1. MUHAMMAD AFZAL SOOMRO, J.--- By this common order I intend to dispose of these Constitutional Petitions bearing Nos. S-309 to 320 of 2003 through which Constitutional jurisdiction of this Court has been' invoked by the petitioners challenging the legality and propriety of the orders passed by respondent No 3, dated 28.2:2003 whereby he dismissed the appeal of the petitioners filed against an Order, dated 31.10.2002 passed by' the learned Senior Civil Judge, Malir at Karachi, allowing ejectment application of respondent No. 1.
2. The brief facts leading to the filing of the present Constitutional Petition are that respondent No., 1, being landlord, filed Rent Application under Section 15 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as 'the Ordinance') before the learned SeniorCivil Judge/Rent Controller Malir at Karachi seeking directions to the petitioner for vacating premises i.e., shops (bearing Nos., F-29/A, F-39/A, G-44/A, G-28/B, F-35/B, F-39/B, G-28/A, G-30/B, G-32/B, G-34/B, G-38/B, G-40/B, respectively) Al-Asif Square, Zero Point, Super Highway, Karachi (hereinafter referred to as 'the said shops') occupied by the petitioner as tenants on the ground that since the Tenancy Agreement dated 1.12:1996, 25.10.1997, 30.10.1997 and 1.8.1998, respectively, by virtue of which the said shops were rented out to the petitioners. However, since respondent No. 1 had no intention to extend the tenancy period beyond 30.61 999, the petitioners were served with notice to vacate the said shops upon completion of said agreed period. Furthermore, it was also alleged the petitioners failed to pay the rent from 1.6.2000 and started depositing the same in Court after the default of about four months. It was further alleged that not only some of the petitioners also installed a. Cabin in front portion of the sho0 and had sublet the same and collecting the rent from sub-lessee, hence terms of. Tenancy had also been violated but the petitioners were also defaulter in payment of utility bills so also made additions and alteration in the structure of, the shops by extending the roof three feet.
3. (.L.R.. paid rent upto May,. 2000. In June. Respondent No. 1 did not receive the rent. After May, 2000 when the landlady did not turn to receive the rent, the petitioners smelled some foul play and offered her rent but she refused to take it and therefore rent for June and July, 2000 was sent through Money Order to the landlady which is being deposited regularly in Misc. Rent Cases. It was specifically denied that neither any of the. Petitioners sublet the -front portion of the said shops nor, they are defaulter in respect of utility bills.
(1) Whether, the opponent has committed wilful default in payment of rent?
(2) Whether the opponent has created public nuisance?
(3) Whether the opponent sub-let the portion/corner of premises? (4) What should the order be?
4. The learned Rent Controller while delivering its order dated 28.2.2002 decided all the points in favour of the petitioners and dismissed the ejectment applications of respondent No. 1.
5. Respondent No. 1 against the order- filed' an appeal before the learned District Judge, Malir. At Karachi who vide his order dated 24th September, 2002 remanded the case to the learned Rent Controller holding that though there, was allegation with regard to addition and alteration in the structure which was rebutted by the other side and in this respect both the parties adduced their evidence but such point was not set up by the learned Rent Controller.
6. However, the learned Rent Controller delivered a fresh Order. Dated 31.10.2002, surprisingly taking the points, already decided by him, and in this respect he gave his findings on the point of default in payment.Of rent in favour of respondent No. Whereas points with regard to addition or alteration as well as subletting were, again, decided in favour of the petitioner. However, the: ejectment application was allowed and the petitioners were directed to vacate the premises. The petitioners approached the Appellate Court i.e. 1st Addl. District Judge; Malir at Karachi by filing First Rent Appeal which was dismissed vide order dated 28.2 2003.
7. Now, the petitioners have approached this Court challenging legality and property of both the orders passed by the Courts below.
8. It has been contended by the learned counsel that the impugned orders passed by the respondents Nos. 2 and 3 are bad in law, wrong on facts and otherwise erroneous' inasmuch as are based on non-reading, non-appreciating and misreading of evidence available on record in its title perspective.
9. It has, further, been contended by the learned counsel that reopening of issue of default by respondent No. 4 at his on without 'plausible/lawful reason or without retarding evidence afresh of the parties and deciding the same in favour of respondent No.1 by discarding his on finding, delivered in his earlier order dated 28:2.2002 and so also upholding the same by respondent No. 3 without any lawful reason and that too without 'following the directions of respondent No. 2 with regard, to only framing of issue of alteration and addition do call interference of this court exercising its Constitutional jurisdiction. It has, further. Been contended by the learned counsel that although the issue of default attained finality in FRA No. 6/2002, he, has relied upon the cases of Muhammad Younus and another v, Mst. Hajira 8i (1989 SCM R 1670); Mst/ Saeeda Khatton u.
10. Muhammad Ahmed Latifi (PLD 1990 SC 389), Syed Amjad Hussain v. Qaiser Siddiqui, etc. (NLR 1992 Civil 394); SherAfgan v. Shaikh Anjum Iqbal (1997 M LD 98) in support of his contentions.
11. On the other hand, learned counsel appearing for respondent No. 1 has contended that since respondent No. 2 remanded the case setting aside the earlier order while deciding the rent appeal, respondent No. 4 was competent to consider all the issues and grounds taken for ejectment. It has, also, been contended by the learned counsel that since the orders passed by both the Courts below are very much legal, well-worded, well-reasoned. This Court cannot exercise its Constitutional jurisdiction.
12. Persual of record reveals that the learned Rent Controller while delivering its order dated 28.2.2002 decided all the points in favour of 'the petitioners and dismissed the ejectment applications of respondent No. 1. Respondent No. 1 against that order filed an appeal before the learned District Judge, Malir at Karachi who vide his order dated 24th September, 2002 remanded the case to the learned Rent Controller observing as under:-- "From the perusal of record it appears that the appellant besides other grounds, for seeking ejectment of the respondent, in para. No. 8 of his application, he has also alleged. Regarding the addition and alteration in the structure and the same allegation was denied by the respondent, in his written statement. So much so, even both the parties had adduced their evidence on above point. Despite that no such point was framed by the learned Trial Court. While delivering the order, in thiscase. Though the evidence on that point had been brought by both parties on record. So in such peculiar circumstances.
13. 1 /1 of the case, the Trial Court ought to have framed such point, while passing an order, in the case.
14. Non-framing of such point, in respect of addition and alteration. Apparently amounts to illegally in the impugned order. I. Therefore, set aside the impugned order and remand the case to the Trial Court with directions to, frame the above point and decide the above matter on merits according to law, within 30 days of receipt of this judgment"
15. Perusal of above-quoted concluding paragraph of judgment passed by respondent No.' 2 on 24.9.2002 clearly indicates that the First Rent Appeal filed by respondent No. 1 i.e. Landlord was disposed in terms that the Rent Controller should frame point regarding addition and alteration in the structure as the allegation was levelled by the landlord that too was rebutted by the tenants adducing evidence on their parts Such judgment did not touch any of the.Points decided by respondent No. 4 and restricted him only to framing of above-said point. However, the learned Rent Controller while delivering fresh Order dated 31.10.2002, surprisingly took the points, already decided by him, and in this respect he gave his findings on the point of default, in payment of rent in favour of respondent No 1 whereas points with regard to addition or alteration as well as subletting Were.
16. Again. Decided in favour of the petitioner. Re-opening of issue of default by respondent No.4 at his on without plausible reason Or without recording evidence afresh of the parties and deciding the same in favour of respondent No. 1 by discarding his on finding: delivered in his earlier Order. Dated 28.2.2002 and so also upholding the same by respondent No. 3 without any lawful reason and that too without following the directions of respondent No. 2 with regard to only framing of issue of alteration and addition in considered View, do call interference of this Court. While exercising its Constitutional jurisdiction inasmuch as the issue of default has already attained finality in FRA No. 6/2002 Accordingly, I am of the considered view that when all the issues were decided by respondent No. 4 in favour of the petitioners and that too were not re-opened by respondent No. 2 while disposing of First Rent Appeal in terms that the Rent Controller should only frame point regarding addition and alteration in the structure as the allegation was levelled by the landlord which was rebutted by the tenants adducing evidence on their parts and when such judgment did not touch any of the points decided by respondent No. .4 restricting him only to framing of above-said point the learned Rent Controller was not supposed to re-open the point of default at his on especially' in absence of further evidence in 'that regard while delivering fresh Order dated 31.10.2002. This act of respondent No. 4 i.e. Giving findings on the, point of default in payment of rent in favour. Of respondent No. 1 whereas points.With regard to addition or alteration as well as subletting were, again, decided in favour of the petitioner do call interference of this Court while exercising Constitutional jurisdiction.
17. Furthermore, I am afraid that this serious illegality was not by the learned Appellate Court. The said illegality, in my considered view, purely comes. Within the legal proposition and this Court can validly entertain the above question and adjudicate the samein accordance with law irrespective of the fact that concurrence exists between both the judgments passed by the two Courts below.
18. Reliance in this behalf is placed on the judgment in the case of Muhammad Nawaz and 7 others v.
19. Muhammad Ibrahim and 5 others (1986 .CLC 1680):-- "To these, acts of misreading/non-reading of evidence, failure to notice and act in accordance with the binding precedents of Superior Courts, as also misapplication of Statute law may also be added as instances where interference in Constitutional jurisdiction can be made available. It may be noticed that the Courts invested with powers to administer justice, indisputably a sacred trust, are obliged by compulsion of law both divine and Statute to carefully examine , analyze the evidence present before them, before they arrive at decisions. Every bit that has been placed before them has to be taken note of and given due Weight. Absence of right of second appeal to this Court in rent matters has added further responsibility in this behalf."
20. Reliance can also be, placed on the case Haji Mohibullah & Co. And others v. Khawaja Bahauddin (1990 SCM R 1070):-- "In writ jurisdiction the High Court ordinarily does, not interfere with concurrent findings of fact recorded by the Courts below. However, where there is misreading of the evidence, or omission to take into consideration material evidence, or where any statute law or rule of law laid down by' a superior Court has not been applied by the Courts below, the High Court can interfere. The main question, therefore, that calls for determination is whether there has been misreading of the evidence or failure to apply correct principles of law on the part of the Rent Controller or the learned Addl. District Judge in the instant case."
21. Consequently, it is fit case for exercise of Constitutional jurisdiction and the judgments passed by the learned Addl. District Judge (respondent No. 3) and learned Rent Controller (respondent No. 4) are not to be sustained being opposed to law and settled principles for administration of justice.
22. Accordingly, all these Constitutional' petitions .Are allowed and Orders dated 31.10.2002 and 28.2.2003 passed by the learned District Judge, Malir at Karachi (respondent No. 3) in FRA No. 6/2003 and learned Rent Controller, Malir at Karachi Rent Case No. 35/2001 are quashed.
23. C.Ps. Nos. S-309 to 320 of 2003 stand disposed of alongwith listed application.