' SHAH JEHAN KHAN AKHUNDZADA, J.---Through this single judgment we intend to dispose of the instant Writ Petition No.443 of 2012 as well as the connected Writ Petition No.137 of 2012 as common questions of facts and law are involved in both these petitions.
2. In Writ Petition No.443 of 2012 Haji Yaz Mir and his three brothers respondents Nos.1 to 4 (hereinafter to be called as the landlord) have instituted ejectment petition under section 13 of the Urban Rent Restriction Ordinance, 1959 for the ejection of Naseer Ahmad and six others including Faizur Rehman, petitioner herein (hereinafter to be called as the tenant) from the suit property fully described in the heading of the petition situated at behind Qissa Khawani Bazar. Peshawar City on the grounds of bona fide personal requirement for starting hoteling business, subletting, and wilful default in' payment of rent. The rent petition was contested only by the present petitioner by submitting written reply wherein he raised many legal and factual objections by denying from the existence of any relationship of landlord and tenant between them and claimed him tenant under one Sunab Gul instead of the present landlord on payment of Rs. Five Lac as advance money through a rent deed dated 4-3-2002. The learned Rent Controller framed the following three issues:- ' ISSUES:
(1) Whether the petitioner has got a cause of action?
(2) Whether the relationship of landlord and tenant exist between the parties?
(3) Relief.
' Both the parties produced their respective evidence and after hearing the learned counsel for the parties, the learned Rent Controller held the petitioner as tenant of the respondents Nos.1 to 4 herein, accepted the ejectment petition of the landlord and passed ejectment order against the tenant vide his judgment/order dated 18-10-2010. Feeling aggrieved from the above judgment/order of the Rent Controller, the tenant preferred Rent Appeal No.10 of 2010 before the learned Additional District Judge-II, Peshawar and vide his judgment/order dated 25-4-2011 accepted the same, set aside the judgment/order of the Rent. Controller and remanded the case back to him with the direction to give exhaustive findings on the issues framed by the learned Appellate Court in its judgment. Dissatisfied from the above judgment/ order of the learned Appellate Court, the landlord filed Writ Petition bearing No.1528 of 2011 before this Court and a Division Bench of this Court vide judgment/order dated 26-9-2011 accepted the same, set aside the judgment/order dated 25-4-2011 and remanded the case back to the learned lower Appellate Court for decision afresh in the light of the observations made therein After remand by this Court, this time the learned Appellate Court dismissed the appeal of the present petitioner vide judgment/order dated 26-11-2011 (the attested copy of the judgment/order of the learned lower Appellate Court which is impugned in the instant writ petition has not been attached with this petition). It is pertinent to mention here that during the pendency of the rent appeal before the learned Appellate Court below after remand by this Court, Sunab Gul (petitioner in the connected Writ Petition No.137 of 2012) has filed an application on 2-11-2011 for impleading him as respondent which has also been rejected by the learned Additional District Judge-II, Peshawar through the order dated 26-11-2011 which has now been challenged in the connected Writ Petition No.137 of 2012.
3. Dissatisfied from the above judgments/orders of the learned Appellate Court below, the tenant has filed the instant Constitutional Petition bearing No.443 of 2012 while Sunab Gul has filed connected Writ Petition No. 137 of 2012 before this Court challenging the judgment/order of the learned Appellate Court to the extent of rejection of his application for impleadment.
4. We have heard the learned counsel for the parties and have gone through the record of the case with their valuable assistance.
5. So far as the relationship of landlord and tenant between the parties is concerned, the petitioner/tenant in this written reply to the ejectment petition had denied the same and claimed him to be the tenant of one Sunab Gul on payment of Rs.Five Lac as advance amount through a rent deed dated 4-3-2002. It is on the record that on 6-9-2008 Faizur Rehman petitioner/tenant along with others instituted a suit against the landlords for perpetual injunction restraining them from allegedly dispossessing him from the suit shop but when the landlord filed ejectment petition against the tenant, the said suit was dismissed being infructuous on 21-3-2009, copy of which is Exh.P.W.1/3. It is very astonishing to note that the petitioner/tenant admitted himself as tenant of the landlords in the suit on 6-9-2009 but on 23-2-2010 at the time of filing his written reply to the ejectment petition he had denied the relationship of landlord and tenant between the parties by alleging that he is the tenant of the suit shop under one Sunab Gul but he has neither produced the said Sunab Gul in support of his stance nor he had produced any documents showing the said Sunab Gul as owner of the suit shop. Thus it is proved on the record that the petitioner is the tenant in the suit shop owned by the landlord.
6. So far as the merits of the case are concerned, the landlord has approached the Rent Controller to get the tenant ejected from the shop owned by them on the grounds of default in payment of rent and bona fide personal need to start its own business in it. The landlord also filed an affidavit statement in consonance of the averments made in the eviction petition. The ejectment petition was contested by the tenant denying all the grounds taken for ejectment by the landlord.
6A. It is an established practice that this Court under its constitutional jurisdiction never substituted its own finding for the finding recorded by the courts of competent jurisdiction to resolve the factual controversy. Bona fide personal need of the landlord is a question of fact which has thoroughly been examined by the courts below and decided through elaborate judgment.
7. In a case "Haji Abdullah and 10 others v. Yahya Bakhtiar" (PLD 2001 SC 158) their Lordships of the Supreme Court has held as follows:-- "There is no cavil to the proposition that establishment of a personal need in last analysis becomes a question of fact (1980 SCMR 506) as such "bona fide personal requirement being a question of fact, concurrent findings of courts below appearing to be justified on record stand concluded and cannot be interfered". (1986 CLC 2098 + 1986 CLC 591 + PLD 1977 Karachi 460 + PLD 1977 Karachi 277 + PLD 1977 I ahore 110). It is well-entrenched legal position that "where there is no showing finding being vitiated by misreading or overlooking of material evidence, the Supreme Court declined to interfere in the concurrent finding of the courts below". (1983 CLC 241 + 1984 SCMR 1283 + 1980 SCMR 767 + 1980 SCMR 751). "It can be inferred safely that question of bona fide personal requirement being a question of fact and if stands concluded by concurrent findings of the two courts below it is not open to challenge in absence of any omission or misreading of evidence or violation of any principle of law. A careful analysis of the impugned judgment would reveal that it does not suffer from violation of any principle of law applicable to case and almost all the arguments advanced by Syed Ayaz Zahoor, learned Advocate Supreme Court mainly pertains to appreciation of evidence and hardly calls for any interference with the concurrent findings and conclusion as drawn by the courts below. In this regard reference can be made to 1981 SCMR 161".
8. In another case "Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd., and others" reported as (2006 SCM R 117), their Lordships of the Supreme Court has elaborately discussed bona fide personal need of landlord's good faith and it was held as follows:-- "The respondents cannot be permitted to say that their long standing established business' would be uprooted on account of their ejectment but the fact remains that for rehabilitating a landlord, the tenant must make a room for the owner and find out an alternate accommodation.
In present case the tenants had enjoyed tenancy rights for almost fifty years, they could not claim a life long tenancy rights in demised property. Reference is made to PLD 2002 SC 753".
9. In view of the aforesaid discussion, we find no misreading or non-reading of evidence of the parties nor violation of any provision of law was pointed out by the counsel for the petitioner/tenant to call for interference in the impugned judgments. In our view both the learned Courts below have elaborately discussed the evidence of the parties in their impugned judgments/ orders impugned herein which does not at all warrant interference by this Court in its constitutional jurisdiction.
12. So far as the connected Writ Petition No.137 of 2012 is concerned, the landlord of the suit shop has brought ejectment petition against the tenant on 15-1-2009 while written reply was filed by the tenant on 23-2-2010 wherein he has denied the relationship of his landlord and the ejectment order was passed on 18-10-2011. The tenant preferred an appeal before the learned Appellate Court below which was accepted and the case was remanded back to the Rent Controller vide judgment/order dated 25-4-2011 against, which the landlord filed writ petition which was also allowed and the case was remanded back to the learned Appellate Court below vide judgment/order dated 26-9-2011 and during the appeal after remand the present petitioner Sunab Gul submitted an application for his impleadment as defendant for the first time on 2-11-2011 ort the ground that he is the owner of the suit shop, through the deed dated 11-8-1990 but he has never mentioned in the said application that the Faizur Rehman is his tenant in the suit shop through rent deed dated 4-3-2002. Had he been the owner of the suit shop, he would have moved such application before the Rent Controller but he failed to do so and filed the same before the Appellate Court at a very belated stage for the only reason to delay the disposal of the ejectment petition probably at the behest of the tenant thus, the said application has rightly been rejected by the lower Appellate Court.