1. ' AFTAB AHMED GORAR, J.---Through this Constitutional petition, petitioner has impugned the Judgment dated 5-11-2010 passed by Vth Additional District Judge, Karachi South whereby he allowed F.R.A. No,244 of 2009 and set aside the Order dated 20-8-2009 passed by Ilnd Rent Controller, Karachi South whereby he dismissed the rent application filed by the respondent.
2. ' Brief facts giving rise to the filing of instant petition are that the respondent through his attorney Shaikh Ziauddin Sultani filed rent application under section 15 of the Sindh Rented Premises Ordinance, 1979 for ejectment of the petitioner/tenant from the premises on 1st and 2nd floor as well as a portion on the roof of 2nd floor of the house bearing No,335, situated at Al-Falah Street, Alama Iqbal. Colony, Mehmoodabad, Karachi which was rented out to the petitioner at a monthly rent of Rs,1500 excluding electricity, gas and water conservancy charges. According to the respondent, the demised premises was let out by his deceased mother namely Mrs. Zubaida Aziz by an oral agreement in the month of October, 2001. It was averred that the petitioner/tenant is defaulter in payment of monthly rent for the period from October, 2001 to July, 2004 and onward.
3. The respondent further asserted that he along with his family comprising wife and grown up children is staying in Canada and culture and society of Canada is not suitable for the Muslims, therefore he wants to shift/settle his family members in Pakistan, as such requires the demised premises for his personal use.
4. ' The petitioner/tenant contested the matter and filed written statement wherein while admitting the relationship of landlord and tenant between the parties, she denied to have committed default in payment of rent. She further asserted that she with the permission of respondent's mother constructed one room on second floor and spent about Rs,60,000 and it was mutually agreed that the said amount would be adjusted at the time of vacation of demised premises. She further stated that she also spent Rs,60,000 on medical treatment of respondent's mother, besides making payment of Rs,25,000 as security deposit. He also denied that the premises in question is required for personal bona fide need of the respondent. According to her, in fact, the respondent wants to settle her sister-in-law in the premises in question.
5. ' After recording of evidence of both the parties and hearing their counsel, learned Rent Controller dismissed the rent application vide Order dated 20-8-2009. The said order was challenged in appeal by the respondent and ultimately learned Appellate Court vide Order dated 5-11-2010 allowed the appeal and set aside the order passed by the Rent Controller, hence this petition.
6. ' Learned counsel for the petitioner contended that learned appellate court while taking different view and departing from the findings of the learned Rent Controller, has erred in law and on facts and has not assigned cogent reasons; that the order passed by the learned Rent Controller is just and proper who after discussing each and every aspect of the case has given findings in accordance with the law and norms of justice; that the respondent took new plea in the appeal which was not taken in the rent application but learned appellate court did not take into consideration such aspect of the case. He prayed for setting aside of the order passed by the appellate court and maintaining the order passed by the Rent Controller. He relied upon the decisions reported in 2010 CLC 1006, '1980 SCMR 593, 1998 SCMR 2525, 2001 SCMR 1676, 2003 YLR 1101 and 2001 SCMR 241.
7. ' Conversely, learned counsel for the respondent supported the judgment passed by the learned appellate court and submitted that the same has been passed after taking into consideration the entire facts and relevant law and sound reasons have been assigned for taking a different view which calls no interference by this court under its constitutional jurisdiction. He prayed for maintaining the order of the appellate court and dismissal of the petition.
8. ' I have heard learned counsel for the parties and perused the material available on the record.
9. It appears that the learned appellate court has agreed with the findings of the Rent Controller with regard to default in payment of rent by the petitioner/tenant i,e, no default has been committed by the petitioner in payment of monthly rent. The said findings have not been challenged by the respondent/landlord, as such the same attained finality.
10. ' So far as the ground of person bona fide need of the respondent/landlord is concerned, learned Rent Controller concluded that the premises in question is not required by the respondent/landlord for his personal bona fide need, however, the appellate court did not agree with such findings and reversed the same. The attorney of the respondent in Affidavit in evidence deposed as under:- "That the applicant in connection his job presently, staying in Canada along his family. The family of the appellant is consisted of wife and 4 children who are growing up. The two sons of the applicant are aged about .16 and 12 years respectively and the two daughters of the applicant are aged about 14 and 8 years respectively. The culture and society of the Canada is unsuitable for a Muslim, in particular for a Muslim female/woman. The applicant being Muslim and for wellbeing and welfare of his said children wanted to shift/settle his family from Canada to Pakistan in order to that his children may be brought up in Pakistan in accordance with eastern culture Islamic pattern. The applicant requires the premises in question in good faith for his personal use and occupation of his wife and children."
11. ' Although a very longish cross-examination was conducted by petitioner's counsel but he could not succeed in shattering his evidence so far as personal bona fide need of the respondent is concerned. The contention of the learned counsel that in appeal the respondent took a new plea, inasmuch as he added that on account of terrorism Canada is not safe for Pakistani Muslims is devoid of force as from the perusal of the entire judgment of the appellate court it is clear that the appellate court has not taken into consideration such assertion in the judgment and has based its findings on the evidence adduced before the learned Rent Controller.
12. ' So far as the contention of the learned counsel that the respondent himself did not appear in the witness box and only his attorney has come forward to depose on his behalf is concerned, it may be observed that there is no bar upon a landlord, who for certain genuine reasons is not able to come for giving evidence, to appoint a person for such purpose. The Power of Attorney produced in evidence as Exh.A/1, inter alia, empowers the attorney, "To sign and verify and present plaint, written statement, appeals, petitions, Application, affidavits, declaration, claims, objections, receipts and all other kinds of applications and to file and procure the same in such courts or offices and also to defend all such actions, to give evidence." It is manifestly clear that the respondent has authorized his attorney to give evidence on his behalf, therefore there was no wrong on his part in appearing in witness box and giving evidence on behalf of the respondent/landlord.
13. ' In the case reported in 1997 SCMR 1062 honourable Supreme Court has held that sole testimony of the landlord is sufficient to establish his personal bona fide need if the statement of the landlord on oath is consistent with his averments made in the ejectment application. During cross- examination learned counsel for the respondent has not been able to establish that the statement of the attorney of the respondent/landlord made on oath is not consistent with the averments made in the ejectment application.
14. ' Needless to emphasize that constitutional jurisdiction of this Court in rent matters is very much limited and confined only to ascertain whether the appellate court has not flouted provisions relating to the Statute or failed to follow the law relating thereto. In the case reported as Hafiz Shafatullah v. Mst. Shamim Jehan and another (PLD 2004 Karachi 502) this Court held as under:-- "By conferring only one right of appeal under section 21 of Sindh Rented Premises Ordinance, 1979, Legislature in its wisdom seemed to have tried to shorten the span of litigation in rent case and in such circumstances interference by High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial order passed by Tribunal of competent jurisdiction, merely on ground that another view of the matter was also possible, would not serve any other purpose, but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute."
15. ' In 2010 SCMR 1025 the honourable Supreme Court held as under:-- "...Jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of the appellate Court. Therefore, mere fact that upon perusal of evidence, High Court came to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws i,e, Sindh Rented Premises Ordinance, 1979."
16. ' The case-law relied upon by the learned counsel for the petitioner are distinguishable and are not attracted to the facts of the present case.
17. The upshot of above discussion is that the constitutional petition is dismissed in limine and the judgment passed by learned Appellate Court is upheld. Consequently, the rent application filed by the respondent stands allowed and the petitioner/tenant is directed to vacate the premises in question and hand over its vacant and peaceful possession to the respondent within 30 days. in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.