1. ' MRS. QAISER IQBAL, J. Through this judgment I intend to dispose of aforementioned petitions by this common order as the controversy involved is based upon identical facts and law.
2. ' The above constitutional petitions are directed against the impugned order dated 21-12-2006 passed by District Judge Karachi South in First Rent. Appeals and order dated 30-11-2005 passed in Rent cases by Senior Civil Judge and Rent Controller Karachi (South) on an application under section 15-A of Sindh Rented Premises Ordinance, 1979.
3. ' Brief facts of the case are that the respondent East West Insurance Company Limited filed ejectment proceedings against the petitioners under section 15 of Sindh Rented Premises Ordinance, 1979, on the premise that the respondents were carrying on business of general insurance all over the country on account of paucity of space the respondent had purchased building previously known as Zeenat Mansion now known as 'Khan Mansion' Situated on Survey No 12 Sheet No, RY 4 I. I. Chundrigar Road Karachi having purchased the same in execution proceedings from the High Court of Sindh consisted of shops, offices and banks constituted on ground and first floor and had proceeded to file ejectment cases against the tenants on the ground of personal bona fide use the ejectment applications were allowed the tenants were directed to vacate the premises in their possession mattter went up to the Hon'ble Supreme Court decided in favour of the respondents consequent thereof execution applications were filed possession was handed over to the respondents/ landlord.
4. In the second round of litigation the petitioners filed application under section 15-A of Ordinance, 1979 for restoration of the possession on the premises that the petitioner had handed over possession to the landlord on/or before 31st January, 2002, respondent has committed fraud disobeyed the undertaking submitted before the apex Court, and are .Liable to restoration of the possession.
5. ' Respondents in the counter affidavit filed by Imran Ali Dodani General Manager submitted that one year's time was given by apex Court vide order dated 4-1-2001 for vacation of the demised property by January, 2002, the respondent No,1 was constrained to take aid of the Court, to get the property vacated. The petitioners had failed to produce any evidence to demonstrate re-leting or any violation committed as the respondent No,1 had shifted different departments in Khan Mansion. On account of Monsoon rain during October/September, 2004 roof of the first floor had partly collapsed entire first floor of the property had become, inhabitable, the respondent No,1 has shifted his stationary and record on the ground floor. The application for restoration of possession has been filed by the petitioners with ulterior motives, remained silent for more than 45 months as the building was in use of the respondent No, 1, latter on account of Monsoon rain due to severe damage caused to the property the petitioners had resorted for repossession.
6. ' In the affidavit in rejoinder filed on behalf of the petitioners it is averred that the first floor of the building had become dangerous as well as inhabitable, the landlords were least interested in carrying out repairs and maintenance of the building their negligence was the main cause of deterioration and decay. It is emphatically denied that the landlord/Insurance Company had set up offices in any portion of the building, concurrent findings of the Court's below are liable to be set aside.
7. ' Mr. Siddiq Mirza learned counsel for petitioner has contended that the respondent had committed fraud by evicting the petitioners in the garb of ejectment order passed by the apex Court on the basis of an undertaking incorporated in the report 2001 SCMR 668. It is next urged that the learned Rent Controller has proceeded to dismiss the application on the ground that it was barred by law of limitation without adhering to Articles 47,122, 139,144, 181, and 183 of the Limitation Act, the judgment passed by the First Appellate Court also finds cursory mention of Articles 181 and 183, did not decide the issue that the application under section 15-A was not time-barred. It is next urged that the issue raised could only be decided after recording the parties, without taking into consideration merits of the case, the First Appellate Court did not adjudge the case on its correct perspective, as arguments were not advanced in the circumstances for fair play remand of the case would meet the exigency..
8. ' Mr. Mustaq A. Memon learned counsel for respondent No, 1 has contended that the concurrent findings of the Courts below are in accordance with scope of section 15-A, lonely be attracted in two exceptional circumstances, (1) building could not be releted to any person other than the previous tenants (2) could not be put to use other than personal use within one year of such possession, landlord shall be punishable with fine which shall not cause one year rent of the building payable immediately before the possession was obtained. It is next urged that on account of candid and clear admission of the learned counsel for petitioner that demised property was not let out to any other person within one year or uptil this date, and whereas the ground floor is in occupation and personal use of the landlord, offices room first floor were shifted due to rain as the first floor was not in habitable condition.
9. Adverting to the first contention which pertains to the question of limitation, the judgment for ejectment was passed by the honourable Supreme Court on 4-1-2001 and the petitioners tenants were required to vacate the premises within one year viz. 3-1-2002, they did not comply the order, execution proceedings were filed and the tenants were evicted through process of Court with police aid on 31-1-2003 one year period provided under the statute was available to the tenants to invoke section 15-A whereas the applications were filed after the expiry of 42 months. Even if Article 181 of the Limitation Act is extended to the benefit of petitioners case, the applications of restoration are not maintainable in law being barred by limitation. Even otherwise the statute has provided one year period in case of violation of the norms contained in section 15-A for invoking the jurisdiction for restoration of the possession, which was taken into consideration in the following reports:-
(1) Dr. M. Murtaza Hussain v. Muhammad Mustafa (PLD 1986 Karachi 199 (c))
(2) Mazharuddin v. Hussain Bakhsh and others (PLD 2005 Karachi 205)
(3) Muhammad Bashir v. Sakhawat Hussain (1991 SCMR 846)
10. ' Adverting to the contention that the first appellate Court was not justified in taking into consideration material available on record for arriving at the conclusion that the judgment passed by learned Rent Controller requires no interference, case fell within the scope of Order XLI rule 33, C.P.C. In rent case, appellate Courts have been vested with the powers to adjudge the case on the basis of the material available on record. In this context reliance is placed on following case law:--
(1) Kh. Ashraf Ahmed and others v. Ashiq Hussain Bhatti and others (1991 CLC 1164)
(2) S. Muhammad Saeed through legal heirs v. Messrs Glamour Properties (Pvt.) Ltd. Karachi (1955 CLC Karachi 316)
11. ' After adjudging the above issues on merits admittedly ejectment proceedings filed by the landlord had culminated in the order passed by the Honourable Supreme Court with the assistance of the Court the petitioners have vacated the property in their possession on 31-1-2001 It is also an admitted fact that the respondent did not relet the building to any other person or use the same other than personal sue. The reports of the civil defence office for the years, 2003 and 2004 depict that the property is in use of the respondent No,1, due to Monsoon season, first floor of the building was badly damaged therefore the offices were shifted to the ground floor consequent thereupon K.B.C.A also issued notice in January, 2005 requiring that the entire building be vacated by the owner/ landlord.
12. ' Adverting to application under section 12(2), C.P.C. Moved by the petitioner, the copy of the same was not received by the counsel appearing for the respondent, however it is contended that since the proceedings in the matter had finally culminated before the Honourable Supreme Court of Pakistan therefore the forum available for invoking the above jurisdiction was not the High Court, the petitioner ought to have resorted to Honourable Supreme Court of Pakistan. In support thereof reliance has been placed on the following reports:-
(1) Jannat ul Haq and 2 others v. Abbas Khan and 8 others (2001 SCMR 1073)
(2) Muhammad Yousuf through Legal heirs and others v. Noor Din and others (PLD 2002 SC 391)
13. (Plasitum b)
14. Upon careful appraisal of the facts and the law cited at bar, I am of the view that the legislature has taken care to regulate the conduct of the landlord by enacting section 15-A to forestall misuse of orders, if any, by the landlord after ejectment order on personal need was obtained and had provided complete check up on the landlord for restoration of the possession to the tenant and penalty provided thereto on the appraisal of the undertaking furnished before the Honourable Supreme Court of Pakistan that the property would be used by the landlord for personal use and would not be re-let to any other party stands proved from the admissions of the petitioners counsel that the landlord has not releted the premises. No fraud or misrepresentation or violation of section 15-A is spelled out from the circumstances emerged from the record of the case. I am conscious of the facts that the scope of the Constitutional Petition is. Very limited does not warrant interfering in the concurrent findings of two Courts below. The petition's are not sustainable in law hereby stand dismissed along with F listed applications. Parties are left to bear their own costs.