IN THE HIGH COURT OF SINDH, KARACHI
Constitutional Petition No. S-446 of 2004
Present: Mr. Justice Khadim Hussain Tunio
Date of Hearing: 07.12 & 08.12. 2016
Date of Announcement: 28.02.2017
Petitioners: Mst. Razia Beghum through Mr. Haider Imam Rizvi, Advocate.
Respondents: (1) District Judge Karachi Central City Courts Karachi.
(2) Senior Civil Judge and Rent Controller Karachi Central at City Courts Karachi.
(3) Saleem Khan through Mr. Khilji Fahad Arif Advocate.
O R D E R
KHADIM HUSSAIN TUNIO, J:Present Constitutional Petition is directed against the order dated 28th November 2012, passed by the 5th Rent Controller Karachi Central, whereby, the ejectment application was dismissed. On appeal, same was upheld by the District Judge Karachi Central by order dated 12th December 2013.
2. Succinctly, but relevant facts of the preset constitutional petition are that the petitioner is landlady of the house, constructed on Plot No. R-1007/12, Federal B Area, Azizabad, Karachi alongwith two shops through registered lease deed dated 26.04.2011 from Mst. Zakiya Begum. The previous owner of the said property has rented out one of the two shops i.e. Shop No. 1 to Ms. Tahira Beghum in 1985 on monthly rent of Rs.350/= without any deposit and security. After the death of Mst. Tahira Beghum in 1987 the Respondent No 3 occupied the said shop, despite knowing well that tenancy agreement was in the name of his late mother, however the petitioner, after acquiring the property, intimated the Respondent No. 3 regarding change of ownership through notice, u/s 18 of Sindh Rented Premises Ordinance, 1979, however, Respondent No. 3 avoided to establish any contract with the petitioner despite the best efforts. Petitioner has purchased the property in question with the shop including the rented property with the object of starting a business to enhance the monthly income of her large family which comprises of four sons, out of which two have their own families, a daughter and grand-children as the growing age of her grand-children and their expenses have compelled her to look for additional source of income. The petitioner has repeatedly requested Respondent No. 3 about need of the rented shop in question for the personal use of her sons as they intended to start their own business from both the shops together in order to enhance the monthly income of the family, however. Respondent No.3 did not pay any heed to the repeated requests of the petitioner. Since, two sons of the petitioner intended to establish and start the business for the supply of flour; therefore, they require both the shops in order to have sufficient space to make proper arrangement for storage of the commodity along with some place to deal with the customers/clients. In order to execute their plan they kept the vacant shop in their possession and did not rent it out for almost more than a year and they preferred to keep the shop vacant, instead of increasing their income by renting out the shop although they needed money to run their large family. Having failed to acquire the peaceful and vacant possession of the rented property despite repeated requests the petitioner was left with no other option but to initiate the legal proceedings for the eviction of Respondent No.3 by adopting legal course of action. That it is pertinent to mention here that previous owner of the rented premises wanted to evict Respondent No. 3 from the rented property as well, as he defaulted in payment of rent during the ownership of the previous owner, however, instead of vacating the rented premises in accordance with the terms of tenancy agreement, between the previous owner and his mother, the Respondent No.3 took advantage of the advanced age of the previous owner and filed Constitutional Petition before this Court and obtained relief, by way of injunction, however the previous owner disposed of the shop while Respondent No.3 was in possession of the rented premises. Therefore petitioner has filed the ejectment application before the Rent Controller through her duly appointed attorney by executing her Special Power of Attorney. It was clear from the conduct of the petitioner and her sons that they wanted to have the rented premises for their personal use as they did not rent out the other shop for more than one year only on the hope that after getting the peaceful and vacant possession of the rented property they can start their own business which can assist them in order to meet the rising expenses of their growing family.
3. Respondent No.3 filed his written statement/written objections and denied the allegations, leveled against him. He also denied the personal bona-fide need of the petitioner while contending that one shop is already lying vacant since one and half year, but neither she occupied the same nor started a business for her sons. He also submitted that the shop in question was not required by the petitioner for personal bona-fide use in good faith, therefore he prayed that the ejectment application may be dismissed.
4. Thereafter, petitioner’s son/attorney Syed Nadeem Abbas filed his affidavit in evidence, who produced special power of attorney as Ex. A/1, CNIC as Ex. A/2, tenancy agreement as Ex.A/3, transfer order issued by CDGK as Ex.A/4, indenture of lease as Ex.A/5 & CNIC in the name of applicant as Ex.A/6. Petitioner also examined her son/witness namely Syed Asghar Abbas and after their cross examination closed the side.
5. Respondent No.3 filed his affidavit in evidence. He was cross-examined by the counsel for the petitioner/landlady, and then his side was closed.
6. After hearing learned counsel for the respective parties and going through the material brought on the record, the ejectment application was dismissed by the learned Rent Controller vide order dated 28.11.2012. Then petitioner filed F.R.A before the District Court Karachi Central, same was also dismissed by the learned District Judge vide order dated 12.12.2013.
7. Mr. Haider Imam Rizvi, learned counsel for the petitioner contended that the learned two Courts below have failed to consider the evidence available on record; that the learned Rent Controller had recorded erroneous findings on the point of maintainability of the ejectment application as no such plea was taken in the written reply; that the learned Appellate Court failed to record its findings on each point for determination; that the learned Appellate Court failed to record its findings on the point of maintainability of the ejectment application as observed by the learned Rent Controller; that the petitioner has proved the personal bonafide use by adducing the cogent and reliable evidence; that it is choice of the landlord to use any of the premises for personal bonafide use and advice of the tenant is no more required; that the petitioner has ratified the act of Attorney subsequently by executing fresh Special Power of Attorney dated 16.04.2016 and produced the same in C.P. No. S-1973/2007 filed by the respondent against the petitioner; that the counsel for the petitioner has submitted statement at bar regarding ratification of the act of the agent by the principal; that the present case is of misreading and non-reading of the evidence; that the petitioner has examined her two sons for whom the premises in question is required; that the impugned orders are illegal and not sustainable under the law and liable to be set aside. He has cited case law reported in (2004 CLC 359), (2001 SCMR 1091 & 1102), (2011 MLD 974), (1989 CLC 08 & 13), (2003 CLC 138), (1987 CLC 1366-1368-1369), (2010 SCMR 1981), (PLD 2001 S.C. 149), (1982 SCMR 796-799), (1981 SCMR 758-760), (PLD 2010 Karachi 10-17), (1982 CLC 1761), (1990 MLD 1715), (2001 SCMR 550), ( 2006 YLR 2194), (2016 YLR 293), (2006 CLC 1038), (2004 CLC 359) & (2001 SCMR 1091), (1990 CLC 904) and (1984 CLC 2025).
8. Conversely, Mr. Fahad Arif Khilji, learned counsel for the respondent No. 3 submitted that the attorney was not authorized by the landlady for filing the ejectment application on the ground of personal need; that the landlady authorized her attorney for filing of ejectment application on the ground of default in payment of rent; that the petitioner’s attorney has clearly deposed during cross-examination and admitted such fact; that the premises in question is not required by the petitioner for personal need in good faith; that another shop of the petitioner is lying vacant since more than a year prior to filing of the ejectment application and said fact has been admitted by her attorney during his cross-examination; that the ejectment application was not maintainable in law, as the same was not filed by a proper person; that the ratification has not been made by the principal for endorsing the act of her attorney; that the petitioner has failed to prove personal bona-fide use in good faith; that the learned two Courts below have passed proper orders after appreciating the law; that present case is not of misreading or non-reading of evidence; the High Court while exercising the constitutional jurisdiction under Article 199 of the Constitution has limited scope and cannot set aside the concurrent findings recorded by the two Courts below. He has referred case law reported in (2006 CLC 1168), (1995 SCMR 448), (1982 SCMR 894), (2000 CLC 1168), (1987 SCMR 2240), (1996 CLC 381), (1992 CLC 482 & 2495), (1994 MLD 2251), (2013 YLR 2275), (2010 MLD 1548), (PLD 1989 Peshawar 185), (PLD 2001 Karachi 238), (PLD 1985 Karachi 624), (2004 SCMR 1773), (1997 CLC 1186), (2012 YLR 2152), (1989 CLC 310), (PLD 1969 Karachi 123), (PLD 2005 S.C. 418), (2009 YLR 1024), (1995 MLD 45) and (2006 CLC 999).
9. I have given meticulous consideration to the arguments advanced by the learned counsel for the respective parties, and the relevant record with their assistance.
10. In the instant petition, the crucial question is that of maintainability of the root application with reference to competence of attorney. It is not a matter of dispute that petitioner (landlady) filed the ejectment application through her attorney and for such purpose had executed a power of attorney. Before, attending to the plea of subsequent ratification, it would be quite appropriate to first appreciate the purpose, object and scope of the attorney power. The law and procedure does permit filing of a listhrough ‘recognized agent’ (attorney) who has defined, per Order III rule 2(a) as:
“a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
Thus, it is quite evident that to satisfy and qualify term ‘authorized agent’ one must not only possess ‘power-of-attorney’ but should also produce the same so as to justify his (attorney’s) competence i.e. things for which he has been ‘authorized’. Reference may well be made to the case of Ghulam Mustafa v. Rashid Akbar Ansari &Ors2009 MLD 538 wherein it is held as:
“Sections 2 and 4 of the Power of Attorney Act, 1882, provide that power of attorney has to be created by an instrument. Article 95 of the Qanun-e-Shahadat requires the Courts to presume every document purporting to be a power of attorney, which is executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Pakistan Counsel or Vice Counsel, or representative of the Federal Government. The obvious meaning of these provisions of the Power of attorney Act as well as of the Qanun-e-Shahadat is that a power of attorney has to be a written document. Unless the power of attorney in the shape of written document is filed before the Court, neither any assumption of its existence can be made nor the Court will make any presumption as is required under Article 95 of Qanun-e-Shahadat. Merely writing of the words ‘for self and on behalf of his father’ in itself will not make the defendant No.1 an attorney of his father.
Further, I would add that it is not the power-of-attorney alone which could be taken as authorization to do all things but it (authorization) shall always be subject to what the Principal specifically authorizes else the term ‘authorize’, deliberately used shall fail which legally can’t be allowed. Thus, while examining a question towards legality of an action or omission of an attorney, it shall not be the wishes of the attorney or even his intentions but the specific authorization of Principal. The attorney shall always be required to play within the field, sketched by the Principal and any jumping over or jumping out will be an illegality. Reference in this regard can well be made to the case of Khadam Hussain v. Muhammad Azam Sati 2007 CLC 404 wherein it is held as:
“6…….We agree with the legal position advanced by the learned counsel for the appellant that in civil cases if a suit is brought or defended by an attorney on behalf of plaintiff or defendant the recitals made in the power of attorney are to be looked into or construed very strictly. Although not for the first time, in a case titled Gultaj Begum v. Lal Hussain PLD 1980 SC (AJ&K) 60, this Court reiterated time and again finding of the superior Courts of the Sub-Continent and by overruling some of the judgments adjudicated that an attorney can do and perform only the acts and the actions, which have specifically been provided in the document itself. Any jumping over or jumping out will be an illegality and the person for whom the attorney has acted will not be bound by that action……”
11. Now, I can safely conclude that the attorney legally cannot choose the manner of initiating filing a lisas per his wisdom but shall be required to build the castle on the foundation , as specifically laid by the Principal hence an attorney shall always require to follow the manner, specified by Principal, in filing a lisand any deviation, even may be for directed purpose, shall not turn such an illegality into legality nor consequences thereof can be escaped by pleading it as an irregularity. I am fortified in such view with the case of TalatJahanBurki v. Member, Board of Revenue 2005 CLC 269 wherein it is held as:
‘ It is settled proposition of law that power of attorney must be construed strictly as giving only such authority as is conferred expressly or by necessary implication and the person authorized to do any particular act would do only that specific act and would not travel beyond the authority vested in him. The judicial proceedings launched in a manner not authorized by power of attorney executed in favour of a person would be a nullity in the eye of law. The power of attorney only gives that power which is specifically mentioned therein, and it would operate prospectively and not retrospectively. (emphases supplied)
Having detailed the scope and object of authorized agent / attorney, now I shall revert to merits of the instant case but before that peculiar facts of the instant matter compel me to make it clear that provision of Section 15 of SRPO itself categorizes ground (s) on basis whereof ejectment of the tenant can be sought by the landlord which prima facie meant that a landlord can competently file the ejectment application on all or any of the grounds, provided in by Section 15 of the SRPO, 1979 but since such grounds are to be proved to satisfaction of the Rent Controller within meaning of Section 15(2), therefore, landlord is always believed to choose the ground which is available to him. Needless to add that the ground for default in paying rent is covered by Section 15(2)(ii) of the Ordinance while that of ‘premises required in good faith for own occupation or use is covered by Section 15(2)(vii) of the Ordinance.
12. Now, reverting to merits of the case, it appears that it is an admitted position that the petitioner/landlady filed ejectment application against the respondent/tenant through her son Syed Nadeem Abbas and executed such power-of-attorney in his favour but she (petitioner / principal) also determined the ground i.e.‘default in payment of rent’ only which falls within meaning of Section 15(2)(ii) of the Ordinance hence the attorney was never legally justified to step out of such ‘determined field’ or file the ejectment application on an independent ground, not authorized by petitioner (principal) i.e.‘premises, require in good faith for personal use’ as same is not included in category 15(2)(ii) but is independently categorized as 15(2)(vii). The concurrent findings of two courts below to the effect that there was not authority to attorney Syed Nadeem Abbas from the landlady to file ejectment application on the ground of personal bona-fide need are proper. The parties shall always sail or sink with the consequences arose out of her own acts and omissions. Therefore, such application was not competent and was rightly so found by the two courts below.
Though not needed, but I would attend the plea of subsequent ratification. It is a matter of record that attorney not only filed the ejectment application in the manner, not authorized by the principal (petitioner) but also filed affidavit in evidence in the rent case on same unauthorized ground, preferred FRA and present Constitutional Petition, signed vakalatnamas and sworn affidavit in support of application while acting under same power-of-attorney. There can be no denial that instant petition is also in continuity of ‘ejectment application’ which, as already discussed, was incompetent and not maintainable. I have no hesitation in admitting that ratification may be made but scope thereof cannot be extended to an ‘illegality or nullity’ but such right shall be available only to cure an irregularity or procedural error only. In short, a principal may ratify an irregularity or procedural error but not an illegality or nullity. If such an illegality is allowed to be ratified at such belated stage, it shall dislodge the object, purpose and scope of the ‘power-of-attorney’ because law insists much on giving weight to what is authorized (made legal for) for an attorney to do on behalf of his principal.
In case reported as Muhammad Afsar Khan and another v. Khadim Hussain and others (PLD 1978 AJ&K 143) it has been held as under:-
“A power of Attorney under Order III rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power of attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance of the particular act and general words in no way confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be constructed as limited to what is necessary for the proper exercise of the special powers.”
In case reported as Gultaj Begum v. Lal Hussain and another (PLD 1980 SC AJ&K 60) it was opined as follows:-
“Order III rule 2- Power of attorney- To be construed strictly and be so interpreted as to give only such authority as it confers expressly or by necessary implication- Important rule for construction of such a document; regard must be had to recitals which as showing object of power would control all general terms in operative part of instrument.”
In case reported as Qurban Hussain and two others v. Hukam Dad (PLD 1984 SC AJ&K 157) it was observed as under :-
“Power of Attorney – Validity – Power of attorney for purposes of its validity, must not only be authenticated by any of persons mentioned in cls. (a), (b) & (c) of Section 33 (1), of the Registration Act, must also be executed before such person or authority.”
In case reported as Babu Muhammad Aslam v. Mst. RehanaParveen (PLD 1989 Peshawar 185), it was opined as under:-
“15. A close scrutiny of the powers of attorney placed on the files of both the cases would disclose that these were executed by Mst. RehanaParveen and Mst. ZahidaParveen for the acts of their attorney in futuro and there is no reference whatsoever with regard to the ratification of the earlier acts performed by him purportedly on their behalf of engaging a counsel, signing the ‘Vakalatnama’ in his favour, giving instructions to the learned counsel or putting his signatures on the applications as also under the verification thereof.
16. It is also interesting to note that, throughout these proceedings, the two applicants did never appear at any stage, more particularly at the time of recording evidence in support of their respective applications………. ”
In case reported as Muhammad Meherban v. Sadruddin and another (1995 CLC 1541) it was observed by the Hon’ble Supreme Court that:
“In our view this itself is no ground for discarding the subsequent power of attorney but at the same time it may be emphasized that a power of attorney only gives that power which is specially mentioned in it and it operates prospectively and not retrospectively.”
In case reported as Syed Nizam Ali and two others v. Ghulam Shah and two others (PLD 2000 Lahore 168), it was opined that
“9. The generally accepted and well-recognized principle for interpreting powers of attorney is that the contents thereof should be strictly construed. No power or authorization should be read into a power of attorney which is not expressly set out therein. If any authority is required for this well-settled proposition of law, the cases of Muhammad Hussain v. Bashir Ahmed PLD 1987 Lah. 392; Haji Mitha Khan vs. Mst. Nafees Begum and others 1995 CLC 896 and Muhammad Mehrban v. Sadruddin and another 1995 CLC 1541 may be referred to additionally, it may be noted, a power of attorney crates a fiduciary relationship between attorney and principal which requires the attorney to act in the best interest of the principal. A party dealing with an attorney would, therefore, be imputed notice of this fiduciary overlay on an attorney’s authority.”
In case reported as Manzoor Begum v. Haji Fazal Ellahi (2012 YLR 2152) it has been held that:
“Before proceeding further it may be stated that a power of attorney should be construed strictly. A power of attorney gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond that what is really conveys. The most important role for construction of power of attorney is that regard must be had to recitals which, as showing the scope and object of power, will control all general terms in the operative part of the instrument. Authority is given to do a particular act followed or preceded by general words. General Words are restricted to what is necessary for proper performance of a particular act and general words in no way confer general powers, but are limited to the purpose for which the authority is given. Where special powers are followed by general words and vice versa, the general words are construed as limited to what is necessary for proper exercise of special power.”
“A power of attorney is not open to liberal interpretation. It is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such a way as would be necessary to carry into effect the authority that is expressly given.”
In case reported as Shahabuddin and others v. Mst. Mariam Bibi and others (1995 MLD 45) it was observed that:
“The power of attorney has to be strictly construed, and a person authorized to do a particular act will do only that specific act and will not travel beyond the authority vested in him. Judicial proceedings launched in a manner not authorized by a power of attorney executed in favour of a person and conferring on him certain authority will be a nullity in the eye of law. Muhammad Suleman, as general attorney of Mst. 1Jlfat etc. legal heirs of Muhammad Khalil (respondents Nos. l l to 16, in the present revision petition, and 6 to 11 in the appeal before the District Judge) had, in the proceeding of the civil suit, made a statement, acting for the said plaintiffs, withdrawing their claim against the contesting defendants (Shahab-ud-Din and Muhammad Jamil), and the suit had been dismissed to the extent of their share in the land. I do not think that it is possible to displace the finding of the learned Civil Judge made to the effect that the suit by the remaining plaintiffs (except the legal heirs of Abdul Ghani) had not competently been instituted.”
In case reported as Zawar Hussain v. Abid Hussain Qureshi (1994 MLD 2251), it was opined that:
“I am of the humble view that the power of attorney (Exh. A/2) does not confer any express powers on the attorney to file affidavit-in- evidence and to give evidence on behalf of the respondents nor such a power can be inferred from this power. Mr. Muhammad Saleh G. Memon, the learned counsel for the respondent has conceded that the power of attorney does not confer any express power on the attorney to give evidence.”
In case reported as RanaNasir Ahmad v. SherBahadurKhan and others (2006 CLC 999) it was observed that:
“The rule of construction of a document is that special attorney given therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special power, and where, the authority is given to do a particular act followed by general words, the authority is deemed to be restricted what is necessary for the purpose of doing that particular act. The general words do not confer general power but a limited for the purpose for which the authority is given and are construed for enlarging special power necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule before an act purported to be done under the powers, it is necessary to show that the authority exercised was within the four corners of the instrument. The special power of attorney, admitted to have been executed by respondent No. 1 does not contain authority to compromise the suit. The general words used in the power of attorney does not confer general power to compromise the suit. The attorney was specially authorized to appear in the Court to file a written statement, appeal, review, revision, record a statement, file an affidavit etc. on behalf of Respondent No. 1. Since it was a special power of attorney and attorney was not given power to compromise, the act of Respondent No. 2 compromising the suit on behalf of Respondent No. 1 and making statement, in the Court to that effect was without lawful authority.”
In case reported as GhazanfarHussian v. RahmatBibi and 5 others (1989 CLC 310), it was opined that:
“It is settled principle of law that until and unless the power to compromise or withdraw a suit is specially given to an attorney, such power would be deemed to be non-existent and cannot be inferred from the general expressions used in the document; such expression are to be read in context of specific powers given to the attorney and are always subject to the specific expressions used in the relevant document.
The general term occurring in a document executed for the purpose of appointing an attorney should be interpreted in view of the object for which such power of attorney was executed.
It is evident from the survey of case law cited above it is a settled principle of law that power of attorney should always be construed strictly and the powers which have not been specifically given to an attorney or do not flow from the contents of the document by necessary implications; those should not be deemed to have been conferred on the attorney concerned.”
In case reported as M/s. Eagle Star Insurance Co. Ltd. v. M/s. Usman Sons Ltd. and others (PLD 1969 Karachi 123), it was opined that:
“Such an instrument is a written authorization by which the principal appoints another person as his agent and confers upon him the authority to perform specified acts on behalf of the principal. The primary purpose of an instrument of this nature is to evidence the authority of the agent to third parties with whom the agents deal. The role is now well established that the power of attorney must be strictly construed and strictly pursued. A power of attorney is held to confer only those powers which are specified therein, and the agent may neither go beyond nor deviate from the terms of this instrument, that is, the act done should be legally identical with what is authorized to be done by the instrument.“
In case reported as Imamuddin and 4 others v. Bashir Ahmed and 10 others (PLD 2005 SC 418), it was opined that:
“The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all acts and deeds of his agent done by him under the authority cornered through the instrument. In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the lights of its recital to ascertain the manner of the exercise of the authority in relation to the terms and condition specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act the general words do not confer general powers but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for its effective execution. This is settled rule that before an act purported to be done under the power of attorney is challenged as being an excess of the power, it is necessary to show on fair construction that authority was not exercised within the four corners of the instrument.”
In the case reported as M/s. Mehran Distributors through Proprietor and 2 others v. United Bank Limited through Engineering Division, Karachi & 2 others (2009 YLR 1024), it has been held that :-
“Before adverting to the above contention it is well settled that the power of attorney shall be strictly construed in terms of section 188 of the Contract Act and the person authorized would carry out the functions in the manner authorized by power of attorney others all suggest would be in the nullity in the eye of law.”
13. Without prejudice to above, it is also a matter of record that on this point landlady kept quite since filing of the ejectment application, FRA and present Constitutional Petition but produced the same in present petition through statement at bar of her counsel on 18th April, 2016 thereby attempted to ratify the previous act done by the attorney on her behalf. It would suffice for such attempt that at such belated stage the principallegally cannot permit the illegally raised structure (ejectment application and documents attached therewith) because such structure had made the tenant to confine his rights of defence to such structure alone. Even otherwise, no law permits change of structure at appellate stage. It was such structure which resulted in finding the ejectment application incompetently filed. In the present case, landlady did not appear into the witness box and stated that the attorney has filed ejectment application on her behalf in order to ratify the act of the agent. Under such circumstances, the ejectment application was filed by incompetent person and same was rightly dismissed by the learned Rent Controller.
14. As regard the submissions made by the learned counsel for the petitioner that the courts below have failed to consider the law laid down by the superior courts that it is prerogative of the landlady to choose the premises according to her suitability, it would suffice to say that there is no cavil with the principle of law laid down in the referred cases however, I have no hesitation in adding that it shall never be the words of the landlord/landlady alone but he/she is legally obliged to legally and competently satisfy the Rent Controller about his said words (ground or grounds of ejectment). Further, in my humble view it is duty of the court to examine each and every case on its own merits. The burden of proving personal bona-fide need was upon the landlady / petitioner which she was to prove through cogent, convincing and confidence inspiring evidence as mere desire, wish, whim or convenience of landlady is not enough to prove good faith. From the material available on the record it is an admitted position that an another shop of landlady is lying vacant since one and half years prior to filing of ejectment case and her sons are serving privately and said fact was admitted by the witnesses during their cross-examination, therefore, this ground was also rightly found to have not established upto required satisfaction of Rent Controller.
15. In view of the above facts and circumstances, the case laws referred by the learned counsel for the petitioner are distinguishable and are not applicable to the facts and circumstances of the present case.
16. So far as the statements at bar made by learned counsel for the petitioner and produced documents and order for tendering resignation by the attorney/son of the petitioner during private job are concerned, it would be observed that as per statements at bar, documents produced by the petitioner herself that she has ratify the act of her attorney and documents pertaining to the litigations before the Union Council, North Nazimabad, even otherwise, said documents have not been produced by the petitioner before the Rent Controller or Appellate Court and no permission was obtained from the Court for submitting the said documents, therefore, same could not be looked into. In this regard, reliance may respectfully be placed on the case law reported as Abdul Rehman vs. Ziaul Haq Mukhdoom (2012 SCMR 954).
17. It is well settled principle of law that the High Court in exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts, even if such findings are erroneous. The scope of the judicial review of the High Court under Article 199 of the Constitution in such cases, is limited to the extent of mis-reading or non-reading of evidence or if the findings are based on evidence which may cause miscarriage of justice but it is not proper for this Court to disturb the findings of facts through reappraisal of evidence in writ jurisdiction or exercise this jurisdiction as substitute of revision or appeal.
In the case of Farhat Jabeen v. Muhammad Safdar and others (2011 SCMR 1073) wherein the august Supreme Court of Pakistan has declared as under:---
"Heard.From the impugned judgment of the learned High Court, it is eminently clear that the evidence of the respondent side was only considered and was made the basis of setting aside the concurrent finding of facts recorded by the two courts of fact; whereas the evidence of the appellant was not adverted to at all, touched upon or taken into account, this is a serious` illegality committed by the High Court because it is settled rule by now that interference in the findings of facts concurrently arrived at by the courts, should not be lightly made, merely for the reason that another conclusion shall be possibly drawn, on the reappraisal of the evidence; rather interference is restricted to the cases of misreading and non-reading of material evidence which has bearing on the fate of the case."
Moreover, in the case of Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45) the Hon'ble Supreme Court has laid the law to the following effect:---
"The learned counsel for the respondent has not been able to point out any legal or factual infirmity in the concurrent finding on the above question of fact to justify the interference of the High Court in the writ jurisdiction and this is settled law that the High Court in exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts based on evidence even if such finding is erroneous. The scope of the judicial review of the High Court under Article 199 of the Constitution in such cases, is limited to the extent of misreading or non-reading of evidence for if the finding is based on no evidence which may cause miscarriage of justice but it is not proper for the High Court to disturb the finding of fact through reappraisal of evidence in writ jurisdiction or exercise this jurisdiction as a substitute of revision or appeal."
In sequel to above discussion, we are of the considered view that the interference of the High Court in the concurrent finding of the two Courts regarding the existence of relationship of land and tenant between the parties was beyond the scope of its jurisdiction under Article 199 of the Constitution and consequently, we convert this petition into an appeal, set aside the judgment of the High Court and allow the appeal with no order as to costs."
18. In view of the above position, discussion and circumstances, I am of the opinion that petitioner failed to point any prima facie illegality resulting into mis-carriage of justice in concurrent findings of two courts below and existence of mere possibility of another conclusion on re-appraisal of evidence alone is not sufficient to disturb the concurrent findings of two courts below while exercising constitutional jurisdiction.
19. In the light of above discussion and circumstances, the concurrent finings recorded by the learned two courts below are neither arbitrary or against the record nor do they reflect any jurisdictional error to warrant interference in the constitutional jurisdiction of this Court through present petition, therefore, petition is dismissed being meritless with no order as to costs.
J U D G E
Zahidbaig