' ZIA PERWAZ, J.--- Petitioner has impugned the judgment of the IInd Additional District Judge, Sukkur in Rent Appeal No,135 of 2001 dated 27-3-2002 upholding the impugned order of the 1st Rent Controller, Sukkur in Rent Application No,41 of 2000.
2. Petitioner is tenant of shop bearing C.S. No,B-2651/2, Shahi Bazar, Sukkur on a monthly rent of Rs,1,500 under rent agreement dated 1-1-1990. Respondent No,1 sought ejectment from the premises on the ground of default, damage to property and personal use. However, in view of pleadings and evidence, the learned Rent Controller decided the application on the issues of default and personal use of landlord. While ground of default was declined application was allowed on ground of A personal use of landlord. Findings were maintained in appeal.
3. Petition was admitted to examine the question of exercise of jurisdiction by the learned Rent Controller as well as by the Appellate Court in a manner not warranted by law.
4. Mr. Abdul Naeem, learned counsel for the petitioner contended that this case of concurrent finding calls for exercise of a constitutional jurisdiction of this Court as both the lower forums have failed to exercise the jurisdiction vested in them according to settled principles of law. Referring to the record, learned counsel in his persuasive and elaborate arguments pointed out that it has been admitted in cross-examination of Saleem Ahmed attorney and elder brother of the applicant that he inherited Shop No,1247 after the death of his father Muhammad Ahmed Shamsi in 1993 along with the other legal heirs, six daughters and four sons in all; therefore, petitioner has 1/7th share in the said property. The fact of delay in mutation of property in the name of legal heirs was with mala fide intention. Therefore, the contention that the applicant is not owner of any other property in the town as contained in paragraph 6 of the ejectment application is a false and misleading statement. That the premises was acquired by the petitioner against payment of "Pugree" but both learned Rent Controller as well as Appellate Court failed to examine the evidence adduced and available on the record regarding such payment. Mr. Abdul Naeem stressed the question of non-appearance of the landlord to depose in evidence to establish his bona fides on the B ground of personal use of the property. Summing up his arguments learned counsel contended that in view of the above position, there is sufficient material to show that the respondent No,1 succeeded in obtaining the impugned orders by suppression of facts without establishing his personal bona fide need as a result of which both the impugned judgments passed without proper appreciation of evidence available on the record suffer from jurisdictional defect and are liable to be set aside. In support of his contentions, he has placed reliance on the cases of Saifullah v. Muhammad Bux 2003 MLD 480, Utility Stores Corporation of Pakistan Ltd. v.
Punjab. Labour Appellate Tribunal PLD 1987 SC 447, Muhammad Lehrasab Khan v. Aqeel-un-Nisa 2001 SCMR 338, Dilawar Jan v. Gul Rehman PLD 2001 SC 149, Akhter Muhammad v. Sirajuddin 1986 SCMR 1887, Mrs. Freni A. Cavina v. Mrs. Dhunmai Phiroze Dalal PLD 1991 SC 265, Muhammad Atique v.
Muhammad Hanif Khan 1996 SCMR 1260, Latif Ahmad v. Farrukh Sultana 1996 SCMR 1233, Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051, Binyameen v. Hakim 1996 SCMR 336, 1990 SCMR 336, Amir Shah v. Ziarat Gul 1998 SCMR 593, Mahmood Khan v. Nasima Khatoon 1982 CLC 1807, Sardar Nabeel Wali v. Additional District Judge PLD 2000 SC 829, Muhammad Hanif v. Mumtaz Ahmad PLD 1986 Kar. 16, Muhammad Jaffar v. Syed Zia-ul-Islam Shah 1996 MLD 976 and Muhammad Zakira.Kansi v. Bashir Ahmed PLD 2001 Quetta 40.
5. Mr. Abdul Qadir Shaikh, learned counsel for the respondent in reply to the question of ownership of property argued that though respondent No,1 inherited 1/7th share in another property which has not yet been transferred in his name, it was neither fully owned by him nor he enjoyed possession of the whole or any part of the property. He proceeded to argue that the statement has been made in a rent case and calls for consideration with reference to the provisions of the Sindh Rent Restriction Ordinance. In that context ownership of property is limited to the property in actual physical possession of the landlord. The sole criteria for arriving at any conclusion for the purpose of an ejectment application is whether the property was in occupation of the landlord. Therefore, no material fact relevant for the purpose of decision of the Rent Application as well as the appeal on merits has been suppressed. That the impugned decisions were based on evidence as is required to be considered for the purpose of deciding rent matters no relevant evidence has been ignored. Findings are based on such evidence. Admission of the earlier tenant namely Abdul Majeed to the effect that sum of Rupees one lac was received by him at the time of handing over possession of the demised shop to the petitioner and in addition to Rs,20,000 paid to the then landlord would not have any effect so as to defeat the claim of the landlord has no nexus with the merits of the prayer of the landlord for ejectment of the petitioner on ground of personal use. The concurrent findings are therefore, strictly in exercise of jurisdiction vested within the scope of jurisdiction of the two forums below and do not call for any interference in exercise of the writ jurisdiction of this Court. In support of his contentions, he has placed reliance on the case of Shahzada Ayyaz v. Zainab Bibi 2000.SCMR 485, Sirajuddin Shaikh v. Shakeel Ahmed 2000 SCMR 1922, Abdul Waheed v. Muhammad Anwar Khan 2000 YLR 18, Abdul Rauf v. Abdul Sattar 1998 SCMR 2525, Public Electric Works v. Mst. Sabha Begum 2000 MLD 901, Muhammad Afzal v. Muhammad Tufail 2000 MLD 1858, Ahmad v. Khair Muhammad 1992 CLC 2504, Muhammad Jantil v. Government of Pakistan .1998 MLD 1049, Ghulam Muhammad Dosal & Company v. Shahid Hassan 2000 YLR 1601, Ahmad Din v. Din Muhammad 1985 SCMR 529, Muhammad Sharif v. Muhammad Sohail PLD 1981 SC 246 and Khalil Ahmad Kershi v. Noor Muhammad 1986 SCMR 1464.
6. In the cases of Shahzada Ayyaz (supra), Sirajuddin Shaikh (supra) and Abdul Waheed (supra), the Honourable Supreme Court enunciated the principle that the choice to occupy a particular shop cannot be denied provided the landlord proves that he had no other shop suitable for his business and that the shop in question suited his requirement and that he required the same in good faith for his occupation. If the tenant is unable to prove occupation on any other shop by the landlord sufficient for his requirement then he cannot be allowed to say that the landlord should occupy another shop than the one in his possession. In the instant case admittedly the respondent is not in possession of any shop at all. Mete fact of a one seventh share in ownership of properties is not relevant for determination of the question of occupation. The respondents are not required by law to make a declaration of all other properties owned by them as held by the Honourable Supreme Court in the case of Abdul Aziz v. Muhammad Ibrahim PLD 1977 SC 442.
7. In the instant case the bona fide need of the landlord has been proved through his elder brother Saleem Ahmed who appeared in evidence. Same was the position in Abdul Rauf's case (supra), where through a power of attorney executed by the respondent landlord in favour of his brother Abdul Manan and the statement recorded by him on behalf of the respondent. He deposed about the bona fide personal use of the respondent. He was cross-examined at length, but no question was put by the appellant with regard to any circumstance on account of which the power of attorney had been executed. Nothing was elicited as to the exact nature of the domestic problems of affairs, which .Precluded the respondent from entering the witness-box. The respondent landlord is his real brother Abdul Manan appointed as his attorney. He is well-versed with the circumstances of the family looks after the property matters and is not a stranger. It was, therefore, held that he satisfactorily deposed about the bona fide personal need of his brother. Similarly in the cases of Public Electric Works (supra) and Muhammad Afzal (supra), objection on the ground of non- appearance of the landlord was repelled.
8. The question of "Pugree" has been coining up in various cases tiefore this Court. In Ahmad's case (supra) is an elaborate discussion by Mr. Justice Nazim Hussain Siddiqui (as his Lordship then was) it would suffice at this juncture to reproduce the guiding principle laid down as follows:-- "Admittedly he is not in possession of :any document showing the payment of said amount to the previous landlords who are not party to these proceedings. In their absence any finding, which may adversely affect them cannot be recorded. For the purpose of this matter, it is observed that no amount of "Pugree" was paid to the respondent and he is not responsible for any transaction, .Which took place, if any, between the appellant and the previous owners. Learned counsel for the appellant in support of his contention on point of "Pugree" cited (1) Muhammad Hanif V Mumtaz Ahmed PLD 1986 Kar. 16 (2) Shahnai Begum v. Ikhlas Ahmed 1990 CLC 904. In Muhammad Hanif's case the question under consideration whether the landlord after having accepted "Pugree" in respect of the tenement was legally entitled to seek relief under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. It was answered in negative. It was held that after accepting "Pugree" landlord renders himself ineffectual, because he has imparted to the tenant something more than the tenancy rights and acts as helpless spectator when the tenant sells away his "Pugree" right to another tenant and the landlord cannot raise any objection to it, but has to agree to change receipt in the name of new tenant for Which he gets some additional money. In Shahnaz Begum's case it was held that if a tenant succeeds in proving that he has paid any amount by way of "Pugree" to previous landlord, the eviction should be conditional on payment of that amount.
' As against, the above learned counsel for the respondent, cited on this point (1) Shaikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others 1987 SCMR 307 and (2) Mst. Fatima Bai v. Shaikh Muhammad ZaKi and 6 others 1990 CLC 1064. In the case of Shaikh Muhammad Yousuf it was held that "Pugree" was a mutual agreement between the parties and would 'not debar the landlord from instituting eviction proceedings on the ground of bona tide personal need.
Above principle was followed in Mst. Fatima Bai's case; ' There is no provision of "Pugree" in the Sindh Rented Premises Ordinance, 1979. This Ordinance is a special law.' and its provisions are to be construed keeping regard to its own subject, and the purpose for which it was promulgated. According to the rules of interpretation of statutes, a law cannot be applied to a matter, which is not strictly covered by its provisions. Since "Pugree has not been =recognized in this Ordinance, the question of its applicability in the cases instituted under the Ordinance does not arise. The plea that "Pugree" is a reality, particularly in Karachi, as such, it shall be recognized and given it due effect, tantamounts to challenge the, wisdom of Legislature, which is not permissible. Suffice it to say that Court has no power to rewrite a section or to add something in the shape of a new provision. Admittedly. No "Pugree" was paid to the respondent.
Even if it would have been paid, still the respondent could not be debarred from instituting eviction proceedings against the appellant on the ground of personal bona fide need as this ground has no nexus with the plea of "Pugree"."
9. Personal need of the landlord has likewise been considered to be bona fide when the landlord owned other shops in the same premises and it was observed that such ownership would not disentitle a landlord from getting specific shops vacated for running his business or for the benefit of his unemployed son for running up a business.
10. In Muhammad Jamil's case (supra), it was held that mere ownership of other shops in the same premises would not disentitle the landlord from getting a specific shop vacated for running his business or for the benefit of his son for running business as likeWise even the one seventh share of property not in possession of the applicant cannot be made a ground so as to discntitle the landlord from seeking ejectment on the ground of personal use.
11. Similar contention that respondent landlord had other property which could be utilized for personal need was also turned down while observing that a tenant has no right to put any clog on the right of landlord to seek ejectment of premises of his choice in the case of Ghulam Dosal & Company (supra).
12. To deny such a right to landlord would be- unreasonable even if the landlord was carrying on business when he let out the shop. It cannot be made a ground to defeat the bona fide requirement. For that reason he had deprived himself of the right ever to seek the eviction of tenant on ground of personal need as held in Ahmad Din's case (supra).
13. The question of maintainability and scope of the writ petition as distinguished to the functions of an Appellate Court was examined in Muhammad Sharif case (supra), the view taken by the apex Court with reference to the principles laid down earlier in Muhammad Hussain's case (supra), is very much attracted to the writ petitions being filed lately after the remedy of second appeal has been discontinued. It has been observed as under:- "We have been noticing, of late, that notwithstanding the fact that the Legislature, in its wisdom, has abolished the second appeal in cases under the West Pakistan Urban Rent Restriction Ordinance, and has made the orders of the District Judge as final, yet the parties, probably after obtaining legal advice, have taken to filing writ petitions in the High Court against the final order, passed by the Appellate Court, merely to take another chance or to delay their eviction, hoping that the matter shall take considerable time to be disposed of or that in any case the High Court while dismissing their writ petition may be persuaded to allow further time for vacating the premises in question. The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judge of the High Court take great pains to reappraise the evidence and to consider each and every contention raised by the petitioner's side before deciding the petition without realizing that, more often than not, such petitions are merely a device to circumvent the amendment in the law and defeat the obvious intention of the Legislature , namely, a speedy determination of cases under the Urban Rent Restriction Ordinance. Such frivolous applications not only cause the poor litigants to incur unnecessary expenditure but also result in the waste of valuable public time and should, therefore, be discouraged by the High Court.
It has been repeatedly held that a Tribunal having jurisdiction to decide the matter is competent to decide it rightly or wrongly and the mere fact that another conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction.
' It has been observed by this Court in Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139-- "It is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision ir wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a fullfledged appeal, which plainly is not the intention of the Constitution-makers."
14. Thus, the question of fact conclusively determined by the two forums below leaves no ground to reopen the same in view of Khalil Ahmed Kershi's case (supra).
15. In Saifullah's case (supra), a learned single Judge of this Court while observing that constitutional petition shall be entertained if a case was made out to the effect that the Rent Controller and first appellate authority has made an error palpably without jurisdiction or there was a case of lack of jurisdiction or the finding was so perverse that it was not sustainable on the established principles of appreciation of evidence or any specific provision of law has been violated. It has further been held that no constitutional petition in rent matters and in all such matters in which no second appeal or revision is provided by law shall be entertained unless there is jurisdictional error committed by the Courts below resulting in miscarriage of justice. No such ground is made out in the present case, which is distinguishable.
16. In the case of Utility Stores Corporation of Pakistan Ltd. (supra), the apex Court has laid down that a Tribunal acts beyond its jurisdiction when it goes wrong in law. It has to decide rightly and not wrongly. No such irregularity resulting in jurisdictional error, appears in the present case, it is therefore, distinguishable.
17. In Muhammad Lehrasab Khan's case (supra) and in Dilawar Jan's case (supra), the Honourable Supreme Court while examining the scope of exercise of constitutional jurisdiction of High Court with, reference to disputed question of facts was pleased to observe that the Court cannot sit as a Court of appeal unless the error is so glaring and patent that the same may not be acceptable where invocation of constitutional jurisdiction is justified. No such glaring error or, misreading of evidence is involved in the present case.
18. Case of Akhter Muhammad (supra), involved judgment based on sketchy finding by the Appellate Court while the present case is based on findings, according to evidence on record which do not make the impugned order illegal.
19. Mrs. Freni A. Cavina (supra), was a case where sufficient facts to arrive at a finding were not considered including the law attracted for subletting that took place prior to promulgation of the then Rent Ordinance. No such question is involved in the present case.
20. In Latif's case (supra), landlady earlier got a shop vacated that she rented out and therefore, the apex Court while observing that it is the prerogative of the landlord to have the premises of his choice and tenant has no right to challenge this right of the landlord, examined the case where the demand of the landlord was not bona fide and allowed the appeal. The landlord in the present case has not vacated nor let out any premises; therefore, this case has no bearing on the merits of the present case.
21. Likewise in the cases of Binyameen (supra), Amir Shah (supra), . Mahmood Khan (supra), Sardar Nabeel Wali (supra), where the demand of the landlord was lacking bona fides, based on suppression of facts, setting of a new case different from the initial pleadings or for a mere desire of the landlord, failure to appear personally and no satisfactory explanation for such absence was available on record were considered. In the present case the personal appearance has been made by the elder brother of the landlord looking after the affairs of the property fully conversant with the case and has also explained the reason for non-appearance of the landlord requiring the premises for his personal use.
22. " In case of Atique (supra), the landlord had suppressed the tact that in addition to the premises in his occupation on the first floor, he was in. Possession of two rooms on the second floor and also failed to prove the factum of his ailment through cogent evidence. Facts of the abovecase are therefore, totally distinguishable.
23.. In Latif Ahmad'scase (supra), the landlady got vacated one shop which she divided into two shops and rented out to two different tenants but did not disclose this fact in her ejectment application as to why the shops vacated 'were not occupied. Facts of the above case are, therefore, totally distinguishable.
24. In case of Shahnoor (supra), the applicant had concealed the fact that theadjacent flat lying vacant was already in her possession and that the premises was not sufficient for her needs so as to seek ejectment of the respondent from the disputed premises. In the instant case applicant is not in possession of any premises therefore, it has no bearing on the merits of the present case.
25. In Muhammad Hanif's case (supra), the fact of "Pugree" was apparent from clauses' (6) and (7), providing in unequivocal terms that lessor shall not eject the lessee under any circumstances and lessee shall have the right to transfer the lease to any person with the consent of lessor manifested with-parties involved "Pugree" in the transaction. No such terms appear in the present case.
26. The principle laid down in the case of Muhammad Jaffar regarding "Pugree" area where the plea of the landlord was dismissed on failure to explain in his ejectment application as evidence as to what happened to first floor premises vacated by his attorney. The instant case does not involve any premises vacated by any other tenant.
27. The question of occupation as distinct from ownership was considered in the case of Muhammad Zakria Kansi (supra).
28. The conclusion of the above discussion is that in view of the case-law cited and the principles laid down therein is that it is not an absolute requirement for the landlord to appear in person to prove his bona fide requirement. It may be proved through a duly constituted attorney fully conversant with the facts of the case. Secondly that constitutional petition being distinct from appeal is only maintainable within the narrow scope as already laid down. It is not a substitute for a remedy of second appeal.
29. Above are the reasons of the short order, dated 2-11-200.