This Constitutional Petition has been preferred by the petitioner to impugn the judgment dated 1- 8-2003 passed by respondent No,2 (Rent Controller Karachi (West)) in Rent Case No,290 of 2000, whereby the Rent Application filed by respondent No,1 was allowed on the ground of default in the payment of rent committed by the petitioner, and the other judgment dated 22-1-2004 passed by respondent No,3 (Appellate Court) in F.R.A. No,51 of 2003, whereby appeal preferred by the petitioner was dismissed and consequently order of ejectment passed by the Rent Controller against him was maintained.
1. Relevant facts forming background of this litigation are that through the predecessor-in-interest of respondent No,1, petitioner is tenant of Shops Nos.2 and 3 over Plot No,M-II-EB-307, Street No,23, Block-B, Muhammadi Road, Sher Shah Colony, Karachi, at the monthly rent of Rs,30 for each shop.
Prior to the filing of instant rent application No,290 of 2000, there were two rounds of litigation before the Rent Controller between the petitioner and the predecessor-in-interest of respondent No,1 (Shah Rawan S/o Hajatmand), which ended in favour of the petitioner. The petitioner, however, in terms of the rent order passed in R.C. No,4110 of 1980 (new No,2570 of 1985), which was dismissed by Rent Controller on 10-11-1987, continued to deposit rent in the office Of Rent Controller and such practice of deposit of rent was continued by him up to May 2000, even after withdrawal of F.R.A.
No,1209 of 1987 on 8-6-1991, and death of landlord on 26-11-1997.
2. On 23-11-2000, one of the legal heirs of deceased landlord Shah Rawan namely Habib Ahmed filed ejectment application (R.C. No,290 of 2000) against the petitioner on the ground of default in the payment of rent and personal bonafide needle of the rented shops. In the Rent Application he disclosed the names of eleven legal heirs left behind by late Shah Rawan, who died at Karachi on 26-11-1997. He further disclosed that over plot No,M-II-EB-307, Street Nos.23 and 25 Block-B, Muhammadi Road. Shershah Colony, Karachi, his late father had constructed six shops out of which two shops Nos.2 and 3 were let out by him to the petitioner in the year 1966 and 1969 respectively at the rate of Rs,30 per month. Subsequently, there was litigation in respect of these shops by way of filing of rent case No,3556 of 1978 and second rent case No,4110 of 1980, both filed by his late father and filing of suit No,1920 of 1977 by the petitioner. The proceedings emanating from second Rent Case No,4110 of 1980 ended in withdrawal of F.R.A. No,1209 of 1987 by the predecessor-in-interest of respondent No,1 on 8-6-1991. However, the petitioner continued to deposit monthly rent in that rent case No,4110 of 1980, which was withdrawn by his late father.
Respondent No,1 further disclosed the facts regarding proceedings in Suit No,1920 of 1977 to show that the death of his father on 26-11-1997 was well within the knowledge of the petitioner, but despite that he continue to deposit the rent in the office of Rent Controller in the name of a dead person and thus committed default in the payment of rent. Respondent No,1 also took the plea of personal bonafide need of the rented shops for his use as he was jobless.
3. In the written objections filed by the petitioner, he challenged the maintainability of ejectment application on the ground of default in the payment of rent due to non-service of notice under section 18 of the Sindh Rented Premises Ordinance, 1979. Petitioner further disclosed the relevant facts to show that he had been regularly depositing the rent of both the shops in the office of Rent Controller and on receipt of notice of present ejectment application he had immediately tendered rent to the respondent No,1 through money order, and on refusal of money order he had deposited the whole arrears of rent with the Nazir of this Court and, thus, he has committed no default in the payment of rent and rather paid the rent of same period twice. The petitioner also denied the claim of respondent No,1 regarding his need of rented shops for his personal use.
4. During the proceedings of the rent case before the Rent Controller, the respondent No,1 filed his affidavit in evidence reiterating the same facts, and he was cross-examined by the learned counsel for the petitioner. From the petitioner's side, he filed his own affidavit in evidence, in conformity to the contents of his written objections, along with documents Ex.0/1 to 0/15 and he was cross-examined by the learned counsel for respondent No,1, where after his side was closed on 24- 2-2003. The Rent Controller, while deciding the ejectment application, framed following points for determination:
(1) Whether opponent has committed willful default in payment of rent to the legal heirs of deceased Shah Rawan after the death of the predecessor-in-interest of the Applicant?
(2) What would be effect of the previous litigation between the predecessor-in-interest of the applicant namely Shah Rawan and the opponent?
(3) Whether applicant requires premises in question bonafidely? (4) What should the decree be?
5. After hearing the arguments of learned counsel for the parties, the Rent Controller recorded his findings on point No,1 in the affirmative and on point No,3 in the negative and consequently ordered ejectment of the petitioner from the case premises solely on the ground of default in the payment of rent.
6. The appeal preferred by the petitioner, being F.R.A. No,51 of 2003, also met with the same fate and consequently it was dismissed. It will be pertinent to mention here that the findings of the Rent Controller on the point of personal need, which were recorded against the respondent No,1, were not challenged by him, thus, the same attained finality.
7. Mr. Ataullah Khan, Advocate for the petitioner, advancing his arguments in support of the case of the petitioner that at no point in time the petitioner has committed any default in the payment of rent, has referred various documents to show that not only the petitioner, till the filing of rent case No,290 of 2000, had been regularly depositing the rent in advance in the office of Rent Controller of the area, but as a case of abundant precaution, on receipt of notice of this rent case, he had immediately tendered the whole rent due in the sum of Rs,2,340 to the respondent No,1 within thirty days period, by treating the service of notice of rent case, as notice under section 18 of the Sindh Rented Premises Ordinance, which was mandatory due to change of ownership/land lordship, by any mode. After referring to the copies of refused money order coupon and receipt, learned counsel also referred the copy of Miscellaneous Rent Case No,3 of 2001, filed by the petitioner in the name of respondent No,1 and others to show that on 10-1-2001 the whole rent due was deposited with the Rent Controller and since thereafter the rent is being continuously deposited by the petitioner in advance. Mr. Attaullah Khan further contended that it is an admitted position that after the death of the predecessor-in-interest of respondent No,1 no intimation notice under section 18 of the Sindh Rented Premises Ordinance, 1979, was served on the petitioner nor he was aware about all the legal heirs of the deceased; in such circumstances, from no angle the petitioner can be held willful defaulter in the payment of rent. Learned counsel further submitted that admittedly the rented premises were not owned by the predecessor-in-interest of the respondent No,1 being located in Katchi Abadi, but he was landlord of the property, therefore, it was all the more necessary that the petitioner should have been informed by notice under section 18 that who will be the next landlord of the property eligible to collect rent from him. Learned counsel made reference to a recent Judgment of this Court in the case of Muhammad Shamim Ansari v. Dr. Muhammad Qamar Khan (2004 YLR 3373) to fortify his contention in relation to the mandatory requirement of service of notice under section 18 of the Ordinance in case of change of ownership.
Learned counsel also referred an unreported judgment dated 23-8-2001 in F.R.A. No,284 of 2002 to visualize the position of rented premises in Katcha Peshi in case of change of landlord. In the list of books submitted by the learned counsel he has placed further reliance on the following other cases:
(1) 1996 CLC 377, (2) 1988 SCMR 890, (3) 1986 CLC 1542, (4) 1979 CLC 42, (5) 1991 SCMR 1029, (6) 1990 CLC 1708 and (7) 1994 MLD 2162.
8. In reply to the above submissions of Mr. Attaullah Khan, Mr. Ghulam Mustafa Khawaja, learned counsel for the respondent No,1, at the outset, challenged the maintainability of this petition. In this regard he contended that there are concurrent findings of facts recorded by the two Courts below on the point of default in the favour of the respondent No,1, thus, such findings of facts are immune from scrutiny by this Court in exercise of its jurisdiction under Article 199 of the Constitution. Making his submission with reference to the factual aspects of this case, he contended that indeed in the earlier two rounds of litigation, initiated by the predecessor-in-interest of respondent No,1, he failed to seek ejectment of the petitioner from the rented shops, and in the present proceedings also respondent No,1 has failed to find favour of the two Courts below in respect of his plea of personal need of the rented shops, but these facts do not adversely affect the case of respondent No,1, as the point of default is to be considered and decided independently. Dilating upon the point of default, learned counsel referred paragraph 11 of the rent case to show that despite definite knowledge about the death of original landlord Shah Rawan S/o Haji Hajatmand, the petitioner did not pay, tender or offer any rent to his legal heirs from 1997 till filing of ejectment application in November 2000, which clearly establishes willful default in the payment of rent for over three years.
Learned counsel also referred the evidence of respondent No,1 in the same context to show that such statement on oath made by the respondent No,1 in his evidence remained unshattered in cross-examination. Mr. Ghulam Mustafa Khawaja, learned counsel for respondent No,1, however, candidly did not dispute following facts:
(A) Though original landlord Shah Rawan S/o Haji Hajatmand had died on 26-11-1997, but no notice, about the change of ownership as contemplated under section 18 of the Sindh Rented Premises Ordinance, was served to the petitioner.
(B) The predecessor in interest of respondent No,1 had filed second ejectment application No,4110 of 1980 (renumbered as 2570 of 1985) wherein rent order was passed and the petitioner was directed to deposit the rent of the rented premises with the Rent Controller, which he continued to deposit up to the month of May 2000 despite dismissal of rent case on 10-11-1987, withdrawal of FRA No,1209 of 1987 on 8-6-1991 and death of landlord Shah Rawan on 26-11-1997.
(C) On filing of the Rent Case No,290 of 2000 and service of its notice upon the petitioner, he remitted rent in the sum of Rs,2,340 to the respondent No,1 on 14-12-2000 covering rent from the month of November 1997 to January 2000, which was refused.
(D) The petitioner, thereafter, filed Miscellaneous Rent Case No,3 of 2001, and started depositing rent with the Nazir of the Rent Controller's Court in the name of respondent No,1 and other legal heirs of Shah Rawan, which was also later on withdrawn by respondent No,1.
9. In reply to the arguments of Mr. Ghulam Mustafa Khawaja, learned counsel for the petitioner has reiterated the same facts as urged by him earlier. .He contended that on facts there is no default in the payment of rent for any period, thus, the ejectment application on the ground of default was also liable to be dismissed.
10. I have carefully considered the arguments advanced by the learned counsel and perused the material placed on record as well as the cases cited at the bar by both the learned counsel.
11. Before proceedings further, it may be observed here that invoking of Constitutional jurisdiction in rent cases has always been discouraged by the High Court, reason being that otherwise the very purpose and object of expeditious disposal of rent cases through the Courts of Rent Controller and providing right of only one appeal will be frustrated, however, in exceptional circumstances, to avoid abuse of the process of law and grave injustice to a party the High Court is not denuded in exercising its powers under Article 199 of the Constitution to redress such grave illegalities. In the instance case, admittedly, both the Courts below have held the petitioner defaulter in the payment of rent. Thus the limited scope in this petition is to see whether such findings are wholly perverse or based on misreading of evidence or not. In other words, mere fact that on the basis of same evidence another view of the matter is also possible, will not justify exercise of Constitutional jurisdiction by this Court to substitute the findings of lower Courts with its own findings and to rescue the petitioner from his ejectment from the rented premises. In the instance case, the plea of non-service of notice under section 18 of the Sindh Rented Premises Ordinance mainly pressed by the petitioner to meet the plea of default, is not tenable in law in view of the dicta laid down in the following cases:
(1) PLD 1994 Karachi 20, (2) PLD 1996 Karachi 526, (3) 1995 CLC 348, (4) 1996 CLC 1283, (5) PLD 1998 Kar. 5, (6) 1996 CLC 949, (7) 1994 MLD 1626, (8) 1982 SCMR 237(2), (9) 2001 SCMR 1140.
12. In the impugned order of the Appellate Court as well as Rent Controller there are concurrent findings of fact against the petitioner that he knew well about the death of original landlord Shah Rawan in the year 1997 and also about some of his legal heirs. In such circumstances, deposit of rent in the name of a dead person, in a rent case, which was finally disposed of as per petitioner's own admission, on withdrawal of F.R.A. No,1290 of 1987, in the year 1991 was of no consequences. C Further, according to the petitioner's own case, at the time of filing of ejectment application against the petitioner on 23-11-2000, the petitioner had only deposited rent in Rent Case No,411 of 1980 up to the month of May, 2000 vide receipt dated 26-2-2000. In such circumstances, on petitioner's own saying, no rent was paid, offered, tendered or deposited by him in favour of the predecessor-in- interest of respondent No,1 or the respondent No,1 or any other legal heir of Shah Rawan for the months from June 2000 onwards till it was tendered through money order on 14-12-2000. It is thus clear that even if all the rent amount deposited by the petitioner with the Rent Controller from time to time in the name of respondent No,1 or his predecessor-in-interest, is taken into consideration still the petitioner has committed default in the payment of rent for the months of June, July, August and September 2000.
12. For the foregoing reasons the orders of ejectment passed by the respondents Nos.2 and 3, impugned through this petition are unexceptionable. Accordingly, this petition is dismissed in limine.