disregarded and ignored by the learned two courts below therefore the impugned order dated 14-12-2015 is biased, one sided and mala fide, per learned counsel from the impugned order delivered by the learned Additional District Judge it is clear that learned Judge has failed to consider the illegal General Power of Attorney given by the respondent/landlady to her husband and the case law relied upon. Since the General Power of Attorney allegedly executed by the Respondent/Iandlady does not confirm the legal requirement of law, it is nullity in law and consequently evidence of respondent/landlady's attorney recorded on the basis of illegal General Power of Attorney is also null and void and as such the orders delivered by the two courts below are against the provisions of applicable law, hence illegal, without lawful authority and without jurisdiction are liable to be annulled. Learned counsel for the appellant has relied upon the case law reported in the case of Mrs. Rasheeda Qudrat v. Malik Muhammad Qudratullah Khan 1998 MLD 171, Ghulam Mustafa v. Rashid Akbar Ansari 2009 MLD 538, Col.(R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others 2004 CLC 1019, 2009 MLD 538 (H.C.) Kar., 2013 YLR 443, 2009 MLD 538 (HC. Kar).

7. Learned counsel for the respondent contended that both the courts below have delivered good and sound reason Order and the Judgment respectively; per learned counsel both the courts below have rightly rejected the plea of the appellant; per learned counsel both courts below have stretched the facts and evidences on record; per learned counsel both the courts below have found out the default in payment of rent; per learned counsel the respondent needs the demised premises for her personal bona fide use; per learned counsel there is no illegality and infirmity in the order delivered by both courts below; per learned counsel there is nothing left which could require interference; per learned counsel appellant is willful defaulter in payment of the rent; per learned counsel appellant did not pay any utility charges as was agreed in the rent agreement; per learned counsel the instant Constitution Petition may be dismissed with cost. Learned counsel for the respondent had relied upon the case law reported in the case of Rana Abu Bakar v. Mst. Sadaqat Begum and 2 others PLD 1983 Lahore 320, Sahibzada Anwar Hamid v. Messrs Topworth Investments (MACAU) Ltd., through Chairman and 5 others,(sic.) Muhammad Ishaq v. Mst. Kubra Begum PLD 1988 Karachi 533.

8. Heard and perused.

9. It is an admitted fact that appellant has admitted before the learned court below are reproduced as follows:- "It is correct that it is mentioned in the renewal of agreement that after enhancement of rent 5% the monthly rent will become Rs.26,740/= and it is also correct that the monthly rent was payable as per rent agreement by 10th of each calendar month in advance. It is correct that it is mentioned in the renewal agreement that Rs.750/= will be made month wise towards maintenance charges by me as well as water charges." It is correct I did not file or produce any paid challan regarding the electricity charges and gas charges along with my written statement as well as with my affidavit-in-evidence. Voluntarily stated that I can produce paid challan or electricity charges and gas charges of 20 years. During the cross-examination opponent was shown Exh.-A/6 the notice dated 15.09.2011 then he replied I see Exh-A/6 dated 15.09.2011 received by me it is mentioned therein that Rs.27,000/= are to be returned as a monthly rent of July and August 2011. The opponent voluntarily stated that we started depositing the rent in MRC No. 202 of 2011 in this Court and in further cross he replied to a question put by the learned advocate of applicant. It is correct that notice dated 15.09.2011 was not replied by me as I have already filed MRC. I did not receive any notice dated 25.08.2011 allegedly sent by the applicant by registered post A/D. On showing Exh-A/7 he replied I see Exh-A/7 and say that in address given in the said notice the same and correct. He says I tender the monthly rent for the month of September 2011 through money order but the applicant refused to accept and received the same. It is correct that I did not produce or file any receipt of money order alongwith my affidavit in evidence or alongwith my written statement. It is correct I started depositing the rent for the first time on 29.11.2011 thereafter I deposited the rent in MRC No. 202/2011 on 22.12.2011 amounting to Rs.27,500/= and thereafter on 08.02.2012 I deposited Rs.27,500/- in the said MRC. It is correct that I did not deposit the monthly rent in advance by 10th of each calendar month as agreed in the renewal rent agreement. Voluntarily stated that I have deposited the monthly rent regularly upto December 2012 in MRC. It is correct to suggest that I have not produce any paid challan of electricity, as and telephone charges alongwith my affidavit-in-evidence or along with my written statement.

10. While examining the case from another angle, it could he held that even the constitutional petition itself is not maintainable. 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 matter is very much limited and is 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 Jehan and another (PLD 2004 Kar. 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 a case reported in 2010 SCMR 1025 the Hon'ble Supreme Court held as follows:- "

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. Apart from above in a case reported in 1997 SCMR 1062 Hon'ble Supreme Court has held 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. During cross-examination learned counsel for the respondent has not been able to establish that the statement of the attorney of the respondent/landlord made on oath is not consistent with the averments made in the ejectment application." In the present case there is no any jurisdictional error nor any perversity, illegality or infirmity was found in the orders passed by two courts below. Needless to mention that constitutional jurisdiction is a discretionary jurisdiction which is meant to foster justice and to remedy the wrong but could not be allowed to be invoked in routine course as an additional remedy to hamper the findings of fact, correctly recorded by the forums below.

11. As discussed supra the constitution petition is dismissed and the Judgment/Order delivered by the two courts below stands upheld. The Petitioner/tenant is directed to vacate the premises in question and handover the physical, peaceful and vacant possession to the landlady within thirty days. MQ/H-11/Sindh Petition dismissed.