' SHAHID ANWAR BAJWA, J.- This is a Constitutional Petition arising out of a rent matter. The property in question is a shop at Eidgah Phool Wali Gali, Karachi.
' Since there is some dispute as to the numbers of the shop, I will revert to the number of the shop in due course in this judgment, but for the time being it will be called the shop only. The shop measures l2 x 10 feet and it was claimed by the respondent No, 1 that he is landlord of the shop and the petitioner was his tenant. According to the Ejectment Application a tenancy agreement was executed between the petitioner and respondent on 14-12-1985. He claimed that rent was paid till December 1997 and thereafter payment of rent was abruptly stopped by petitioner w,e,f, January, 1998. He further averred in the Ejectment application that respondent No,4 in this petition by producing forged documents in collusion with petitioner filed Civil Suit No, 1239/1997 in the Court of Civil Judge No, IX Karachi South against the present respondent No, 1 for Declaration and Permanent Injunction. However Civil Suit was dismissed on 22-2-1999. It was further averred in the Ejectment application that present respondent No,4 and the petitioner are real brother and they wanted to deprive present respondent No,l of his lawful rights in respect of the shop. That matter when it came into knowledge of the respondent No,l, he approached Auqaf authorities. The matter was seriously taken up by the authorities and Chief Administrative Auqaf Government of Sindh decided that tenancy exists between the respondent No,l and Auqaf department. It may not be out of place to mention that shop actually belongs to Auqaf department and his not a property of the present respondent No,l. It is case of respondent No,l that he had given this shop at rent to the petitioner. It was further averred in the petition that after dismissal of previous Suit No, 1239/1997 a fresh Suit No,664/2000 was filed against which suit at the time of filing of Ejectment application was still pending. On account of failure of the petitioner to pay rent to the respondent No,l ejectment application was filed on 23-10-2000. The Ejectment application was allowed by the Rent Controller vide order dated 20-7-2007. The Rent Controller held that there exists relationship of landlord and tenant between the parties; the tenant had defaulted in payment of rent since January 1998 and also that the present petitioner sublet the shop to respondent No,4. An appeal was filed by the present petitioner against order of the Rent Controller. The appeal was dismissed vide order dated 14-4-2008, and order of the Rent Controller was maintained.
2. On 28-5-2008 when the matter came up, the following two questions were framed by my learned brother;
(a) Whether, in view of section 3(1) of the Sindh Rented Premises Ordinance, 1979, the application was maintainable under the Ordinance? And
(b) Whether a tenant can file case of Ejectment under the Sindh Rented Premises Ordinance, 1979, against his sub-tenant or sub-tenant of a sub-tenant?
' The learned counsel for the petitioner made the following submissions;
1. An order was passed by Auqaf Department on 8-6-2000 whereby it was ordered that the respondent No,l be treated as tenant. This order was collusively obtained by respondent No, 1 and this Ejectment Application was filed immediately after obtaining of such an order.
2. The petitioner was tenant of Shop N0.I68/A and not of Shop No,
169. The learned counsel referred of report of the Nazir who was ordered by this Court vide order dated 3-2-2009 to check status of the shop and the Nazir reported that there is no shop with the number of Shop No, 169 in the record of Auqaf Department.
3. Regarding maintainability of the rent application, the learned counsel submitted that though the maintainability question was not taken up before the Trial Court, it was specifically taken up in the First Rent Appeal. He submitted that respondent No,l does not come within definition of landlord as given in the Sindh Rented Premises Ordinance, 1979. In this regard he relied upon Pakistan State Oil Company Limited v. Khaliq Raza Khan 1994 CLC 1866.
' Learned counsel for respondent made the following submissions.
1. That Judgment in Khaliq Raza Khan's case passed by Honourable High Court and relied upon by learned counsel for the petitioner was set aside by the Honourable Supreme Court and judgment of the Supreme Court is reported as Khaliq Raza Khan v. Messrs Pakistan State Oil Company Limited, 1998 SCMR 2092. The learned counsel submitted that counsel while citing authorities should be fair.
2, That order passed by Chief Administrator Auqaf on 8th June, 2000 was an order between petitioner and respondent No, 1 and was not in respect of shop No,
169. It was suggested by Chief Administrator Auqaf that respondent No,l is to be treated as tenant for Shop No,
169. In presence of such an order it does not lie in the month of petitioner to claim that there is no shop as Shop No,
169. This order has attained finality and has not been challenged by the petitioner.
3. That respondent No,l has in his possession four shops namely 169, 169/A, 169/B, and 169/C. The petitioner himself filed agreement dated 15-12-2009. This agreement says that it is in respect of shop No,
2. It was this shop, which was originally numbered 169 and then was numbered No,2 and again it was numbered 168/A.
4. In the suit No, 129/1997, which was filed by present petitioner against the present respondent No,l, the petitioner himself stated in para No, 1 of that suit number of the shop as Shop No,2. Nowhere in the plaint of that suit Shop No, 168/A was stated by the petitioner. By referring of annexure A/3 which, according to him was produced at E-l/A order was passed directing the petitioner to make Auqaf Department a party. The petitioner failed to comply with this order and consequently vide order dated 22-2-1999, his Civil Suit No, 123/2007 was dismissed. No appeal against this order was filed by the petitioner.
5. Regarding the question raised by this Court, the learned counsel relied upon Afzal Ahmad Qureshi v. Mursaleen, 2001 SCMR 1434, Muhammad Naseeruddin v. Mst. Hashmat Bibi, PLD 1993 Karachi 300, Messrs Sattar Brothers v. Messrs Hanif Jee & sons, 2005 CLC 1696 and Khaliq Raza Khan v. Messrs Pakistan State Oil Company Ltd. 1998 SCMR 2092.
' While exercising his right to reply, the Advocate for petitioner stated that his client has subsequently filed Civil Suit and joined the Auqaf Department as a party.
' I have considered the submission made by the learned counsel and have also gone through the case law as well as record of the petition.
' I propose to first deal with two questions framed by my learned brother on 5-2008. First question was whether, in view of section 3(1) of the Sindh Rented Premises Ordinance, 1979, ejectment application was maintainable under the Ordinance, section 3(1) of the Ordinance of 1979 provides as under: "S.
3. Applicability) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government of Provincial Government, situated within an urban area, shall be subject to the provision of this Ordinance.
' Learned counsel for respondent No,l in order to reply to this question relied upon Fazal Ahmad Qureshi's case (supra). Facts of the Fazal Ahmad Qureshi's case were that petitioner in that case filed an eviction application on ground of default and bona fide personal requirement. The respondent/tenant denied existence of relationship of landlord and tenant. Eviction application was allowed. Appeal was filed before the High Court and High Court allowed the appeal. It was contended by the landlord in the Eviction Application that evidence had come on record that property in dispute was purchased from one Shahid Iqbal having power of attorney duly executed by Nafeesa Begum, owner of the property and after completion of transaction made by Shahid Iqbal on her behalf, question of revocation of power of attorney did not arise. It was further argued by the landlord that no objection whatsoever was raised by the tenant that property in question was mutated in his name by the House Building Finance Corporation, but the Appellate Court had not paid attention to the fact that the property was in the name of the petitioner. It was in this context that the Honourable Supreme Court held that in absence of relationship of landlord and tenant between the parties., question of disputed title of ownership of the property in dispute is to be determined by competent Civil Court and ownership has got nothing to do with position of landlord and payment of rent by tenant and receipt of rent by landlord is sufficient to establish relationship of landlord and tenant between the parties. In Hashmat Bibi's Case (supra) Mr. Justice Nazim Hussain Siddiqui in his capacity as Judge of this Court (as his lordship then was) held that landlord in all circumstances need not be the owner of the premises, but once he claims to be landlord without being owner of the premises he would be required to disclose such fact in eviction application and also to prove that he has been authorized or is entitled to receive rent on behalf of the owner. In Sattar brothers' case (Supra) Mr. Justice Rehmat Hussain Jafferi as Single Judge of this Court (as his lordship then was) held that only owner of the person who is authorized to receive rent can file application on the ground of personal need. Lastly learned counsel relied upon Pakistan State Oil Company Limited's case (supra). The facts of the case were that the appellant in the eviction application obtained lease from president of Pakistan in respect of the plot for a period of ten years in the first instance and thereafter renewable. The lease agreement provided that the lessee shall not sublet etc. To any one except Petroleum Company without prior written permission of the Executive Engineer Pakistan P.W.D. After obtaining such permission, the appellant leased the plot to Pakistan State Oil. Ejectment application on the ground of default was filed. The application for dismissal under section 3(1) of the Sind Rented Premises Ordinance, 1979 was filed for summary rejection of the case. This application was dismissed by the Rent Controller. Thereafter Rent Controller ordered Ejectment. In First Rent Appeal it was held that rent case was not competent in view of section 3(1) of the Ordinance. Thereafter matter went to the Honourable Supreme Court.
The Honourable Supreme Court after noting provisions of section 3(1) of the Ordinance, observed the law to be as under:- "11. In our view, subsettion (1) of section 3 of the Ordinance will be applicable if the appellant was to file a case against the Government as admittedly he is the lessee from the Government in respect of a plot which vests in the Federal Government, in other words, he will not be able to invoke the provisions of the Ordinance in a dispute between him and his lessor, the Federal Government.
However, since the dispute is between the appellant as the landlord and the respondent as the tenant which does not involve the interest of the Government as to the possession, it is, covered by the provisions of the Ordinance and the appellant, the respondent and the suit land are covered by the definition of the terms "Landlord", "Tenant" and "Premises" given in section 2 of the Ordinance already referred to hereinabove".
' Facts of Afzal Ahmed Qureshi's case are quite distinguishable because in that case ownership of the property was disputed by the tenant. In this case there is no dispute as to ownership of the property. Both the landlord and tenant are at one on the point that property belongs to Auqaf Department. Therefore facts of that case are quite distinguishable. In Hashmat Bibi's case it was specifically held that the landlord in all circumstances may be the owner of the premises, but once he claims to be landlord without being owner of the premises he would be required to disclose this fact in the eviction application and also to prove that he has been authorized or entitled to receive sent on behalf of the owner. In the present case nowhere in the Ejectment application has it been stated that Auqaf Department was owner except an oblique, reference is made in para No,4 that two parties approached to Auqaf Department to ascertain as to who is tenant. The second requirements as laid down in Hashmat Bibi's case that landlord, who is not an owner must be able to demonstrate that he has been authorized or entitled to receive rent on behalf of the owner. In simple dictionary meaning of the "Entitled" as defined in Shorter Oxford English Dictionary 1952, means, "As having title to something". The word "Title" itself has been defined in the same dictionary as "that which justifies or substantiates a claim; a ground of right; hence an alleged or recognized right". Owner of property and rights in Auqaf department. The respondent has not been able to show as to how Auqaf department allowed him to step into its shoes and if the department did not specifically so allowed him, as to how he can himself do the mantle.
' Section 3 says that Ordinance shall not be applicable to premises "owned" by the Federal Government or Provincial Government. There is no dispute that the shop in question was owned by Auqaf Department. It is no one's case that it is not so owned. Khaliq Raza Khan's case would not be of much help to the respondent No, 1 or even to the petitioner because in that case, the Government had leased the land to the landlord who could sublease it to a Petroleum Company even without permission of the Government and which is what he did. It was in that context of facts that it was held that such sub-lessee was landlord. In the present case the property is owned by Government and nothing whatsoever has been placed on record to establish that the Auqaf Department or the Provincial Government authorized or entitled, the respondent No,l to give on rent the leased shop in question. Therefore in my view Ejectment Application of the respondent No,l was not maintainable under section 3(1) of Sindh Rented Premises Ordinance, 1979, because the provisions of the Ordinance in terms of that section are not applicable to the premises in question.
' In view of answer to the above first question, the second question framed by my learned brother need not be answered.
' However, in terms of the judgment of the Honourable Supreme Court in Khaliq Raza Khan's case, if tenant or lessee is authorized to sublease or sublet the premises, then in that eventuality the tenant can maintain an application against the subtenant.
The two Courts below have recorded findings of fact and have ordered his Ejectment. This was a question of fact conclusively determined by the two Courts below and learned counsel has not been able to point out any infirmity in the orders of the Courts below.
' The shop was originally numbered 169. It was changed to 2 and finally to 16-A. On the one hand before Chief Administrator Auqaf petitioner carried a dispute with respect to shop 169; he filed suit for Shop No,2 and now claims that there is no shop by number 169, his changing stance does not lend credence to his claim.
The point of law is trite: In constitutional jurisdiction, it is the justice which is to fostered and cause of justice is to be advanced. Constitutional jurisdiction cannot be invoked for perpetuating a wrong or to aid injustice. The petitioner has failed to produce any single document that he was the tenant of Auqaf Department. The two Courts below conclusively held that petitioner is a tenant of respondent No,l and respondent No,l was no person to sublet or part with its possession. Above discussion has led me to the conclusion that neither was Ordinance of 1979 applicable to the shop in question nor was the respondent No,l landlord as defined in the law. The shop in question is a public property. The petitioner is not entitled to it because he has never been a tenant of Auqaf Department and respondent No,l is not entitled to it because he cannot maintain Ejectment application in view of section 3 of the Sindh Rented Premises Ordinance, 1979. It would be wrong to put respondent No,l in possession because respondent No,l sublet the premises admittedly and without permission of the owner of the suit property, he thus parted with possession of the premises. In this view of the situation it is ordered that property be got vacated and Auqaf Department to take over the shop. Thereafter Auqaf Department may let out the shop in accordance with the rules and that too in the best interest of public exchequer. This writ petition is disposed of in the above terms.