ORDER GHULAM SARWAR KORAI, J. This petition has been filed by the petitioners against the Judgment dated 7-11-2008, passed by the Court of learned IIIrd Additional Sessions Judge, Karachi South in F.R.A. No.115 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 IInd Rent Controller, Karachi South, in Rent Case No.517 of 2001 was set aside.
2. The facts of the rent application stated by the petitioners are that they are collectively and jointly sole owners of the premises bearing Office No.9, IInd Floor, located towards M.A. Jinnah Road, MR- 1147-148, Marriot Road, Karachi. It was in the name of Habib Haroon, who was husband of petitioner No.2 and father of petitioners Nos. 1, 3 and 4. He died on 11-3-1989. The demised premises originally was taken on rent by the father of the opponent/respondent No.1 from Late Habib Haroon on monthly rent of Rs.424 per month without any advance/fixed deposit. After the death of Habib Haroon, the Karachi Municipal Corporation issued renewed lease for 99 years in their names on 14- 9-1999. Prior to rent application, the petitioners filed Rent Case No. 1209 of 1998 against' the opponent/respondent No.1 for fixation of fair rent and fair rent was fixed at the rate of Rs.3000 per month but the opponent/respondent No.1 failed to pay the same and filed F.R.A. No.1409 of 2000.
During the pendency of the appeal, the petitioners filed Rent Case No.517 of 2001 against the respondent No.1 on three grounds namely the demised premises is required in good faith for their on use occupation and in connection of establishment of an office for their partnership trading concern namely Messrs Wasatch Pakistan Trading which is duly registered with the Registrar as the petitioners/applicants are well versed in the business of textile herbal cosmetics, wooden furniture and handicraft and the demised premises was required to the applicants/petitioners to use the same as Store Room for textile samples. The petitioners/applicants further stated in the rent application that the entire building is required to them for business; therefore, it has been ejected from other tenants also except 6/7 including the present respondent No. 1/opponent against whom ejectment applications are pending before the competent Court of law. Second ground of the rent application was that the respondent No.1/opponent has not paid the charges of water and conservancy levied by the Karachi Water and Sewerage Board of the demised premises since last about four years, therefore, the petitioners sent notices to the respondent No.1/opponent through their counsel on 17-11-2000 but received no response. Third ground of the rent application is that the respondent. No.1/ opponent is not using the demised premises, therefore, it has, impaired the material value and utility of the demised premises in terms of section 15(2) IV of SRPO, 1979 and in the rent application' they prayed that the respondent No.1/opponent may be directed to hand over the vacant and peaceful possession of the demised premises to the petitioners/applicants so also be directed to deposit the arrears of rent on account of water and conservancy charges from the month of July, 1997 to onwards.
3. After service, the opponent/ respondent No.1 filed written statement by admitting that the demised premises was taken by his father from Late Habib Haroon at the monthly rent of Rs.175 per month and an amount of Rs.80,000 was paid by him on account of Pugri. He denied in his written statement that initially the rate of rent was Rs.424 per month. He further stated in the written statement that he is an old tenant. The premises is situated in the pugri yielding area and the demised premises is taken by him on the basis of pagri/goodwill. He also denied the personal bona fide need of the petitioners/applicants by stating that lease of the premises has expired during the life time of Habib Haroon and it has riot been renewed and the petitioners/applicants are not owners of the demised premises as such payment of water and conservancy and other charges does not arise. He also denied the original documents and Lease Deed of the petitioners/applicants. He also denied the partnership deed of the petitioners/applicant by alleging that the same is forged document and had been filed only in order to harassing him. He further stated in the written statement that applicants/petitioners have no intention to establish a store as in the same building 18 to 20 shops are lying vacant and are in possession of the applicants/petitioners. The building is constructed ground plus three and entire third floor is lying vacated. He further stated in the written statement that the applicants/petitioners are constructing flats on third floor and the applicants/petitioners Nos.3 and 4 namely Yousuf Habib and Faisal Habib are citizens of United States of America and settled their, therefore, the demised premises is not required to them for their personal bona fide need. He further stated in his written statement that in the year 1995 he was paying rent at the rate of Rs183 per month and R.202 towards water and other taxes. Such receipts were issued to him and thereafter the same were merged in the rent and therefore started to issue the receipts without mentioning the amount as water and conversancy charges and he is depositing the rent including water and Conservancy charges i.e.f.
June, 1998 to 30-6-2001 and it has been withdrawn by the petitioners from the Court, therefore, no question of default in water and conservancy charges arises on the part of the respondent No. 1. He also denied that the demised premises is lying locked and its value and utility has been impaired.
He also stated in his written statement that the premises in question is inherited property/sakafati virsa, therefore, the petitioners/applicants are not owners of the property and have filed false applications. Lastly he prayed that rent application may be dismissed.
4. Affidavit-in-evidence was filed by Mrs. Feroz Afaq, petitioner No.1/applicant No.1, she was examined. She produced certain documents vide Exh.A-1 to A-12 and was cross-examined. Then side of the petitioners/applicants was closed, thereafter the affidavit-in-evidence was filed by the opponent/respondent No.1. He produced rent receipts as Exh.O-1. He was cross-examined then side of the of the opponent/respondent No.1 was closed.
5. From the pleadings of the parties, following points were framed for determination:--
(i) Whether the applicants required 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 onwards?
(iii) What should the order be?
6. In the finding, Points Nos.1 and 2 were decided in Affirmative and in Point No.3 ejectment application was allowed. That order was challenged in F.R.A. Vide No.115 of 2007 and vide Judgment dated 7-11-2008 passed by the Court of learned IIIrd Additional Sessions Judge, Karachi South, the appeal of the respondent No.1/ opponent was allowed and order of the Rent Controller was set aside and that judgment is impugned in the present constitutional petition.
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.MR-1-147-148, Marriot Road, Karachi and on the application of petitioner No.1, the lease of the said plot was renewed for 99 years by the Assistant Commissioner South Karachi vide 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 Showroom and store room of the textile samples 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 fide 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 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 fide need and default in payment of water and conservancy charges for four years from the month of July, 1997 thus the petition is liable to be allowed, judgment of the appellate court is to be set aside and order of the trial Court be maintained.
9. Mr. Asim Iqbal, 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 fide need and is not required 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 1:nd 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 1st or 2nd floor 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 Bona (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 Ltd. 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 Legal 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 office. Their lease was renewed for 99 years commencing from 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 Logh 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 this 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 No.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 witnesses. 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. Throughout in her evidence she had admitted that the respondent No.1 is not defaulter in payment of rent except for the period of July, 1997 and onward 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. 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 he 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 Shop Nos.3, 4, 5, 6, 7, 8, 9, 12, 13, 14,. 15, 16, 17 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 them to establish their business only in the shops which were got vacated by them from the other tenants except the office 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 required them for their personal bona fide need as they are doing business under partnership deed in the name of Wasatch Pakistan Ltd. They also succeeded to establish that respondent No. 1/opponent is defaulter for water and conservancy charges, 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 maintained..