' AZIZULLAH M. MEMON, J - Petitioner has challenged the concurrent findings of the two Courts below viz one recorded by the 6th Senior Civil Judge/Rent Controller Karachi East in Rent Case No. 114 of 2004 and the other recorded/upheld by 1st Additional District Judge, Karachi East in Rent Appeal No.53 of 2005 whereby tenant petitioner stands evicted from the ground floor of Bangulow bearing No. 72 Nariman Road, Karachi which premises is admittedly in possession of tenant on rent at the rate of Rs.666 per month, and which is inherited by the respondent Abdul Sattar Shekha. Along with other heirs, left behind by his mother Mst. Hajra Bai.
2. The respondent filed ejectment petition on the ground that the same is needed by him for his personal bona fide residential use, having returned from aboard; further ground of ejectment was raised that the tenant petitioner committed default in payment of water and sewerage charges, conservancy, electricity etc. Charge regarding the said portion in his possession for a period of three years, at least, before filing of the said ejectment application.
3. In his Written Statement, the petitioner/tenant denied the said allegations and contested his ejectment from the portion of the said Bungalow the Rent Controller framed following issues:-
(1) Whether the tenancy exists between the parties?
(2) Whether the property in question is required for the personal bona fide use of the applicant?
(3) Whether the applicant is entitled, being a co-owner to the relief as claimed in rent application?
(4) What should the decree be?
4. Parties produced their respective evidence in support of the respective pleas and vide order, dated 16-5-2005 learned Rent Controller Karachi East recorded the finding that the owner respondent is not having any other premises of his own to reside therein, and needed disputed portion of the Bungalow for his personal requirement and directed ejectment of petitioner/tenant by allowing the said ejectment application.
5. So also, ,the learned Appellate Court upheld the finding of the Rent Controller and dismissed the aboye referred appeal of the petitioner vide judgment, dated 24-12-2005 by relying upon judgment of Hon'ble Supreme Court as reported in Abdul Ghani v. Abrar Hussain (1999 SCM R 348); though for a suit, for possession, a co-owner/co-sharer of a property cannot pray for possession of suit property without joining other owners therein, but in an ejectment case falling under rent laws, a co-owner would be competent to file application for ejectment of the tenant without joining other owners/ co-sharer in such ejectment application.
6. Hence petitioner has filed this constitutional Petition.
7. Heard. Mr. Syed Muhammad Haider, learned counsel for the petitioner and Mr. Abdul Aziz A.
Munshi, learned counsel for the respondent No. 1.
8. Learned counsel for the petitioner has referred to the affidavit filed in this petition by Qasim son of Ismail Shekha who has asserted himself to be-co-owner/co- sharer in the property in the case and has stated therein that the said property was owned by his deceased mother namely Mst.
Hajra Bai and after her death it has devolved upon him and other legal heirs of the said deceased, and that the petitioner is in possession .Of the ground floor portion of the said p'l operty as a tenant, against whom the respondent, being his real brother, has filed ejectment application without any consent of the said Qasim or of any other co-owners/co-L.Rs. Of Mst. Hajra Bai, and further that the respondent is interested to usurp the said property by seeking the ejectment of the tenant from the same and to exclude the other legal heirs from their right of ownership therein. Learned counsel argued that as per dictum laid down in 1999 SCM R 348, PLD 1988 SC 365, 1990 M LD 337, 1996 CLC 275, co-owner/co-sharer is not entitled to file ejectment application against the' tenant regarding a property which is owned by other co-owners/co- sharer also, and therefore the ejectment application was incompetently filed by the respondent and needs to be dismissed.
9. Learned counsel for the respondent argued that the said affidavit was neither filed before the learned Rent Controller nor before the Appellate Court and that the need of the disputed premises of the respondent for his personal bona fide use, having been upheld by the two below Courts, the said affidavit cannot be entertained while hearing a constitutional petition, the only question to be looked into would be whether orders/judgment passed by the two Courts below are result of non- reading/misreading of evidence or if the same suffer from any illegality so as to set aside the same. It is further argued by learned counsel for the respondent that the said petitioner, is admittedly a blind person of 82 years of age. The question of his being a valid person to file such an affidavit needed to be determined, that such an affidavit had been field at the proper stage of the rent proceedings, the said co-owner necessarily would have been cross- examined as far . As contents of the said affidavit are concerned, and if same is entertained at this stage, the respondent would stand deprived of right of cross- examination, and would further stand grossly prejudiced.
10. Be that as it may, it is a settled principle of law that the constitutional petition is to be heard and decided only to see. If orders of ejectment passed by Rent Controller and the Appellate Court suffer from non-reading/mis-reading of evidence produced by the parties before the Rent Controller and if the same suffer from any illegality.
11. In the judgment relied upon by the learned counsel for the petitioner (Abdul Ghani v. Abdul Jabbar 1999 SCM R 348) following observations were recorded at page 364: - "(15) There seems to be consensus of view among the superior Courts that one of co-landlords or one of the co-owners can seek ejectment on the ground of his personal requirement. There also seems to be unanimity of view that under section 14 of the Sindh Rented Premises Ordinance a widow can avail of the above special provision for seeking summary ejectment even though she is one of the coowners. However, one of us (Ajmal Mian, J.) in the case of Mst. Syeda Hyderi Khatoon v.
Aftab Ahmed and 8 others (supra) mentioned at S. No. 3, held that a widow being co-owner is entitled to invoke section 14 of the Sindh Rented Premises Ordinance, provided the other co- owners/legal heirs support her application. But this Court in the case of Muhammad Ali v. Mst.
Hameeda Begum (supra) mentioned hereinabove at S. No.6, took a somewhat contrary view to the above view by observing in the above-quoted para. 4 of the judgment that "there is no reason at all why these words should be taken to refer only to a widow who was the owner of the building before the death of,her husband or who is sole heif of the original landlord". In other words, the view holding the ground is that a widow, though she may not be the sole owner of a tenement and may be a co-owner, can seek ejectment under section 14 of the Sindh Rented Premises Ordinance. The question which requires consideration is, as to whether the above principle of law can be invoked in aid in the case in hand.
' Admitted position as repeatedly observed, is that the property in question is a big mansion which comprises plot of land measuring 11401 sq. Yds., several buildings thereon consisting of above 285 small apartments and some other, constructions. The above property was transferred to 59 persons who had contributed different amounts , towards the price of the above property through the compensation books. It is also evident that three of the above original transferees, or their legal heirs, have entered into agreements of sale with the respondents agreeing to transfer their interest.
They have opposed the appellants' above rent cases on the above two grounds. The appellants as pointed out hereinabove, are the sons of one of the above 59 transferees. Their father contributed Rs.9,900 vtowards the above price of Rs.5,71,000. As the property has remained unpartitioned. The appellants cannot claim that they owned particular portion of the,big mansion in question. In our view, since some of the original transferees, or their legal heirs, are opposing the appellants in the above rent cases, they cannot apply for ejectment on the ground of personal requirement, till that time the property is partitioned and they get particular portion of the property as their share. If we accede to the appellants' contention, it would lead to an illogical/ unreasonable situation, namely, a joint transferee having One paisa share out of rupee will get the possession of the entire property for his personal requirement in spite of opposition.
' The upshot of the above discussion is that we hold that the appellants' application for personal requirement is not competent till the properties. Are partitioned because . Of the above peculiar circumstances of the case. However, their rent cases for ejectment on one grounds of default are competent, but the ejectment orders, if any, would be for the benefit of all the transferees and not for the exclusive benefit of the appellants.
' We are inclined to remand the case to the High Court to decide the above appeals afresh only on the ground of default, and in case the High Court finds that the default is committed by the respondents and it passes ejectment order, it may be clarified that the same will be for the benefit of all the transferees and not for the exclusive benefit of the appellants.
' The appeals stand disposed of in above terms with no order as to costs."
12. As stated above, affidavit of above said Qasim was not filed before learned Rent Controller or before the Appellate Court and cannot be entertained at this stage of hearing of the constitutional petition.
13. It is a settled principle of law that so far suit for possession filed before the competent Court of civil jurisdiction, the same would be competent against a person in possession of suit property only if all the co-owners/co-sharers jointly file such a suit, and further that if one co-owner filed such suit for possession the same would not be maintainable; but for the ejectment application filed by one co-owner it would be competent without joining other coowners in the ejectment application.
14. The cases cited by the learned counsel for the petitioner are not identical to the facts and circumstances of the case in hand. In Muhammad Hanif and another v. Muhammad Jamil Turk and others (2002 SCM R 429) following observations were recorded by Hon'ble Supreme Court: ~ "(6) Mr. Ali Akbar,. Advocate Supreme Court and Advocate-on-Record vehemently contended that in fact the entire property originally belonged to one Muhammad, on whose death it was inherited by his three sons namely Ali Muhammad, Hussain. Yousaf and a daughter Ms. Aisha, which was not apportioned among the legal heirs and remained joint property. Learned counsel devolved the s argument .That the respondents being the'descendants of one of the co-sharers could not seek eviction of the' petitioners without impleading other co-sharers as party to the rent case. In this connection learned counsel invited our attention to suit for partition and mesne profits Muhammad, Aisha, Muhammad Yousaf, Aisha wife of Hussain and Hawa daughter of HuSsain, which having been once decreed was impugned before appellate forums and on remand is said to be now pending before a Civil Court. Emphasis of the learned counsel is that since other co- sharers in the property have sought partition of the suit property, respondents in law could not seek ejectment of the petitioners.
(7) . Submission of the learned counsel is misconceived and ill-founded as no ground to this effect was taken in the written statement of the petitioners filed as far back as January, 1996. Naturally, no plea to this effect was raised in the evidence of the petitioners and not agitated before the lower Court as well as the High Court. This submission being founded on factual controversy cannot legally be advanced before this Court for the first time. We enquired from the .Learned counsel whether this ground was agitated before the High Court to which he replied in the affirmative but he was unable to point out any such ground in the memorandum of appeal as well as judgment of the High Court. Argument is, therefore, liable to be dismissed on this sole account.
(8) Even on merits, if the co-sharers succeed in the partition suit, demised premises being part and parcel of the joint property would be partitioned between the cosharers according to law. Learned counsel relied upon a judgment of this Court in Abdul Ghani v. Abrar Hussain (1999 SCM R 348) in support of his contention but in our view the Principe laid down in the precedent case is not attracted in the circumstances of the case. On the contrary, general rule of law has been that a co- sharer can file ejectment proceedings against a tenant without impleading other cosharers. The wisdom behind such principle is that co-sharer acts on behalf of and represents the interest of all the co-owners of the property.
(9) Learned counsel seriously assailed the finding of the High Court on the question of personal requirement of the premises for bona fide use and occupation of the respondents and urged that learned High Court committed an error of law by reversing the judgment of the Rent Controller.
Surprisingly, learned counsel seriously contended that in the event, of conflict of judgment the view taken by the trial Court should be preferred rather than the view expressed by the appellate forum.
Learned counsel relied upon judgment reported as Madan Gopal v. Maran Bepari (PLD 1969 SC 617) in support of this novel argument which rather goes against the argument advanced by him.
Finding of Appellate Court in conflict with the finding of trial Court can only be discarded if it is not based on correct appreciation and analysis of the evidence; is contrary to the material on record; and arbitrary or perverse on the face of it. In our view the judgment impugned in this petition does not suffer from any of such infirmities and rather the High Court has examined, scrutinized and analysed the evidence in its true perspective which can hardly be disturbed. Evasive replies of the petitioner's witness as regards the bona fide requirement of the premises by respondents were adequate enough to warrant an inference that they failed to refute the plea advanced by he respondents. At any event, there is nothing on record to reflect that the desire and need of the respondents . For additional accommodation for self-occupation was tainted with malice or ulterior motive. Reliance on Mulakh Bano v. Gohar Bano (1976 SCM R 314) and Muhammad Amir v.
Khan Bahadur (PLD 1996 SC 267) in his connection is of no assistance to the petitioners, as both the cases are distinguishable on facts.
(10) For the aforesaid facts and reasons we are of the considered view that learned High Court by allowing the appeal of the respondents and directing eviction of the petitioners from the demised premises did not commit any illegality justifying interference by this Court in its constitutional jurisdiction. '
(11) Resultantly, petition fails and is hereby dismissed. Leave to appeal is refused. Petitioners are, however, allowed four months' time to vacate the demised premises subject to payment of usual rent and other charges payable by them. "
15. In Haji Abdullah Jan v. Anwar Khan (PLD 2000 Supreme Court 787) following observations were recorded:-
(12) We are of the view that above case is not attracted to the circumstances of this case, as here the precise question is if one of the co-owners could file eviction application or not.
' Above point was considered by this Court in the case reported as Khalique Ahmed v. Abdul Gani and another PLD *1973 SC 214. It was laid down in the said case, which was instituted under West Pakistan Urban Rent Restriction Ordinance, that suit for ejectment by one co-owner without joining other co-owners was competent. Following above dictum we hold that eviction application can be filed by a co-owner without joining other owners as co-owner is a landlord within the , scope of definition of "landlord" appearing in clause (e) of section 2 of the Ordinance.
16. In Khalique Ahmed v. Abdul Ghani and another (PLD 1973 Supreme Court 214) following observations were recorded pertaining only to suits for possession:-- "A suit for possession can be brought by all the co-owners jointly,. It is open, however, to one of them also to sue for possession, but he must joint other co-owners as defendants and the decree will be for joint possession, and not in favour of the plaintiff only. "
17. The orders/judgment of two Courts below are therefore not suffering from misreading or non- reading of evidence or from any illegality and therefore this petition is hereby dismissed in limine togejher with listed application.