2009 PLP 246 (MLD)

SALMAN ANSARI, J.

Matter was fixed for Katcha Peshi and Mr. Rao Liaquat Ali Khan, Advocate for the petitioner and Mr. Safdar, Advocate has filed power on behalf of the respondent and waived notice. Heard arguments of the counsel for the parties. This petition has .been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereby the petitioner being aggrieved and dissatisfied with the judgment, dated 29-8-2008 passed by VIth Additional District Judge, Karachi South dismissed the First Rent Appeal No.27 of 2008 of the petitioner filed against the order,. dated 1-3-2008 of the learned Xth Senior Civil Judge/Rent Controller Karachi South, in the Rent Case No.408 of 2006 allowing the respondent's application under section 15 of the Sindh Rented Premises Ordinance, 1979 and directing the petitioner/opponent to vacate the demised premises and handover its peaceful possession to the respondent No.1/applicant within 30 days of the date of the order. It has been contended by the petitioner in the petition that on two grounds mainly the application was preferred before the lower Court for ejectment one being on the ground of default and the other of unauthorized construction and on both the issues the findings being affirmative were erroneous as the petitioner had been depositing the rent regularly in the name of Mst. Zainab Bai who had rented out the shop in dispute and she is still owner of the property and unless ownership of documents are submitted before the petitioner she would continue depositing the rent in the name of .Mst. Zainab Bai and the respondent/applicant Mst. Shireen Bai is not landlady nor she has produced any title documents, in Court. The petitioner had also denied raising any unauthorized construction and that in the compromise in previous Rent Case No.750 of 1992 the landlady Mst. Zainab Bai had given her no objection orally and asked the petitioner/opponent not to remove the alleged unauthorized construction and structure made in and/or outside the rented premises. In the petition it is prayed as under: "(i) To allow this petition and set aside the impugned judgment, dated 29-8-2008 passed by learned VIth Additional District Judge Karachi South in FRA No.27 of 2008 (Mst. Hussaina Bai v. Mst. Shireen Bai) and order, dated 1-3-2008 passed by the learned Xth Senior Civil Judge/Rent Controller Karachi South in Rent case No.408/2006 (Mst. Shireen Bai v. Mst. Hussaina Bai) and resultantly Rent Case No.408/2006 (Mst. Shireen Bai v. Mst. Hussaina Bai) be dismissed with costs. (ii) Any other relief/reliefs which this Honourable Court deems fit and proper in the circumstances of the case may also be granted to the petitioner. (iii) Grant the cost of this petition." The learned counsel for the respondent has argued that the petitioner had in the record of the proceedings produced before the learned lower Court accepted that the respondent No.1 was now the owner and the landlady of the premises but petitioner failed to pay rent for the premises on the pretext that the same were being deposited in MRC No.76 of 1995 in the name of Mst. Zainab Bai, the mother of the respondent No.1 who has since expired but inspite of her death the respondent failed to pay the rent to the respondent Shireen Bai. The finding of Xth Senior Civil Judge/Rent Controller, Karachi South, in order, dated 1-3-2008 on both the issues is affirmative and the application under section 15 of the Sindh Rented Premises Ordinance, 1979, was allowed and ordered ejectment of the petitioner and subsequently in FRA No. 27/2008 on both counts the learned appellate Court had decided the matter against the petitioner hence the concurrent findings of the two Courts below can not be challenged in the writ jurisdiction of the High Court as the disputed questions of facts being decided by the Courts below High Court could not go into disputed facts in exercise of its constitutional jurisdiction, hence this petition be dismissed in limine. Having considered the arguments of the learned counsel for the petitioner and the learned counsel for the respondent. In the rent case learned Rent Controller had framed the following points: (1) Whether opponent has committed wilful default in payment of monthly rent w.e.f. October, 1994 as allowed? (2) Whether the opponent made unauthorized construction without permission of the applicant? (3) What should the order be? The points Nos.1 and 2 were decided in the affirmative and on Point No.3, allowed the ejectment-application. Learned Court had found the respondent No.1, to be the landlady of the premises and deposit of rent if any in the name of Mst. Zainab Bai in MRC No.76 of 1995 was not accepted as proper deposit of rent considering that a legal notice had been issued for payment to Mst. Shireen Bai and the Rent Controller had also found the petitioner to have raised unauthorized construction and structure inside and outside the premises without consent or permission of the landlady. In the appeal, the appellate Court had framed two points for determination as under:-- (1) Whether the notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was served upon the opponent and he found knowledge of change of ownership of the rented premises? (2) Whether the appellant/opponent committed wilful default in payment of monthly rent? And the findings are given as under:--" REASONS (11) Perusal of record shows that the pleadings in rent case No.750 of 1992 expose knowledge upon the opponent for change of ownership and the compromise effected in that case was signed by the appellant and the respondent wherein the appellant/ opponent agreed to pay rent from 1st, July, 1993 till 30th June, 1994 and the monthly rent Rs.786 was agreed between the parties w.e.f. 1st'July, 1993 and so also the appellant undertook to remove all unauthorized construction and structures made in and outside the premises. Such compromise between the parties before the learned Senior Civil Judge and Rent Controller Karachi, South, has been placed on record of this case as annexure "A" with memo. of ejectment application and the same exposes the notice of change of ownership was conveyed to the appellant/opponent and no objection during compromise application was made by the appellant/opponent and yet no dispute has come on surface with regard to the ownership of the respondent/applicant therefore contention of the appellant having no merits. The appellant was under obligation to pay rent in respect of rented premises in favour of the respondent/ applicant but the appellant has committed wilful default in payment of rent. However, the appellant tendered rent in respect of rented premises to the husband of the respondent/applicant party. Besides this it was agreed by the appellant/opponent that the unauthorized construction and structure in and outside the rented premises will be removed by the appellant, therefore, denial of unauthorized construction in and out side the rented premises by the appellant/opponent is meritless. The appellant has denied the unauthorized construction and structure in and out side the rented premises but the same was not denied in written statement at para. No.3 and the appellant/opponent has stated in para. No.3 of the written statement that no objection was orally extended by the mother of the respondent/applicant for not removing unauthorized construction and structure made in and out side the rented premises but on the contrary during the cross-examination the appellant/opponent admitted that he never met with Mst. Zainab Bai mother of respondent/applicant personally which shows that neither no objection was extended by the mother of the respondent/applicant nor which was permissible under the law to build unauthorized construction and structure in and out side the premises. Therefore, the evidence placed on record suggest that no prior permission was ever- sought by the appellant/opponent for unauthorized construction and structure built in and outside the rented premises therefore, the violation of the tenancy agreement has come on surface which made the appellant liable for ejectment. Besides this the rent deposited in MRC in favour of the mother of the respondent/applicant who was died and such deposit of rent in the name of the that dead person is illegal and would not amount to be due tender of rent in the eyes of law. I am fortified with the observations taken by the Hon'ble Supreme Court Pakistan in a case of Pakistan State Oil Co. Limited v. Pir Jee Muhammad Naqi reported in 2001 SCMR page 1140 and in case of Feroz Khan v. Syed Zoha duly reported in CLC 1996 page 949 Karachi. Under the above said facts and circumstances, I am of the considered view that no further notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was required, to be conveyed to the appellant suffice it to say, the memo. of ejectment application filed in rent case No. 750 of 1992 before the learned IVth Rent Controller Karachi, South, was sufficient to convey the notice of change of ownership by way of gift deed, dated 1-1-1990 executed by mother of the respondent/applicant which has neither been disputed nor denied by the appellant/opponent before this Court or before the learned Rent Controller or before any forum." Hence, both the lower Courts have decided questions in dispute and placing reliance upon PLD 2001 SC 415, (Secretary Government of Punjab, Forest Department, Punjab, Lahore v. Ghulam Nabi and 3 others, it has been held that "under Article 199, constitutional jurisdiction of High Court. Disputed question of fact. Forums available in the hierarchy under the relevant law had decided all the controversial questions on the basis of record and in accordance with law. High Court could not go into disputed questions of fact in exercise of its constitutional jurisdiction". 2003 MLD 480 (Kar.) (Saifullah v. Muhammad Bux and 2 others), it has been held that "the contention of the petitioner was that both the Courts of Rent Controller and the District Judge had not properly appreciated the evidence. Question pertaining to application of facts could not be resorted to, in exercise of constitutional jurisdiction by High Court, for the simple reason that in doing so the constitutional petition shall be converted into a revision or second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated. Constitutional petition being not a substitute either for revision or the second appeal, constitutional petition shall be entertained if a case was made out to the effect that the Rent Controller and First appellate Authority had made an error palpably without jurisdiction or there was case of lack of jurisdiction or the finding was so perverse, that it was not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law had been violated. Constitutional petition, in rent matters and in all such cases in which no second appeal or revision was provided in law, shall not be entertained, until and unless there was a jurisdictional error committed by the Court below". PLD 1981 SC 246 (M. Sharif and another v. M. Afzal Sohail and others) in which it has been laid down that "exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, writ petitions from orders of Tribunals to be discouraged. Competency to decide includes to decide rightly or wrongly by Tribunal. Merely because another conclusion could be arrived at from evidence, would not make it a case for interference under Article 199. .Filing of petitions to circumvent law or defeat legislative intention of speedy disposal of cases, deprecated". Hence, in my opinion I find do error which could be considered unlawful exercise of jurisdiction committed by the lower Courts nor any specific provisions of law had been violated, no error or lack of jurisdiction or perverse finding is pointed out in both the decisions of the lower Court, hence in my opinion, this Court cannot interfere in this matter in exercise of its power under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, hence this petition is dismissed in limine. M.H./H-29/K Petition dismissed.