' SYED HASAN AZHAR RIZVI, J.--- Through the instant Constitutional Petition the petitioner has impugned the order dated 11-7-2008 passed by the learned IXth Rent Controller, Karachi-South and the order dated 22-12-2008 passed in F.R.A. No,144/2008 by the IIIrd Additional District Judge, Karachi-South. Both the Courts concurrently held that the subject premises is required to the respondent No,3 for their personal bonafide requirement in good faith while the Rent Controller declared the point of sub-letting in negative against the landlord/ respondent No,3. Respondent No,3 did not challenge those findings, of the Rent Controller, which attained finality.
2. Brief facts of the case are that the petitioner is occupying shop on the ground floor in Anklesaria Hospital, Garden Road, Karachi facing main Garden Road, close to the staircase of the hospital.
According to the'petitioner that shop had been acquired by the petitioner after payment of huge amount of Pugri as per prevalent market practice in that area to the then management/trustees of Goolbanoo and Dr. Burjor Anklesaria Nursing Home and he is paying monthly rent at the rate of Rs,150/-. Petitioner was peacefully carrying on business of medical store in the name of Khan Medicos in the subject shop since 1994. The petitioner supplied/sold medicines from his medical shop to the respondent No,3, who paid the amount of the medicines to the petitioner through cheques. Petitioner paid income tax, the National Tax Number certificate was issued by the concerned department to the petitioner at the address of the petitioner's shop in the name of Khan Medicos. Drug licence of the petitioner was also issued on the address of the subject shop by the competent authority. Petitioner was peacefully carrying on his business in that shop, paying monthly rent as well as electricity charges to the respondent No,3. But since 2003 the alleged Chief Trustee of respondent No,3 started harassing the petitioner and asked him to vacate the shop. On 6-1-2004 the alleged Chief Trustee of the respondent No,3 sent gundas on the shop of the petitioner for illegal and forcible eviction of the petitioner from the subject shop. Petitioner filed Civil Suit No,39/2004 for permanent injunction against the respondent No,3 in the Court of 5th Civil Judge, Karachi-South. On 21-1-2004 5th Civil Judge. Karachi-South dismissed the injunction application.
3. Being aggrieved with the aforesaid order petitioner filed C.M.A. No,1 of 2004 in the Court of District Judge, Karachi - South and on 24-1-2004 a counsel was appeared for and on behalf of present respondent No,3 in that C.M.A. Stated that the disputed premises was rented out to Garden Photostat and not to the present petitioner, they denied the relationship of -tenant and landlord between the present petitioner and respondent No,3 and stated that respondent No,3 intended to eject the present petitioner after adopting due process of law. On that statement counsel for the present petitioner did not press said appeal, which was disposed of as not pressed in January, 2004.
4. Present petitioner filed the Miscellaneous Application No,51 of 2004 in the Court of 1st Rent Controller,. Karachi-South against the present respondent No,3 under section 11(2) of the Sindh Rented Premises Ordinance, 1979 whereby he sought direction from the Court of Rent Controller for restoration of the electric supply of the subject premises as the electricity of the shop was disconnected by the respondent No,3 on 13-1-2004 without any lawful justification, as a result thereof the precious life saving drugs lying in the Refrigerator and freezer in the subject shop were in great danger for patients. On 24-5-2004 after hearing the counsel for the present petitioner and the respondent No,3, the 1st Rent Controller passed detailed judgment and allowed present petitioner's application under section 11(2) of the Sindh Rented Premises Ordinance, 1979 and directed the respondent No,3 to restore the electricity supply of the demised shop within 24 hours of that order.
5. The present petitioner had also filed Suit No,940/2004 in September, 2004 against the present respondent No,3 in the Court of 1st Senior Civil Judge, Karachi-South for recovery of Rs,1,32,687/- with markup, for the amount of which the present despondent No,3 purchased various medicines for their indoor patients as well as for staff of the hospital and failed to repay the amount of the same. Present respondent No,3 contested aforesaid suit. However, on 31-3-2008, 1st Senior Civil Judge, Karachi South decreed that suit in the sum of Rs,1,32,687/- in favour of the present petitioner and against the present respondent No,3. Present respondent No,3 filed appeal against the judgment and decree, which was dismissed.
6. After about five months from passing of judgment in Rent Case No,51 of 2004 by Ist Rent Controller, Karachi-South on 24-5-2004 in favour of the present petitioner, the respondent No,3 filed Rent Case No,819 of 2004 against the present petitioner, Muhammad Yahya Kazmi and Lim Meherjina on the grounds of personal bonafide need in good faith for extension of laboratory as the subject shop is just adjacent to the laboratory of the respondent No,3. Ejectment application was filed under section 15(2) of Sindh Rented Premises Ordinance, 1979 by one Dr. Zarksis H.
Anklesaria, claiming to be the trustee of the applicant (present respondent No,3). However, no copy of the Trust Deed of the applicant's Trust or any authority/ resolution of the Trust was filed with ejectment application, or produced subsequently. Present petitioner filed -written statement before the Rent Controller in that Rent Case and had taken preliminary objections against the competency of Dr. Zarksis H. Anklesaria. It was further stated that the present petitioner, who was opponent No,3 in that Rent Case was the tenant of the demised shop since 1994. It was also stated that since January, 2004, the Trustees and officials of the respondent No,3 on one pretext or the other were trying to get the demised shop vacated forcibly from the present petitioner and respondent No,3 had disconnected the electricity supply of the petitioner's shop. All those facts were establishing that the demand of the applicant/present respondent No,3 for personal use was not bona fide but the entire case of the applicant was based on mala fides and ulterior motives.
Trustees and officials of the present respondent No,3 had developed personal grudges, whims and conjectures against the present petitioner, were interested not only to get shop vacated from the present petitioner on one pretext or the other without any lawful justification.
On behalf of the respondent No,3 affidavit-in-evidence of Dr. Zarksis H. Anklesaria and Dr. Maqbool Aziz were filed, who were cross-examined by the counsel for the present petitioner and other opponents. Present petitioner had also filed his personal affidavit-inevidence and he was cross- examined by the counsel for the present respondent No,3. Opponent No,2 in Rent Case No,819 of 2004 had also filed kr affidavit-in-evidence and he was cross-examined however, Muhammad Yahya Kazmi the opponent No,1 did not file his affidavit-in-evidence. The trial Court framed following points for determination :---
(1) Whether opponent Nos.1 and 2 have subletted the case premises to opponent No,3?
(2) Whether applicant requires the case premises for personal use for extension of laboratory as the said shop is just adjacent to the Laboratory ?
(3) What should the order be?
8. The Trial Court answered issue No,1 in negative, which was decided in favour of the present petitioner, on the basis of record and findings of the learned 1st Rent controller, Karachi-South, in the earlier round of litigation between the parties, where it had already been held that the opponent No,3, the present petitioner was tenant and therefore, the Trial Court had decided point No,1 in favour of the present petitioner. However, the Point No,2 was decided against the present petitioner and the trial Court observed that mere pendency of earlier litigation would not affect the application which was filed on the ground of personal bona fide requirement in good faith and had held that the applicant (present respondent No,3) had succeeded in proving their personal bonafide requirement in respect of the demised premises without any shadow of doubt.
9. Present petitioner filed First Rent Appeal in the Court of District Judge. Karachi-South bearing F.R.A. No,144 of 2008 against the Order of the IXth Rent Controller, Karachi-South passed in Rent Case No,819 of 2004 and on 22-12-2009 the IIIrd Additional District Judge, Karachi-South dismissed the said Appeal, hence this petition.
10. Mr. Khawaja Shamsul Islam learned Counsel for the petitioner contended that despite the fact that the petitioner challenged the competency of Dr. Zarksis H. Anklesaria being trustee of G Goolbanoo Burjor Anklesaria Charitable Trust for the reason that neither copy of the Trust Deed of respondent No,3 has been placed on record by the respondent No,3/applicant nor any resolution/authority letter signed by the trustees along with the ejectment application was filed.
Learned Counsel for the petitioner further contended that both the trial Court as well as Appellate Court have failed to appreciate that the ejectment application was signed and filed by an unauthorized person, which was based on bad-faith, in view of the series of illegal actions and tactics adopted by the respondent No,3 to dispossess the petitioner in earlier litigations in respect of same premises. It was urged by the counsel for the petitioner that the respondent No,3 is already in possession of sufficient space where laboratory is already functioning but the trial Court as well as Appellate Court did not examine the fact that the existing area of the shop in possession of the petitioner is only 12x7 square feet. Whereas the laboratory is functioning in the hospital of respondent No,3 over the space of about 25x30 square feet. He further argued that location of the demised shop is in such a position that same cannot add any useable space to the laboratory until and unless other shops in which doctors are running clinics are also vacated. Learned Counsel for the petitioner submits that the petitioner fully established that the alleged need of the respondent No,3 was not "bona fide" but based on "mala fide".
11. Conversely, Mr. K.A. Wahab learned Counsel for the respondent No,3 submits that there is concurrent findings against the petitioner by the trial Court as well as Appellate Court. He has further submitted that not a single ground has been taken in the memo. Of petition about the authority of Dr. Zarksis H. Anklesaria. He further submits that plea not raised should be disallowed by this Court. He placed reliance upon 1970 SCM R 471, 1994 CLC 1487, 1999 CLC 892 and 2003 M LD
131. He further submits that against the concurrent findings of facts nothing has been argued and has placed reliance upon 2006 CLC 379. He further contends that neither findings of the trial Court as well as Appellate Court are perverse or any illegality or jurisdictional error has been pointed out in the present petition. He further submits that High Court in its writ jurisdiction cannot go into disputed questions of facts. He further urged that personal requirement is the pre-requisite of the landlord since in. Between the shop of the petitioner and the laboratory only a wall is standing therefore, shop is most appropriate for the purpose of taking into the laboratory after removing the wall. Learned counsel for the respondent No,3 has also argued that earlier litigation between the parties was pending but same has no relevance. He also submits that no doubt that the Appellate Court in its judgment mentioned that the learned trial Court has given its findings on Points Nos.1 and 2 in affirmative but no finding has been given by the trial Court in respect of Point No,1, which had already been answered in affirmative in favour of the Petitioner by the Trial Court. Mr. Khadim Ali Metlo Advocate appearing for respondent No,3, adopts the arguments of Mr. K.A. Wahab Advocate for respondent No,3.
12. In rebuttal Mr. Khawaja Shamsul Islam learned counsel for the petitioner submits that specific plea about the maintainability of the ejectment application has been taken in the written statement filed by the petitioner in the trial Court.
13. I have heard Mr. Khawaja Shamsul Islam learned counsel for the petitioner. Messrs K.A. Wahab and Khadim Ali Metlo Advocate for the respondents No,3 and perused the relevant record with the assistance of the counsel for the parties.
14. Respondent No,3 filed the ejectment application on 12-8-2004 after about three months when the 1st Rent Controller allowed the Rent Case No,51 of 2004 filed by the present petitioner for restoration of electricity and directed the present respondent No,3 to restore electricity supply of the subject shop within 24 hours. From the record it reveals that present petitioner had also filed Suit No,39 of 2004 in the Court of Vth Civil Judge, Karachi-South for injunction against the respondent No,3 on 9-1-2004 that the present petitioner may not be illegally dispossessed by the defendant/respondent No,3 without due course of law. On 6-1-2004 one Roshan Anklesaria Trustee of the respondent No,3 asked the present petitioner to vacate the shop and on the same date he along with gundas went to the shop and gave threats of illegal eviction to the petitioner forcibly. On 21-1-2004 injunction application was dismissed in that suit. Petitioner filed C.M.A. No,1 of 2004 before the Court of District Judge, Karachi-South against the order and on 24-1-2004 learned District Judge, Karachi-South passed order in presence of the Counsel for respondent No,3 when the counsel for respondent No,3 made an statement that the present respondent No,3 not intend to eject the petitioner after due process of law. On that statement the petitioner did not press the appeal, the same was disposed of as not pressed. Thereafter, the respondent No,3 concealed 'and suppressed in ejectment application filed in Rent Case No,819 of 2004 the facts and circumstances under which petitioner filed Suit No,39 of 2004, C.M.A. No,1 of 2004 and Rent Case No,51 of 2004 against the respondent No,3 and simply referred the case numbers.
15. Along with the Rent Case No,819 of 2004 filed by the respondent No,3 against the present petitioner no authority letter/resolution authorises the Dr. Zarksis H. Anklesaria to file any Rent Case against the present petitioner had been filed. Although in the written statement the present petitioner took preliminary objection that Dr. Zarksis H. Anklesaria, through whom Rent Case had been filed, was not competent to file that Rent Case without any resolution or authority having been given by the members of the Trust. The Trust Deed of the Respondent No,3 had not been filed at the time of filing of the Rent Case No,819 of 2004 or even has not been filed subsequently.
However, Dr. Zarksis H. Anklesaria, who has filed the Rent Case, his affidavit-inevidence before the Trial Court, admitted in his cross-examination that he had not filed Trust Deed along with affidavit- in-evidence or with ejectment application in Rent Case. He voluntarily submitted that he can produce if required but did not produce the same. However, along with his affidavit-in-evidence photostat copy of the resolution and minutes of meeting filed as Annexure "A/1" and the original of the same was not produced by the respondent No,3 at the time of his evidence or thereafter by Dr. Zarksis H. Anklesaria therefore, photocopy of the same is not admissible in evidence. In his cross- examination Dr. Zarksis H. Anklesaria admitted before the Trial Court admitted that Annexure "A/1" does not mention about Anklesaria Nursing Home and does not speak about the Khan Medicos (medical shop, which is being run by the Petitioner and for that Rent Case was filed by the respondent No,3).
16. The honourable apex Court in the case of Habib Bank Limited v. Zelins Limited and another reported in 2000 SCM R 472 held that:--- "If objection was raised about the competence of the officer of the Bank instituting the ejectment proceedings against the tenants of the Bank, burden fell upon the Bank to establish that the person instituting the ejectment proceedings was authorized by the Bank in that behalf---Where such burden was not discharged by the Officers of the Bank, at any stage of the proceedings, view taken by the High Court and the Rent Controller that the application for ejectment in circumstances were not maintainable was unexceptionable.
' Rent Controller; in fact, had not found that he had no jurisdiction in the cases, what he had held was that it had not been established that persons instituting the cases had requisite authority".
17. In another case of Messrs A.M. Industrial Corporation Limited v. Aijaz Mehmood and others reported in 2006 SCM R 437 the honourable apex Court held that:-- "Appellate authority dismissed ejectment application of petitioner-company on sole ground that person who signed the ejectment application was not authorized by petitioner-company through a resolution of Board of Directors nor any Power of Attorney was executed in his favour for institution of ejectment proceeding Person, who instituted ejectment proceeding on behalf of the company being not duly authorized, no legal defect or error of jurisdiction was found in the view taken by High Court, which was not open to any exception---Petition for leave to appeal was dismissed".
18. In view of the dictum laid down by the honourable Supreme Court of Pakistan I hold that in the instant case objection was raised about the competency of the trustee of the Trust instituting ejectment proceeding under the Rent laws against the tenant of the Trust, burden falls upon the Trust to establish that the person instituting ejectment proceeding was authorized by the Trust in that behalf. In the instant case neither the alleged Trustee of the respondent No,3 filed the Trust Deed before any of the Court nor any authorization/resolution to file ejectment case had been filed in the Court of Rent Controller or Appellate Court Mere filing a photocopy without production of the original, which had not specifically authorised the alleged Trustee to file ejectment proceeding against the petitioner cannot be considered and relied upon. Hence, the Respondent No,3 had not discharged the burden that Dr. Zarksis H. Anklesaria had authority to file the Rent Case.
19. Respondent No,3 had filed ejectment application/Rent Case against the petitioner on two grounds i,e,, sub-letting and personal bona fide requirement. Point of sub-letting has been decided by the trial Court against the respondent No,3 and no Appeal has been filed by the respondent No,3 against the said findings of the Rent Controller on the ground of sub-letting. Therefore same attained finality and only ground remains is the personal bona fide requirement. As stated above, before filing the Rent Case. The petitioner had filed Suit for injunction and Rent Case before the Rent Controller under section 11 of the Sindh Rented Premises Ordinance, 1979 for restoration of the electricity, which had been allowed in favour of the Petitioner, copy -of judgment is available on record as Annexure "DR " at page 83 with the Memo of Petition.
20. Dr. Zarksis H. Anklesaria in his cross-examination stated that it is correct that opponent filed Rent Case for restoration of light .It is correct that I have filed F.R.A. Against the order and the same was dismissed" . Dr. Mir Maqbool Aziz a witness of the respondent No,3 before the trial Court had also filed his affidavit-in-evidence before the trial Court and during cross-examination, he has stated that "it is correct that Anklesaria Hospital disconnected electricity of opponent No,3 (present petitioner). It is correct that Opponent No,3 (present Petitioner) had filed Rent Case for restoration of the electricity in the Court and the Court has restored the electricity of the opponent No,3 (present petitioner).1 do not know that why Anklesaria Hospital disconnected electricity of the opponent No,3 (present petitioner) It is correct that applicant (present respondent No,3) adopted illegal methods to dispossess the opponent No,3 (present petitioner) from the demised premises and thereafter, applicant (present respondent No,3) filed suit on the ground of personal bona fide need".
21. Honourable apex Court in the case of Bahir Ahmed v. Messrs Roots School Netword and others reported in 2011 SCM R 290 has held that while exercising, constitutional jurisdiction under Article 199, the High Court will not make factual determination or interfere in orders passed by the competent Courts vested with statutory powers in the exercise of their functions, unless there is jurisdictional error or other legal infirmity such as arbitrariness etc. In the order assailed before the High Court.
22. I have extensively quoted the plea as well as the evidence of the parties hereinabove. It is well- settled that the landlord has the option to seek ejectment of his tenant for his personal use but the personal use of the landlord is clipped with the words "good faith". The word "good faith" has been dealt with by Hon'ble Supreme Court in the case of Mst. Sara Bai v. S. Anisur Rehman (1989 SCM R 1366). Honourable Supreme Court incorporated the definition of "good faith" in West Pakistan General Clauses Act.
1956. Which reads as follows:--- "A thing shall be deemed" to be done in good faith where it is in fact done honestly whether it is done negligently or not."
23. In order to ascertain whether good faith is established on record, following the dictum of the Hon'ble Supreme Court, the Court has to probe the record and to find out whether honest intentions are available, and spelled out from the record itself. This is all the more needed as word "good faith" is not defined in the Sindh Rented Premises Ordinance, 1979. Apart from above definition "good faith" has been given dictionary meaning, which inter alia is as follows:--- "Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inter spirit and, therefore, may not conclusively be determined by his protestations alone."
24. Thus, it will be seen that apart from honesty, it is to be also ascertained that there is absence of malice and absence of design to defraud or to seek an unconscionable advantage. Mere desire, wish or whim on the part of the landlord, was not sufficient and adequate to justify the ejectment of a tenant on the ground of personal requirement.
25. The fact of the matter, however, remains that out of earlier round of litigation commenced by the different Trustees of the respondent No,3, before few months of filing, Rent Case under appeal the respondent No,3 illegally and unauthorrzedly disconnected the electricity of the petitioner's shop which had been restored by the orders of the Court and after three months of decision of the Rent Case No,51 of 2004, the respondent No,3 filed Rent Case No,819 of 2004 against the petitioner through Dr. Zarksis H. AnkleSaria without having authority or any resolution passed in his favour by the Trustees of the respondent No,3. Even, the Trust Deed of respondent No,3 was not produced before the trial Court or the Appellate Court. No resolution/authOrity letter in original had been produced thereby authorising Dr. Zarksis H. Anklesaria to file Rent Case against the present petitioner for ejectment from the subject shop. These undisputed facts and circumstances smack foul play on the part of the respondent No, 3 and their requirement cannot be considered to be bona fide and in good faith. Ordinarily, a landlord has the right and privilege to use his property in the manner he likes but the requirement of law is that when he seeks to uproot an old tenant he must come to Court with clean hands and to establish his requirement in perfect good faith and bona fide. Mere desire, wish or whims on the part of the landlord have never been considered to be sufficient and adequate to justify the eviction of a tenant on the so-called ground of personal requirement.
26. As regards to the submissions of the learned Counsel for the respondent No,3 that no ground about the authority of Dr. Zarksis H. Anklesaria has been taken in the Memo of Petition and the plea not raised should be disallowed by this Court. In Ground-B of the memo. Of petition the petitioner has taken such plea specifically. With regard to the contention of the learned counsel for the respondent No,3 that the findings of the Trial Court and the Appellate Court are neither perverse nor having any illegality or jurisdictional error. I have carefully gone through the record as discussed above and has found that there, are glaring illegalities in non-reading and misreading of the evidence by both the Trial Court and the Appellate Court. Both Courts have erred by not considering the fact taken at preliminary stage that Dr. Zarksis H. Anklesaria who had filed Ejectment Application/Rent Case before the Trial Court had no authority/resolution of the Respondent's Charitable Trust to file the Rent Case. Even Dr. Zarksis H. Anklesaria in his cross- examination before the Trial Court stated that he can produce the Trust Deed if required but failed to produce the same and on failure of the respondent No,3 to produce Trust Deed the names of the trustees of the respondent No,3 cannot be ascertained and therefore, photocopy of the resolution filed by Dr. Zarksis H. AnkleSaria with his affidavit-inevidence before the Trial Court, which is not admissible has no value or sanctity. Both Courts the Trial Court and the Appellate Court have committed jurisdictional error by not giving any findings on the authority of Dr. Zarksis H. Anklesaria of filing the Rent Case. The contention of the learned counsel for respondent No,3 that earlier litigation between the parties has no relevance is not acceptable as the respondent No,3 was trying to dispossess the petitioner by adopting illegal and unauthorized methods for that the counsel for the respondent No,3 made statement in CMA No,1 of 2004 filed by the petitioner before the District Judge, Karachi-South that they intends to eject the petitioner after adopting due process of law. Respondent No,3 admittedly disconnected the electricity of the petitioner's shop and the petitioner filed Rent Case No,51 of 2004 before the Ist Rent Controller, Karachi-South, which was allowed and respondent No,3 was directed to restore the electricity supply of the demised shop within 24 hours. With regard to the contention of the learned counsel for the respondent No,3 that there is concurrent findings of facts therefore, the petition is not maintainable has no force as I have carefully examined the findings of both the Courts and glaring irregularities, infirmities, illegalities misreading and non-reading of evidence and .Jurisdictional error are found in the orders of both Trial as well as Appellate Court.
27. In view of the facts and circumstances discussed above, I allow the petition, set aside the impugned order dated 22-12-2008 passed in F.R.A. No,144 of 2008 by the IIIrd Additional District Judge, Karachi-South and order dated 11-7-2008 passed in Rent Case No,819 of 2004 by the IXth Rent Controller, Karachi-South.