ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P No. S-741 of 2009.

 

Date                                    Order with signature of Judge

 

 

For Katcha Peshi.

 

            Present before:         Ahmed Ali M. Shaikh, J

 

Mr. Muhammad Rashid, learned counsel for the petitioner

Mrs. Humera Nadeem Rana, learned counsel for the respondent

Date of hearing:   

 

27-05-2010.

Petitioner

Mansurali

Respondent

Hussain and others.

 

 

AHMED ALI M. SHAIKH, J.          Through this constitutional petition, the petitioner has challenged the impugned judgment dated: 29.09.2009 passed by V-Additional District Judge Karachi (South) in F.R.A No. 96/2009, whereby the appellate Court concurred with the findings recorded by the Rent Controller and upheld its order dated: 26.03.2009, whereby the Rent Application filed by the petitioner was dismissed.

From the pleadings, it appears that the petitioner filed the Rent Application No.  484 of 2008 against the respondent No.1 for eviction from the premises Mezzanine floor of building known as Sheikha House constructed on plot Survey No.16, Sheet S.R-7, Quarters Campbell Street M.A Jinnah Road, Karachi, on the ground of default as well as personal bonafide need. The respondent No.1 contested the Rent Application, filed his written objections whereby he denied the allegations leveled in the Rent Application. He denied the allegations of default and also disputed the personal bonafide need of the petitioner.

The Rent Controller framed the following points for determination.

1.         Whether the opponent has committed the willful default in payment of monthly rent from July 2007 till filing of this ejectment application.

2.         Whether the opponent used the demised premises other than for search of godowns?

3.         Whether the applicant requires the demise premises in good faith for the use of family members of co-owner?

4.         What should the order be?

Both parties led their evidence and after hearing the learned counsel for the parties, the Rent Controller dismissed the Rent Application vide order dated: 26.03.2009. The petitioner called in question the aforesaid order in F.R.A No. 96/2009 but could not succeed.

Mr. Muhammad Rasheed learned counsel for the petitioner contended that the order dated: 26.03.2009 and impugned judgment dated: 29.09.2009 passed by two courts bellow are based against the evidence and available record. Per learned counsel the appellate Court failed to exercise the jurisdiction vested in it by not considering that the respondent No.1 was willful defaulter w.e.f July 2007 till filing of ejectment application. It is further contended that in fact it was a case where the appellate Court ought to have allowed the ejectment application of the petitioner but the appellate Court committed illegality while dismissing his appeal. Per learned counsel two courts below failed to exercise the jurisdiction vested in them by not allowing the benefit of section 15(2) (ii) of Sindh Rented Premises Ordinance, 1979 as the respondent No.1 was willful defaulter as he did not pay the rent from July 2007 till filing of the ejectment application. He further contended that two Courts below failed to appreciate that the demised premises is very suitable for the need of the petitioner and his family. Per learned counsel the impugned judgment and order of Rent Controller are not based on the record of the case and evidence led by the parties and the impugned judgment has been passed in arbitrary manner and is against the principles laid down by the superior Courts. He further contended that the impugned judgment and order which were passed by two Courts below are based upon the conjectures and surmises, misreading and non reading of pleadings and evidence on record and are liable to be reversed. He lastly contended that the appellate Court has ignored the fact that the respondent No.1 failed to pay the rent to the petitioner within time and always paid monthly rent in arrears since inspection of tenancy agreement and always committed chronic default in payment of rent. He finally concluded his arguments by contending that the order and impugned judgment passed by two Courts below are beyond the evidence recorded by the Rent Controller and two Courts below ignored the admission made by the respondent No.1 in his cross examination in respect of the deposit of rent in M.R.C in which he has deposited the rent for the months of July 2007 to December 2007 and January 2008 to March 2008.

Conversely Mrs. Humaira Nadeem learned counsel for the respondent No.1 has supported the order and impugned judgment passed by the Rent Controller and appellate Court. She further contended that the constitutional petition is not maintainable as there are concurrent findings of facts by two courts below.

Heard the learned counsel for the parties and perused the order and impugned judgment passed by two courts below.

Upon a perusal of order dated: 26.03.2009, it appears that the Rent Controller has passed the same after taking into the oral as well as documentary evidence laid by the parties. At page Nos. 4 and 5 of its order the Rent Controller has given the cogent reasons for dismissing the Rent Application in following words:-

“From the oral as well as documentary evidence i.e. the letters {bills} and rent receipts Ex.O/2 to O/7, it is indicated that eh applicant used to receive the rents of the demised premises from the opponent in lump sum, some time for the period of six months and some time for the period of four months collectively by issuing such bills in the shape of letters without protest or objections and which practice of the applicant continued upto the month of August 2007 and thereafter when the applicant as usual did not issue bill for the payment of rent for the months from July 2007, then the opponent approached the applicant for the payment of rents for the month of July 2007 to December 2007 but the applicant instead of accepting the same demanded increase rent so the opponent tendered such rent through cheque Ex.O/8 and when the same was not accepted by the applicant the opponent remitted such rent through Money Order Ex.O/9 under receipt Ex.O/10 which was too refused by the applicant resulting the opponent was deposited such rent along with rent for the month of January 2008 to March 2008 in MRC No. 343/08 vide receipt Ex.O/11 and since then the opponent is depositing monthly rent in the Court. It further appears that the applicant has not raised such objections even in his letter Ex.A/1 as stated to have been issued by the applicant prior to filing of instant case, therefore, since the opponent has already been deposited rent for the disputed period in the Court and on the other hand since the practice of the applicant was to collect the monthly rent of the demised premises in lump sum by issuing such bill in the shape of letter as evident from the record, therefore, I am of the humble view that that opponent has not committed willful default in the payment of monthly rent in respect of demised premises. I am also fortified by the case law in this behalf reported in 1989 SCMR page 403, wherein it has been held as under:-

“—S.15—Default—Finding of fact recorded by two Courts below that it was practice of landlord to collect rent in lump sum, based on admitted rent receipts—payment of rent on yearly basis proved—Petitioner for leave to appeal against such findings being, without merit, dismissed.”

Upon the perusal of impugned judgment passed by appellate Court, it appears that the appellate Court has also passed the impugned judgment in accordance with law and I do not find that same is result of misreading or non reading of the evidence. So far the question of default is concerned, the Rent Controller has given cogent reasons in support of his order, whereby he answered the point No.1 in negative. As far as the personal bonafide need of the petitioner is concerned, the petitioner could not prove such point before the Rent Controller, therefore, the Rent Controller has rightly held that applicant failed to discharge the burden of proof to show that he needs the demised premises for his bonafide need. It is well settled principle of law that the scope of interference in constitutional jurisdiction is very limited particularly when there are concurrent findings by the Courts below. Usually concurrent findings can not be interfered unless, 1) when there is misreading of evidence or non reading of evidence, 2) when there is erroneous presumptions of evidence, 3) when there is mis application of law or 4) when a rule of law laid down by superior Courts has not been properly applied by the courts below. Constitutional jurisdiction can not be exercised to reappraise the evidence unless lower Courts appraised the evidence in violation of well settled principles for appraisal of evince even if a  different conclusion is possible. The evidence shall not be reappraised and such conclusion shall not be recorded by the High Court in exercise of its constitutional jurisdiction. The constitutional jurisdiction can not be used as a second appeal.

In   Messers Shamim Akhtar Vs. State Life Insurance Corporation of Pakistan, Karachi and 2 others (P L D 2005 Karachi 554) it is held that the jurisdiction of the High Court under Art. 199 of the Constitution of Pakistan is extraordinary in nature aimed for proper dispensation of justice and to avoid abuse of process of law. Such jurisdiction not to be exercised with the discretionary orders of subordinate Courts. The jurisdiction of High Court under article 199 could not be invoked to circumvent the provisions of law i.e. Sindh Rented Premises Ordinance, 1979, unless the findings of lower Courts are based on patent mis-reading of evidence or arbitrary. In Syed Mazhar Hussain Shah through L.Rs. versus Member, Board of Revenue, Punjab, Lahore and others (2006 S C M R 959), it is held by their lordships that High Court had no jurisdiction to substitute its own findings for the findings recorded by the Tribunals below. In Hafiz Shafatullah Vs. Mst. Shamim Jahan and another (P L D 2004 Karachi 502) while examining the scope of Article 199 of the Constitution of Pakistan in rent cases this Court held as under:-

“Besides, the scope of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in rent cases has been discussed by this Court in many cases. It has been held by me in the case of M/s. Mehraj (Pvt.) Ltd., v. Miss Laima Saeed and others (2003 M L D 1033) that by conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislator in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances interference by this Court in exercise of its constitutional jurisdiction under Article 199, in the judicial orders, passed by the Tribunals, merely on the ground that another view of the matter is also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of the statute.

For the foregoing reasons and in the light of dictum laid down by the Honourable Supreme Court and this Court in aforesaid judgments, I do not find any merits in the petition in hand being devoid of merits and accordingly dismiss the same in limine.

Judge

Abdul Salam P.A