2016 PLP 74 (CLCN)

NAZAR AKBAR, J.

The Petitioners through this constitutional petition have challenged the findings of 1st Rent Controller (South) Karachi in Rent Case No.1104/1989 and maintained by 1st Additional District Judge, South, Karachi in F.R.A. No.54/2002 whereby the Petitioners were directed to vacate the premises constructed on plot No.S.B.-1/15/2 Karachi on the ground of personal need of Respondents Nos.1, 2 and 4. (The Respondents)

2. Briefly stated, the Respondents on 01.01.1989 purchased a property bearing plot No.SB-1/15/2 measuring 537.50 square yards situated at Dawood Pota Road and Shahra-e-Iraq Saddar, Karachi with construction thereat and the Petitioners were already tenant in a portion of the said building measuring 43 feet on Dawood Pota Road and 65 feet on Shahra-e-Iraq known as Tenament No.10 (hereinafter the tenement) and running a business by the name and style of M/s. Jehangir Restaurant and Stores @ of Rs.481.50 per month. The Respondents on 02.02.1989 served the petitioners with a notice under section 18 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "SRPO, 1979") through their attorney requiring the Petitioners to vacate the tenement as it was required for personal bona fide need of the Respondents for running their Jewelry business. The Petitioners replied the said notice by letter dated 25.02.1989. The area and location of the tenement was not disputed by the Petitioners and by virtue of having acknowledged notice under section 18 of SRPO 1979 even the relationship of tenant and landlord was not disputed. The Respondents on 09.08.1989 filed rent application No.1108/1989 in the court of 1st Rent Controller, (South) Karachi against the petitioners. The Respondents in paras 6, 7 and 8 of their rent applications have taken specific plea about sub-letting and personal bona fide need of the Respondents. The Petitioners on 6.11.1989 filed their written statement and annexed correspondence/notices from Respondents and their replies prior to filing of the rent case. They denied the allegations of subletting and personal bona fide need in paras 4 and 5 of their reply.

3. The Respondents/landlords in support of their case examined Respondent No.2 who filed his affidavit-in-evidence and also examined attorney of other Respondents namely Haji Jaffer. The Petitioners in support of their case led their evidence through their attorney namely Ali Beman, active partner of Petitioner No.2. He produced Power of Attorney, EX-P/2, copy of license issued by Department of Tourism, Ex-0/3. The Petitioners also examined one Ali Mohammad. All the witnesses were duly cross-examined by the counsel for either side. After hearing the counsel for the parties, the Rent Controller by order dated 30.01.2002 allowed the rent applications only on the ground of personal bona fide need since the Respondents have dropped the other grounds of eviction and directed the Petitioners to vacate the tenement within 60 days. The Petitioners preferred 1st Rent Appeal No.54/2002 which was also dismissed by order dated 23.04.2003. Thereafter on 12.05.2003 the Petitioners preferred this petition challenging the concurrent findings.

4. I have heard learned counsel for the parties and with their help gone through the entire record and proceedings of the courts below in detail.

5. This petition is admittedly against the concurrent findings of the two courts below on the factual controversy of personal bona fide need of the Respondents. Therefore, the first obstacle in the way of the counsel for the Petitioners was maintainability of this petition. Mr. Mushtaq A. Memon, counsel for the Petitioners has contended that on the point of maintainability, he would rely only on "misreading and non-reading" of evidence by the courts below. Thus without going through the evidence the maintainability of this petition cannot be decided.

6. Learned counsel for the Petitioners has contended that the Petitioners have established mala fide on the part of the Respondents from their evidences and, therefore, it is a case of misreading and non-reading of evidence available on record. In support of establishing mala fide in demand of the tenement by the Respondents he has contended that even the very purchase of the tenement was malafide. According to him, since the Respondents even before purchasing of the tenement in question were aware of the fact that the tenement was on rent, therefore, they should not have purchased it for their personal bona fide need. The other contentions raised by the learned counsel were that the Respondents have not disclosed other properties owned by them in the rent application. Respondent No.2 Iqbal is partner in Zeby Jewelers as well as in New Era Jeweler and Hussain Sons. He, by referring to the evidence of Respondents has further pointed out that the other Respondents are also partners in New Era Jewelers and Hussain Sons, situated at Zaib-un-Nisa Street, Saddar and, therefore, their need was not genuine and bona fide. He has vehemently argued that even an open space in the same premises was available which has not been utilized by the Respondents and even some other shops were vacated, but as their intention was only to remove the old tenants from the tenement in question the same were not occupied by them. In support of his arguments learned counsel has relied on the following case laws:-

1. Mst. Shamim Akhtar v. Zakaria Yousuf and others (1998 CLC 410)

2. Mrs. Salma Haque v. Mir Muhammad Abdul Haq Awan (2003 CLC 96)

3. Syed Anisur Rahman v. Mst. Sara Bai (PLD 1985 Kar. 714)

4. Shah Zareen Khan v. Sada Gul (1998 MLD 903)

5. Zameer Ahmed v. Bushra Fayaz (1993 CLC 2370)

6. Qazi Abdul Qayyum v. Khursheed Nisar (1991 CLC 913)

7. Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi (1987 SCMR 2051)

8. Muhammad Iqbal and others v. Mst. Saeeda Bano (1993 SCMR 1559)

9. Allies Book Corporation v. Sultan Ahmad (2006 SCMR 152)

10. Latif Ahmad v. Mst. Farrukh Sultana (1996 SCMR 1233)

11. Wali Bhai v. District Judge Hyderabad and 2 others (2015 YLR 174)

7. Mr. H. A Rahmani, senior counsel for the respondents in rebuttal has argued that disclosure of personal need by the new purchaser of the immovable property in the notice under section 18 of SRPO, 1979 is not illegal nor purchase of a property if the same was in possession of a tenant would debar the buyer from purchasing the same for personal bona fide need. Regarding the objection of counsel for the Petitioners that in concealing the other properties, the Respondents were short of showing their bona fide need, his reply was that after promulgation of SRPO, 1979, it is not necessary for the landlord to disclose other properties owned by him in memo of rent application when seeking ejectment of tenant on the ground of personal bona fide need. Earlier, under the West Pakistan Urban Rent Restrictions Ordinance, 1959. Such disclosure was requirement of law in term of section 13(ii)(c) of the said Ordinance. He has further contended that the Petitioners have failed to prove that the Respondents owned any other properties. The learned counsel for Respondents has contended that the averments of rent application about personal need and that the petitioners do not own any other properties to run their business independently was not shaken in cross-examination. The burden was on the petitioners to prove by cogent evidence that the Respondents owned any property other than the tenement in question. It has not been discharged at all by the petitioners. As far as the partnership business of the respondents is concerned, learned counsel for the respondent has contended that a partnership business is not fatal to the personal need of the partners if they seek any other premises for running their independent business in the said premises. Learned counsel for the Respondents relied on the following case laws:-

1. Mst. Hajiyani Ayesha Bai v. Zahid Hussain (2001 SCMR 1301)

2. Sheikh Muhammad Munir v. Additional District Judge (1991 SCMR 453)

3. United Bank Ltd. v. Mrs. Alafia Hussain (1999 SCMR 1796)

4. Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui (2000 SCMR 1613)

5. Dad Muhammad v. Mirza Hafeez Ahmed (1999 SCMR 781)

8. At the very outset, the careful examination of the contentions raised by the learned counsel for the Petitioners and the Respondents gives an impression as if I was hearing 2nd appeal. The learned counsel for the Petitioners, in the name of misreading and non-reading of evidence, has taken me through the entire evidence to point out certain statements from the cross-examination of the witnesses of Respondents to show that such pieces of evidence reflects the mala fides on the part of the Respondents. The learned counsel for the Petitioners has vehemently contended that the trial court ought to have considered the said evidence as proof of mala fides on the part of the Respondents, he has relied upon as many as 11 reported judgments quoted in para-6 above to show that what is or is not mala fide in a given case, and insisted that the Rent Controller in presence of the various statements in cross-examinations ought to have concluded that the Petitioners need of the tenement was not in "Good Fiath". The general propositions advanced by the learned counsel for the Petitioners such as the Respondents have not disclosed the other properties owned by them or the Respondents were running partnership business with their father or other relatives in the various Jewelry shops by the name and style of Zeby Jewelry, New Era Jewelers and Hussain Sons etc. do not reflect on the mala fide for seeking tenements on the ground of establishing their own independent Jewelry business in the tenement in question. Similarly the availability of an open space behind the shops is not sufficient to dislodge the element of "Good Faith" of the Respondents in requiring the tenement in possession of the Petitioners. The Petitioners have not adduced any evidence to show that the Respondents were in occupation of any other property owned by them independently. An attempt was made to show that the Respondents were co-owners in some other properties, even if it has come on record, it would not deprive them of claiming possession of the tenement owned by them to run their business independently. Reference to the cross-examination of the witnesses of landlord per-se is not enough to infer 'bad faith' in the need of the Respondents once their statement on oath is found consistent with the pleadings in the rent application. Most of the suggestions, in the cross-examination, contrary to the bona fide need of the Respondents have been denied by their witnesses in categorical terms. Respondent No.2 in his cross-examination which was quoted by Rent Controller in the ejectment order has categorically stated that the Respondents have purchased the property in question for their personal use and doing business of Jewelry independently after partitioning the same. He has also stated that they have no other property except the property in question in Saddar Area. He categorically denied that they are the owners of several other properties in Saddar. He has admitted that there is open space lying vacant behind the tenements in question and shops. The said compound/open space is in his possession but to another suggestion he has denied that there has been two shops in the building and explained that the said space is being used as an entrance to the compound. He has denied that there was any tenement in his possession out of other 8 tenements. Similarly, the attorney of other Respondents to a clear suggestion denied as incorrect that the Applicants Nos.l, 2 and 4 are exclusive owners of other properties. The Petitioners in their evidence have not placed on record any document showing ownership of the other properties by the Respondents. It is indeed an undisputed fact that some of the Respondents are partners in different Jewelry shops but it does not mean that they are not lawfully entitled to have their independent business in the property owned by them. A lawful entitlement cannot be denied by holding that it is not bona fide entitlement.

9. Now I would examine the case law relied upon by the counsel for the parties in support of their contentions discussed and mentioned in the preceeding paras. Out of 11 case law relied upon by the learned counsel for the Petitioners, the first 06 cases are the judgments of Single Bench of this Court while exercising power of an Appellate Court under section 21 of SRPO, 1979 therefore, any observations from the said cited judgments wherein this court has decided rent appeals have no bearing on the case of the Petitioners in the present proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution). In fact these citations could not be treated as pronouncement of law by High Court and in coming to this conclusion I am fortified with the following authoritative observation of the Hon'ble Supreme Court of Pakistan in the case of Asghar Ali and another v. The State, reported in 1999 SCMR 654:- "It is, therefore, quite clear that the establishment of Supreme Court of Pakistan and the High Court, in each Province, is the mandate of Constitution while all other Courts within the contemplation of Article 175 of the Constitution are to be created through a sub-Constitutional legislation. The Supreme Court of Pakistan and the High Courts, therefore, have separate and distinct identity from all other Courts created by or under any other law. Within the scheme of the Constitution, there is only one High Court in each Province and, therefore, any other Court created under any other law cannot be equated with the High Court. No doubt, the High Court could also exercise jurisdiction conferred on it under various other laws apart from the jurisdiction conferred on it under the Constitution but in all such cases the High Court is empowered to exercise jurisdiction as a High Court as contemplated under the Constitution. The fact that a Court created by or under a law is presided over by a Judge of the High Court, therefore, would not make that Court a High Court. Many statutes provide that the Courts or Tribunals created thereunder shall be presided over by a sitting or retired Judge of a High Court or by a person qualified to be appointed as a Judge of the High Court. However, such Court when presided over by a sitting Judge of the High Court, does not acquire the status of a High Court by mere fact that it is presided over by a serving Judge of the High Court. Similarly, a Special Court or a Tribunal, created under an Act and presided over by a serving Judge of the High Court, while hearing a case, exercise the same powers as are available to a High Court under the Code of Criminal Procedure or under other procedural laws, would not make that Court a High Court for this reason. "(Emphasis supplied) Beside the above, this court in the said reported cases exercised its jurisdiction as appellate forum under the rent law and, therefore, it was free to reappraise the evidence as an appellate authority. The latitude to deal with the evidence as appellate court is not available with me since I am exercising power of a court under extra ordinary constitutional jurisdiction.

10. The cases from the jurisdiction of the Hon'ble Supreme Court of Pakistan reported as 1987 SCMR 2051, 1993 SCMR 1559 and 1996 SCMR 1233 are quite distinguishable on facts. In all these cases the Hon'ble Supreme Court in appeals under Article 185(3) of the Constitution against dismissal of First Rent Appeal has discussed the facts of each case which are different from the facts of the case in hand. In the case of Shahnoor Fazal (1987 SCMR 205) the Hon'ble Supreme Court found that the Landlady was already in possession of vacant premises/flat and the need of disputed premises was explained in the cross-examination for the first time. It was not in the pleadings and, therefore, bonafidies were not proved. In the case of Muhammad Iqbal (1993 SCMR 1559) the Hon'ble Supreme Court held that non appearance of the son of landlady in witness box and remaining employee would not be fatal and the requirement of the premises would not considered as lacking bona fide. However, her need was accepted to the extent of one shop. In the case of Latif Ahmed (1996 SCMR 1233) the landlord even before filing the ejectment application got one shop vacated from the tenant which was divided into two shops and rented out to two different persons. Thus the facts of these cases were different from the facts of present case. The last case from the jurisdiction of Supreme Court reported as Allied Books Corporation v. Sultan Ahmad (2006 SCMR 152) is in fact against the Petitioners. In this case the Hon'ble Supreme Court had set aside the concurrent findings delivered by High Court in constitutional petition and restored the concurrent findings of Rent Controller and Appellate Court as the concurrent findings were not suffering from any misreading and non-reading of evidence.

11. The counsel for the Respondents to meet the various contentions of the Petitioners such as non-disclosure of the other properties by the Respondents or other premises had come to their hand during the rent case etc. has relied upon the case titled Ayesha Bai v. Zahid Hussain reported in 2001 SCMR 1301. Para 10 from this judgment is an answer to all such contentions of the Petitioners and it is reproduced below:- "Now turning to the crucial question involved in this case relating to non-disclosure by the appellant details of the shops in eviction application owned by her at the commencement of eviction proceedings against respondent or got possession of such shops during the pendency of the proceedings. A perusal of section 15, subsection (2) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as Ordinance), reveals that there is no requirement to make such disclosure by the landlord in the eviction application whereas under section 13, subsection 3(ii-C) of the West Pakistan Urban Rent Restriction Ordinance, 1959, a landlord/lady is required to make statement with reference to non-residential building or a scheduled building that he has not evicted such a building or rented land without sufficient cause after the commencement of the Ordinance and after the explanation that the landlord had, obtained possession of a residential scheduled or non-residential building or rented land but such building is no longer suitable for his/her needs. Therefore, under section 15(2)(vii) of the Ordinance, 1979, the obligation upon the landlord is only to prove good faith for his own occupation or for the occupation or use of his spouse or children. Therefore, the argument prevailed upon learned High Court and which has also been reiterated by the learned counsel for the respondent, merit no consideration. But to ascertain the good faith/bona fide of a landlord to occupy a premises through evidence, it can be asserted that a premises suitable for requirement of landlord/lady was available but it was let out immediately before filing of eviction proceedings or such premises has fallen vacant during pendency of the ejectment proceedings but the landlord instead of occupying the same had further leased it out. As far as hping owner of number of properties but without its possession is concerned it cannot be considered a ground for non-suiting a landlord/lady. It seems that observations of the High Court in this behalf were not correct. As it has been observed hereinbefore that the landlady had no legal obligation to make such disclosure in the eviction application, therefore, for such reason the appeal should not have been dismissed." (Emphasis supplied) As discussed in the above passage of the citations of Hon'ble Supreme Court, the Petitioners, beside the other contents, have failed to assert and prove to the satisfaction of trial Court and Appellate Court that a premises suitable for requirement of the Respondents was available but it was let out before or during the rent case. Contrary to the assertions of the Petitioners, the evidence led by the Respondents has comprehensively been consistent with their pleadings as discussed in para 8 above. In this context, counsel for the Respondents has relied upon the cases titled as United Bank Limited v. Ali Hussain (1999 SCMR 1796) and Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui (2000 SCMR 1613). The following Para 8 from the case of UBL (1999 SCMR 1796) is more relevant and direct and, therefore, it is reproduced below:- "This Court has laid down through its earlier pronouncements that in the case of personal requirement of the landlord, the initial burden for the landlord to prove his bona fides is very light and what is required to be considered by the Court in this regard is that the evidence adduced on the landlord's behalf is unshakable and consistent with the averments made by him in the ejectment application. In that case the burden would shift to the tenant to establish that the claim of the landlord is not bona fide. In Messrs F. K. Irani & Co. v. Begum Feroze (1996 SCMR 1178) it was held by this Court that desire of landlord to establish and run a departmental store in the premises occupied by tenant could not be ruled out unless (there) was cogent evidence and sufficient proof that it was not possible and practicable to run such a business. Otherwise the Court would be inclined to hold that requirement of the landlord was bona fide. It was further held in this case that on the issue of personal need if the statement of the landlord is consistent with ejectment application and the same is not shaken in cross-examination or dislodged in rebuttal, such statement would be sufficient to prove his bona fides. In Juma Sher v. Sabz Ali 1997 SCMR 1062, the requirement for the landlord to disclose nature of business which he intends to start in the premises or to show experience in any trade or business which he intends to set up in the premises after eviction of the tenant was held to be unnecessary. (Emphasis supplied)

12. Learned counsel for the Petitioners has also relied on the case of Wali Muhammad v. District Judge, Hyderabad (2015 YLR 174) authored by me on the point of maintainability of constitutional petition in rent cases against the concurrent findings. In the first place, in Wali Muhammad case the Rent Controller had no jurisdiction to entertain the rent application in view of the bar contained in section 2(h) of SRPO, 1979. The premises was hotel and it has been a consistent plea of the Petitioners right from the reply of notice under section 18 of SRPO, 1979 to the contest before the forum under rent laws. However, Rent Controller and Appellate Court ignored the overwhelming evidence and exercised jurisdiction which was not vested in them and, therefore, impugned judgments were found arbitrary and fanciful orders. In the case in hand the bone of contention was personal bona fide need of the Respondents which has been established by evidence and the question of maintainability of rent proceedings on the basis of evidence has been rightly decided against the Petitioners. The burden of proof on the question of maintainability was on the Petitioners since they insisted that the tenement was a "hotel". It was not discharged. The Petitioners themselves have produced license of "Restaurant" in respect of the tenement from the Tourism Department. Learned counsel for the Respondents has relied upon the case of Dad Muhammad v. Hafeez Ahmed reported in 1999 SCMR

781. The citation is complete answer to the controversy about maintainability of rent case in the given facts of the case in hand and it is obviously against the Petitioners.

13. I have gone through the order of Rent Controller spreading over 25 typed pages and a careful examination of reasoning part of the impugned order of the Rent Controller suggests that there were hardly any evidence which has not been examined or considered or even quoted by the Rent Controller in reaching to the conclusion that the petitioners have established their bona fide need. This finding of the Rent Controller cannot be termed as a consequence of misreading or non-reading of the evidence which has been read out by the learned counsel for the Petitioners during his lengthy arguments. The opinion formed by the Rent Controller on the basis of the evidence and endorsed by the first Appellate Court closes the chapter for any court even Second Appellate Court or Revisional Court to form a different opinion by going through the same evidence. We cannot expect from the courts that while forming an opinion on the basis of evidence, the court should refer and mention evidence which for various reasons was not found convincing to decide any point of determination between the parties. The finding of courts supported with available evidence on record would not be treated as result of non-reading or misreading of the other evidence which is not mentioned in the impugned judgment. It is settled law that this Court in exercise of constitutional jurisdiction is not supposed to re-open an inquiry of fact already set at naught by the Court having the power to record evidence and decide factual controversy on merits. The evidence referred by the counsel for the petitioners during the course of arguments cannot be said to have not been "read" or "misread" by the trial court. I have already noted that the Rent Controller has quoted almost entire evidence in its ejectment order. Even otherwise, the concept of misreading and non-reading of evidence is not supposed to be confused with the concept of reappraisal of evidence. This court in writ jurisdiction is not supposed to declare an order as an arbitrary order on finding that certain pieces of evidence were not mentioned in the impugned order. The evidence which is not mentioned in the impugned order cannot be presumed to have not been read by the trial court. In the case in hand, the learned counsel for the Petitioners has not been able to show arbitrariness in the judgments nor he has been able to argue that the conclusions drawn by the two courts below are devoid of evidence. At the most it is the case of having a different opinion on the same set of evidence and that does not mean that the judgments were arbitrary and fanciful.

14. The crux of the above discussion is that the contention of the learned counsel for the Petitioners that two judgments of Courts below suffer from misreading and non-reading of evidence has no force, therefore, this petition must fail. This petition is dismissed with no order as to cost and the Petitioners are directed to vacate the tenement within 30 days and handover peaceful possession thereof to the Respondents. In case of their failure, since this order has been announced in presence of the counsel for the Petitioners, once execution proceedings are filed, if not already filed, the Rent Controller should straightaway issue ejectment order with police aid since this litigation has already been pending for the last 27 years and the Petitioners have lost at every forum. ZC/H-1/Sindh Petition dismissed.