' MUHAMMAD TASNIM, J.--- Through this petition the petitioner has challenged the judgment dated 23-9-2010 passed by learned V-Senior Civil Judge, Karachi-Central, in. Rent Case No,833 of 2009 and judgment dated 4-3-2011 passed by learned I-Additional District Judge, Karachi-Central in F.R.A. No,202 of 2010.
2. Brief facts giving rise to the present petition are that respondent No,1 filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979 (hereinafter called Ordinance 1979) against the present petitioner for his ejectment from House No,A-726, 1st Floor, Block 12, Federal 'B'
Area, Karachi, on the grounds of default and personal need. It was the case of respondent No,1 that initially petitioner entered into a tenancy agreement with the husband of respondent No,1 who was landlord at the relevant time respondent No,1 further stated in the ejectment application that the building in which premises in question was located was gifted out to her by her husband through a registered gift deed dated 17th January, 2009. In April, 2009 respondent No,1 sent intimation notice under section 18 of Ordinance, 1979 for change of ownership and asked the petitioner to pay monthly rent to her. It was further case of respondent No,1 that other tenants were also served with notice under section 18 of Ordinance, 1979 and all other tenants started paying rent to respondent No,1 but present petitioner refused to accept the notice under section 18 of Ordinance, 1979. Since petitioner committed wilful default in payment of monthly rent and premises in question was required by respondent No,1 for her own bona fide need she filed Rent Case No,833 of 2009 before the learned V-Rent Controller, Karachi- Central.
3. After service of notice present petitioner filed his written-, statement raising number of pleas therein and contended therein that rent application filed by respondent No,1 was not maintainable.
It was also pleaded that there was no relationship of landlord and tenant between respondent No,1 and the present petitioner hence proceedings were not maintainable. It was also asserted that no default whatsoever was committed by the present petitioner. The petitioner also pleaded that need of the present respondent No,1 was neither .Genuine nor bona fide and the present proceedings have been initiated with mala fide intention.
4. The respondent No,1 examined herself by means of affidavit-in-evidence and brought on record the registered gift-deed, tenancy agreement entered into between the petitioner and husband of respondent No,1, envelope containing notice under section 18 of Ordinance, 1979 with the seal and rubber stamp of TCS with the endorsement "refused" so also TCS certificate showing refusal to accept the notice under section 18 of Ordinance, 1979. The respondent No,1 also examined one Muhammad Ismail as her witness. Both the witnesses were cross-examined by the petitioner side.
The petitioner examined his wife Mst. Husna Khatoon Siddiqa as his attorney by means of affidavit- in-evidence and also brought on record the general power of attorney executed in her favour, postal money order dated 11th April, 2009, deposit challans of monthly rent in MRC No,506 of 2009 in the names of respondent No,1 and her husband, copy of application in MRC No,18 of 2010 seeking permission from the learned Rent Controller to deposit the rent in the name of present respondent No,1 and also filed the payment challans of monthly rent in MRC No,18 of 2010 in the name of present respondent No,l.
5. Parties were heard and the learned Rent Controller allowed the rent application with direction to the petitioner to hand over vacant possession of the demised premises to respondent No,1 within sixty days from the date of the order. Against the aforesaid order F.R.A. No,202 of 2010 was filed by the petitioner which was heard by the learned Appellate. Court who vide judgment dated 4-5-2011 dismissed the appeal and maintained the judgment passed by learned Rent Controller and directed the petitioner to vacate the premises within thirty days from the date of order. Against the aforesaid two judgments the present petition has been filed.
6. Learned counsel for the petitioner has submitted that judgments passed by the Courts below are opposed to evidence on record. He further argued that respondent No, I had no authority to file the rent case in her name as she was not the landlady of the petitioner. Learned counsel further argued that no notice under section 18 of Ordinance, 1979 was served upon the present petitioner but after receipt of notice of ejectment application under section 15 of Ordinance, 1979 the rent was tendered to respondent No,1 and on her refusal petitioner started depositing rent in MRC hence no default whatsoever has been committed by the petitioner. Lastly, learned counsel for the petitioner argued that need of the landlady was not proved and the same was neither genuine nor bona fide hence both the Courts below have committed serious error of law by not considering the above aspect of the matter. In the end learned counsel for the petitioner argued that both the judgments be set aside. In support of his contentions learned counsel for the petitioner has relied upon the case of MST. BEGUM JAN v. ABDUL RASOOL (1984 CLC 755).
7. Conversely, learned counsel for respondent No,1 has argued that the petition in its present form is not maintainable under the law as neither any illegality nor ally misreading or jurisdictional defect has been pointed by the petitioner in the present petition hence the same is liable to be dismissed.
Learned counsel for respondent No,1 further argued that findings of facts recorded by to Courts below on the issue of default in payment of monthly rent cannot be disturbed in the constitutional jurisdiction of this Court as the same are based on proper appreciation of evidence on record and are strictly in accordance with law. With regard to personal bona fide need learned counsel for respondent No,1 submitted that respondent No,1 has successfully proved on record personal bona fide need of respondent No,1 and both the Courts below have rightly ordered ejectment of the petitioner from the premises in question. Learned counsel submits that findings of fact recorded by the Courts below on the issue of personal bona fide need are in line with the rule laid down by the Hon'ble Supreme Court of Pakistan in number of cases hence do not call for any interference by this Court in its constitutional jurisdiction under Article 199 of the Constitution of 1973. Learned counsel for respondent No,1 argued that both the Courts below have recorded their findings strictly in accordance with law, the evidence on record which has been properly appreciated in its proper perspective hence such findings cannot be interfered with in writ jurisdiction.
8. In support of his aforesaid submissions, learned counsel for respondent No,1 placed his reliance on the following judgments:-
(1) MST. SHIRIN BAI v. FAMOUS ART PRINTERS (PVT..) LTD. AND OTHERS (2006 SCMR 117)
(2) MRS. TAHIRA DILAWAR ALI KHAN AND OTHERS v. MST. SYEDA KANEEZ SUGHRA AND OTHERS (PLD 2007 Karachi 50)
(3) ABDUL RAZZAQ v. Messrs IHSAN SONS LIMITED AND OTHERS (1992 SCMR 505)
(4) MST. MOBIN FATIMA v. MUHAMMAD YAMIN AND OTHERS (PLD 2006 SC 214)
(5) Messrs KWALITY FOOD PRODUCTS v. MST. SEHBA NISHAT HAQ (1991 MLD 1331)
(6) ABDUL GHAFOOR v. MST. AMTUL SAEEDA (1999 SCMR 28)
(7) SHER AFGAN v. SHEIKH ANJUM IQBAL (PLD 2004 SC 671)
(8) ABDUL RAHMAN through Legal Heirs others v. PAKISTAN STATE OIL COMPANY LTD. And another (PLD 2004 SC 921)
9. I have heard learned counsel for the parties and have also examined the record and the case- law cited at the bar with the assistance of learned counsel for the parties.
10. Prior taking up the points raised by learned counsel for petitioner, I deem it proper to take up the points raised by Mr. Muhammad Ishaque Memon, learned counsel for respondent No,1, with regard to maintainability of the petition. Learned counsel has submitted that this petition is not maintainable as neither any jurisdictional defect has been pointed out nor any illegality in the impugned judgments have been shown by the petitioner. He further submitted that no misreading or non-reading of the material available on record has been pointed out by the petitioner's side. To support his contentions learned counsel has placed reliance on the judgments (1) PLD 2006 SC 214 (MST. MOBIN FATIMA v. MUHAMMAD YAMIN AND OTHERS), (2) 1992 SCMR 505 (ABDUL RAZZAQ v.
Messrs IHSAN SONS LIMITED AND OTHERS), (3) PLD 2007 Karachi 50 (MRS. TAHIRA DILAWAR ALI KHAN AND OTHERS v. MST. SYEDA KANEEZ SUGHRA AND OTHERS).
11. In the first reported judgment learned counsel has invited my attention to paragraph-8 of the report wherein the honourable Supreme Court of Pakistan has dealt with the issue in the following words:- "8. The High Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusions are drawn by the Courts below which are not based, on facts found because such an act would amount to an error of law which can always be corrected by the High Court."
12. In the second reported judgment relied upon by the learned counsel for respondent No,1, learned counsel has invited my attention to the findings recorded by the honourable Supreme Court of Pakistan with regard to the powers of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He specifically. Pointed out the observations of the honourable Supreme Court of Pakistan in the reported judgment in paragraph-15, wherein honourable apex Court has held as under:-- "15. The High Court in constitutional jurisdiction could not have sit as a Court of appeal on the question of fact. The finding of fact recorded by a competent Tribunal can be interfered with by a High Court in exercise of constitutional jurisdiction if the same is based on no evidence or is founded on misreading of evidence or is recorded by ignoring material evidence on record.
However, a finding of fact cannot be interfered with by the High Court in exercise of constitutional jurisdiction merely on the ground that a different view on the basis of same evidence was possible."
13. In the third reported judgment, wherein learned Judge who authored the judgment while relying upon the judgment of honourable Supreme Court has observed as under:- "In the case of Secretary to the Government of the Punjab, Forest Department v. Ghulam Nabi and 3 others (PLD 2001 SC 415), it was held by the hon'ble Supreme Court that constitutional jurisdiction cannot be exercised to reappraise evidence, and come to its own independent findings, where findings of facts were recorded by authority below after giving good reasons in support of it.
Referring to the plethora of case-law, it was further observed that there is no cavil to the proposition that Superior Courts have ample jurisdiction to refuse a relief where granting it would tantamount to injustice, as High Court is not bound to grant relief to the petitioner simply because he was legally entitled to the same if the grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay. It hardly needs any elaboration that High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality, or void action or void order is impugned, but the Court is to see whether the grant of relief prayed for fosters the cause of justice or will it perpetuate injustice."
14. There is no cavil with the proposition advanced by the learned counsel' for respondent No,1 with regard to the functions and powers of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is settled law that findings on facts recorded by competent tribunal can be interfered with by the High Court in exercise of constitutional jurisdiction if the same was based on no evidence or was recorded by ignorance of material evidence on record. Findings of facts cannot be interfered with by High Court in its said jurisdiction merely on the ground that different view on the basis of the same evidence was possible. Applying the above rule to the present case it is to be seen whether the learned Courts below have recorded their findings in accordance with evidence available on record and the law. If any misreading or non-reading is noted which has caused serious prejudice to a particular party, in that event jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is to be invoked and illegality committed by the Court below is to be rectified. If it is found that findings of the Courts below are in accordance with law and also in line with the evidence on record normally no interference is called for. The point raised by learned counsel is answered accordingly.
15. With regard to merit of the case it will be noticed that originally petitioner was tenant of husband of respondent No,
1. It is admitted position on record that entire property wherein disputed premises is located was gifted out under a registered instrument by husband of respondent No,1 to respondent No,1 on 17-1-2009. It is also apparent on record that in the month of April, 2009 notices under section 18 of Ordinance, 1979 was served by respondent No,1 upon all the tenants in the building. All other tenants started paying rent to respondent No,1 after service of notice under section 18 of Ordinance, 1979 but the petitioner refused to accept the notice under section 18 of Ordinance, 1979. It is also admitted position that rent for April, 2009 was paid by the petitioner to husband of respondent. ,No,1 through money-order. However, rent for the month of May, 2009 was sent by the petitioner through his son to respondent No,1. Respondent No,1 accepted the rent from petitioner for the month of May, 2009 and acknowledged the same through a receipt. In paragraph 10 of the affidavit-in-evidence of respondent No,1 she has stated as under:--- "10. I say that the opponent again sent monthly rent for the month of May, 2009 by hand through his son namely, Asim which was duly received and admitted and receipt was issued by me accordingly. Further the Opponent deposited the rent under M.R.C. No,506 of 2009 in the Court of Vth Sr. Civil Judge and Rent Controller, Karachi Central with effect from the month of June, 2009 in my name and in the name of my husband Muhammad Sultan Khan knowing well the ownership of the tenement has been changed in my name thus he has also committed wilful, default in payment of monthly rent."
16. From the reading of cross-examination of respondent No,1 it appears that above quoted paragraph of affidavit-in-evidence of respondent has gone unchallenged. It further appears that after paying the rent for the month of May, 2009 the petitioner started depositing rent from June, 2009 in MRC No,506 of 2009 before learned Vth Rent Controller, Karachi-Central, in the name of two persons, namely, the former landlord, the husband of respondent No,1, and respondent No,
1. It further appears on record that petitioner deposited rent upto December, 2009 in the joint name of husband and wife which was not a valid tender. However, after service of notice of .Rent Application No,833 of 2009 filed by respondent No,1 under section 15 of Ordinance, 1979 the petitioner filed another miscellaneous rent case being MRC No,18 of 2010 in the name of respondent No,1 and such application was filed on 16-1-2010 seeking permission from the Court to allow the petitioner to deposit rent from January, 2010. It is the case of respondent No,1 that petitioner after paying rent to respondent No,1 for the month of May, 2009 the petitioner should not have deposited the rent for the months of June, July, August, September, October, November and December, 2009 in the joint name of former landlord and respondent No,1 in MRC No,506 of 2009. It was contended by learned counsel for respondent No,1 that if stand of the petitioner is accepted that notice under section 18 of Ordinance, 1979 was not served upon him as to why he tendered the rent for the month of May, 2009 to respondent No,1 through his son. It was further argued that once the rent was tendered by petitioner to respondent No,1 for the month of May, 2009 the rent deposited by the petitioner in joint name of husband and wife in MRC No,506 of 2009 is not a valid tender and petitioner had committed default in payment of rent for the months of June, July, August, September, October, November and December, 2009. The findings recorded by the both Courts below are strictly in accordance with law and the evidence available on record. The findings of both Courts below are in line with the rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Messrs HABIB BANK LIMITED v. SULTAN AHMAD AND ANOTHER (2001 SCMR 678). The relevant observations of the Hon'ble Supreme' Court of Pakistan are quoted hereunder:--- "9. ...It is significant to note that in the proceedings the respondents not only disclosed the fact that they had attained ownership of the property through a registered sale-deed but have also attorned the appellant as their tenant. The application was not opposed and learned Controller allowed the same in terms of its prayer. No doubt that as per requirement of section 18 of the Ordinance a landlord who has acquired the rights of ownership and has also become the landlord is supposed to issue notice under registered cover to the tenant but such provision of law can be considered to have been substantially complied with if record speaks that intimation about transfer of ownership in favour of respondents has been conveyed by means of convincing source. In this behalf this Court in the case of Ghulam Samdani v. Abdul Hameed (1992 SCMR 1170) while dealing with a case pertaining to default in payment of rent under section 17 of the Cantonments Rent Restriction Act, 1963 held that if in earlier proceedings it has come in the notice of the tenant that the property in his possession has been transferred in favour of new landlord he was bound to attorn to him as his landlord and also to tender rent but if he desists from making payment of rent and continues depositing the same in favour of previous landlord it would be deemed that default in payment of rent has been committed. It may be noted that if for sake of arguments it is assumed that appellant had no knowledge about the transfer of the property in the initial round of litigation but at least when eviction application given rise to instant appeal was filed and respondents have asserted themselves to be landlords of the premises the appellant must have gained knowledge and such application can be treated to be as a notice binding the appellant to start making payment of rent and factum of institution of application for ejectment would be deemed to be, substantial compliance of the provisions of section 18 of the Ordinance being a convincing source as it has been held in the cases of (i) Khuda Bakhsh v. Muhammad Yaqoob and others (1981 SCMR 179), (ii) Syed.Azhar Imam. Rizvi v. Mst. Salma Khatoon (1985 SCMR 24) and (iii) Major (Retd.) Muhammad Yousuf v. Mehrajud-Din and others (1986 SCMR 751). Thus we are of the opinion that the facts and circumstances of the case reveal that appellant had acquired knowledge about transfer of ownership in favour of respondents on two occasions firstly when application under Order I, Rule 10, C.P. C. Dated 18-9-1980 was filed and secondly when in the year 1988 the respondents instituted instant ejectment application against appellant which has given rise to instant proceedings but despite of that till 1992 as per the statement made by the learned counsel for appellant at the bar rent was not deposited in favour of respondent, therefore, without any hesitation it is concluded that a wilful default was committed by appellant in making payment of rent." (Under lining is mine for emphasis)
17. In view of above position the findings recorded by the learned Courts below on the issue of default do not call for any interference by this Court in its constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan 1973.
18. With regard to the ground of personal need, the respondent No,1 in her application under section 15 of Ordinance 1979 in paragraph 11 has stated as under:--- "That at present the applicant is residing at her husband's parents house and intends to live with her old and sick husband in the above said rented premises at first floor separately, therefore, the rented premises in occupation/possession of the Opponent is required by the applicant for her personal bona fide use."
19. Similarly, the respondent No,1 maintained the above stand in her affidavit-in-evidence in paragraph 12 which is quoted hereunder:--- "I say that at present I am residing at my husband's parents house and intend to live with my old and sick husband in the above said rented premises at first floor separately, therefore, the rented premises in occupation/possession of the Opponent is required by me for my personal bona fide use. "
20. From the perusal of cross-examination conducted by the petitioner side it appears that above quoted paragraphs from application and affidavit-in-evidence have gone unchallenged which in law shall be deemed to be accepted by the opposite party. Even otherwise, it was not challenged by the petitioner in cross-examination that need of respondent No,1 was neither genuine nor she required the premises in question in good faith for her personal use. The terms "Good faith" and as to whether need of the landlord is genuine and bona fide came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of MST. SHIRIN BAI v. FAMOUS ART PRINTERS (PVT.) LTD.
AND OTHERS (2006 SCMR 117) wherein the Hon'ble apex Court while dealing with the above issue has observed as under:- "8. "Good faith" means an honest act. Honesty is a state of mind and is capable of proof or disproof only by evidence of conduct. If requirement of landlord is found to be genuine, Rent Controller is bound to order eviction of tenant notwithstanding the fact that he had also made a demand for enhancement of rent or any other demand from the tenant. The expression "good faith" is abstract term not capable of any rigid definition. The ordinary dictionary meaning of the expression "good faith" is honesty of intention and therefore, what is required under clause (vii) of subsection (2) of section 15 of the Ordinance is that the landlord should have a genuine need of the premises, which should certainly be more than a mere wish or desire. The expression "good faith" has been used in the Ordinance purposely meaning an act performed honestly without fraud, collusion or participation in wrongdoing. The words "desire" or "need" have not been used, which would negate the two extreme views which are pleaded in cases of this nature. The expression "good faith" employed in clause (vii) must be interpreted in the light of definition thereof as embodied in section 2(28) of the West Pakistan General Clauses Act, 1956, which provides that "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". Strictly speaking it means honesty and when a person is in occupation of another premises, generally speaking he cannot be said to be acting honestly when he asks for another premises unless the premises in his occupation is not sufficient for his need.
Mere whim or fancy, wish opt convenience of the landlord should not be adequate to demonstrate that the landlord requires the premises in "good faith". He must plead and prove his requirement by sufficient and satisfactory evidence inspiring confidence. It is a state of mind, which may be inferred from circumstances attending to each case and Courts ordinarily accept requirement of landlord without imputing bad faith unless strong circumstances indicate to the contrary. Right of landlord to claim possession from a tenant is regulated by Rent Controller only to the extent to examine whether the request of landlord for possession is inspired with "good faith", or is frivolous or mala fide. Sufficiency or insufficiency of accommodation available with a landlord is a matter of individual taste and discretion with which neither Controller nor the Appellate Authority would ordinarily interfere. All that Controller has to see or the Appellate Authority has to examine is whether the landlord requires the premises in "good faith" for his own occupation or use or for occupation or use of his spouse or any of his children. Expression "require the premises in good faith" cannot be confined to precise, identical and invariable definition nor any hard and fast rule can be propounded as to encompass possible eventualities which could arise due to particular fact and circumstances of a case. Bona fide requirement cannot be turned down simply on assumption of tenant that proposed business could not be carried out profitably in the tenanted premises. Even otherwise, it is a fundamental right of landlord to shift his business or to change its nature so long it remain lawful and not against the public interest. "Good faith" means bona fide, which would show reasonableness of requirement of landlord whereas mala fide would mean that case has been brought with some ulterior or collateral purpose. Where landlord wants to carry on his business in his own premises, instead o rented accommodation, to deprive him of the use and enjoyihent of his property would be against all canons of justice unless he is expressly prevented by law from carrying on such business or there are circumstances to reflect that his need is not bona fide. Once a landlord has elected to live in his own house or start a business in the premises earlier let out on rent, his demand for eviction of the tenant would be presumed to be bona fide and founded on "good faith" unless mala fide is alleged and proved by the tenant. Suitability of requirement of landlord to commence a lawful business in the premises in dispute can by no stretch of imagination be said to be mere desire rather than bona fide need.
In law a landlord is required to discharge his onus and to satisfy the conscience of the Controller that his requirement is based on "good faith" and is bona fide. Once a landlord is able to satisfy the Controller about the truth and genuineness of his requirement, the latter is left with no discretion but to order ejectment of a tenant irrespective of the fact that it would result in uprooting its long standing trade or business. In Iqbal Book Depot (supra), it was, inter alia, held that where the statement on oath was quite consistent with the averments of the landlord in the ejectment application and the same had neither been shaken nor anything had been brought in evidence to contradict the statement, such statement on oath would be considered sufficient for acceptance of the ejectment application. It was also observed that "good faith" of landlord being a question of fact, finding on the issue could not be taken exception to unless it was shown that finding suffered from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. Likewise in F.K. Irani and Co.
(supra) statement of law was reiterated to the effect that suitability of opening a departmental store by landlord, in any one of the available premises, entirely depends upon the choice of the landlord. It was cautioned that such need and choice, however, should be real, genuine and not tainted with mala fide. In Muhammad Bashir v. Sakhawat Hussain 1991 ,SCMR 846, it was observed that there appears to he no legal impediment in the way of landlord if he wanted to start business in the demised premises in spite of the fact that he is a rich man and has no children. Sajjad Ali Shah, J. (as his Lordship then was) remarked that the landlord can do whatever he liked with his property and if the interest of the tenant was involved because property of landlord was rented out to him, then his rights are protected under the law. If landlord did not contravene the provision of rent law, which allows him the relief it would not be open to the tenant and even for, that matter to the Court to make a comment as to what landlord should do or should not do. In Imran Ahmed (supra), right of the landlord to seek eviction of his tenant on the ground of personal requirement in good faith for his own use or for the use of his spouse or children, was fully recognized by this Court without any unreasonable restriction. In Jehangir Rust= Kakalia v. Hastwani Sales and Services (Pvt.) Limited 2002 SCMR 241, this Court candidly held that a landlord of the demised premises cannot be deprived of his right and interest to use his property in a manner more suited to his requirement. It was expressly laid down that no unreasonable restriction can be placed on the exercise of such tight, which would offend the fundamental rights guaranteed under Article 23 of the Constitution."
21. An examination of impugned judgments shows that findings on the issue of personal need have been recorded in line with evidence on record and following the dictum laid down by the Hon'ble Supreme Court of Pakistan in number of cases. The case of respondent No,1 remained throughout consistent and was not shaken in cross-examination or rebutted by some convincing evidence to prove mala fides.On the part of respondent No,
1. Both the Courts below have passed the judgments in line with the material available before them and the law on the subject.
22. In view of above I do not find any merit in this petition and no interference is called for in the circumstances of the case. This petition was dismissed by a short order dated 30-5-2011 and these are the reasons for the same.