2004 PLP 1985 (CLC)

In his written statement, tenant/petitioner denied all the allegations so made against him by the landlords/respondents, and took a stand that the demised premises was basically let out for the use of a godown and not as a shop, and that the same has always been used by him as such, that landlords do not need the same for their personal bona fide use and occupation, that ejectment application was filed on the false grounds only to pressurize him to enhance the rate of monthly rent, and that the above stated partnership so asserted by the landlord is on the basis of fake agreement and on forged documents. Tenant further pleaded that he was not bound to pay anything towards the taxes and charges for the water and sewerage or/and towards the consumption of electricity, and therefore, question did not arise to ask him to pay towards the same, and did not commit any such default. On the pleadings of the parties, learned Rent Controller framed the following issues:-- "(1) Whether the applicants require the premises in question in good faith for establishing their business? (2) Whether the opponent has committed default in payment of water and conservancy, and electricity charges? (3) Whether the opponent is using the premises other than office, as godown, for which it was rented out? (4) Whether the opponent impaired the value and utility of the premises? (5) What should the order be?" After the parties produced their respective evidence, learned Rent Controller, vide order dated 28th February, 2002, recorded finding that the landlords/respondents have proved their need td have the disputed premises for their personal use in good faith, that the tenant/petitioner committed default in payment of water and conservancy charges/taxes, and also towards the electricity consumption charges; the issue as to whether the tenant was using the demised premises for a purpose other than for which it was let out was decided against landlords/respondents; so also, the issue that the tenant impaired the value and utility of the premises materially was decided against landlords, in the appeal, filed by the tenant/petitioner, learned Appellate Court recorded observation to the effect that the landlord/respondents proved that the disputed premises is required by them for their personal bona fide use as they want to open their own business therein, and that the tenant/petitioner, though, afforded with due opportunity to cross- examine the witness of the landlords, could not shake his testimony on this point and they proved their entitlement to get the tenant ejected from the same and that the intention of running business concern, as disclosed by them, was proved to be honest. Learned Appellate Court further observed that the learned Rent Controller in the ejectment order passed against the tenant/petitioner has recorded cogent reasons, after proper appreciation of the evidence produced by the parties, and therefore, the appeal stood dismissed. Learned counsel for petitioner has contended that the landlords, while getting the revised plan approved from the Karachi Building Control Authority, for the purpose of internal-changes in the structure of entire building, wherein demised premises is situated, did not make any mention (before the said authority) that the different portions of the said building are under the tenancy of different tenants and further that in the memo. of ejectment application, no such plea was taken by the landlords that they intended to get revised, the plan for the internal structure of the building from the Karachi Building Control Authority, and thereby they could not be allowed to produce the revised/approved plan and the evidence so produce by hem could not be relied upon. It is further contended by learned counsel for petitioner that a separate case against the tenant for fixation of fair rent was filed and that such a fact itself proves that ejectment application was filed with a sole object of pressurizing the petitioner to concede to their demand of enhancement of rate of monthly rent; it is also further argued that no written agreement is produced in evidence by the landlord for the purpose of recording a satisfactory finding that the tenant was ever bound to pay towards water and conservancy charges, towards electricity consumption charges and therefore, the presumption is to be drawn that the monthly rental amount of Rs.392 was to include the charges towards the same, and that no separate/independent demand was to be made by the landlords towards the same, and under such circumstances neither he was bound to pay anything towards the same nor he could ever be legally taken to have defaulted (as held by learned Rent Controller); it is further argued that if it could possibly be recorded that tenant was bound to make payment towards such taxes/.charges, then also there is no material on the record of the case to say as to, to what extent and as to at what rate. So far the plea taken by the landlords that the disputed premises (with other portions of the building wherein the same is situated) is required by them in good faith for their personal use, as they intend to run a business of their own, suffice it to say that they produced the revised plan, duly got approved from the Karachi Building Control Authority, copy whereof is available at pages 125, 127, 129 and onwards of this petition, which clearly describe the need and intended use of the landlords of the different portions of the entire building viz. ground floor plan separately shown therein, first floor .plan separately shown therein, and second floor plan is separately shown therein, with full details of intended use of the different portions of the entire building. Learned counsel for respondent read out the entire cross-examination of witness Feroz Afaq Ahmad Khan, who is one of the applicants and joint owner of the demised premises, and has argued that no question was put on behalf of tenant/petitioner to challenge the stand taken by the landlords that the demised premises, together with other portions of the above stated building, is got approved by them to be converted for the purpose of using the same for their business concern, as pleaded by them, and for which they filed further documents available at page No.129 and onwards which clearly indicate that they need the entire building for the purpose of running of the business of export of the goods (as pleaded by them) and such a partnership has duly been entered into with them by a foreign concern. It is by now a settled principle of law that where the landlord/landlords produce a plan duly got approved from the competent Building Control Authority, for the purpose of revision of the building structure to prove their intention to run the business of their own therein, then such approval of the revision of the building structure (together with the certificate) are sufficient to prove the intention of the landlords towards the same. So also, it is by now a settled principle of law that the option of suitability and convenience to, choose a particular building/premises to run a business therein is the sole prerogative of the landlord and tenant cannot dictate any terms to landlord to suggest anything contrary to them for running of the business. Learned two Courts below rightly recorded the finding that the landlord proved their plea beyond doubt, that the demised premises with other portions of the building are bona fide required by them to run their own business therein. The question as to whether or not the tenant was bound to pay towards water and conservancy charges, suffice it to say that learned counsel for respondent has referred to documents available at pages 182, 186 and 190 of this file and has argued that record maintained by them in their capacity of being landlords conclusively proves that they had been receiving the rent amounts separately, and other charges/taxes separately from the tenant, and had been issuing such receipts to the tenant, copies whereof are available at the said pages of this file; the same conclusively proves the stand taken by landlord that the tenant was bound to pay towards water and conservancy charges/taxes and electricity consumption charges, separately, who was first paying for the same but then he stopped paying towards the same and committed such default; a copy of notice dated 17th November, 2000 available at page 190 proves such stand taken by the landlords, that the tenant was not paying independently towards the water and conservancy charges, and that a joint bill was being received by them from the KWSB and, on the basis thereof, they had been making demand from the tenants of building towards payment of such charges, coming to their respective shares; having proved that the tenant was bound to pay the same, he failed to comply with such a demand made from him by the landlords, and therefore, two Courts below rightly recorded finding against him to be a defaulter towards the same. Consequently, no defect is found in the above-stated concurrent findings recorded by the learned two Courts below; it is by now a settled principle of law that the Constitutional jurisdiction of this Court extends only to review the orders of Court or Tribunal subordinate to the High Court to see if any illegality has been committed by them while passing the order/judgment impugned in the Constitution petition, and that incompetent petition could not be encouraged under Article 199 of the Constitution of Pakistan, 1973. No illegality or misreading/non-reading of the evidence is found in the order/judgment passed by two Courts below and therefore, this Constitutional petition does not carry any merit therein which is hereby dismissed in limine together with the listed application. H.B.T./M-135/K Petition dismissed.