1. ' AFTAB AHMED GORAR, J.---Through this Constitutional Petition, petitioner has impugned the Judgment dated 5-9-2009 passed by 1st Additional District Judge, Karachi East whereby he dismissed F.R.A. No,82 of 2008 filed by the petitioner/tenant against eviction Order/ Judgment dated 21-7-2008 passed by VIIth Senior Civil Judge/Rent Controller, Karachi East.
2. ' Brief facts giving rise to the filing of instant petition are that respondent claiming to be the owner/landlord filed ejectment application against the petitioner stating therein that he is the owner of shop measuring 8 Sq. Yards situated in Sector 42/C, Jet Lines, Survey No,103/C, Lines Area, having acquired the same by virtue of a registered General Power of Attorney. According to him, the petitioner is his close relative i.e, son hence tenancy was verbal and the petitioner agreed to pay rent of the shop in question at the rate of Rs,3000 per month. He further asserted that the petitioner failed to pay rent since August, 2003 despite repeated demands and that he requires the premises in question for his personal bona fide need.
3. ' The petitioner contested the matter and filed written statement wherein he denied the averments of the ejectment application. He controverted the claim of the respondent and submitted that the irrevocable general power of attorney executed by the respondent in favour of her wife, Mst.
4. Naseem Bano is illegal, even otherwise the said power of attorney was executed in respect of Katcha shop bearing Survey No,103/C in Sector 2/C, Jet Lines, Karachi. He specifically denied the relationship of landlord and tenant between the parties as well as entering into any verbal tenancy agreement. He further asserted that the respondent is his father and Mst. Naseem Bano is his step- mother. He added that he has filed civil suit which is pending before the court of law. He also submitted that he paid Rs,60,000 to the petitioner due to his old-age who subsequently executed sale agreement on 19-2-1999 and issued receipt.
5. ' On the pleadings of the parties, learned Rent Controller formulated the points for determination and after recording evidence of the parties, hearing their counsel, vide judgment dated 21-7-2008 allowed the ejectment application and directed the petitioner/tenant to vacate the shop in question and hand over its vacant possession to the petitioner. The said judgment was challenged in appeal which was also dismissed vide judgment dated 5-9-2009, hence this petition.
6. ' I have heard the learned counsel for the parties and with their assistance perused the material available on record.
7. ' In the first instance, I would deal with the point of existence of relationship of landlord and tenant between the parties.
8. ' In fact, this point has almost been settled by the apex court. In this respect reference may be made to the case of Iqbal v. Mst. Rabia Bibi (PLD 1991 SC 242) wherein it was held by the honourable Supreme Court as follows:-- "In some recent judgments this Court has taken the view that the case like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/ tenant cannot be allowed to retain the possession during the litigation where be continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well- known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in the occupation and light the litigation for long time, even. For decades. In this .Case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false.
9. ' Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not he at the cost of landlord/owner. It should be at the cost of himself and be must vacate though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord."
10. Even in a recent case of Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320) the honourable Supreme Court while dealing with the above point held that it is the settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then hey has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails. In the above case the apex Court also referred cases of Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisar Begum v. Mst.Rabia.
11. Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012) and Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877). Even otherwise it is now well-settled that the sale agreement does not create any title/ ownership.
12. ' So far as the point of default in payment of rent is concerned, the respondent claims that the petitioner has not paid the rent since August, 2003. The petitioner, on the other hand, claims that through a sale agreement he has purchased the shop in question and in his cross-examination he admitted that the possession of the shop was delivered to him by his father on 19-2-1990. In this view of the matter default stands proved as it is crystal clear that when the petitioner is denying the very relationship of landlord and tenant between the parties and is claiming to have purchased the shop in February, 1990 i.e, much prior to the period of alleged default, then he is not expected to pay the rent.
13. So far as the personal bona fide need is concerned, it is now well-settled that the moment a landlord appears in the witness box and makes statement regarding his personal bona fide need which remains unshattered in cross-examination and unrebutted in the evidence adduced by the tenant, the requirement of law on the part of the landlord stands discharged. Even 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. In this context if any authority is needed, reference can be made to 2010 SCMR 1925, 2001 SCMR 1197, 2008 CLC 446, 2003 SCMR 1398, 1997 SCMR 1062 and 1992 SCMR 1296. In the case in hand, as stated above, respondent No,2 deposed in his evidence that he wants the shop in question for his personal bona fide need. The petitioner neither succeeded in shaking such statement nor could he rebut the same in his own evidence. Rather in his cross-examination he showed his ignorance about the requirement of the shop in question by the respondent/landlord for personal use.
14. ' Yet examining the case from another angle, it could be held that even the constitutional petition itself is not maintainable. There are concurrent findings of the learned Rent Controller as well as the Appellate Court. Needless to emphasize that constitutional jurisdiction of this Court in rent matters is very much limited and confined only to ascertain whether the E 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.
16. 1979."
17. ' In the instant case neither there is any jurisdictional error, nor any perversity, illegality or infirmity was found in the orders passed by two courts below. Needless to mention that constitutional jurisdiction is a discretionary jurisdiction which is meant to foster justice and to remedy the wrong but could not be allowed to be invoked in routine course as .An additional remedy to hamper the findings of fact, correctly recorded by the forums below.
18. ' The upshot of above discussion is that the constitutional petition is dismissed in limine and the judgments passed by learned Rent Controller and the Appellate Court are upheld. The petitioner/tenant is directed to vacate the premises in question and hand over its vacant and peaceful possession to the respondents within 30 days.
19. ' Before parting with the case, it may be pointed out that although C.P. No,S-21 of 2009, which is attached with the present petition, was disposed of vide order dated 3-6-2010, despite that the office has been fixing the said petition for Katcha Peshi. In fact, at the request of the counsel for the petitioner, said petition was dismissed as withdrawn with the permission to file fresh petition and in pursuance of the said order, the petitioner has filed the instant petition. Office must be cautious and careful in future.