2014 PLP 297 (MLD)

FAROOQ ALI CHANNA, J.

The petitioner through this Constitution Petition has called in question the judgment dated 19-5-2010 passed by learned District Judge, Karachi (South) (hereinafter referred to as appellate court) dismissing the F.R.A No.35 of 2010, filed against the order dated 21-12-2009, passed by learned Xth Rent Controller, Karachi (South) (hereinafter referred to as trial court) in Rent Case No.612 of 2006, by virtue whereof the trial court directed the eviction of the petitioner on the ground of default in payment of rent and to hand over the peaceful possession of the demised premises within 6o days to the respondent No.1.

2. Brief facts of the case are that the respondent No.1 filed the ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979, seeking the eviction of petitioner from the tenement i.e. two shops of house No.237-C, New Street No.18, Sector (E), Manzoor Colony, Near Khulfa Rashideen Masjid, Karachi (hereinafter referred to as said shops) rented out by the respondent No.1 to the petitioner @ Rs. 800 per month, such agreement was executed on 7-8-2000. It is further stated that the petitioner paid the rent upto 27-8-2005 under Receipt No.078 and thereafter stopped the payment despite the approach of respondent No.1 several times to collect the rent; therefore the respondent No.1 filed the ejectment application.

3. The petitioner in pursuance of the notice, filed written statement, denying the relationship of landlord and tenant and contended that he had purchased the said shops in the year 1992 from the previous owner/occupant namely Mohammad Panah Baloch under sale agreement dated 30-11-1992. Since he was the owner and not the tenant of the said shops, therefore, he was not liable to pay rent to the respondent No.1, nor any rent agreement was executed between them.

4. Both the parties adduced the evidence to substantiate their respective claims, the trial court after hearing the parties determined the following points:-- (1) Whether there exists any relation of landlord and tenant between the parties? (2) What should the order be? The trial court decided the point No.1 in affirmative and allowed the ejectment application; the said order was maintained in First Rent Appeal as referred to hereinabove.

5. I have heard learned counsel for both the parties and perused the record. There is no controversy with regard to the non-payment of rent by the petitioner to the respondent No.1. The sole controversy as appeared from the pleadings was in respect of the relationship of landlord and tenant between the respondent No.1 and the petitioner. Learned counsel for the petitioner in his arguments has also focused and emphasized that the petitioner was not the tenant of respondent No.1, he had purchased the said shops from Muhammad Panah Baloch, the previous owner/ occupant of the said shops. The petitioner along with his affidavit-in-evidence has produced the sale agreement and receipt of payment executed by Muhammad Panah Baloch in favour of the petitioner and Photostat copy of his N.I.C., but the trial court has failed to appreciate the said documentary evidence, and has also not considered the admission of respondent No.1 and his witness during cross-examination that the petitioner was in possession of said shops since 1993-94 much prior to the execution of alleged rent agreement, such admission was sufficient to establish that there exists no relationship of landlord and tenant between the parties in ejectment proceedings, both the courts below have erred in law and facts while granting the ejectment application, as such the impugned order/judgment are suffering from infirmity and based upon misreading and non reading of evidence, therefore the same are not sustainable under the law and liable to be set aside.

6. Conversely learned counsel for the respondent No.1 has supported the verdict of the trial court so also appellate court and has contended that the respondent No.1 in support of his case has produced the tenancy agreement and the rent receipts issued by the respondent No.1 in favour of the petitioner, which was sufficient evidence to establish the relationship of landlord and tenant between the parties. He has further contended that the instant constitution petition is not maintainable against the concurrent findings of two courts below.

7. The question raised by learned counsel for the petitioner is one of facts which has been concurrently found against the petitioner by both the courts below. No doubt the petitioner in his evidence supported by sale agreement and the receipt of payment has alleged that he had purchased the said shops from Muhammad Panah Baloch, but learned counsel for the petitioner on a query of this court has admitted that the petitioner has not examined Muhammad Panah Baloch previous owner of said shops nor the witnesses of alleged sale agreement before the trial court, the petitioner has also not produced any document in support of his contention that the said shops were the property of Muhammad Panah Baloch, as such except the evidence of the petitioner no corroborative evidence was adduced. In absence of convincing evidence as to the execution of sale agreement, bare statement of petitioner that he had purchased the said shops from Muhammad Panah Baloch was a matter of believing or not believing the evidence. The two courts below did not believe the assertion of petitioner being owner of the said shops and came to the conclusion that there exists relationship of landlord and tenant between the respondent No.1 and petitioner and since non payment of rent by the petitioner to the respondent No.1 was an admitted fact, therefore, learned Rent Controller was justified in granting the ejectment application on the ground of default in payment of rent, which was maintained by the appellate court by recording cogent reasons. As such the impugned order/judgment does not suffer from any infirmity.

8. No doubt the respondent No.1 and his witness in their cross-examination have stated that the petitioner was doing his business in the said shops since 1993-94, however both the courts below despite the above admission on record have concurrently observed that there exists the relationship of landlord and tenant between the parties and this court in the case of Raja Abdul Rauf v. Haibi Ahmed and others (PLD 2005 Karachi 416) has held that mere fact that on the basis of same evidence discussed by both the courts below another view of the matter is also possible, will not justify exercise of constitutional jurisdiction by this court to substitute the findings of courts below with its own findings and to rescue the petitioner from his ejectment from the rented premises.

9. It is now well settled legal position that the concurrent finding recorded by the Courts below, particularly in rent cases, cannot be disturbed by this Court in its constitutional jurisdiction, except in exceptional circumstances where the finding so recorded by the courts is perverse or the impugned order(s) suffer from some jurisdictional error and the decision is void ab initio. Moreover, constitutional jurisdiction in rent matters cannot be invoked as a routine or be used as alternate of an appeal or revision, which remedy otherwise has not been provided by law.

10. In view of above the orders of ejectment passed by both the courts below impugned through this constitution petition are unexceptionable. Accordingly, this constitution petition is dismissed. The petitioner is directed to vacate the demised premises and hand over its peaceful possession within 60 days from the date of this order to the respondent No.1. JJK/M-126/K Petition dismissed.