This order will dispose of the two petitions bearing C.P. No.S-492 of 2002 and C.P. No.S-493 of 2002, as common questions of facts and law are involved.
2. The present petitions are directed against the order, dated 28-2-2004 passed by the learned Vth Additional District Judge, Karachi (South) in F.R.A. No.331 of 2001 and 332 of 2001. by which the orders of Rent Controller. dated 31-3-2000 were maintained who dismissed the ejectment applications tiled by the petitioners on the ground that there was no relationship of landlord and tenant between the parties.
3. The facts giving rise to the present petitions are that the petitioners claim to be owners of the premises bearing Plot No.W.O.2/27 James Terrace Road, Nanakwara, Karachi, consisting of various shops. and flats. Out of them Shop No.1 is in possession of the respondent No.1 of C.P. No.S-492/2002 at monthly rent of Rs.200 from the year 1976 and Flat No.12/A is in possession of the respondent No.1 of. C.P. No.293 of 2002 at the monthly rent of Rs.90. The petitioners have alleged that in the year 1981 conditional sub-leases were executed between the parties with a condition that the premises would be transferred, in case all the tenants agree for transfer of the tenant in their favour and then the petitioners would execute the registered sub-leases in respect of Shop No.1 and Flat No.12/A in favour of respondent No.1 in both the C.Ps. Out of total 28 tenants, 25 tenants showed no interest of taking the flats or shops, therefore, in the year 1998 it became impossible to transfer the said shop and flat in favour of respondents No.1 of both the C.Ps., as such the sub-leases were cancelled and it was agreed between the petitioners and respondent No.1 of C.P. No.492 of 2002, that the amount of Rs.55,000 paid by the said respondent No.1 would be adjusted in monthly rent and Rs.20,000 would be kept as fixed deposit refundable at the time of handing over the vacant possession and between petitioners and respondent_ No.1 of C.P. No,493 of 2002 that out of amain-I-of Rs.20,000 paid under dip sub-lease, an amount of Rs.15,000 would be adjusted in the monthly rent and Rs.5.000 would be kept as fixed deposit. It is alleged that the respondents No.1 in both the petitions failed to pay the rent, therefore, they filed the ejectment applications. The respondents No.1 in both the petitions were served and they filed their written statements, in which they took the plea that there was no relationship of landlord and tenant between the parties, in view of sub-leases executed between the parties on 17-1-1981 and in pursuance of the said agreement they had performed their part by paying the taxes to the applicants according to their shares. The respondents No.1 in both the petitions specifically alleged that the sub-leases were not cancelled but the rent applications were filed as a counterblast, because in the year 1991 they filed suits for specific performance of contract. The petitioners filed the affidavit of petitioner No.1 in support of the case, whereas the respondents No.1 in both the petitions had filed their own affidavits. The learned Rent Controller framed the following issues in both the rent applications:--
(a) Whether there exists any relationship between the parties as landlord and tenant?
(b) Whether the opponent (respondent) has committed any default in payment of rent?
(c) What should the order be?
4. After considering the evidence, the learned Rent Controller reached the conclusion that there was no relationship of landlord and tenant between the parties, therefore, the ejectment applications were dismissed. The petitioners were dissatisfied with the said orders, therefore, they challenged the same before the. High Court. After the amendment in the law the matters were transferred to the District Court, which were dismissed by the learned Vth Additional District Judge, Karachi, by maintaining the orders of the Rent Controller under the impugned orders.
5. The learned advocate for the petitioners has argued that the sub-leases were cancelled, therefore the payments of Rs.55,000 and Rs.20,000 which were paid under the sub-leases were adjusted in future rent and that after the adjustment of the said amounts the respondent No.1 in both the petitions failed to pay the rent, therefore, the ejectment applications were filed. He has further argued that the learned lower Courts have not properly and legally considered the evidence and the decisions are not based on judicial consideration of evidence lead in the case and misread the same, therefore, the impugned orders are liable to be set aside. He has further argued that the tenancy between the parties is still subsisting, therefore, there is relationship of landlord and tenant between the parties and the respondent No.1 in both the petitions cannot take protection under section 53-A of Transfer of Property Act. Learned counsel has relied upon the case of Faiz Ahmad and another v. Mst. Qudsia Khatoon (1991 M LD 1051).
6. From the arguments of the advocate for the petitioners and perusing the record, I have found that legal and factual questions are involved which are to be resolved. First I will take up the legal aspect of the case,
7. From the above the arguments in challenging the factual aspect of the two lower Courts below and their concurrent findings on the grounds mentioned above, it is clear that he has challenged the same as if this is second appeal which amounts to rehearing of the matter as a second appeal.
Section 100, C.P.C. provides that an appeal to the High Court will lie from an order of a subordinate Court on the grounds:--
(a) The decision being contrary to law or usage having the force of law;
(b) The decision having failed to determining some material issue of law or usage having the force of law;
(c) A substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
8. The jurisdiction of hearing second appeal has been taken away by the Sindh Rented Premises Ordinance, 1979, by subsection (3) of section 21 wherein the order of the Appellate Court has been made final. The intention of the Legislature is very clear and obvious that an order passed on first appeal shall be final and shall not be subjected to further appeal in the High Court and the decisions in rent matters should be reached expeditiously and also end at lower levels. From the arguments of the appellants' counsel it is clear that he has treated this Court as second appellate Court but the said right has been taken away, therefore; the said purpose cannot be achieved by invoking or by exercising the Constitutional jurisdiction. The latter jurisdiction is not meant to avoid the legislative intent. It is well-settled principle of law that what can be done' in appellate jurisdiction cannot be done under the Constitutional jurisdiction. These two jurisdictions are separate and distinct. The Hdreble Supreme Court of Pakistan after considering the various authorities and that of Privy Council in a case Muhammad Hussain Muneeb and others v. Sikandar and others, reported in PLD 1974 SC page 139 has elaborately discussed the various aspects of factual as well as legal points to be considered while deciding a Constitutional petition. A portion of the said report reported in second paragraph at page 142 is reproduced: "The argument in our opinion is unexceptionable. It is not controverted that the matter before the learned Single Judge feel to be dealt with under paragraph (ii) of sub-clause (a) of clause (i)
Article 98 of: the 1962 Constitution. That being soothe learned Judge could have set aside the. order, if he had reached the conclusion that the revisional order of the learned Member, Board of Revenue was ' without lawful authority and of no legal effect'. These are expressions of art and refer to jurisdictional 'defects as distinguished from a mere erroneous decisions whether on a question of fact or even of law. It is well-settled that where a Court or a Tribunal has jurisdiction and it determines that question it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. One of the earliest leading case on the point is the Privy Council decision in Amir Hussain Khan v. Sheol Bakhsh Singh (2). This case concerned the revisional jurisdiction of the High Court under section 622 of Civil Procedure Code, 1882, which was in the same terms as section 115. Civil Procedure Code, 1908. The High Court has the power to interfere. in its supervisory jurisdiction under that section, if a subordinate Court has acted without jurisdiction, or has failed to exercise its jurisdiction or in exercise of its jurisdiction has acted illegally or with material. irregularity. The High. Court's supervisory . jurisdiction under Article 98(2)(a)(ii) of the 1962 Constitution (or for that matter under Article 199 (1)(a)(ii) of the present Constitution) baying regard to its nature or content is assimilate to its jurisdiction under section 115, Civil Procedure Code except in two important respects; first; the former jurisdiction being a creation of the Constitution . stands in a higher stated than that under section 115, C.P.C., second; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However that may be it is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case it would make the High Court's jurisdiction indistinguishable from That exercisable in a full-fledged appeal which plainly is not the intention of the Constitution.
9. An obvious consequence of this, is that the court will not review findings of fact C properly reached. It is further pointed out that the absence of right of second appeal to this Court in rent matters .has added further responsibility upon the lower Courts to carefully examine and analyzing the evidence present before them before they arrive at decisions and every bit. that has been placed before them has to be taken note of and given due weight. In this connection an observation - from their lordships of the Supreme Court in Muhammad Sharif and another v.
Muhammad Afzal Sohail etc. (PLD 1981 SC page 246) is reproduced as under:--- "We have been noticing of late, that notwithstanding the fact that the Legislature, in its 'wisdom, has abolished the second appeal in case under the West Pakistan Urban Rent Restriction Ordinance and has made the orders of the District Judge as final, yet the parties, probably after obtaining legal advice, have taken to filing writ petitions in the High Court against the final order passed by the Appellate Court, merely to take another chance or to delay their eviction, hoping that the matter shall take considerable time to be disposed of or that in any case the High Court while dismissing their writ. petition may be persuaded to allow further time for vacating the premises in question. The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judge of the High Court take great pains to re-appraise the evidence and to consider each and every contention raised by the petitioner's side before deciding the petition without realizing that more often than not such petitions are merely a device to circumvent the amendment in the law and defeat the obvious intention of the Legislature, namely a speedy determination of cases under, the Urban Rent Restriction Ordinance. Such frivolous applications not only cause the poor litigants to incur unnecessary expenditure but also result in the waste of valuable public time and should, therefore, be discouraged by the High Court. It has been repeatedly held that a Tribunal having jurisdiction to decide the matter is competent to decide it rally or wrongly and the mere fact that another conclusion could be arrived at from evidence does not make it a case for interference in the exercise of its Constitutional jurisdiction,'
10. Thus on this ground the Constitutional petition is not maintainable. However, now I will deal with the factual aspect of this case.
11. In the year 1981, sub-leases were executed between the parties. The relevant paragraphs of the sub-leases which are common in both the petitions except the amount and number of tenements, are as under:--- And whereas the above-named sublease who was the tenant of shop No.1 on James Terrace Road, in the aforesaid property approached the lessee of the 1st part for acquiring sub-leasehold right of the aforesaid tenement number.
And whereas the aforesaid lessee has agreed to sub-lease undivided share in the said plot of land measuring 338 sq . yds, with exclusive ownership rights of tenement No. Shop No.1, on James Terrace Road, measuring 338 sq. ft. on ground floor of the building known as Mala Manzi' for total occupancy value of Rs.55,000 and the above named sub-lessee has agreed to acquire the sub- lease for the said sum.
(2) That the grant shall for the unexpired period of years commencing from and shall be renewable at the option of sub-lessee subject to renewal of . lease in favour of lessee and upon payment of such occupancy value and ground rent etc. as may be fixed by the Government and K.M.C. etc.
(3) That the sub-lessees have paid this day to the lessee full occupancy value of premises No. Shop No.1, receipt of the same the lessee hereby admits and acknowledge.
(4) That the sub-lessee shall from this date of execution of this agreement shall 'pay to the lessee his proportion in the Ground rent, K.M.C. taxes, Excise and Taxation and other Government levy, on the said property to the extent of his share in the said property.'
12.Now the point arises as .to whether after the execution of sub-leases tenancy between the parties terminated or not and whether the respondents No.1 in both the petitions (hereinafter would be referred as respondents) could resist the ejectment application on the ground of part performance of the contract and whether section 53(A) of Transfer of Property Act is attracted or not.
13.Under the agreement, as the respondents were already in possession of tenements they continued to be in possession of the premises and thereafter they paid all the taxes under clause 4 of the sub-leases. In this connection, the respondents in their affidavits have categorically stated that as co-owner they had paid the Ground taxes, K.M.C. taxes, Excise and Taxation and other Government levy of the said property to the extent of their shares and they produced the relevant receipts alongwith their written statements and so also in the evidence. The statements of the respondents went unchallenged as the said statements were not denied or challenged by the petitioners in the cross-examination.
14.This clearly establishes that the respondents in part performance of .the contract had paid the taxes in furtherance of the contract. It is also admitted position that after the sub-leases, no rent was paid directly by the respondents to the petitioners, nor it was ever claimed by the petitioners.
The case of the petitioners is that the sub-leases were cancelled and the amounts paid by the respondents under the agreements were adjusted in future rent. No evidence, whatsoever, has been led by the petitioners except the word of petitioner No.1 through his affidavit, which has been challenged, to prove the change of terms and conditions of the contract already executed between them or cancellation of the same. Without such proof the sub-leases cannot be held to be cancelled or the terms and conditions were changed.
15. It is also an admitted position that for the shop measuring 338 sq. feet and flat measuring 333 square yards, huge amounts of Rs.55,000 and Rs.20,000 were paid in the year 1981. Though it is not specifically mentioned in the agreement that the possession was handed over but the terms and conditions as mentioned above clearly indicate that the respondents continued their possession in part performance of sub-leases with an implied consent of petitioners. It is also not specifically mentioned in sub-leases that the respondents would not pay the rent after execution of sub- leases but the clause 4 of the sub-leases clearly indicates that the respondents were required to pay Ground rent, K.M.C. taxes, Excise and Taxation and other Government levy of the said property to the extent of their shares in the said property, which they had paid. If the rent was to . be paid after the execution of the agreements then the respondents have further been burdened with the payment of many taxes to the extent of their shares in the said property in addition to the rent. It is not appealing to the common sense that in addition to taxes the rent was also required to be paid when the respondents had paid huge amounts for occupancy value of the premises in their possession. The sub-leases executed between the parties impliedly show that after the execution of sub-leases they continued to remain in possession of the properties as owners and were not required to pay the rent except the taxes mentioned in the above clause. In such situation, the provision of section 53-A of Transfer of Property Act would come into play, which reads as under:-- - "53-A. Part performance.---Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonably certainty and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee, has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor, by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
16. The conduct of the parties from the year 1981 after the execution of sub-leases clearly shows that the respondents were exercising their right of ownership and they were paying Government taxes as required by clause 4 of the sub-lease as owners. All the requirements of section 53-A of Transfer of Property Act have been established in this case as discussed above. The sub-lease clearly establishes that the tenancy rights between the parties were terminated, therefore, the Rent Controller had no jurisdiction to eject the respondent No. 1.
17 The facts of the authorities quoted by the learned advocate for the respondents are quite different from the facts of the present case. Even otherwise, the ratio decided in the authorities of Supreme Court and the High Courts mentioned in 1991 M LD 1054 is that the rights of the parties are to be determined according to the agreement.
18. In view of the above position the concurrent findings and decision arrived at by the two Courts below cannot be interfered with on the ground that the decisions were wrong. The controversy between the parties on the facts have finally been adjudicated upon by the Courts of competent and exclusive jurisdiction.
19. In the light of what has been stated above, these petitions fail being not maintainable.
Accordingly, these Constitution Petitions are dismissed in limine. C.M.A. No.1939 of 2002 of C.P No.292 of 2002 and C.M.A. No.1933 of 2002 of C.P. No.493 of 2002 have become infructuous and are also dismissed.