2013 PLP 2705 (YLR)

SADIQ HUSSAIN BHATTI, J.

The petitioners are aggrieved by the Judgment dated 25-8-2011 passed by the II Additional District Judge, Shaheed Benazirabad in First Rent Appeal No.1 of 2011 whereby the appeal was allowed and the ejectment order passed by the Rent Controller in Rent Case No.6 of 2011 was set aside.

2. The brief facts of the case are that the petitioners are owners of property comprising C.S No.588 situated in Ward-B, Mohni Bazar, Nawabshah. Petitioner No.1 is duly constituted attorney of petitioner No.2 and the property of the petitioners' comprises of four shops, out of these four shops one Shop No.588/3 is in occupation of respondent No.1 as tenant. The petitioners filed proceedings for ejectment of respondent No.1 from the shop in his occupation. The said proceedings concluded finally before the Hon'ble Supreme Court of Pakistan, the opponent was supposed to pay rent of shop in his occupation with usual enhancements as required under the provisions of S.R.P.O, 1979 to petitioners but opponent knowingly and mala fide did not pay or tender rent of the shop in his occupation to the petitioners and thereby he committed wilful default and rendered himself liable for ejectment from the premises. The city Nawabshah is the ancestral/native place of petitioners, whose elders are buried at Nawabshah. They had "temporarily left Nawabshah purely for the purpose of their education and service but they had never thought to leave Nawabshah for good. Now they have accomplished the object for which they had left Nawabshah and have decided to return and permanently settle at their native place Nawabshah and require the shop in occupation of opponent for their personal bona fide use and occupation. They want to re-erect/ reconstruct a Medical Consultancy by demolishing existing shop, over their property C.S. No.588 Ward-B Mohni Bazar, Nawabshah, as they are a family of Doctors, which can be established from the fact that petitioner No.1, Dr. Muhammad Shahid Hassan Khan specializes in eyes petitioner No.2, Dr. Aurangzaib Khan specializes in orthopedics, their sister Ambreen is MBBS doctor, expert in her own field of Medical profession, whereas their brother-in-law Dr. Syed Muhammad Rafique is also a doctor specialized in ophthalmology and they all sincerely want to run consultancy themselves. Such building plan is duly approved/sanctioned and permission of construction granted to petitioners by the competent authority of Municipal Administration, Nawabshah. The petitioners through their counsel served the respondent No.1 with notice requiring the opponent to vacate the shop and put them in possession thereof. In spite of service of notice, the respondent No.1 has failed to vacate the shop. From conduct/attitude of respondent No.1, it is clear that he is not prepared to vacate the shop or put the petitioners in possession of the same. Hence, rent application under section 15 of S.R.P.O, 1979 was filed by the applicant/ respondent. Respondent No.1 resisted the ejectment application, whereby he denied the plea of wilful default in payment of rent and submitted that the monthly rent is being deposited by them before Court in MRC No.5 of 1995. The requirement of premises for personal bona fide use and re-construction was denied. It was submitted that in failure of earlier round of litigation, the petitioners under their mala fide intention and with unclean hands again filed this rent application with new plea of re-construction.

3. The learned Rent Controller on the pleadings of parties has formulated the following points to determine the dispute between parties. Point No.1: Whether rent application is not maintainable? Point No.2: Whether the opponents have failed to pay the rent as required under the provision of Sindh Rented Premises Ordinance? Point No.3: Whether the landlords required the shop in good faith for personal use? Point No.4: Whether the shop is required by the applicants for reconstruction? Point No.5: What should the order be?

4. The parties filed their respective affidavits in evidence and were cross-examined. Thereafter, arguments were heard by learned Rent Controller and as per his findings, he decided the Points Nos.1 to 3 in negative while Point No.4 was decided in the affirmative and allowed the rent application on the ground of re-construction.

5. The respondent No.1, being aggrieved by such order, assailed the same by way of filing First Rent Appeal No.01 of 2011 which was allowed and the ejectment order passed by the Rent Controller in Rent Case No.6 of 2011 was set aside. Hence, the present petition.

6. Learned counsel for the petitioners submitted that the Point No.4 was decided by the learned appellate Court erroneously as there was no evidence available on record which could justify reversal of the findings of the Rent Controller on such point. He also submitted that the respondent No.1 should have deposited the rent on enhanced rent as decided by the Hon'ble Supreme Court and that no fresh application for enhancement of rent was required in this regard. It was also submitted that the demised shop was rented out to one Maqsood Ahmed in the year 1988 who expired during pendency of litigation since right of tenancy is not inheritable as such the legal heirs of said Maqsood Ahmed are not entitled to retain the said shop. In support of his contentions the learned counsel relied on the following case-law: (1) Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others (2006 SCMR 117), (2) Muhammad Ashraf through Attorney v. Mrs. Azra Muqeem and others (2010 CLC 1788), (3) Fateh Ali v. Trustees of Haji Sir Abdullah Haroon Wakf No.2, Karachi through General Attorney (PLD 1996 Karachi 225), (4) Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178), and (5) Abdul Mehdi v. Mrs. Abdul Hakim (1990 MLD 2182).

7. The learned counsel for respondent No.1 has submitted in his arguments that after completion of first round of litigation, the petitioners have filed a fresh rent application with mala fide intention. According to his contentions, the plea of default in payment of rent as well as personal bona fide use were not proved and the same were decided in negative. No appeal or cross-objection was filed to challenge the said findings which have attained finality. According to his contentions, admittedly the rent is being deposited in Court and the landlords are permanently residing at Karachi and most of their family members who are doctors are serving in foreign countries, therefore, no question arises for the personal bona fide use, which plea was raised with mala fide intention. According to the learned counsel, the ground of re-construction is connected with personal bona fide use and when it was found that the plea of default and personal bona fide use has been taken malafidely then there was no reason to accept the plea of re-construction. Hence, the impugned Judgment, according to the learned counsel for respondent No.1 does not call for any interference from this Court in its Constitutional jurisdiction and the petition is liable to be dismissed.

8. In support of his contentions the learned counsel relied on the following cases:-- (1) Muhammad Akram v. Ist ADJ, Nawabshah and others (2008 MLD 1184) (2) Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCMR 1925), (3) Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691), (4) Abdul Razzak v. Ihsan Sons Limited and others (1992 SCMR 505), (5) Secretary to the Government of the Punjab, Forest Department v. Ghulam Nabi and others (PLD 2001 SC 415), (6) Syed Mazhar Hussain Shah through LRs v. Member, Board of Revenue, Punjab (2006 SCMR 959), and (7) State Life Insurance Corporation and others v. Jaffar Hussain and others (PLD 2009 SC 194).

9. I have heard the learned counsel for the parties and have gone through the record and the case-law cited before me.

10. After the first round of litigation, the petitioners/landlords filed another rent case bearing No. 6 of 2009 on two grounds, namely, default in payment of rent and reconstruction.

11. First, I will take up the question of default in payment of rent. It was averred in the rent case that after the conclusion of the first round of litigation before the Hon'ble Supreme Court of Pakistan, the tenant/respondent No.1 "was supposed to pay rent of shop in his occupation with usual enhancement as required under the provisions of Sindh Rented Premises Ordinance 1979 to the applicant but the opponent (respondent No.1) knowingly and with mala fide intention did not pay or tender rent of the shop in his occupation to the applicant and thereby he committed wilful default and rendered himself liable for ejectment from the premises." Thus, the admitted position is that the petitioners do not claim that the respondent No.1 did not tender the monthly rent on time and, therefore, committed default in payment of rent which renders him liable to ejectment. This plea is absolutely without any weight. Section 8 of the SRPO deals with fixation of fair rent which reads as under:-- "

8. Fair rent.-(1) The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following factors:

(a) the rent of similar premises situated in the similar circumstances, in the same or adjoining locality. (b) the rise in cost of construction and repair charges. (c) the imposition of new taxes, if any, after commencement of the tenancy; and (d) the annual value of the premises, if any, on which property tax is levied. (2) Where any addition to or, improvement in, any premises has been made or any tax, or other public charge has been levied, enhanced, reduced or withdraw in respect thereof, or any fixtures such as lifts or electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section 9 be determined or, as the case may be, revised after taking such changes into consideration."

12. Thus, it would be seen that fixation of fair rent is not automatic but is to be fixed on an application by the landlord or the tenant, by the Rent Controller on the basis of the factors mentioned in clauses (a) to (d) of section

8. Admittedly, neither any application was filed by the petitioner for fixation of fair rent nor any order has been passed by the Rent Controller fixing fair rent. In this view of the matter, no default in payment of rent was committed by the respondent No.1.

13. The second ground taken in the rent application for eviction of the tenant/ respondent No.1 was that the property is needed by the petitioners for reconstruction as they intend to establish a medical consultancy centre as they are a family of doctors and even their brother-in-law is a doctor and they all sincerely want to run the consultancy centre themselves. In view of the fact that earlier also a rent case was filed by the petitioners seeking eviction of their tenant in which the matter reached upto the Hon'ble Supreme Court and only one shop was given to the petitioners. Thus, the claim of the petitioners is to be scrutinized with caution. The plea of re-construction was also taken in the previous round of litigation between the parties wherein this Court, in F.R.A. No.51 of 1996 and F.R.A. No. 53 of 1996, vide judgment dated 27-4-2001, held as under:-- "Finally, as regards requirement of the shops for re-construction etc. it is significant to note that nothing has been brought on record by way of approvals, building plans etc. from the concerned authorities which could even faintly establish that the appellant wanted to construct a residential house on top of the shops."

14. In para 5 of the rent case it has been stated that "Nawabshah is the ancestral/native place of applicant (petitioner) and his brothers, whose elders are buried at Nawabshah. They had temporarily left Nawabshah purely for the purpose of their education and service, but they had never thought to leave Nawabshah for good." This statement of the petitioners in their rent case is pivotal to the fate of this petition.

15. It has come on record that after the death of the father of the petitioners, the petitioners along with their mother shifted to Karachi and sold their family house in Nawabshah. If a person is leaving his ancestral place temporarily he will never sell his ancestral house because there is no sense in selling an immovable property with some sentimental attachment, when a person intends to come back. There is another aspect also. It is claimed that the petitioners have left Nawabshah "purely for the purpose of their education and service", however, the two reasons shown are poles apart as for the purpose of education only a short period of time is required for which it is not necessary that the family should move lock, stock and barrel from one place to another as, in the present case the entire family, after selling their ancestral house in which they were living, moved to Karachi. For the purpose of service, if a person is in government service, he would serve upto to the age of 60 years and the period of stay would be around 20-30 years while in private service there is no such restriction and the same may continue indefinitely. In the memo of petition it has been averred that the sister of the petitioners is also a doctor and she will also join them in the proposed medical consultancy centre, however, perusal of her Certificate of Medical Registration shows that she has given her permanent as well as temporary address of Karachi. Her husband, who is also a doctor, is also to join the petitioners in their medical consultancy centre but it transpires that he is a government servant and it is not mentioned as to when he will attain the age of superannuation.

16. In the previous round of litigation it was averred that the shops are needed for constructing a house on the first floor but in the present rent cases the stance was, changed and it was stated that a Medical Consultancy centre will be built on the shops. However, nothing has been mentioned about the arrangements made for their residence in Nawabshah as they have already sold their ancestral house. In the case reported as Abdul Ghaffar through L.Rs. v. Ghulam Muhammad and others (2005 YLR 313), somewhat similar situation arose that the landlord shifted to Karachi from Thatta, and a learned single Judge of this Court held as under: '

6. Mr. Akhlaq Hussain appearing for respondent No.1 has on other hand submitted that under cross-examination the petitioner has admitted that the respondent No.1 is jobless and lives in Karachi. Per learned counsel immediately giving the notice in the year 1998 and filing the eviction application the respondent No.1/landlord moved to Karachi and is still living there. Finally, learned counsel has submitted that per settled law the tenant cannot question as to what sort of business the landlord proposes to carrying in the demised premises and whether it is suitable for the same. For this, proposition he has relied upon Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394, Messrs F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178 and Fazal Azim and another v. Tariq Mahmood and anther PLD 1982 SC 218.

7. In reply Mr. K.B. Bhutto has submitted that the respondent No.1 till the filing of the rent case was in Thatta since he has given that address in all the documents filed in Court and thereafter suddenly he moved to Karachi in the year 1999 as admitted by him under cross-examination. Per learned counsel this is quite strange since earlier in the cross-examination the respondent No.1/landlord has admitted that he lived in Thatta along with his father in Lohar Street about 1000 yds. Away from the demised premises. Hence, per learned counsel, respondent No.1 has been changing his stand and accordingly has not been able to establish his personal bona fide need. He has relied in this regard upon Faqir Muhammad and others v. Mst. Muhammad Bibi and others PLD 1991 SC 590."

17. It may also be not out of place to mention that first the rent case was filed on the ground of personal bona fide use of the shops, however, in the second round of litigation, the stance has been changed and the shops are sought for re-construction. Such grounds have been held to be contradictory to each other. Kindly see the case of Muhammad Akram (supra).

18. The learned counsel for the respondent No. I stated that the Rent Controller decided the issue No.4 in favour of the petitioners while appellate Court reversed the same and decided it in favour of the respondent No.1. In such situation, when there is conflict of judgment between the trial Court and the appellate Court, the judgment of the appellate Court is to be preferred unless it is shown from the record that such findings are not supported by evidence or that the conclusions drawn by the appellate Court are against the record or the judgment of the appellate Court suffers from non-reading or misreading of evidence. Reliance was placed on the case of Muhammad Hafeez (supra). The learned Appellate Court, on the point of reconstruction, held as under:-- "Coming to the point of reconstruction, it may be observed that this point is connected with the ground of personal need because it is nowhere case of the landlord that the building is of old construction and requires construction or it has been damaged. In fact, it is the case of the landlord that they want to reconstruct a Medical Consultancy for their personal bona fide use for which building plan is duly approved and permission is granted by Municipal Administration. It is not out of place to mention that when learned Rent Controller decided the issue of personal need in negative and came to the conclusion that premises is not required to landlords for their personal use, then, there was no need to allow the rent application on the ground of construction which is coupled to the ground of personal use."

20. The above finding was given by the learned Appellate Court on the basis of evidence on record. This Court, while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot sit as a Court of appeal on a question of fact and this Court cannot, in exercise of its constitutional jurisdiction, interfere merely on the ground that a different view on the basis of same evidence was possible. Reliance is placed on the case of Abdul Razzak, Mazhar Hussain Shah and Secretary to the Government of the Punjab (supra).

21. The learned counsel for the petitioners relied on the case of Messrs F.K. Irani and Company (supra), to contend that statement of the landlord on oath is enough to prove that requirement of the landlord is bona fide. Following relevant portion of the cited judgment may be quoted for convenience: "In the latter case, while approving Hasan Khan and relying on Tauhid Khanum v. Muhammad Shamshad 1980 SCMR 593 it was observed that on the issue of personal need, statement on oath, if consistent with the application and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that it is bona fide. Applying this test, we find that the respondent has been consistent and the evidence produced is not in conflict or inconsistent with the ejectment application. No evidence in rebuttal has been produced to shake the testimony nor in cross-examination the witnesses have shown any infirmity to discredit it."

22. However, in the present case it is not so. In the present case the petitioners have sold their ancestral house in Nawabshah, they are permanently residing in Karachi for the last many years and they have not been able to show that they would move to Nawabshah in near future. Therefore, this case will not be any help to them. Similarly, the other cases relied upon by the learned counsel or the petitioners are distinguishable on facts.

23. In view of the above, I do not find that the impugned judgment suffers from any illegality, irregularity, non-reading or misreading of the evidence on record calling for interference by this Court under its Constitutional jurisdiction, which, as discussed above is very limited. Accordingly this petition is dismissed. JJK-S/57/K Petition dismissed.