' SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal has been filed by petitioner Anwar Ahmad against the judgment of the Sindh High Court, dated 4-6-2003 in ,Constitutional Petition No,S-548 of 2003 whereby constitutional petition filed by respondent Faiza Hassan against the judgment of Appellate Authority under the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance") was allowed, order of her eviction was set aside, and the rent case filed by the petition was dismissed.
2. Brief facts leading to this petition are that petitioner who is owner/landlord of House No,42-B, Block-2, P.E.C.H.S., Karachi has rented out a portion of the said house on the first floor (hereinafter referred to as the "rented premises") to respondent No,3 Mst. Mehrunnisa wife of Abu Bakar vide agreement, dated 15-8-1994 on monthly rent of Rs,6,800. It was further averred that respondent.
Mehrunnisa defaulted in the payment of rent for the rented premises with effect from 15-2-1995 to 15-7-1997 and had fallen in arrears of rent amount to Rs,1, 97,200 as on 15th July, 1997. The petitioner further stated that it had also come to his knowledge that respondent Mehrunnisa had without his written consent and permission handed over possession of the rented premises to some other person, as such rendered herself liable to eviction not only on the ground of default but also on the ground of subletting the rented premises without the written consent and permission of the petitioner.
3. Notice of the ejectment application could not be served upon respondent Mst. Mehrunnisa in the ordinary course of service, therefore, service was effected upon her through publication in Daily newspaper. However, she never appeared in the Court of Rent Controller, as such the rent case was ordered to proceed ex parte against her vide order, dated 15-1-1998. During the course of proceedings respondent Faiza Hassan filed an application under Order I, rule 10, C.P.C. For her impleadment as respondent in the Rent Case No,451 of 1997 which was allowed, she was impleaded as a respondent and directed to file written statement. In her written statement she stated that the averments made in the ejectment application relative to default in payment of rent by Mst. Mehrunnisa and subletting the rented premised by Mst. Mehrunnisa to her (respondent No,1 Faiza Hassan) were false and the true facts were that respondent Mehrunnisa was occupying the rented premises as a tenant of the petitioner but had vacated the same as it was no longer required by her; that she had paid upto date rent and had not committed any default; that she (Mst. Mehrunnisa) had not sublet the rented premises; and that she (Mst. Faiza Hassan) had occupied the rented premises as a tenant of the petitioner by virtue of lease agreement dated 15- 2-1995 executed between her and the petitioner. She further stated that petitioner had mentioned, false and untrue facts and had also concealed the true facts inasmuch as no agreement of lease dated 15-8-1994 was executed by Mst. Mehrunnisa and further that she had been paying rent at the rate of Rs,2,800 per month and not at Rs,6,800 as claimed by the petitioner. With regard to the alleged default with effect from 15th February, 1995 to 15th July, 1997 it was stated that it was an absolutely false and untrue statement as neither respondent Mst. Mehrunnisa was in possession/ occupation of the rented premises nor the question of payment of rent by her had arisen and as a matter of fact it was she (Mst. Faiza Hassan) who was in occupation of the rented premises by virtue of lease agreement dated 15-2-1995 and had paid rent regularly as well as installments of security deposit to Mst. Anwar Jehan, sister and attorney of the petitioner and in proof thereof she produced photostat copies of the receipt issued by the said Mst. Anwar Jahan.
4. On the pleadings of the parties, the learned Rent Controller framed the following four points for determination:- "(1) Who is the tenant of applicant and what is the rate of rent?
(2) Whether the opponent No,1 has inducted the opponent No,2 without consent of the applicant?
(3) Whether there is any default in payment of rent?
(4) What should the order be?"
5. Before the trial Court the petitioner neither filed his affidavit-in evidence nor appeared in the Court for his cross-examination relative to the averments made by him in the eviction application and one Mst. Bargis Aslam claiming herself to be the attorney of the petitioner, filed her affidavit- in-evidence and produced several copies of documents as Exhs.A./1 to A/5 and P/6 and P/7. On behalf of respondent Faiza Hassan her husband Furqan Hassan filed his affidavit-in-evidence and produced a certified copy of ejectment application being Rent Case No,160 of 1992 as Exh.O/1; its amended copy as Exh.O/2; certified copy of affidavit-in-evidence of Mst. Anwar Jahan in Rent Case No,160 of 1992 and other documents.
6. On the basis of the oral and documentary evidence brought and recorded before the Rent Controller, he decided aforesaid points in the following manner:-- ' Point No,l. As under. Point No,2. In negative.
' Point No,4. Ejectment application dismissed.
7. The petitioner feeling aggrieved and dissatisfied with the order of the Rent Controller challenged the same before the Appellate Authority under section 21 of the Ordinance. The appeal was heard and decided by learned District Judge, Karachi East vide judgment dated 12-5-2003 allowing the same, setting aside the order of the Rent Controller and ordering eviction of respondent Faiza Hassan as he found her defaulter in payment of rent as well as having obtained the rented premises by way of subletting from the previous tenant Mst. Mehrunnisa.
8. Mst. Faiza Hassan feeling aggrieved and dissatisfied with the judgment of the Appellate Authority assailed the same before the High Court being C.P. No,548 of 2003. A learned Single Judge of the High Court of Sindh vide order, dated 4-6-2004 allowed the petition, set aside the impugned order, dated 12-5-2003 of the Appellate Authority and restored the order of dismissal of ejectment application of the petitioner passed by learned 1st Rent Controller, Karachi East.
9. The petitioner felt aggrieved and dissatisfied with the judgment of the High Court has assailed the same by way of this petition for leave to appeal.
10. We have heard the arguments of Mr. A.F.M. Mukarim, Advocate Supreme Court assisted by Mr. A.S.K. Ghori, Advocate-onRecord on behalf of the petitioner and Mr. Badar Alam, Advocate Supreme Court assisted by Mr. Akhlaq Ahmad Siddiqui, Advocate-onRecord on behalf of respondent Faiza Hassan.
11. Mr. A.F.M. Mukarim, vehemently assailed the order of the learned Rent Controller as well as of High Court of Sindh and submitted that both of them seriously erred in holding: Firstly, that the agreement dated 15-8-1994 was a forged, fabricated and bogus document, as it was not found to bear authentic signatures of Mst. Mehrunnisa; secondly, that Mst. Mehrunnisa had vacated the rented premises and handed over the vacant possession to the petitioner as the same was not required by her; thirdly, that respondent Mst. Mehrunnisa had not committed default in payment of rent with effect from 15-2-1995 to 15-7-1997; fourthly, that respondent Mst. Mehrunnisa had not illegally and in contravention of the Ordinance handed over the possession of the rented premises to Mst. Faiza Hassan; fifthly, that the finding that agreement dated 15-2-1995 was legally executed by the petitioner and respondent Mst. Faiza Hassan was in conflict and contrary to the evidence on record; sixthly, that the consequent finding holding respondent Faiza Hassan as a lawful tenant of the petitioner in respect of the rented premises was not sustainable as it was based on a document not legally executed; and seventhly, that Mst. Mehrunnisa was paying an amount of Rs,2,800 by way of rent of the rented premises during the period she occupied it and not Rs,6,800 which was claimed by the petitioner to be the rent. He further submitted that the learned Rent Controller as well as High Court had drawn adverse inference against the petitioner on his failure to file affidavit-in-evidence and to produce himself before the Rent Controller for subjecting himself to cross-examination on the basis of the facts and averments made by him in the ejectment application without taking into consideration the fact that at the relevant time when the affidavit- in evidence on behalf of the petitioner was filed by his attorney Mst. Birgis Aslam and again when she was cross-examined, the petitioner was out of Pakistan on account of his employment in the University of Kansas, U.S.A.
12. Mr. Badar Alam, learned Advocate Supreme Court on the other hand supported the order of the Rent Controller and the judgment of the High Court of Sindh and submitted that both of them were in accordance with law, the material on record and conclusions arrived at by them were based on proper reading and appreciation of evidence on record, interpretation of the provisions of the Ordinance as well as Qanun-e-Shahadat Order. His further submission was that this Court in exercise of its jurisdiction under Article 185(3) of the Constitution would not interfere with the findings of fact which were based on proper reading and appreciation of evidence and did not suffer from misreading, non-reading or misconstruction.
13. After having minutely examined the facts and circumstances of the case, the evidence of the parties, respective arguments of the learned counsel for the parties and having regard to the provisions of law which is applicable to the facts and circumstances of the case, the legal and factual position which can be summarized is as under:--
(a) That one Mst. Mehrunnisa was tenant of the petitioner in respect of the rented premises.
However, the petitioner's claim, firstly that such tenancy had come into existence by means of agreement dated 15-8-1994 executed between him and Mst. Mehrunnisa and secondly that she was paying rent at the rate of Rs,6,800 per month in respect of the rented premises are not borne out from the record and he stands falsified. From the material on record it is established that said Mst. Mehrunnisa was paying a sum of Rs,2,800 per month by way of rent of the rented premises;
(b) Petitioner has miserably failed to prove that said Mst. Mehrunnisa had committed default in payment of rent with effect from 15-2-1995 and also sublet the rented premises to respondent No,1 Faiza Hassan and in fact it was the petitioner who himself let out the rented premises to respondent Faiza Hassan on a monthly rent of Rs,2,800 with effect from 15-12-1995. This observation is based on the evidence on record as the petitioner failed to establish that the lease agreement dated 15-2-1995 executed by him and Mst. Faiza Hassan in respect of the rented premises on a monthly rent of Rs,2,800 was not a genuine, legal and properly executed document. It is in evidence that Mst. Faiza Hassan made payment of a sum of Rs,70,800 which included security deposit of Rs,40,000 and advance rent for eleven months from 16-2-1995 to 15-1-1996 amounting to Rs,70,800; another payment of Rs,50,800 towards security deposit of Rs,20,000 and rent for 11 months from 16th January, 1996 to 15th December, 1996; and another sum of Rs,50,800 being the security deposit of Rs,20,000 and rent for 11 months from 16th December, 1996 to 15th November, 1997. Receipts of the above payments were duly issued by Mst. Anwar Jehan, sister and attorney of the petitioner and these payments were also admitted by Mst. Birgis Aslam another attorney who had filed her affidavit-in-evidence on behalf of the petitioner and had appeared in the Court of Rent Controller for cross-examination. In view of such evidence the petitioner's assertion that Mst. Mehrunnisa had sublet the rented premises to respondent Mst. Faiza Hassan; that there was default in payment of rent from 15-2-1995 to 15-7-1997; and that respondent Mst. Faiza Hassan was occupying the rented premises as a sub-lessee stood completely falsified and negated. The agreement dated 15-2-1995 was found to be a valid, true and proper document by the Rent Controller as from the evidence adduced by the parties he was satisfied that it bore the true, genuine and admitted signatures of respondent Mst. Faiza Hassan and petitioner Anwar Ahmad. This finding was arrived at by the learned Rent Controller after comparing their signatures on the lease deed dated 15-2-1995 with their specimen and admitted signatures available on record which were found to bear complete similarity and resemblance on examination thereof by naked eye;
(c) From the evidence on record it has been conclusively proved that Mst. Mehrunnisa had vacated the rented premises on expiry of the agreement as the same was no longer required by her and had handed over the vacant possession thereof to the petitioner who entered into a rent agreement dated 15-2-1995 with Mst. Faiza Hassan. The case of the petitioner was that the said Mst. Mehrunnisa had handed over the possession of the rented premises to respondent Mst. Faiza Hassan without his consent and permission and she was occupying the same as a sub-lessee. It is highly improbable and unlikely that the petitioner would not be aware of the alleged subletting by respondent Mst. Mehrunnisa in favor of respondent Mst. Faiza Hassan even if it be admitted for the sake of arguments, that such sub-letting had taken place. It would have involved ejectment from the rented premises of Mst. Mehrunnisa which would involve removal of her household goods, baggage and her belongings, induction of Mst. Faiza Hassan in the rented premises along with her baggage, goods and belongings, which factors and happenings could not have escaped the attention of the petitioner residing on the ground floor of the building while the rented premises is on the first floor of the same building;
(d) That filing of ejectment case against Mst. Mehrunnisa only reflected mala fides and ulterior motive to keep respondent Faiza Hassan away and to deprive her of her right to contest the case;
(e) That the petitioner had made false statement, and blatant lies and also concocted/fabricated documents by forging the signature of Mst. Mehrunnisa on the rent agreement dated 15-8-1994. He also made false statement and lied regarding the agreement dated 15-2-1995 executed between him and Mst. Faiza Hassan by virtue of which the rented premises was rented out to Mst. Faiza Hassan on a monthly rent of Rs,2,800; and
(f) That Mst. Mehrunnisa could not be served in the ordinary course and therefore, notice against her was published in daily newspaper where after the rent case was ordered to proceed against her ex parte. In the circumstances the question of her accepting or denying her signatures on the document dated 15-8-1994 could not be undertaken. In her absence the learned Controller had taken upon himself the question to decide whether the signatures purported to be of Mst.
Mehrunnisa on the rent agreement dated 15-8-1994 were in her handwriting and resembled or were identical/similar with her real or admitted signatures. For this purpose learned Rent Controller had relied on one receipt bearing her signatures which was produced in evidence as Exh.3-A as well as her signatures on her N.I.C. No,515-37-160921 and concluded that the signatures of Mst.
Mehrunnisa on the agreement dated 15-8-1994 were absolutely different and had no resemblance or similarity with her signatures on Exh.3-A and her identity card. In presence of such observation ' e only plausible inference which could be had would be the the fetitioner had fabricated a document on which he forged the signatures of Mst. Mehrunnisa so as to enable him to seek ejectment of Mst.
Faiza Hassan on the ground of subletting and also to substantiate his assertion that said Mst.
Mehrunnisa was paying rent of Rs,6,800 per month in respect of the rented premises and that respondent No,1 having illegally acquired the rented premises from respondent Mst. Mehrunnisa by way of sub-letting would also be liable to pay rent at the rent of Rs,6,800 per month for the period during which she unauthorized occupied the rented premises. The mala fides, ulterior motives, false statements, concealment and suppression off acts so visibly present on the face of the record also find support when he disowned the agreement dated 15-2-1995 executed between him and Mst. Faiza Hassan whereby the rented premises was let out to Mst. Faiza Hassan of monthly rental of Rs,2,800 which on the basis of evidence was found to be a validly and properly executed document.
14. From the above legal and factual position it stands established beyond any doubt that respondent No,1 Mst. Faiza Hassan had been inducted in the rented premises by the petitioner himself vide agreement dated 15-2-1995 and it was an absolutely false and frivolous assertion that she was inducted in the rented premises by Mst. Mehrunnisa by way of subletting. The alleged default effective from, 15-2-1995 to 15th July, 1997 also stands falsified in view of the three receipts issued by the petitioner's attorney Mst. Anwar Jahan in favor of respondent Mst. Faiza Hassan acknowledging payment of receipt of security deposit of Rs,80,000 and rent from 15-2-1995 to 15- 11-1997 at the rate of Rs,2,800 per month. The subsequent default also does not stand establish in view of the statement of attorney of petitioner Mst. Birgis Aslam in her cross-examination to the following effect:- "It is correct to suggest that thereafter, opponent No,2 sent rent through money order at Rs,2,800 but the applicant did not receive the rent as it was not proper rent."
' The Rent Controller had rightly dismissed the ejectment application filed by the petitioner. The Sindh High Court was also justified in dismissing the appeal which had reversed the order of the Rent Controller and restoring the order of the Rent Controller no exception can be taken to the judgment of the Sindh High Court.
15. Before parting with the case we would like to observe that petitioner in the present case had acted in a manner which was not at all desirable from a person who claimed himself to be a highly educated person engaged in teaching profession in a prestigious University of the United States of America. His ejectment application was nothing but a bundle of lies, concealment and suppression of facts, and concoction. Not satisfied with the above lies, false statements, concealment, and suppression he in order to overcome his omission to file his affidavit-in evidence in support of his ejectment application and to produce himself in Court for cross-examination stated that he was out of Pakistan when the affidavit-in-evidence was filed by his attorney Mst. Birgis Aslam on his behalf but such statement was falsified/contradicted by the entries appearing in his passport.
Affidavit-in-evidence of Mst. Birgis Aslam was filed on 16-7-1998 and according to the entries available in his passport he was in Pakistan from 18-5-1998 to 21-8-1998 when he left for Chicago.
Similarly the affidavit-in-evidence of his attorney Mst. Birgis Aslam also contained false and fabricated statements which have completely demolished the sanctity, reliability and credibility not only of the ejectment application, the affidavit-in-evidence and other documents purported to have been executed or denied to have been executed but also the integrity, credibility and veracity of the petitioner and his attorney.
16. For the foregoing facts, discussion and reasons this petition for leave to appeal is found to be without any substance. Accordingly it is dismissed and leave refused.