2013 PLP 2764 (YLR)

FAROOQ ALI CHANNA, J.

The respondent Waqar Ahmed through his attorney Abdul Sattar has filed Rent Case No. 201/2004 that he is co-owner of Bungalow No. 72, Nirman Road, Amil Colony, Karachi inherited by him from his grand-mother Mst. Hajra Bai. The petitioner Abdul Rehman is the tenant of first floor rented out to him by Kassim Sheikha, the uncle of respondent and tenant of two rooms, kitchen, bath room and upper roof passage constructed on second floor rented out to him by the respondent who seeks his ejectment on the ground of wilful default in payment of rent and requiring the premises for his personal bona fide use. Learned VIIIth Rent Controller, Karachi East (hereinafter referred as trial Court) after recording the evidence of both the parties framed the following points:-- (1) Whether there is any agreement executed between the applicant and opponent with regard to the first floor of the premises in question? (2) Whether the opponent has committed wilful default for the payment of monthly rent? (3) Whether the premises in question requires to the applicant for his personal use? (4) What should the order be? The above said points were decided in negative and the rent application was dismissed vide order dated 30-3-2006. The respondent Waqar Ahmed assailed the order of trial Court in 1st Rent Appeal No. 75 of 2006 which was allowed by the learned IVth Additional District Judge, Karachi East (hereinafter referred as Appellate Court), on the sole ground of requiring the demised premises by the respondent for his personal bona fide use vide judgment dated 9-7-2007 directing the petitioner to vacate both the premises within six months, the judgment of Appellate Court is impugned in this Constitution Petition.

2. The trial Court while deciding the Point No.3 regarding the demised premises required by the respondent for his personal bona fide use has observed that the demised premises is a joint property of legal heirs of deceased Mst. Hajra Bai and the suit for partition is pending which manifest that no co-owner can claim that he owns the particular portion i.e. demised premises. The trial Court has also observed that admittedly the first floor was rented out to the petitioner by Kasim Shekha who has not come forward to support the plea of respondent for ejectment of petitioner on the ground of his personal bona fide use, in these circumstances proper course would be to wait till the controversy between the owners of building regarding the partition of property is decided by the competent Civil Court in lis pending. The Appellate Court has reversed the findings of trial Court and has observed that for the purpose of ejectment of tenant the other co-owners should not have been necessary parties on either side, the Appellate Court to support his view has relied upon PLD 1973 Supreme Court of Pakistan 214 (Khaleeq Ahmed v. Abdul Ghani and another). Regarding the plea of personal bona fide use, the Appellate Court has observed that the denial of respondent's personal need stand on the counter allegations of the petitioner that the respondent wanted to extort money from him and forced him to admit him as landlord in respect of the demised premises let out to the petitioner by Kasim Shekha. The Appellate Court has further observed that in these circumstances it became incumbent upon the petitioner to bring the said Kasim Shekha in the witness box but he has failed to do so, in view of above the Appellate Court has discarded the version of petitioner and allowed the ejectment application on the ground of premises required by the respondent for his personal bona fide use.

3. Learned counsel for the petitioner in his arguments has contended that during pendency of rent proceedings the petitioner has purchased the share of Kasim Shekha and by virtue of registered sale-deed executed by Kasim Shekha in respect of his share in subject building in favour of petitioner, he became the co-owner of subject building, such subsequent development can be considered in Constitution Petition, in order to do complete justice. To support his version learned Counsel has relied upon an unreported judgment of the honourable Supreme Court of Pakistan passed in Civil Appeal No. 45-K of 2012 which follows the cases of Mst. Ameena Begum v. Meher Gul Dastagir PLD 1978 Supreme Court of Pakistan 220 and Raj Muhammad v. Haji Muhammad Zarin 1980 SCMR

339. The next contention of learned Counsel for the petitioner is that the respondent was not competent to file ejectment proceedings for his personal bona fide use without impleading the co-owners in the rent proceedings or at least seeking their no objection as the property belonging to co-owners cannot be used for personal need by one of the co-owner without the consent of major share-holders. Learned counsel in this respect has relied upon the case of Abdul Ghani v. Abdul Jabbar 1999 SCMR 348 and the case of Ferozuddin v. Arshad Begum 2010 CLC 365, relevant observation as reported at page 369 reads as under:-- "He admitted that his brother and co-petitioner has three sons and their ages respectively were 29 years, 26 years and 13 years and the elder two sons were also doing business. There has not been any partition of the property. There is no statement whatsoever as to who has to conduct business or whether all of them have jointly decided to conduct business. Applicants Nos.2 and 3 did not appear as witnesses and there is no statement that he had been authorized by the co-owners. While all the co-owners separately signed the ejectment application, the other co-owners did not appear as witness. All these circumstances have correctly led the Courts below to coming to the conclusion that bona fide personal need had not been established. I do not find any reasons for interfering with the conclusion recorded by the Courts below. Consequently this writ petition is dismissed in limine."

4. Conversely learned counsel for the respondent has called in question the maintainability of Constitution Petition and has contended that under the constitutional jurisdiction this Court has limited scope to re-visit the findings of the Courts below. However in exceptional cases, if there is misreading or non-reading of evidence or law points are involved this Court is competent to exercise its constitutional jurisdiction which exceptional circumstances in this case the petitioner has failed to point out. Learned counsel has further contended that the petitioner's own contention that after purchase of share of co-owner in the subject building his status being tenant converted into owner, is sufficient to dispose of the instant Constitution petition as being co-owner to continue his possession over the demised premises he has to seek remedy from the Civil Court and not in rent proceedings, in these circumstance first the petitioner has to vacate the premises occupied by him as a tenant and thereafter file civil Suit whereafter he would be given easy access to premises in case he prevails. Learned Counsel has relied upon the case of Abdul Rasheed v. Maqbool Ahmed 2011 SCMR

120. While rebutting the plea of competency of respondent to file the ejectment application as co-owner for his personal bona fide use without impleading the other co-owners as party, learned Counsel has contended that it is not the requirement under the Sindh Rented Premises Ordinance, 1979, in support of his contention he has relied upon 2002 SCMR 429 (Muhammad Hanif and another vs. Muhammad Jamil Turk and 5 others) wherein it has been held that co-sharer can file ejectment proceedings against the tenant without impleading other co-sharers, the wisdom behind such plea is that co-sharer acts on behalf of and represents interest of all the co-sharers of the property. In view of above submissions learned counsel for the respondent has requested for dismissal of petition.

5. I have considered the arguments and perused the record. Besides the contrasting version regarding the competency of ejectment proceedings on the ground of requiring the demised premises for personal bona fide use by respondent without impleadmg the other co-sharers in the proceedings, there is another aspect of case that the burden to prove the personal bona fide use, lies upon the respondent and how to discharge such burden, this Court in the case of Mehboob Alam v. Miss Tahseen Shafqat Khan and others PLD 2001 Karachi 238 has drawn a guideline in this respect which reads as under:-- "The most significant fact in this case with reference to the plea of personal requirement, is that the landladies neither appeared in the rent proceedings for evidence, nor they filed rent application themselves. Thus, from their mouth the claim that they require the premises for personal use has not come forward. It is only their attorney who states that the landladies require the premises for their use to establish a business. This is merely an opinion of a third person and this evidence could only be used for the purpose of corrobo-ration. One cannot delegate his intentions by executing a power of attorney. The landladies should have placed their plea directly before the Rent Controller in their rent application, which has not been done. The attorney's examination before the Rent Controller is only evidence of a witness which could only be used for a corroboration of a version of the landladies, had there been one. Since the landladies have not directly informed the Court of the Rent Controller, in any manner, about their intention to use the premises i.e. by filing rent application themselves or by filing their affidavit, there is no occasion for use of the evidence of the attorney for a corroboration. If the attorney says that he has been informed by the landladies that they need the premises for their use, this would be a hearsay evidence only. It may not be necessary for a landlord to appear for evidence to assert his plea of bona fide requirement, but it is necessary for him, at least, to approach the Rent Controller through his rent application and put, before him, the plea that he requires the premises for personal use. The plea and evidence of the attorney, in the absence of a direct assertion of the landladies them-selves about their requirement, cannot be deemed adequate for an affirmative inference on the issue."

6. The Appellate Court has not considered the above aspect of case keeping in view the material facts brought on record by both the parties in their pleadings before the trial Court/Rent Controller. I may mention that as per para No. (9) of the ejectment application this is fourth ejectment application, earlier ejectment applications were filed by different co-owners on the ground of their personal bona fide use of demised premises. The petitioner in his written statement has contended that all the ejectment applications were filed by the same Attorney Abdul Sattar, he filed first Rent Case No. 86 of 2003 as attorney of Mst. Bilquees, second Rent Case No 328 of 2003 as attorney of Muhammad Ilyas, third Rent Case No. 335 of 2003 under section 8 of the Sindh Rented Premises Ordinance, 1979, fourth ejectment application being Rent Case No. 503 of 2003 as attorney of Waqar Ahmed on similar ground of personal bona fide use, all the above mentioned rent cases were withdrawn, lastly Abdul Sattar has filed the present Rent Case No. 201 of 2004 as attorney of applicant Waqar Ahmed, he has not denied the above facts in his affidavit in evidence nor in cross-examination conducted upon the petitioner. The attention seeking question is that in all the above mentioned ejectment proceedings, the principal applicants did not appear before the Rent Controller to establish their personal bona fide need and it is attorney Abdul Sattar who is attempting to seek ejectment of petitioner from demised premises for personal bona fide use of different co-owners which he could not succeed as the principal applicants did not press their ejectment applications hence the same were dismissed. Same is the position in the present ejectment proceedings, neither the principal applicant has filed the ejectment proceedings directly nor appeared before the trial Court to justify his case of requiring the demised premises for his personal bona fide use, it was incumbent upon him to file his affidavit in evidence and to come in witness box for cross-examination to prove his personal need and not that of his attorney Abdul Sattar.

7. For the above reasons, discussions and the dictum laid down in PLD 2001 Karachi 238 (Supra) I am of the opinion that the respondent has not made out the case for requiring the demised premises for his personal bona fide use. The findings of the Appellate Courts are perverse, suffering from infirmity requiring the interference of this Court in its constitutional jurisdiction. I therefore set aside the impugned judgment dated 9-7-2007 of the Appellate Court, restore the order dated 30-3-2006 of the Rent Controller whereby the ejectment application was dismissed. The Constitution Petition is allowed. AG/A-90/K Petition accepted.