' GHULAM SARWAR KORAI, J.---This petition has been filed by the petitioners against the judgment dated 7-11-20(18. Passed by the Court of learned IIIrd Additional Sessions Judge, Karachi South in F.R.A. No,114 of 2007, whereby, the F.R.A. Of the respondent No,1 was allowed and order dated 28-3- 2007, passed by the Court of Ilnd Rent Controller, Karachi South in Rent Case No,516 of 2001 was set aside.
2. The facts of the case stated by the petitioners are that the petitioners collectively and jointly are sole owners of the premises bearing Shop No,1, MR-1-147-148, Marriot Road, Karachi, which was inherited to them by late Habib Haroon, husband of petitioner No,2 and father of petitioners Nos. 1, 3 and 4. Late Habib Haroon died on 11-3-1989. The demised premises originally was taken on rent by the opponents/respondent No,1 late father from late Habib Haroon on monthly rent of Rs,706 per month without any advance/fixed deposit/security. The demised premises was required to the petitioners for their personal bona fide use in order to establish their Showroom for their partnership trading concern namely Messrs Wasatch Pakistan Trading duly registered with the Registrar as the petitioners/applicants are well versed in the business of Textiles (yarn, woven and knitwear, printed and plain dyed), herbal cosmetics, wooden furniture and handicraft (marquetry and inlay) imports and exports general trading, contracting, indenting and wholesale and general retail. The demised premises bearing Shop No,1 was part of Shop No,2 was divided in the month of October, 1989 due to split up between the partners i,e, tenant of Shops Nos. 1 and 2. The respondent No,1/opponent constructed Mezzanine Floor being used as store room in the shop without seeking permission from the applicants/petitioners. This extra construction and weight has weakened the structure of the premises and has endangered the building. The applicants/petitioners further stated in their ejectment application that no other premises large enough to accommodate their substantial business is available to them except the premises in question and the entire building, which is particularly still in occupation of some other tenants also against whom they have tiled ejectment applications for eviction from the building, is required to them for their business. The applicants/petitioners mentioned in the ejectment application that opponent/respondent No,1 has failed to pay water and conservancy levied by Karachi Water and Sewerage Board in respect of premises bearing Shop No,1 for the last four years, therefore, a Notice dated 17-11-2000 was sent to the respondent No,1/tenant by the applicants/ petitioners through their counsel by demanding the payment of the charges. The petitioners/applicants prayed to direct the opponent/ respondent No,1 to hand over the vacant and peaceful possession of the demised premises and also to deposit the arrears of water and conservancy charges in respect of the premises from the month of July, 1997 and onwards.
3. After service, the opponent/respondent No,1 filed written statement by admitting that initially the demised premises was taken by his father from late Habib Haroon at the rate of Rs,30 per month and grand father of the opponent/respondent No,1 paid Rs,2,50,000 to late Habib Haroon. He further stated in the written statement that in the year, 1996, he paid rent at the rate of Rs,440 per month and Rs,202 as water and other taxes to the petitioners/applicants. Such rent receipts were issued but later on the petitioners/applicants merged the water and conservancy charges in the rent and rent receipts were issued without mentioning the water and conservancy charges and now he is depositing the rent with water and conservancy charges at the rate of Rs,706 per month in the court w,e,f, 30-6-2001 and has been withdrawn by the applicants/petitioners therefore there is no outstanding amount of the water and conservancy charges. He further stated in the written statement that he is an old tenant. The lease was expired in the year, 1974 and was not renewed, therefore, question of water and conservancy charges and other charges does not arise. He also denied the personal bona fide need of the demised premises by the applicants/petitioners by stating that the applicants/petitioners have no intention to establish any show room. He further stated in the written statement that the applicants/ petitioners have 18 to 20 show rooms lying vacant and they can easily start their business. He further stated in written statement that the building is constructed ground plus three storeys and entire third floor is lying vacant and is in possession of the applicants/petitioners and they are constructing flats on the third floor. He .Further stated in the written statement that several offices on the first floor and second floor are lying vacant and are in possession of the applicants/petitioners, therefore, they can start their business on the second floor and on other floors. He further stated in the written statement that the petitioners have taken the possession of shop vacated by Pakistan Battery Manufacturer/Medpark Enterprises, on the payment of Rs,600,00 as pugri. He denied the construction of mezzanine floor in the shop by stating that though dochatti was constructed but with the permission of late Habib Haroon. He further stated in his written statement that the applicants/petitioners are owners of so many other buildings located in Karachi. He lastly stated in the written statement that he is depositing rent at the rate of Rs,706 per month including water and conservancy charges in the court, therefore, he has committed no default and the premises is not required for personal bona fide need of the applicants/petitioners for starting their business as the petitioners Nos.2 and 3 are American citizens and doing their business and are residing permanently there while the applicant No, 1/petitioner No,1 is an old lady and applicant No,4 is already running business at Defence, Sadder and Gizri and is owner of many buildings in Karachi. He also stated in the written statement that the property in question is declared as Leak Virsa by the Government of Sindh vide Notification.
No,S.O-1/CTS and YAD, 4-99/95 and therefore the applicants /petitioners are not owners of the building. Hence they have no cause of action for filing the rent application and the Rent Controller had no jurisdiction to entertain the rent application.
4. After filing the written affidavit in evidence was filed by Mrs. Feroz Afaq, petitioner No, 1/applicant No,1 so also by the respondent No,1/opponent.
5.
From the pleadings of the parties, following points were framed for determination:-
(i) Whether the applicants require the premises in question in good faith for establishing their business?
(ii) Whether the opponent has committed default in payment of water and conservancy charges from July. 1997?
(iii) Whether the opponent has impaired the utility and value of the premises by constructing mezzanine floor in the shop without obtaining prior permission of applicants?
(iv) What should the order be?
6. In the finding; Points Nos.1, 2 and 3 were decided in Affirmative and in Point No,4 ejectment application was allowed and respondent No,1 was directed to hand over the vacant and peaceful possession of the shop to the applicants/petitioners within 60 days. This order of the trial court was set aside by the appellate court through impugned judgment.
7. Heard Mr. Ali Mumtaz Shaikh, learned counsel for the applicants/petitioners and Mr. Asim Iqbal, learned counsel for respondent No,1/opponent.
8. Learned counsel for the petitioners/applicants contended that late Habib Haroon, father of petitioners Nos.1, 3 and 4 and husband of petitioner No,2 was owner of the demised premises and after his death, the petitioners being legal heirs became owners of the property. He further contended that the demised premises is situated on Plot No,MR1-147-148, Marriot Road, Karachi and on the application of petitioner No,1, the lease of the said plot was renewed for 99 years commencing from 2nd January. 1974 by the Assistant Commissioner South Karachi vide Letter No,CTS/CS-2/2483/99 dated 14-9-1999. He further contended that the petitioners through Deed of Partnership dated 20-1-2001 started joint business under the name and style of WASATCH PAKISTAN TRADING as they being good experienced of all textiles yarns, made up items for hospital, restaurants, laundries and kitchens, made up garments (woven and knitwear), herbal cosmetics, household furniture including marquetry, inlay, imports and exports general trading, contracting, indenting and wholesale and general retail. He further contended that the applicants/petitioners need to establish Show room of their business and therefore entire building is required to them for that purpose and have got vacated all the shops/offices from the tenants except 6/7 against whom the rent applications for their eviction are pending, therefore, the demised premises is required for their personal bona tide need. He also contended that the opponent/respondent No,1 has not committed default in the payment of rent but is defaulter in water and conservancy charges for four years and he had not produced any document with his written statement to show that the same was paid by him. He further contended that the opponent/respondent No,1 is depositing rent with Nazir in MRC No,1162 of 1998 in the name of the applicants/petitioners by accepting them as his landlords. He also contended that if the property in question is listed for quami virsa then it is in between the petitioners/applicants and the concerned government department. The lease for 99 years from 1974 onwards has already been renewed in their names and is still intact. He lastly contended that since the petitioners have established their case for personal bona tide need and default in payment of water and conservancy charges for four years from the month of July, 1997 and the construction of mezzanine floor without obtaining prior permission from the applicants/ petitioners, thus the petition is liable to be allowed, judgment of the appellate court is liable to be set aside and order of the trial court to be maintained.
9. Mr. Asim lqbal, counsel for respondent No,1/opponent strongly opposed this petition on the ground that this court has no jurisdiction to entertain the constitution petition against the judgment passed by the appellate court in F.R.A., the petitioners/applicants are not owners of the property as the same property is listed for Quami Virsa by the concerned department, therefore, even Rent Controller was not competent to entertain the rent application. The water and conservancy charges were merged in the rent, hence the opponent/respondent No,1 is not defaulter for four years from the month of July, 1997 and onwards for non-payment of the same and the demised premises is not required to the petitioners/applicants for their personal bona tide need and is not required by them in good faith to establish their business as two of them have American nationality and admittedly are residing there in connection with their business while the petitioner No,1/applicant No,1 is an old lady and therefore. She is not of the age to establish and manage her business as stated in the rent application. He further stated that the petitioner No,1/applicant No, 1 filed transfer application before the District Judge, Karachi South on the ground that she being old lady is not in a position to attend the Court at Ist or 2nd floors of the building through stairs thus, it has been proved that while she is unable to attend her case in the Court situated on first or second floor of the building through stairs then how she can manage her business. He prayed that the petition being meritless be dismissed and judgment of the appellate court be maintained. He relied upon the cases of Faqir Muhammad and 8 others v. Abdul Momin and 2 others (PLD 2003 SC 594), Mst. Zainab v. Majeed Ali and another (1993 SCMR 356),, The Stool of Adansi v. The Stool of Brenase (PLD 1958 Privy Council 161), Fida Hussain v. Noor Muhammad Bana (1985 CLC 3014), Muhammad Hanif v. Mumtaz Ahmed (PLD 1986 Karachi 16), Raisuddin v.
Mashiatullah Khan through his Legal Heirs (1986 MLD 948), Noor Ahmad and another v. Khawaja Imran Ahmed (1988 CLC 1041), Mrs. Qamar Ahsan v. Mrs. Beguma Beg (NLR 1990 AC 526), Zaheeruddin v. Raiz Ahmed (1991 CLC 1512), Haji Gulab Baig v. Mst. Syeda Tayaba Ishtiaq (1991 MLD 1377), Capt. (RTD.) Allah Ditta v. Muhammad Siddique (1991 CLC 1881), Chilya Corrugated Board Mills Limited v. M. Ismail and others (1992 CLC 2524), Hafiz-ul-Haq v. Haji Abdul Mastan (PLD 1994. Peshawar 235). Mst. Zohra Bai and another v. Messrs Standard Industries Ltd. (PLD 1994 Karachi 209), Sher Afgan v. Shaikh Anjum Iqbal (1997 MLD 98), Muhammad Akram alias Akan v. Mst. Pathani through Heirs (2001 MLD 1037), Province of the Punjab through Secretary, Irrigation and Power Department v. Ch. Mehraj Din and Co. (2003 CLC 504).
10. I have also perused the file.
11: Admittedly, the petitioners being legal heirs of late Habib Haroon are owners of the demised shop. Their lease was renewed for 99 years commencing front 2nd July, 1974 by the Assistant Commissioner South Karachi vide Letter dated 14-9-1999 and that position 'is still intact. If the demised shop is listed as Loak Virsa by the Government of Sindh then it is in between the applicants/petitioners and the concerned department and the respondent No,1/tenant cannot take any advantage from that position. The petitioners/applicants have produced their deed of partnership in evidence while nothing has been produced by the respondent No, 1/opponent to rebut their deed of partnership. The petitioners have started their business in the name of Wasatch Pakistan Trading. They are paying income tax and are maintaining bank accounts, such documents are annexed along with their petition as well as produced in the evidence. Respondent No,1 has nothing to say in rebuttal. Admittedly, the rent application was signed by all the petitioners while affidavit-in-evidence was filed only by the petitioner No, 1/applicant No,1, as one of the applicants and she was cross-examined as well as respondent N6.1 filed his affidavit-in-evidence and he was cross-examined.
12. It is well settled principle of law that cases should be decided on the quality of evidence but not on the quantity of evidence. The petitioner No,1/applicant No,1 in her evidence as well as in her cross-examination succeeded to establish the case by deposing that the entire building is required to them to establish their business and have got vacated offices/shops from number of their tenants and ejectment applications are pending against 6/7 other tenants including respondent No,1. Through in her evidence she had admitted the respondent No,1 is not defaulter in payment of rent except for the period of July, 1997 and onward period of four years for water and conservancy charges though this point was denied by the opponent/respondent No,1 but he failed to produce a single document to show that he had paid the same. The applicants deposed that the Mezzanine Floor was made by the opponent/respondent No,1 in the year 1990 and denied the suggestion that her brother Faisal Habib received an amount of Rs,600,000 regarding bifurcation of the shops from respondent No, 1 . Even, respondent No,1 failed to produce a single document or any evidence to establish that an amount of Rs,600,000 was paid by him to Faisal Habib, one of the applicants. It was admitted by the applicant No,1/petitioner No,1 that the applicants Nos.2 and 3 are American National but the remaining two applicants can establish and manage their business in Pakistan and all the applicants mutually agreed in their partnership deed. Mst. Feroz Afaq Ahmed Khan admitted in her cross-examination that fair rent including water and conservancy charges and other taxes were fixed by the appellate court at Rs,2,500 per month but she is claiming default of the opponent/respondent No,1 for four years from the month of July, 1997 and onwards in respect of water and conservancy charges and respondent No,1/opponent has nothing to say that be is not defaulter of Water and conservancy charges. She admitted in her cross-examination that the property in question is listed as heritage property but it is in between the landlords and the concerned authority and respondent No, 1/opponent has not been authorized by the concerned department to retain the property in his possession because same has been listed Loak Virsa Property. She admitted in her evidence that tenants of Shops Nos.3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16. 17 were her tenants and have vacated their shops and handed over the possession to her but claim of the applicants/petitioners is for entire building is required to them for their business, therefore, it is not necessary for their business, therefore, it is not necessary for them to establish their business only in the shops which were got vacated by them from the other tenants except the shop in possession of the respondent No, 1 . The facts and circumstances of the case of the petitioners are quite distinguishable to the case-law cited by learned counsel for the respondent No,1. Since the petitioners have established in the evidence that the demised premises is require by them for their personal bona fide need. They are doing business under partnership deed in the name of Wasatch Pakistan Ltd. They are also succeeded to establish that respondent No, 1/opponent is defaulter for water and conservancy charges from the year 1997 and onward for four years and he made mezzanine floor without the consent of the landlords, therefore, I am of the view that Rent application of the petitioners was rightly allowed, therefore, this petition is allowed. The judgment dated 7-11-2008 of the appellate court is set aside and order of the trial Court dated 28-3-2007 is maintained.