' ANWAR ZAHEER JAMALI, J.---Petitioners, who are tenants in respect of Shop No,20-A-1-1/6 (Old Shop No,4) Commercial Area, Block No,6, PECHS, Karachi, (hereinafter referred to as 'rented shop') have preferred this Constitutional petition to assail the orders of respondents Nos.2 and 3, dated 30-3-2004 and 12-10-2004 respectively. By first order respondent No,2 had recorded findings on the point of personal need of the rented shop in favour of respondent No,1 and consequently ordered eviction of the petitioners from the rented Shop. By second order, dated 12-10-2004, the Appellate Court of 1st Additional District Judge, Karachi (East) had maintained such findings of the Rent Controller and dismissed the appeal of the petitioners, however, granting them eight months time to vacate the rented shop and hand over its possession to the respondent No,1.
2. Briefly stated, relevant facts of the case are that in the month of April, 2002, respondent No,1 filed Rent Case No,142 of 2002 against the petitioners, seeking their eviction from rented shop, on the ground of personal bona fide need of her son Farhat Abbas son of late Ghulam Abbas and also due to unauthorized addition and alterations/structural changes carried out by the petitioners in the rented shop.
3. In their written objections, petitioners strongly denied these assertions of respondent No,
1. Further to counter the claim of personal need urged by respondent No,1, they took the pleas of payment of Rs,25,000 as good-will/Pugri to the predecessor of respondent No,1 in the year 1968. They also asserted that respondent No,1 is planning to dispose of the rented shop and for this purpose, in a mala fide manner, ground for personal need is urged in the ejectment application. As regards removing of intervening wall and making of structural changes, the petitioners pleaded that such exercise was undertaken with the written permission of the then landlady Mst. Rubab Begum in the year 1967/68. The petitioners further stated that respondent No,1 owned several other properties at Khada Market and Burns Road which fact has been suppressed by her, therefore, she is not entitled for their eviction from the rented shop on the purported claim of personal need of her son.
4. At the stage of evidence respondent No,1 Mst. Syeda Kaneez Sughra filed her affidavit-in- evidence before Rent Controller in the month of October 2002, whereafter she was cross-examined on 7-1-2004. On behalf of the petitioners, petitioner No,2 Noor Ali Khan filed his affidavit-in-evidence before the Rent Controller on 19-1-2004, whereafter he was also cross-examined on 27-1-2004.
5. After the conclusion of parties' evidence, arguments of learned counsel were heard by the Rent Controller. The Rent Controller had framed points for determination at the time of judgment and in view of her findings on point No,1, relating to the plea of personal need, in the affirmative she ordered eviction of the petitioner from the rented shop vide impugned judgment, dated 3-3-2004.
6. The appeal preferred by the petitioners being F.R.A. No, 113 of 2004 was heard by the 1st Additional District Judge Karachi (East), who maintained the findings of Rent Controller on both the points and consequently dismissed the appeal, however, considering the old tenancy of the petitioners and their running business in the rented shop, Appellate Court allowed them eight months time to vacate the premises and hand over its possession to the respondent No,l.
7. Perusal of case record reveals that after passing of judgment, dated 12-10-2004 by respondent No,3, the petitioners did not even bother to obtain its certified true copy for over two months and applied to obtain it on 22-12-2004. The certified true copy of the order seems to have been prepared on 28-12-2004 and delivered to them on 4-1-2006. Thereafter this Constitutional Petition has been filed by the petitioners on 31-5-2005 i,e, after more than seven (7) months and 15 days to the passing of the impugned judgment by the respondent No,3 and more than four months and 25 days from the date of obtaining its certified true copy.
8. I have heard the learned counsel at length.
9. Mr. Mushtaq A. Memon learned counsel for the petitioners has strongly contended that though the concurrent findings of the two Courts below i,e, respondents Nos.2 and 3, on the point of personal bona fide need of the son of respondent No,1 are against the petitioners, but such findings are the outcome of non-reading and misreading of evidence. He further contended that respondent No,1 has suppressed the facts of owning other shops at Burns Road, out of which two shops are lying vacant and these facts have disentitled the respondent No,1 from seeking eviction of petitioners from the rented shop. But the two Courts below did not care to go through all these material aspects of the case, which has resulted in gross injustice to the petitioners. In this context, he made specific reference to the affidavit-in-evidence of petitioner No,2 Noor Ali Khan, to show that his assertions in this regard, made in the affidavit-in-evidence remained uncontroverted/unchallenged in cross-examination. He, therefore, contended that such unchallenged testimony of petitioner No,2 was sufficient to dislodge the claim of respondent No,1 on the ground of personal need. To fortify his submissions, learned counsel placed reliance on the following cases:--
(1) Mohammad Akther v. Mst. Manna and 3 others (2001 SCMR. 1700).
(2) Allies Book Corporation v. Sultan Ahmad and others (2006 SCMR 152).
10. Mr. Memon further contended that the landlady was required to prove bona fide of her claim of personal need for making her entitled to seek eviction of the petitioners from the rented shop but she miserably failed, thus the two Courts below were not justified in passing their respective judgments against the petitioners. To add force to his submission that suppression of facts will disentitle the landlady to seek eviction of her tenants and further, the claim of personal need of the landlord is to be judged carefully. He placed reliance on the following cases:--
(1) Anisur Rehman v. Mst. Sharifa Khatoon and another (1986 CLC 448).
(2) Muhammad Aslam v. Muhammad Aslam (1987 CLC 686).
(3) United Bank Ltd. v. Ehsan Ellahi (1989 CLC 287).
(4) Montessori Home v. Muhammad Shekoh Salim (1995 CLC 1353).
(5) Shah Noor Fazal v. Ghulam Akber Mangi (1987 SCMR 2051).
(6) Province of Sindh v. Nisar Ahmed Khan (1983 CLC 1905).
11. In yet another attempt to dislodge the claim of respondent No,1 regarding the personal need of rented shop for her son Farhat Abbas, learned counsel made reference to the tenancy agreement, dated 21st December, 1967 executed between Mst. Rubab Begum, the then landlady, and Dilawar Ali Khan, the predecessor-in-interest of the petitioners, and contended that on the basis of this agreement, tenancy of rented shop was created in favour of Dilawar Ali Khan w,e,f, 1-1-1968 on payment of Rs,25,000 Pugri with further condition that he will not be ejected from the rented shop, and rate of rent will also not be enhanced. Therefore, ejectment application on the ground of personal need, was not maintainable in law.
12. In his reply submissions, Mr. Zahid Marghob learned counsel for the respondent No,1 again made detailed reference to the pleadings of the parties before the Rent Controller and the evidence adduced by them. He contended that there was no suppression of material facts from the side of respondent No,1 at the time of filing of ejectment application before the Rent Controller or thereafter. He further contended that the question of suitability of the shop and its choice is the absolute prerogative of the landlady, therefore, the assertion made on behalf of the petitioners about availability of other shops with respondent No,1, though also disputed, is of no consequence.
For this purpose, learned counsel made reference to the following cases:--
(a) Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCMR 593).
(b) Abdul Wahid Lehri v. Arbab Mir Nawaz and 3 others (1997 SCMR 1789).
(c) United Bank Limited v. Mrs. Alafia Hussain (1999 SCMR 1796).
(d) Miss Akhtar Qureshi v. Nisar Ahmed (2000 SCMR 1292).
(e) Hussaini v. Mukaram Ali (2006 SCMR 1483).
13. Before concluding his submissions, learned counsel also questioned the maintainability of this petition on the plea of laches on the part of petitioners in filing this petition. For this purpose, he made reference to the impugned order, dated 12-10-2004, granting eight months time to the petitioners for vacating the premises, making of application for obtaining certified true copy on 22- 12-2004, and filing of this petition on 31-5-2005. He contended that the object of filing of this Constitutional petition is nothing except that petitioners want to knock out some heavy financial gains from respondent No,1, as was admittedly done by them while handing over vacant possession of another godown in the same building, by entering into compromise with the landlord of that godown.
14. I have carefully considered the submissions of both the learned counsel and perused the case record. Before proceeding further to examine the merits of the contentions raised by the learned counsel for the parties, it will be appropriate here to refer some judgments of this Court, amplifying the limited scope of exercise of Constitutional jurisdiction by this Court in the petitions, like the instant one. In the case of Secretary to the Government of the Punjab, Forest Department v. Ghulam Nabi and 3 others (PLD 2001 SC 415), it was held by the Hon'ble Supreme Court that Constitutional jurisdiction cannot be exercised to reappraise evidence, and come to its own independent findings, where findings of facts were recorded by authority below after giving good reasons in support of it.
Referring to the plethora of case law, it was further observed that there is no cavil to the proposition that Superior Courts have ample jurisdiction to refuse a relief where granting it would tantamount to injustice, as High Court is not bound to grant relief to the petitioner simply because he was legally entitled to the same if the grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay. It hardly needs any elaboration that High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality, or void action or void order is impugned, but the Court is to see whether the grant of relief prayed for fosters the cause of justice or will it perpetuate injustice.
15. In the case of Messrs Mehraj (Pvt.) Ltd. (judgment authored by me) following observations were made with reference to exercise of Constitutional jurisdiction by this Court in the matter relating to rent cases under the Sindh Rented Premises Ordinance, 1979:-- "In this context it may be observed that by conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislator in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances interference by this Court in exercise of its Constitutional jurisdiction under Article 199, in the judicial orders passed by the Tribunals, merely on the ground that another view of the matter is also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of the statute."
16. This view is again affirmed in the case of Shamim Akhter v. State Life Insurance Corporation (PLD 2005 Karachi 554). Thus, it will be seen that while exercising its jurisdiction under Article 199 in the Constitutional Petition, arising out of cases under the Sindh Rented Premises Ordinance, 1979, this Court does not act as a Court of second appeal, and reappraisal of evidence is uncalled for, even if on the basis of evidence available on record some other conclusion was also possible.
17. As regards the plea of personal need of respondent No,1 for her son Farhat Abbas the case of respondent No,1 in her pleading is very specific. Relevant paragraphs of the rent application viz. Paragraphs Nos. 6 to 12 are reproduced as under:- "(6) That the rented premises in occupation of the opponents is required by the applicant in good faith for her personal bona fide need and occupation to establish her son namely Farhat Abbas son of late Ghulam Abbas in her independent life.
(7) That the said son of the applicant would establish and run a Stationery Shop with General items and a Photostat Machine in order to earn his livelihood.
(8) That the applicant is a Govt. School Teacher to retire next year and is earning a nominal amount and in case the rented premises is given to the applicant's son the same would prove monetarily beneficial for the applicant as well.
(9) That besides the pay of the applicant, the applicant is also getting a very low amount of normal rent in respect of Old Building situated at Burns Road and has no other source of income except as stated above.
(10) That the applicant's son now aged about 21 years and his desires of getting his own business established in the rent premises.
(11) That the rented premises in occupation of the opponents is most suitable/fit place for the intended business of the applicant's son.
(12) That the applicant requested the opponents on several occasion to realize the bona fide, genuine, subsisting need of the applicant but the opponents came out with a deaf ear, thereby adding to the misery of the plight of the applicant."
18. Again in her affidavit-in-evidence, respondent No,1 has reiterated these facts on oath in Paragraphs 6 and 17 of her affidavit, which read as under:-- "(6) That the rented premises in occupation of the opponents is required by the applicant in good faith for her personal bona fide need and occupation to establish her son, namely, Farhat Abbas son of late Ghulam Abbas in his independent life. I produce herewith photocopy of my son's Matric Certificate as Exh. C.
(17) That I say that I am in dire need of the premises and my need is a pressing one. I am an old lady not keeping good health. I have already produced my Medical Certificate as Annexure `D'."
19. During the course of her cross-examination such stand taken by the respondent No,1/landlady remained unshuttered. Even, no questions were suggested to her about vacation and availability of two shops in the building purportedly owned by her at Burns Road. When a question in this context was put to respondent No,1 she had categorically replied as under:-- "It is incorrect to suggest that I am owner of building at Burns Road. It is incorrect to suggest that I am owner of building at Khada Market."
' But thereafter no further questions were asked to seek clarification of this position.
20. Further explaining the requirement of her son the respondent No,1 had stated that he was working in different companies temporarily to earn some money. She in her cross-examination also denied the suggestion of petitioners counsel that the rented shop in possession of the petitioners is not suitable for the business of her son or that she was negotiating for its sale. As a matter of fact suggestion in cross-examination put forward by the learned counsel for the petitioners that petitioner No,2 was offered for purchasing the rented shop for Rs,8,00,000, and its denial by respondent .No,1 contradicts the case of the petitioners that the respondent No,1 was planning to dispose of this shop. Leaving apart such suggestion, owner of the property has absolute right to deal with his/her property in the manner he/she likes and no clog, disqualification or adverse inference can be recorded by the Rent Controller in this context nor can it be made a ground for refusal of ejectment on the plea of personal need, as in such a situation section 15-A of the Ordinance of 1979 provides ample safeguard to the interest of the tenant in the rented premises.
21. The submission of Mr. Memon as regards non-disputing of certain assertions of the petitioner No,2 in his affidavit, in the cross-examination, suffice it to observe that after leading of evidence by both the parties the burden of proof loses its significance and it is only a matter of preponderance of evidence which enables the Court to record the correct conclusion on the basis of evidence led by both the parties. If any case law is needed to fortify this view, reference can be made to the case of Mst. Zainab v. Majeed Ali another (1993 SCMR 356). Relevant observations read as under:-- "It is true that a plaintiff is to succeed on the basis of his own evidence and not on the basis of weakness of the evidence of the defence, but at the same time it is also a well-settled proposition of law that a civil matter is to be decided on the basis of preponderance of evidence and the Court is to consider the entire evidence on record, whether it is of the plaintiff or of both in order to arrive at the correct conclusion. Once the evidence is brought on record, the question of burden of proof loses its significance."
22. Indeed, to certain assertions made by petitioner No,2 in his affidavit-in-evidence no questions were suggested by learned counsel for respondent No,1 in his cross-examination, but at the same time it is worth-considering that in respect of such assertions of the petitioner No,2, no questions were suggested to the respondent No,1, when she had entered in the witness box for cross- examination. Rather the respondent No,1 in her cross-examination has categorically stated that she was not the owner of building at Burns Road and Khada Market. In such circumstances mere statement of petitioner No,2 apt two shops were lying vacant in the building at Burns Road was of no consequence. The document which was produced by the petitioners in their affidavit- inevidence to show the entitlement of the respondent No,1 in respect of the property at Burns Road i,e, copy of order, dated 24-5-1970 in Suit No,50 of 1970, may be relevant to the extent of existing circumstances at that time or thereafter but would not prove the title of the respondent No,1 in the said property in the year, 2003 when she entered in the witness box and denied such facts on Oath.
Leaving apart this aspect of the matter even if the respondent No,1, owned certain other shops at other locations i,e, Burns Road and Khada Market, she was not required to decide the suitability of the need of her son, at the dictates of petitioners or anybody else, as it was her absolute choice and prerogative. If any case law is needed to fortify this view, following cases may be referred with advantage:--
(1) Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185).
(2) Messrs F.K. Irani and Co. v. Begum Feroze (1996 SCMR 1178).
23. The submissions of Mr. Mushtaq A. Memon as regards payment of Pugri by the petitioners predecessor; creation of lease in perpetuity vide tenancy agreement, dated 21-12-1967; and temporary engagement of the son of respondent No,1 to earn some livelihood (as admitted by the landlady in her cross-examination) as grounds for disqualification of respondent No,1 for seeking eviction of petitioners from the rented shop, have also no force as payment of Pugri, (though also disputed by respondent No,1) has not been accepted by the Superior Court as bar for seeking eviction of tenant under section 15(vii) of the Sindh Rented Premises Ordinance, 1979. Similarly the claim of lease in perpetuity in respect of rented shop in favour of petitioners, cannot be accepted on the I basis of tenancy agreement, dated 21-12-1967 for more than one reason. Firstly, the tenancy agreement being unregistered has lost its legal validity for enforcement of rights after expiry of one year (See section 107 of the Transfer of Property Act and section 17 read with section 49 of the Registration Act). Secondly, the claim of personal need has an over riding effect on such alleged terms of lease provided in the tenancy agreement, being against public policy and the provisions of Sindh Rented Premises Ordinance, 1979. The engagement of Farhat Abbas, the son of respondent No,1 in some temporary service/business to earn his livelihood or to have some monetary gains, is also no disqualification for respondent No,1 for seeking the eviction of petitioners from the rented shop. If any case-law is needed to add force to this view reference can be made to the case of Fazal Azim and others v. Tariq Mahmood and another (PLD 1982 SC 218).
24. Thus, I am of the view that on an overall assessment of evidence the two Courts below i,e, respondents Nos. 2 and 3 were justified in ordering the eviction of the petitioners from the rented shop and their findings to this effect are not open to question through this petition.
25. Apart from the cases discussed in this judgment, I have also carefully gone through the cases cited by both the learned counsel. In my opinion, in the facts and circumstances of the case, the cases cited by Mr. Mushtaq A. Memon are of help to the case of the petitioners, while the cases referred by Mr. Zahid Marghoob, do support the case of respondent No,1.
26. Another important aspect of the case which needs to be dilated upon, to reflect the conduct of the petitioners is that admittedly for vacating and delivering back the possession of another rented godown available with them in the same building, the petitioner No,2 had charged from its owner/landlord a sum of Rs,6,50,000. This fact is confirmed from the undertaking on Oath given by petitioner No,2 on 21-5-1998 and the compromise application, dated 9-7-1998 filed in Civil Suit No,438 of 1998. Such conduct of the petitioners, though not material to determine or judge the bona fide of the claim of personal need of the landlady for her son, which is to be judged independently, speaks volumes about the greed of petitioners and disentitles them from grant of any relief under Article 199 of the Constitution, which is purely equitable and discretionary in nature.
27. Considering the question of laches again it will be seen that after passing of impugned judgment by the respondent No,3 on 12-10-2004, as noted above, the petitioners/tenants having been given eight months time to vacate the rented shop, did not bother to even obtain the certified true copy of such judgment for a period of over two months and again after obtaining its certified true copy on 4-1-2005, they remained silent and waited for another period of over four months and 25 days, so that first they shall avail the benefit of eight months time granted to them by respondent No,3 at the time of passing of impugned judgment, and thereafter they shall again drag respondent No,1 to another round of litigation. It may be reiterated, that the powers vested with this Court under Article 199 of the Constitution are discretionary in nature, and are to be exercised justly, fairly and equitably, only in favour of a party, who has approached the Court with clean hands, else the Court can decline to exercise its powers/discretion in favour of a party, who has not approached this Court with clean hands. The facts stated above regarding the conduct of the petitioners, after passing of impugned judgment, dated 12-10-2004 by respondent No,3, and charging of handsome amount from another landlord for vacating other rented premises, clearly demonstrate their conduct that they have not approached this Court with clean hands. Moreover, filing of this Constitutional petition after more than seven months of the impugned judgment, dated 12-10-2004, also suffers from laches and thus makes this petition not maintainable in law.
28. Foregoing are the reasons for passing of short order, dated 11-9-2006, dismissing this petition in limine.