1. ' BIN YAMIN, J.---This order will dispose of above noted constitutional petition filed by Messrs Alam Educational Society through their Secretary S.M. Akhter against Mst. Jamila and another. The constitutional petition is filed against the order passed by learned IIIrd Additional District Judge, Karachi West on 23-5-2007 whereby he dismissed F.R.A. No,03 of 2005 filed by the petitioner against the order of Vth Senior Civil Judge/Rent Controller, Karachi (West) passed in Rent Case No,81 of 2002 whereby he allowed the ejectment application of respondent No,1 against the petitioner.
2. ' The brief facts of the case are that the respondent No,1 is owner of premises known as `Jamila Manzil' situated on plot No,ST-4, Sector 3, Orangi Township, Karachi hereinafter referred to as the building. It is further stated that under tenancy agreement, dated 3-3-1979 respondent No,1 gave 1st floor of the building on the monthly rent of Rs,2500. Subsequently, in the month of July, 1979 parties entered into IInd agreement whereby another. Floor of the building was also given on the rent to the petitioner. The rent of each floor was fixed at the rate of Rs,2500 per month. Previously two rounds of litigation were contested between the parties but the same ended on compromise on 16-12-1983 and 29-8-1998 respectively. Lastly, the rent with the mutual consent of the parties was fixed at Rs,7200 P.M. Payable from the month of August, 1989 to onward. Respondent No,1 filed instant Rent Application for ejectment of the petitioner before the learned Vth Senior Civil Judge/Rent Controller, Karachi (West) contending therein that the petitioner had defaulted in payment of rent from March and April, 2002, therefore he failed to pay the rent. She further stated that premises is also required for her personal use as she has six sons, two daughters and husband and her two sons are married and third one is also engaged. That the premises in their possession are not sufficient for their requirement, and the premises in question are required, for her personal bona fide use. She requested for grant of her Rent Application and for order to the petitioner to vacate the premises and hand over the vacant possession of the same to her.
3. ' Petitioner appeared in Court of learned Vth Senior Civil Judge/Rent Controller and filed his written statement in which he denied the allegation of default in payment of rent and also denied that the B premises in question is required by respondent No,1 for her personal bona fide use. On pleading of the parties Court framed following issues:--
(1) Whether the opponent/tenant committed default in payment of monthly rent to the appellant, if so what is its effect?
(2) Whether the applicant/landlady is entitled for vacation of the premises in the possession of the opponent for her personal bona fide need?
(3) What should the order be?
4. ' The parties led their respective evidence and on conclusion of the case, the learned Vth Senior Civil Judge/Rent Controller Karachi (West) allowed the application of the respondent No,1 on the ground of personal bona fide use and rejected her claim that petitioner No,1 has committed default in payment of rent, vide his order, dated 17-1-2005.
5. ' Feeling aggrieved with the order of learned Vth Rent Controller petitioner filed c F.R.A. No,03 of 2005 in the Court of District and Sessions Judge, Karachi (West). Appeal was transferred to the Court of learned IIIrd Additional District Judge, Karachi West who after hearing the parties dismissed the appeal of the appellant on 23-5-2007. However, learned IIIrd Additional District Judge, Karachi
(West) rejected the ground of personal bona fide use of the premises of the respondent No,1 and allowed the ejectment on the ground of default in payment of rent.
6. ' Feeling aggrieved with the order of learned IIIrd Additional District Judge, Karachi c (West) the petitioner filed this constitutional petition with the following prayer:--- ' "It is therefore prayed that this Honourable High Court may be pleased to call for the R&P of the F.R.A. No,03/2005 passed by the learned respondent No,2 dismiss F.R.A. No, 03 of 2005 entitled Messrs Alam Educational Society (Regd.) v. Mrs. Jamila Mustaqeem passed by IIIrd Additional District & Sessions Judge, Karachi West, allow the present petition and dismiss the Rent Case No,81 of 2002 entitled Mst. Jamila v. Alam Educational Society (Regd.) grant on cost."
7. ' Heard Advocate for the petitioner as well as Advocate for respondent No,1 and perused the record available before me.
8. ' Learned counsel for petitioner submitted that the orders passed by the learned Rent Controller as well as by appellate Court viz. 3rd Additional District Judge, Karachi (West) are passed without taking into consideration the facts of the case and material available on record. He further submitted that order passed by the Rent Controller and passed by appellate Court are conflicting ones as learned Rent Controller had ordered for ejectment of the petitioner from the premises in question on the ground of personal bona fide use, whereas learned appellate Court has allowed the appeal on the ground of default D in payment of rent and rejected the ground of personal bona fide use. He further contended that order passed by the appellate Court is not maintainable and is liable to be set aside on the ground that respondent No,1 had not filed any appeal or cross objection to the order passed by learned Rent Controller whereby he had rejected her plea of default in payment of rent. That the plea of personal bona fide use was rejected by the learned Rent Controller. However, the appellate Court dismissed the appeal of the petitioner and allowed the appeal on the ground of default in payment of rent. That as the respondent No,1 had neither filed any appeal/cross-objection to the rejection of ground of default in payment of rent, therefore, the findings of the learned Rent Controller had attained finality and learned Appellate Court has misread the evidence and failed to appreciate the actual point therefore the order of the appellate Court on the ground of personal bona fide use is illegal and is not maintainable. In this regard he has relied on 2008 SCM R 521.
9. ' That the respondent No,1 was required to have filed the appeal against the ground of rejection of her plea of personal bona fide use and in that case appellate Court was supposed to give its finding but when the respondent neither filed any appeal nor cross-objections to the order of the Rent Controller, therefore, the findings of Appellate Court given with regard to personal bona fide use of respondent is unjustified and liable to be set aside. In this regard he relied on 1991 M LD 776 Placitum E. Learned counsel for the petitioner, therefore, requested for the admission of the petition in question for regular hearing and also for calling the record of original Rent application from the concerned Court.
10. ' Learned counsel for the respondent No,1 who has appeared in response to pre-admission notice vide order, dated 8-11-2007 has vehemently opposed the contentions of learned counsel for the petitioner.
11. ' He further submitted that case-law i.e, 2008 SCM R 521 is with regard to civil cases which are tried under Civil Procedure Code. That the principle laid down in the cited case is not applicable to the rent cases. He further contended that, in case, appeal is filed by tenant, landlord has every right to assail the findings relating to the issue of default in appeal filed by tenant without himself filing the appeal, in this respect he has relied on 1986 CLC 955.
12. ' He secondly contended that there is no bar under the law that the appellate Court cannot record the findings on the ground of ejectment taken by landlord and rejected by learned Rent Controller.
13. That the Court has every right to record fresh findings on the ground that was rejected by lower Court for the ejectment of the tenant, in this regard he has relied on PLD 1965 (W.P.) Lahore 572.
14. That the constitutional jurisdiction of this Court with regard to rent cases is limited only to see that the subordinate Courts have exercised the jurisdiction not vested in it or learned Lower Court disregarded the material on record by misreading or non-residing the evidence. That ip the instant case learned counsel for the petitioner failed to show that the learned Lower Courts had either no jurisdiction to pass the ejectment order or have failed to appreciate the material on record and committed the illegality of misreading and non-reading of evidence. He therefore submitted that this Court in the constitutional jurisdiction cannot interfere with the findings of the lower Court recorded on the basis of material available on record. He requested for dismissal of the constitutional petition and to maintain the order of learned appellate Court passed in this matter.
15. ' I have considered the contentions raised at bar and have also gone through the material available on record. Respondent No,1 in her statement before the learned Rent Controller has clearly stated that her family consists of 6 sons, 2 daughters and her husband. That the premises in their possession are not sufficient for their personal use, therefore, she requires bonafidely the premises in the possession of E the petitioner for her personal use. She has further stated that 2 of her sons are married and third one is engaged, nothing is available on record to show that the area in their possession is sufficient to meet their requirement. Learned counsel for the petitioner contended that the respondent No,1 had not filed any appeal/crossobjections, therefore, there was no justification for the appellate Court to record finding with regard to personal bona fide use of the respondent No,
1. However, I am of the opinion that there is no force in these submissions of learned counsel for the petitioner, the learned appellate Court can record its finding, even with regard to ground not taken by respondent No,1 by way of filing appeal or cross-objection. In holding this opinion I am supported by the decided cases reported in PLD 1966 (W.P.) 572, 1986 CLC
955. The learned counsel for petitioner has not pointed out any fact to show that learned appellate Court has F committed any illegality by misreading or non-reading the evidence/material available on record. Findings of learned appellate Court are quite correct and according to law.
16. The same does not warrant any interference by this Court in its constitutional jurisdiction.
17. Therefore, find no merits in this writ petition I hereby dismiss the same.
18. ' Petitioner is carrying on education activities in the premises in question, therefore, if premises are vacated after a short time there is every possibility that future of children studying in the school run by the petitioner will adversely be affected, therefore, I direct the petitioner to vacate the premises within six months of this order, provided the petitioner continues to deposit monthly future rent in Court. On failure of the petitioner to vacate the premises in the stipulated period, learned trial Court is directed to issue writ of possession without issuance of notice to respondent and provide police aid for execution of the writ of possession if necessary.