MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- The petitioners have assailed the legality of the orders passed by respondents Nos.4 and 5 dated 23-10-2005 and 29-5-1998, respectively.
2. The relevant facts giving rise to this petition are that the respondent No.1, Late Syed Muhammad Ali Abedi was the owner of Shops Nos.3 and 4 constructed on Plot No.C-37, Rizvia Cooperative Housing Society, Nazimabad, Karachi. Late Ali Muzaffar, father of the petitioners was tenant in the two shops. Respondent Syed Muhammad Ali Abedi, filed an ejectment application against Ali Muzaffar on 17-10-1989, alleging that Ali Muzaffar removed the partitioned wall in between the two shops in or about January, 1989, illegally and without the consent and permission of owner/landlord. It was further alleged that he started major construction inside the shops without permission from the applicant. It was averred that Ali Muzaffar (hereinafter referred to as the opponent) illegally constructed huge underground water tank without consent of the applicant which goes deep down into the foundation of the building and which remains full of water all the time. It was further alleged that the opponent dug and constructed pillars and Mezzanine floor illegally, without consent of the owner (hereinafter referred to as the applicant) and after breaking open the backside wall of the shop made a hole wherein an exhaust fan was installed. This backside wall is in between the residential house of the applicant and the shop in possession of opponent. It was alleged that on account of hole made by the opponent in the wall, Kitchen one bedroom and verandah of the residential house of the applicant became useless for the ladies of the applicant's house as the servants and other employees of the opponent used to peep through the hole towards the residential house of the applicant. It was also contended that there is always a danger of leakage of water into foundation of the building and due to the illegal and unauthorized constructions made by the opponent there is likelihood of damage to the property of the applicant, besides it is likely to impair the material value and utility of the premises. In addition to the above acts, the opponent and his men had a quarrel with son and son-in-law of the applicant with the result that his son-in-law had to obtain bail before arrest. Proceedings under sections 107/117 were also initiated. It was pleaded that the applicant is an aged person and is suffering with heart ailment and other diseases and requires constant medical aid. The eldest daughter of the applicant namely Nargis is a doctor and the applicant needs the shops in possession of the opponent for the bona fide needs of her said daughter to start a clinic therein. It is also alleged that the opponent is a chronical defaulter in payment of electricity charges and at the time of filing ejectment application, the opponent had not paid electricity charges due up to 2- 10-1989 in the sum of Rs.10,122.75. It was further alleged that the opponent committed default in payment of rent from the month of December, 1988. (Mr. Munir A. Malik, learned counsel for the petitioner has argued that it is December, 1989).
3. Opponent filed written statement admitting his status as tenant of applicant in respect of two separate shops for which two separate rent receipts were being issued. It was admitted that although the partition wall between the two shops was removed but it was with the express consent of the applicant more than 10 years ago. It was averred that Shop No.3, was in the name of Amman Dairies of which the opponent was the sole Proprietor which was given by applicant in the year 1959 and Shop No.4 was let out in or around 1979. It was contended that the provisions of Sindh Rented Premises Ordinance, were not attracted as the opponent had paid Puggri to the applicant for each shop in the year 1959 and 1979. It was alleged that the occupation of the opponent was more than a mere tenancy. It was averred that Puggri for the first shop was Rs.8,000 and for Shop No.4 was Rs.1, 20,000. It was pleaded that the opponent was paying rent for two separate shops and the applicant cannot treat the shops as a single composite unit. The excavation of the foundation or any construction was denied. It was alleged that the Mezzanine floor is in place from the year 1979 when the opponent had taken the two shops on rent and removed the partition wall between the Shops Nos.3 and 4 with the consent of the landlord. It was also added that the site plan of shop was filed with the K.M.C. Health Department as early as 1980.
K.M.C. inspection held on 22-5-1982 shows the existence of the Mezzanine floor, the underground tank and the covered area of the shops. Any opening in the shop that infringes the privacy of applicant's house was denied. It was alleged that the opponent got the premises whitewashed, repaired the walls and flooring as well as underground tank which enhanced the material value and utility of the premises. The factum of quarrel with son and son-in-law of the applicant was denied. The old age and ailment of the applicant was also denied. It was admitted that Ms. Nargis daughter of applicant is a doctor and that she is married to one Dr. Shafat Ali Khan. It was alleged that she has a separate clinic of her own at Shah Faisal Colony No.3, and her husband resides at Rafa-e-Am Society near Airport, Karachi. The ejectment on the ground of personal need was denied. The non-payment of electricity charges was though denied but simultaneously it was stated that the electricity charges are payable by the opponent directly to the K.E.S.C. and the electricity charges do not form part of the rent. The opponent denied default in payment of rent for the month of December, 1988. It was alleged that around September/October, 1988 the applicant left for America and gave verbal instruction to the opponent to tender rent to his son Syed Kazim Raza Abedi, the opponent duly tendered rent for each shop for the month of November and December, 1988 to the applicant's son. It was alleged that the opponent used to tender the rent for each month by 5th of the subsequent month and thereafter the applicant or his son used to issue a rent receipt. According to opponent when he tendered rent for the month of December, 1988 on 5-1-1989 the applicant's son issued a receipt showing payment of rent for the month of January, while in fact he ought to have issued a receipt for the month of December, 1988. The opponent filed the copies of rent receipts along with the written statement. It was also stated that the applicant's son could not produce power of attorney from the applicant in order to meet any subsequent plausible plea that the rent tendered to his son was not a valid tender. The opponent prepared four pay orders for the months of October to January, 1989. According to opponent these pay orders were tendered in spite of the fact that the rent had already been paid to the applicant's son who had issued receipts under his own signatures. Vide letter, dated 28-1-1989, the opponent offered to tender these pay orders but nobody came forward to accept the pay orders. It was further alleged that as a matter of abundant caution, the applicant tendered the rent for the months of January and February, 1989 by money order on 5-2-1989. The applicant's son refused to accept this money order and therefore, the opponent started depositing rent under Miscellaneous. Rent Case No.172 of 1989. It was alleged that the rent for the months of January and February, 1989 was deposited on 2nd March, 1989. It was pleaded that there was no default in payment of rent.
4. During the pendency of the ejectment application the applicant Syed Muhammad Ali Abedi, expired and his L.Rs namely Syed Kazim Raza Abedi, Dr. Nargis Fatima Abedi, Syed Aslam Raza Abedi, Dr. Fizza Abedi and Mst. Nisar Fatima were impleaded as applicants.
5. The parties led their respective evidence and the Rent Controller framed the following points for determination:--
(1) Whether the applicant requires premises in dispute for personal bona fide need of applicant in good faith?
(2) Whether the opponent has committed wilful default in payment of monthly rent?
(3) Whether the applicant has committed default in payment of electricity charges and it comes within the definition of rent?
(4) Whether the opponent has made additions and alternations in the demised shop impairing the value and utility of the premises in dispute?
(5) Whether the opponent has created nuisance for applicant?
(6) What should the order be?
6. The learned Rent Controller gave findings as follows:-- Point No.1 In affirmative.
Point No.2 In affirmative.
Point No.3 In negative.
Point No.4 In affirmative.
Point No.5 In affirmative.
Point No.6 Ejectment application allowed.
7. Ali Muzaffar (the opponent) being aggrieved preferred appeal in the High Court. The appeal came for hearing before a learned Single Judge of this Court on 19-3-2001 along with an application for permission to cross-examine Dr. Nargis Fatima Abedi. The following order was passed:--- "19-3-2001 Mr. Rashid A. Razvi and Munir A. Malik., Advocate for the applicant.
Mr. Khalid Jawed, Advocate for the respondents.
Primarily one of the grievances is that the cross-examination of Dr. Nargis Fatima Abedi was not done whilst decision was given. As regards witness Syed Kazim Raza Abedi is concerned, the cross- examination was partly recorded before the side was closed. If this matter was to be remanded back then once again delay would take place. The main objection of the respondent is that previously also the matter was unnecessarily delayed for cross-examination of the witness.
However, to meet the ends of justice so that it can be said that the decision was given on merits and merits alone the cross-examination of the two witnesses mentioned above shall be done on 16-4-2001 before this Court according to roster. The witnesses shall be available on that date and cross-examination shall be done at 11-00 a.m. The appeal shall remain pending and after the cross-examination has been recorded the matter shall be decided on merits keeping in mind the impugned order as well as further cross-examination recorded before this Court."
8. Thereafter, on account of change in jurisdiction the appeal was transferred to District Court which was assigned to the learned 2nd Additional District Judge, Karachi, Central. An application was submitted before the learned 2nd Additional District Judge, Karachi, on behalf of respondent Syed Kazim Raza for permission to file affidavit-inevidence on behalf of his sister Dr. Nargis Fatima in the capacity of her attorney as Dr. Nargis Fatima had left for U.S.A. By placing reliance on the judgments of Honourable Supreme Court in civil petition for leave to appeal No.275/K of 2000, dated 20-11-2000, it was submitted that there was no impediment in granting permission sought by the respondent Syed Kazim Raza. It was submitted that Dr. Nargis Fatima, appeared for cross- examination for more than 7 years but her cross-examination was not conducted. It was pointed out that her affidavit-in-evidence was filed on 21-8-1990 but the proceedings were delayed by the tenant. The application was opposed on behalf of petitioner. However, the application was allowed for the reason that Dr. Nargis Fatima was not available in Pakistan and had executed power of attorney in favour of Syed Kazim Raza. Thereafter Syed Kazim Raza filed affidavit-in-evidence on behalf of Dr. Nargis Fatima Abedi as her attorney. He was thereafter subjected to cross- examination. The cross-examination of respondent Syed Kazim Raza was adopted for the purpose of his affidavit as well. The learned Additional District Judge, thereafter decided the appeal by giving the following findings on the points for determination framed by the Rent Controller:-- Point No.1 In favour of the respondent landlord.
Point No . 2 In affirmative.
Point No.3 The finding of Rent Controller was not challenged and therefore, no finding was given.
Point No.4 In affirmative.
Point No.5. In affirmative.
Point No.6 The ejectment order passed by the Rent Controller was upheld and the petitioners were directed to hand over the vacant possession of the shop to the respondents within the 90 days from the date of the judgment.
9. It would be appropriate to observe that during the pendency of appeal the opponent/appellant Ali Muzaffar also expired and his L.Rs. were joined as the appellants. The petitioners still dissatisfied after dismissal of appeal preferred this petition, which came for hearing before a learned Single Judge of this Court on 20-12-2002. The following order was passed;-- "It is inter alia contended that ejectment on the ground of default, personal requirement, addition alternation, impairing value and utility of the premises and nuisance was allowed by the learned Rent Controller. However, the petitioner/tenant could not cross-examine the landlord. His side was closed. In appeal the First Appellate Court allowed the tenant to cross-examine the landlord and appraise the evidence itself. As regard, personal requirement, it is contended that the case as set up by the applicant was that premises is required by landlord for his daughter stated to be doctor to establish a clinic and at the same time would also attend to her father/landlord. It is stated by the learned counsel that the daughter for whose requirement the premises were sought had migrated to U.S.A. prior to the event of 9-9-1991. She has not returned as yet, it is further stated that affidavit-in-evidence filed by Dr. Nargis to establish her bona fide requirement was substituted and she did not step in the witness-box to substantiate claim of personal requirement. It is contended that when a legal heir for whose requirement premises is claimed does not step into the witness- box, need cannot be held to have been established. It was further urged that the father himself during pendency of ejectment proceeding passed away, the need, if any, fizzled out. Such finding further assailed on the ground that two shops had fallen vacant which were occupied by other son of the landlord and not by the daughter. The need according to Mr. Malik dissipated.
Regarding default, it is contended that the default alleged since December, 1989, case of the petitioner that the rent was tendered for the' month of December, 1989 through pay order was declined, consequently the rent was deposited in M.R.C. on 2nd March, 1989. It is urged that even if the tender of rent through pay order is kept out of consideration then also the rent was deposited within 60 days when it became due and payable on 10 of January, 1990. This, even otherwise, it is contended was solitary allegation of default, and discretion ought to have been exercised in favour of petitioner.
As regard to the ejectment on ground of addition/alteration, it was alleged that the partition wall between two shops had been removed to construct a mezzanine. Case of the petitioner before learned Rent Controller was that it existed since the inception of tenancy when the 2nd shop was acquired construction was with the consent and permission of the landlord and the observation of the learned Rent Controller that no written permission was obtained is not fortified by any principle of law. On this issue according to the learned counsel the evidence of petitioner had gone unrebutted.
As regard the nuisance the case in the ejectment application was that the tenant had made a hole in the rear wall, on looking the Verandah and a bedroom of the landlord. It is stated that alleged hole in fact is for exhaust fan which existed ever since, as the respondents are carrying on business in the subject premises. It is not possible that such immoral activity can ever be carried out by the petitioner, finding on such score recorded by the learned trial Court are palpable erroneous.
Since the appraisal of fresh evidence was carried out by the learned Appellate Court, contention of learned counsel Mr. Munir Malik that, finding based on such evidence cannot be said to be concurrent is not without force. Contentions recorded above do need some examination, since ejectment application is almost a decade old I would direct pre-admission notice to the respondent."
10. Petition was again heard on 17-2-2003, by another learned Single Judge of this Court and the following order was made:-- "The petitioner's (tenants) appeal was dismissed and they were directed to hand over vacant peaceful possession of the shops in dispute within 90 days from the date of the judgment. The petition consists of 633 pages plus 297 pages of affidavits and counter-affidavits with annexures filed by the contesting parties. After hearing the points of law highlighted by the learned counsel for the petitioners and on perusal of the order dated 20-12-2002 passed by my learned brother Mushir Alam, J., it appears that the petition will take long time to hear and decide the questions involved.
Mr. Abidi respondent No.1(i) states that the litigation between the parties has been 'pending since 1989 and requests that the whole petition may be heard at Katcha Peshi stage at length and disposed of. As the matter has been pending for more than 13 years, in my opinion, it would be reasonable and in the interest of justice if the matter is heard and decided at Katcha Peshi stage after hearing the parties at length on all the issues raised in the petition. As it is not possible to hear lengthy cases on Mondays which is marked for hearing miscellaneous matter, this petition may be placed in 'Court for Katcha Peshi and final hearing on 11-3-2003 which date has been agreed by both parties."
11. After several adjournments and part arguments before several Benches Mr. Munir Malik, learned counsel for the petitioner No.1, concluded his arguments on 14-2-2005. He addressed very lengthy arguments and consumed the entire day. After seeking several adjournments Mr. Haider Iqbal, learned counsel for petitioner No.2, could not spare time to argue this matter and his partner Mr. Malik M. Ejaz, adopted the arguments of Mr. Munir A. Malik and thereafter Mr. Khalid Jawaid, Advocate for respondents addressed arguments on 22nd and 29th August, 2005.
12. The above resume of the facts have been given to show that this petition has been argued from very beginning as it is a first appeal which in my humble opinion it is not. The learned Advocates have argued each and every minute detail of the facts as well as law. I am of the opinion that if such practice is allowed in such petitions it will frustrate very purpose of abolition of second appeal, and thereafter transfer of appellate jurisdiction from this Court to the District Court. These measures were adopted by the Legislature to avoid the delay in disposal of rent cases. However, if the petitions are allowed to proceed in the manner this petition has proceeded and all the points of facts are allowed to be reopened and reargued, the, measure adopted by the Legislature shall be rendered ineffective: Rather it would be counter-productive as previously with the hearing of first appeal before this Court, the proceedings used to attain finality, so far, this Court is concerned. If the petitions directed against the appellate order in rent matters are liberally entertained it would amount to take back the system whereby the first appeal was heard A by the District Court and the second appeal was heard by the High Court and the system was changed by the Legislature. The learned counsel for the respondent has drawn my attention, to the view taken by me in the case of Saifullah v. Muhammad Bux 2003 M LD 4$0. It has been held in the above judgment as follows:-- "The second contention of Mr. Abdul Qadir Shaikh, learned counsel for the petitioner is that the learned two Courts below have not properly appreciated the evidence. I am of the considered opinion that question pertaining to appreciation of facts cannot be resorted to in exercise of constitutional jurisdiction by 'this Court, for the simple reason that in doing so the petition shall be converted into a revision or second appeal and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated. A writ petition is not substitute either for revision or the second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law has been violated. No constitutional petition in rent matters and in all such cases in which no second appeal or revision is provided in law, shall be entertained, until and unless there is a jurisdictional error committed by the Courts below. The exercise of jurisdiction in a perverse or arbitrary manner or ignoring the material available on record or violation of any provision of law, 'substantive or procedural, causing miscarriage of justice or violation of established principles of administration of justice shall bring the case within the purview of jurisdictional error. Learned counsel for the applicant is not able to show that any such act has been committed by the learned two Courts below. This Court, while exercising constitutional jurisdiction shall not enter into appreciation of evidence, even if there is possibility of arriving at any other conclusion on the appreciation of evidence. Since the petition is not substitute of appeal, therefore, the second contention is found to be beyond the scope of constitutional jurisdiction and requires no consideration."
13. I still adhere to the view taken by me above and therefore, I would not advert to the re- examination and re-appreciation of the evidence and finding of facts given by the learned two Courts below.
14. A perusal of the order dated 20th December, 2002,, by the learned Single Judge of this Court shows that petitioner assailed the findings of learned two Courts below, mostly on facts. A plea was raised that fresh evidence was recorded at the appellate stage and therefore, findings based on Such evidence cannot be held to be concurrent finding of facts. I am of the considered opinion that there is a basic flaw in the contention. There is an inbuilt presumption in the proposition that the petition shall not be entertained if there is concurrent finding of facts otherwise the petition shall become maintainable. I am of the considered opinion that even if there is no concurrent finding of facts and the finding of the Appellate Court does not suffer from any jurisdictional error or any illegality, the appellate order shall not be open to challenge in constitutional petition on the ground that there is no concurrent finding of fact.
15. Now I proceed to examine whether the orders of the learned two Courts below suffer from any jurisdictional error, meaning thereby, whether they have failed to exercise the jurisdiction or have exercised the jurisdiction not vested in them or have wrongly exercised their jurisdiction committing any illegality apparent on the face of record. Mr. Munir Malik, learned counsel for the petitioner was specifically pointed out that constitutional petition was not a substitute for the appeal and therefore, he should address the arguments keeping this aspect in view. He submitted that he is assailing the orders of the learned two Courts below on the following grounds:-
(1) There is misreading of evidence;
(2) there is non-reading of evidence;
(3) there is a finding based on no evidence and
(4) there is misconstruction of law.
16. Mr. Munir A. Malik, first gave summary of the facts giving rise to the petition dwelling upon the contentions raised by the parties. He thereafter dilated upon the finding of facts given by the learned two Courts below with reference to the evidence on record. He reiterated the contention that the landlord Syed Muhammad Ali, died during the pendency of the proceedings, his daughter Dr. Nargis Fatima, migrated to U.S.A. some shops had fallen vacant but were not utilized by Dr. Nargis Fatima, she was living separately from her father late Syed Muhammad Ali and she did not enter the witness-box for cross-examination. When asked to show the instances of misreading of evidence Mr. Munir Malik, submitted that when the Appellate Court observed that the landlord was not shaken in cross-examination it amounted to misreading of evidence.
17. Mr. Munir A. Malik, was not able to point out any instance of non-reading of evidence on the part of learned Rent Controller and misconstruction of law on the part of the learned two Courts below.
Here I would like to observe that both the learned Courts below have examined each and every aspect of the evidence available on record and have passed very lengthy and elaborate orders.
Not a single sentence of the evidence has remained unattended or unexamined.
18. Mr. Khalid Jawaid, learned counsel for the respondent has placed reliance on several judgments of the Honourable Supreme Court, to show that every finding given by the learned two Courts beldw is based on the law laid down by the Honourable Supreme Court. For the sake of brevity, I would not like to refer long list of judgments given by Mr. Khalid Jawaid, mostly delivered by the Honourable Supreme Court.
19. I would like to observe that once a landlord has established the personal bona fide need at the time of filing the ejectment application, then the subsequent events, in case the tenant succeeds in procrastinating the matter for 10 to 15 years would not obliterate the personal bona fide need of the landlord. Likewise, by now it is established proposition of law that if a tenant without offering the rent to the landlord in the first instance starts depositing rent with Rent Controller, then it would be treated as default in payment of rent on the part of tenant.
20. As already observed no illegality or jurisdictional error or instance of violating any provision of law in arriving at the finding of facts by the learned two Courts below has been pointed out, therefore, I would not venture to re-examine and re-appraise the evidence. This course is not to be adopted even in exercise of revisional jurisdiction. The question of adopting such course in exercise of constitutional jurisdiction is totally unwarranted.
21. I am of the considered opinion that the extraordinary constitutional jurisdiction under Article 199 of the Constitution has been conferred on this Court for exercise of discretionary powers in order to come in aid to justice and not for perpetration of injustice. There can be no cavil to the proposition that the delay in dispensation of justice for years together itself amounts to negation of justice and perpetration of injustice. This Court shall always be slow in exercise of constitutional jurisdiction where the statute has provided appeal and a person has, either availed the remedy or has declined to avail such remedy until and unless it is shown that the action taken, or order passed or intended to be passed is palpably without jurisdiction and is violative of the principles of justice. In this petition, no such case has been made out and consequently, it is held that the finding of facts given by the learned two Courts below do not suffer from any jurisdictional error or illegality and are not open to any exception. The petition is without substance, which stands dismissed accordingly.