2012 PLP 1498 (SCMR)

ANWAR ZAHEER JAMALI, J.

This civil appeal arises out of the judgment dated l4-10-2011, in C.P. No.S-974 of 2010, passed by the High Court of Sindh at Karachi, whereby the said petition on behalf of respondents Nos.1 and 2/tenants was allowed, consequently concurrent findings of the two Courts below contained in their respective orders dated 23-8-2006 and 26-5-2010, ordering eviction of respondents Nos.1 and 2 from the rented premises on the ground of personal need of the appellant were set aside, and the Ejectment Application No.322 of 1992 filed by the appellant before the Rent Controller, Karachi (South) on 4-2-1992 was dismissed.

2. Relevant facts of the case, leading to this litigation may be surrimarized as under.

3. On 4-2-1992, appellant-landlord filed rent case No.322 of 1992 against predecessor-in-interest of respondents Nos.1 and 2 in respect of one tenement on the ground floor of PHA Building in his occupation vide tenancy agreement dated 19-4-1976. The ground for eviction, inter alia, urged in the application was personal need, of the appellant Institute, who wanted more accommodation for the purpose of their Institute.

4. After notice of rent case, on behalf of predecessor-in-interest of respondents Nos.1 and 2, written objections were filed on 25-4-1992, wherein relationship of landlord and tenant was not denied. However, claim of personal need of the appellant was disputed and denied being mala fide.

5. At the stage of evidence, on behalf of appellant, they examined their Accountant Mr. Aamer Zafar, who, in support of the plea of personal need, made statement on oath in paragraphs Nos.4 and 5 of his affidavit in evidence in the same words as in the ejectment application, which reads as follows:-- "

4. That the rented premises in occupation of the opponent is urgently required in good faith for the occupation of the Institute as it is situated in such manner that it can be more conveniently used for the much needed purposes of the Institute for which it has been established.

5. That in the circumstances, the Institute is facing an acute shortage of space and requires the premises for its own official use for advancing the cause of Institute."

6. After cross-examination of appellant's witnesses, respondents Nos.1 and 2, Naveed Merchant and Salman Merchant, filed their respective affidavits in evidence denying the claim of personal need agitated by the appellant as according to them such plea was raised by them with mala fide intention. Both these witnesses were subjected to cross-examination and thereafter Rent Controller passed his order dated 23-8-2006, ordering eviction of respondents Nos.1 and 2 on the ground of personal bona-fide need of the appellant. For this purpose, Rent Controller discussed and placed reliance upon the cases of Iqbal Book Depot and others v. Khatib Ahmed and 6 others (2001 SCMR 1197), Juna Sher v. Sabz Ali (1997 SCMR 1062) and Allied Bank of Pakistan v. Wahid Hussain (1986 SCMR 946). Order of eviction passed by the Rent Controller Karachi (South) was challenged by respondents Nos.1 and 2, before the Court of Additional District Judge, Karachi (South), vide F.R.A. No.314 of 2006, which, after due contest between the parties, was dismissed, vide judgment dated 26-5-2010, as Appellate Court found itself in agreement with the findings of the Rent Controller on the point of personal need of the appellant.

7. The above concurrent findings of the two Courts below in the hierarchy of Sindh Rented Premises Ordinance 1979 were thereafter challenged by respondents Nos.1 and 2 by invoking the Constitutional jurisdiction of the High Court of Sindh under Article 199 of the Constitution. This petition was heard and allowed by the High Court vide its impugned judgment dated 14-10-2011, mainly by placing reliance upon a statement in writing from learned counsel for the appellant that during the pendency of the proceedings before the Rent Controller and the appellate Court other tenements which had fallen vacant were re-let by the appellant.

8. Mr. K. A. Wahab, learned Advocate Supreme Court for the appellant at the very outset strongly criticized exercise of jurisdiction by the High Court under Article 199 of the Constitution in such an arbitrary manner that appellant was not even afforded any opportunity to explain their position in respect of such belated plea on behalf of respondents Nos.1 and 2, which was neither raised in their written objections or in their evidence before the Rent Controller nor even before the appellate Court, but for the first time before the High Court in exercise of its Constitutional jurisdiction, and the High Court exercised its extraordinary jurisdiction under Article 199 of the Constitution even much beyond the jurisdiction of the appellate Court to deny a genuine relief to the appellant. He further submitted that the High Court had no jurisdiction in exercise of its powers under Article 199 of the Constitution to re-open a rent case, beyond the pleadings and the evidence adduced by parties in a manner that it had also overlooked the law laid down by the superior Courts as regards the personal need qua choice of the landlord, which is his sole prerogative. On merits, learned Advocate Supreme Court for the appellant took us to paragraphs 4 and 5 of the ejectment application as well as paragraphs 4 and 5 of the affidavit in evidence of the appellant's witness wherein he had given specific justification for seeking eviction of respondents Nos.1 and 2 from the rented premises, as it was situated in such a manner that it can be more conveniently used for the much needed purpose of the Institution, for which it has been established and that the Institute was facing acute shortage of space of its own official use and for advancing the cause of the Institute. Further contention of the learned Advocate Supreme Court was that following the principles laid down in the cases of F. K. Irani & Co. v. Begum Feroze (1996 SCMR 1178), Muhammad Mubin v. Abdul Hakim (1986 SCMR 650) S. M. Noorruddin v. Saga Printers (1998 SCMR 2119), Juna Sher v. Sabz Ali (1997 SCMR 1062) and Muhammad Yakub v. Health Officer, Municipal Committee (1973 SCMR 185) and looking to the choice of the appellant-landlord their bona fide could not have been doubted merely for the reason that during the pendecny of rent case, which had by now already consumed over twenty years, letting out some other tenements has created any doubt on their bona fide claim of personal need.

9. Conversely, Mr. Naraindas C. Motiani, learned Advocate Supreme Court for respondents Nos.1 and 2 to a query made by the Court, did not dispute that the plea upon which the High Court has set aside the concurrent findings of the two Courts below in favour of the appellant on the ground of their personal need, was neither raised by respondents Nos.1 and 2 or their predecessor-in-interest in their pleadings or in their affidavit in evidence nor even before the appellate Court in appeal and it was for the first time that appellant were taken by surprise that such plea was raised before the High Court and it was swiftly decided in favour of respondents Nos.1 and 2, without affording any opportunity to the appellant to rebut/clarify their position in this regard. He also could not controvert that present round of litigation commencing in the year 1992 from the claim of personal need of appellant has already consumed more than twenty years and during this long period the appellant, in order to demonstrate their bona fide, were not required to remain in the state of status quo. More over, it was their choice and prerogative to occupy any tenement under their ownership for their own use with out any dictation in this regard from the tenants, particularly, in the circumstances when reasonable explanation for claiming eviction of respondents Nos.1 and 2 in preference to other tenements was already offered in the pleadings as well as in the evidence which was not even dispute by respondents Nos.1 and 2 in this regard. Faced with this situation, alternate submission of Mr. Motiani was that judgment impugned in this appeal may be set aside and case may be remanded to the High Court or to the lower Court for affording due opportunity of hearing to the parties to lead evidence on this point. In our opinion, this proposal on behalf of respondents Nos.1 and 2 would have been worth consideration in case litigation between the parties had not already consumed more than two decades, but not in the present case at this belated stage.

10. The claim of appellant as regard their personal need, when examined on the basis of their word to word pleadings in paragraphs Nos.4 and 5 of the rent application and the affidavit in evidence of their witness leaves no room for doubt open for discussion on the subject of their choice and preference which has already come on record and remained un-shattered and un-rebutted from the side of respondents Nos.1 and

2. In these circumstances, subsequent developments which might have been relevant in some other cases are of no help to improve the case of respondents Nos.1 and 2 before the High Court in exercise of its jurisdiction under Article 199 of the Constitution. It will be nothing, but reiteration of settled legation position that the statement on oath of the landlord as regards claim of their/his personal need un-shattered in cross-examination and un-rebutted in defence evidence is to be accepted by the Court as bona fide. Moreover, the choice lies with the landlord to select any of the tenament for his personal need and for this purpose the tenant or the Court have no locus standi to give their advice for alternate accommodation.

11. Upshot of the above discussion is that this appeal is allowed, the impugned judgment of the High Court dated 14-10-2011 is set aside and that of the two Courts below in favour of the appellant are restored. Respondents Nos.1 and 2 are, however, allowed two months time to vacate and hand over actual physical possession of the rented premises to the appellant. M.W.A./P-12/SC Appeal allowed.