' SADIQ HUSSAIN BHATTI, J.--- The petitioner is aggrieved by the judgment dated 10-1-2010 passed by learned First Additional District Judge, Karachi Central in First Rent Appeal No, 159 of 2009 impugning judgment dated 7-9-2009 passed by learned III Rent Controller, Karachi Central in Rent Case No, 667 of 2005, whereby the appeal was dismissed and the impugned judgment, ordering eviction of the petitioner from the rented premises was maintained.
2. Brief facts of the case, relevant for the purpose of disposing of this petition, are that petitioner is tenant of the respondent No,1 in respect of Shop No,3, constructed on Plot No, III-F, 5/20, Nazimabad, Karachi (hereinafter referred to as "the demised premises") at the rate of rent of Rs,3630 per month.
The respondent No,1 filed Rent Case No,667 of 2005 under section 15 of the Sindh Rented Premises Ordinance, 1979 ("the Ordinance") for ejectment of the petitioner/tenant from the demised premises on four grounds viz, default in payment of rent/conservancy charges, personal bona fide requirement of the sons of the landlord, alteration in the demised premises and subletting. The petitioner filed written statement denying the averments made in the ejectment application.
3. On the basis of the pleadings of the parties, the following issues were framed by the trial Court:-- -
(1) Whether the opponent has committed default in payment of rent from the month of March, 2005 to October, 2005 at the monthly rent of Rs,3630 for eight months [which] comes to Rs,29,040 including water conservancy for 2004-05 at Rs,882 which comes to total amount of Rs,29,900?
(2)' Whether the opponent has paid pugree amount to the applicant?
(3) Whether the opponent has made alteration and modification in the tenement unauthorizedly and has damaged beams making two big holes thus impaired the utility of the tenement?
(4) Whether the opponent has sublet the tenement to one Muhammad Burhan?
(5) Whether the applicant requires the shop in question for his personal use for himself and his son Mansoor Saeed Butt?
(6) What should the order be?
4. After hearing the learned counsel for the parties, the learned IV Rent Controller, Karachi Central allowed the ejectment application vide Order dated 7-9-2009 on two grounds i,e, on the ground of default in payment of rent and on the ground of personal bona fide need of the premises by landlord for his sons while the issues regarding subletting and alteration and impairment of the premises was decided in negative. The petitioner challenged the said judgment through First Rent Appeal No,159 of 2009, before 1st Additional District Judge, Karachi Central who, after framing points for determination as mentioned at page 195 of the file, dismissed the appeal vide the impugned judgment dated 10-1-2010: Hence, this petition.
5. Learned counsel for the petitioner firstly contended that since the learned Rent Controller decided two of the issues i,e, subletting and making alteration impairing the value of the demised premises, in favour of the petitioner, therefore, the trial Court as well as the appellate Court was not justified in deciding the remaining two issues in favour of the respondent/landlord as once a liar is always a liar. He further contended that the respondent did not come to the court with clean hands as the suppressed facts/documents from the Court; that the rent case was solely filed to pressurize the petitioner to purchase the demised premises at a higher rate than the prevailing market price; the-two Courts below failed to take into consideration the evidence on record regarding pugree amount paid by the petitioner to the respondent. The learned counsel also raised some dispute about the rate of rent. The learned counsel also minutely scrutinized the evidence of the parties recorded by the trial Court in a manner as though he is arguing an appeal and not a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan. In support of his contentions, the learned counsel relied on the following judgments of the superior Courts:--
(1) Muhammad Hanif v. Muhammad Ahmad (PLD 1986 Kar. 16),
(2) Muhammad Ismail v. Mst. Bushra Fayyaz (1993 MLD 702),
(3) Messrs Eastern Express Co, Ltd. Karachi v. Tariq Hameed (PLD 1986 Karachi 84),
(4) Safeer Travels (Pvt,) Ltd. v. Muhammad Khalid Shafi (PLD 2007 SC 504),
(5) Messrs Abdul Ghani & Brothers v. Ghulam Nabi and others (2005 YLR 319),
(6) .Shahnaz Begum v. Ikhlas Ahmad (1990 CLC 904),
(7) Islamuddin v. IV ADJ and Sessions Judge, Karachi East and others (PLD 2008 Karachi 166),
(8) Hussaini v. Mukarram Ali (2006 SCMR 1483), and
(9) Muhammad Yousuf v. Mst. Quresha Begum (PLD 1993 Kar. 502).
6. On the other hand, Mr. Laiq Ahmed, learned counsel for the respondent No, 1/landlord contended that there are concurrent findings against the petitioner/tenant on the point of default in payment of rent and personal bona fide requirement of the landlord/respondent of the demised premises for himself and his son and such concurrent findings cannot be disturbed in a constitutional petition.
7. I have heard the learned counsel for the parties and have perused the record with their assistance and gone through the case-law cited before me.
8. The first contention of the learned counsel for the petitioner regarding once a liar is always liar - is concerned, is not tenable at all. The respondent/Adlord filed the ejectment application on four grounds and the learned two Courts below upheld his ejectment application on two grounds but the respondent/landlord was unable to bring sufficient material to prove the other two grounds therefore the same were decided against him. This does not prove that the respondent/landlord was a liar. It is one thing to allege something and not been able to prove it with tangible proof and it is another thing to speak a lie.
9. So far as the concurrent findings of the two Courts below on the point of default in payment of rent and requirement of the demised premises for personal bona fide need of the landlord and his son are concerned, these are findings of facts. It is well-settled that questions pertaining to appreciation of facts cannot be resorted to in exercise of Constitution jurisdiction by this Court.
Reliance in this regard may be placed on the case of Saifullah v. Muhammad Bux and others (2003 MLD 480), wherein Mr. Justice Muhammad Mujeebullah Siddiqui, (as he then was), held as under:-- - "The second contention of Mr. Abdul Qadir Shaikh, learned counsel for the petitioner is, that, the learned two Courts below have not properly appreciated the evidence. I am of the considered opinion that question pertaining to appreciation of facts cannot be resorted to, in exercise of Constitutional jurisdiction by this Court, for the simple reason that in doing so the petition shall be converted into a revision or second appeal and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated. A writ petition is not substitute either for revision or the second appeal, and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law has been violated. No Constitutional petition in rent matters and in all such cases in which no second appeal or revision is provided in law, shall be entertained, until and unless there is a jurisdictional error committed by the Courts below. The exercise of jurisdiction in a perverse or arbitrary manner or ignoring the material available on record or violation of any provision of law, substantive, or procedural, causing miscarriage, of justice or violation of established principles of administration of justice shall bring the case within the purview of jurisdictional error. Learned counsel for, the applicant-is not able to show that any such act has been committed by the lekned two Courts below. This Court, while exercising Constitutional jurisdiction shall not _enter into appreciation of evidence, even if there is possibility of arriving at any other conclusion on the appreciation of evidence. Since the petition is not substitute of appeal, therefore, the second contention is found to be beyond the scope of Constitutional jurisdiction and requires no consideration."
10. The Courts below have discussed in detail the points of default and personal requirement of the landlord/respondent and have given findings which are not perverse or fanciful or are a result of non-reading or misreading of the evidence on record. It was argued that one shop was vacated by wife of the petitioner and handed over to the respondent/ landlord but it is well-settled that the choice is of the landlord to choose which property, out of many properties he thinks is suitable for his C personal use. Reference in this regard may be made to the case of Hafiz Shafatullah v. Mst.
Shamim Jahan and another (PLD 2004 Kar. 502) wherein it has been held that "Mere fact that the landlady owned other shops or some shop had fallen vacant during the pendency of ejectment proceedings or other sons of the landlady were engaged in business of same nature, which was being carried on by the petitioners/tenants in the same locality, would not justify a conclusion that the ejectment proceedings initiated by the landlady were not bona fide."
11. So far as the payment of 'pugree' by the petitioner to the respondent No,1 is concerned, this issue has also been decided against the petitioner as he did not produce any receipt proving payment of any such amount to the respondent/landlord. Even otherwise, the case-law relied upon by the learned counsel for the petitioner relates to West Pakistan Urban Rent Restriction Ordinance in which there was section 7 which prohibited payment of any fine, premium or any other like amount.
In the case of Muhammad Hanif (supra) it was held as under:--- "Above stated practice of "Pagri" has no cover of approval in the West Pakistan Urban Rent Restriction Ordinance, 1959. The very preamble of the said Ordinance shows that the emphasis is on restricting the increase of rent in the public interest. Practice of "Pagri" is direct violation of the preamble of the said Ordinance and produces relationship between the parties which is entirely different from the relationship of landlord and tenant as contemplated under the provisions of the said Ordinance. The intention of the said Ordinance is quite obvious that fair rent should be fixed and rights of both the parties should be safeguarded. "Pagri" completely nullifies the concept of fixation of fair rent. Section 7 of the said Ordinance prohibits in express terms that no landlord shall, in consideration of the grant, renewal or continuance of a tenancy of any building or rented land, require the payment of any fine, premium or any other like sum in addition to the rent. Acceptance of "Pagri" by the landlord is clearly covered by "any other like sum in addition to rent". The expression "any other like sum" should be understood ejusdem generis to the "premium". Any agreement providing for "Pagri" would be hit by prohibition contained in section 7 of the said Ordinance and such agreement would fall within the ambit of section 23 of the Contract Act. In these circumstances such agreement giving cover to "Pagri" would be unenforceable for the reason that consideration or object of it is forbidden by law or is of such a nature that if permitted it would defeat the provisions of law. It can therefore be said that "Pagri" prohibited by section 7 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and if there is any agreement between the parties on that account, then the relationship between the parties is different and is not same as contemplated under the provisions of the above said Ordinance and the landlord cannot claim relief, which is available under the provisions of the said Ordinance. Doctrine of Estoppel also would operate against such landlord who has accepted "Pagri". The view stated above finds full support from the decisions in the case of Afohan Chand v. Manindrs Nath (AIR 1955 Cal. 442) and Dip Narain Singh v. Nageshar Prasad and others (AIR 1930 All. 1). In the instant case, I, therefore, hold that landlord has disentitled himself to seek relief under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, as he has accepted "Pagri" as such the impugned orders passed by the Rent Controller granting eviction on the ground of personal need is hereby set aside and the appeal is allowed with no order as to costs.
12. However, in the Sindh Rented Premises Ordinance, 1979, there is provision of law in pari materia to section 7 of the Ordinance of 1959. At the most if a tenant proves that he has paid pugree the same shall be treated as fixed advance and the tenant would be entitled to refund of the same at the time of his eviction.
13. On the point of personal bona fide requirement of the shop in question for the son of the respondent/landlord, the respondent has denied that his son Mansoor is running an auto parts shop in Shop No,4. Son of the respondent Mansoor also appeared in the witness box and denied that Shop No,4 was got vacated by his father for his use and he also denied that he is not jobless
14. On the point of default, the learned counsel for the petitioner stated that if at there was any default, it was only a technical default and not wilful default on the part of the petitioner. It is admitted position that the petitioner started depositing rent in MRC after alleged refusal of the respondent/landlord to receive rent. However, admittedly the rent was not sent through money order before the petitioner started depositing rent in MRC.
15. On this point section 10 of the Sindh Rented Premises Ordinance is relevant which reads as under:-
10. Payment of rent.- (1) .... Not relevant
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order,' be deposited with the Controller within whose jurisdiction the premises is situate."
16. Thus, as per provisions of section 10 (ibid), every effort shall be made by the tenant to pay the rent to the landlord directly. However, if the landlord refuses to accept the rent then, and only then, the rent is to be sent through money order and, if the landlord also refuses to accept the rent through money order, then the tenant is at liberty to deposit the rent with the Controller in Miscellaneous Rent Case. On refusal of the landlord to accept the rent, the tenant cannot deposit the rent with Controller straightaway until and unless he sends the rent to the landlord through money order. In the present case, it is an admitted fact on the part of the petitioner that when the landlord refused to accept the rent, he started depositing the same in MRC. Furthermore, it is also an admitted fact that water and conservancy charges as per the agreement executed between the parties were to be paid by the petitioner which were not paid. Both these acts form default in payment of rent.
17. The learned counsel also stated that the rent in the earlier agreement was Rs,650 while the respondent is claiming the rent at Rs,3660. However, in para 6 of his affidavit in evidence the petitioner has himself admitted that the present rate of rent is Rs,3660. Therefore, it cannot be said that the respondent No,1 made any wrong statement.
18. In view of the above discussion, I find no merit in this petition which is accordingly dismissed. The petitioner is allowed 30 (thirty) days' time from date of this judgment to vacate the premises and hand over its vacant physical possession to the respondent No,1, subject to payment of agreed rent.