SHAHNAWAZ TARIQ, J.--- Through instant petition, the petitioners have challenged impugned judgment dated 30-3-2005 passed by the learned 'Ind Additional District Judge, Karachi Central in First Rent Appeal No, 57 of 2004, whereby the ejectment judgment dated 27-2-2004 passed by the learned IInd Rent Controller, Karachi Central in Rent Case No,268 of 2002, was upheld and petitioners were directed to vacate the entire ground floor of the Premises No,JV-34-S-41A, 'B' Road, off Super Highway, Liaquatabad, Karachi.
2. Relevant facts giving to instant C.P are that the respondent No,1 filed rent application against the petitioner No,1 Hassan Irani through his five surviving legal heirs under section 15(2) of SRPO, 1979. It is stated that the respondent No,1 being owner of demised premises, had let out the same to the late petitioner No,1 vide rent agreement executed on 4-1-1966 at monthly rent of Rs,20,000 inclusive Electricity, Sui gas, Water, Property and KMC taxes. Said Hassan Irani was regularly paying monthly rent to the respondent No,1 and she was issuing rent receipts. Thereafter rent agreement was renewed on 21-1-1988. It is further stated that initially the demised premises was consisting of hall which was let out for the purpose of Auto Rickshaw workshop, but later on the petitioner No,1 closed said business and established a hotel without any consent of the respondent No,1 by converting entire ground floor into shops of different size and let out the same to different sub-tenants. It is also stated that the petitioner No,1 paid monthly rent upto 31-12-1999, and thereafter he failed to pay the rent as such he committed default in payment of monthly rent for 27 months amounting to Rs,5,40,000. It is further asserted that the respondent No,1 being a widow and in need of the premises in question for her personal use in good faith, requested the tenant i,e, petitioner No,1 to vacate the demised premises and despite of issuance of legal notice, he wilfully failed to reply said notice and also avoided to pay monthly rent, therefore, respondent No,1 filed rent application against petitioners with the prayer to vacate the premises in question and handed over its possession to her.
3. After service of summons, present petitioners appeared before the trial court, while the remaining three legal heirs of petitioner No,1, namely Mst. Sakina, Muhammad and Mst. Tahira remained absent from the rent proceedings pending before the trial Rent Controller and were declared ex parte vide order dated 8-7-2002. However, present both petitioners filed written statement and denied the relationship of landlord and tenant between the parties, as well as execution of the tenancy agreement between the respondent No,1 and petitioner No,1, and claimed themselves to be the owner of the demise premises. They further stated that they had never paid any rent to the respondent No,1 and rent receipts are false and fabricated, as there was no relationship of landlord and tenant.
4. From the pleadings of the parties following points were determined for consideration:---
(1) Whether there exist any relationship of landlord and tenant between the parties?
(2) Whether the opponents have committed default in payment of rent from 31-12-1999?
(3) Whether the opponent has sub-letted the premises in question to any other tenant?
(4) Whether the premises in question is required by the applicant for her personal use?
(5) What should the order be?
5. In order to prove her case, the attorney of the respondent No,1, Syed Badar-ul-Hassan Zaidi filed his affidavit in evidence and produced certain documents as Exhs.A/2 to A/17 and was cross- examined by the Advocate for the petitioners. Respondent No,1 also filed affidavits in evidence of her witnesses namely Haji Muhammad Ameen and Muhammad Sagheer in support of her claim.
6. In rebuttal, the attorney of petitioners namely Muhammad Ali has filed his affidavit in evidence and produced documents as Exhs.0/2 to 0/4. Petitioners also filed affidavits in evidence of their witnesses namely Muhammad Ali Fattwad Zada and Syed Wadood Shah in support of their claim, but only witness Muhammad Ali Fattwad Zada appeared for cross-examination.
7. After hearing arguments and considering their evidence, the learned Rent Controller allowed the rent application in favour of the respondent No,1 vide judgment dated 27-2-2004. Petitioners challenged said judgment by preferring First Rent Appeal No,57 of 2004.The appellate court after hearing arguments of the parties also dismissed said appeal vide judgment dated 30-3-2005.
8. Learned counsel for the petitioners has contended that petitioners are co-owners of the Premises No,JV-34 S-2 "B" Road Liaquatabad, Karachi, vide Extract of Registrar P.T- 1 and the respondent No,1 has nothing to do with the premises of the petitioners. The petitioner No,1 had obtained a licence from District Magistrate to run Caf Hayyat and also paid challan to KMC. He further contended that the trial court as well as the appellate court, have failed to consider the relevant facts of the case as petitioner No,1 died on 17-1-1986 in Bombay vide death certificate as Exh.0/3, therefore, execution of renewal tenancy agreement dated 21-1-1988 is forged and fabricated. Further emphasized that there exists no relationship of landlord and tenant between the parties, therefore, the question of default in payment of rent does not arise. He further urged to set aside the impugned judgment passed by the learned appellate court.
9. Learned counsel for the respondents has vehemently contended that the respondent No,1 was bona fide owner of the Premises bearing No, PU No, JV-34S-41A, Ground Floor consisting of 400 Sq.
Yds. and she had rented out demised premises to petitioner No,1 vide of tenancy agreement dated 6-1-1966,and said agreement was again renewed and extended on 21-1-1988. The respondent No,1 had also issued rent receipts against the rent paid by the petitioner No,1. The petitioners have failed to produce any cogent evidence to defeat the claim of the respondent No,1 and even witnesses of the petitioners have not supported their case. He lastly contended that the respondent No,1 has proved her case by producing witness of agreement and other relevant documentary evidence before the Rent Controller, and both courts below have rightly decided case and concurrent findings cannot be thrown out on the mere denial of the petitioners.
10. I have heard learned counsel for the petitioners as well as respondents and scanned the material available on record along with R&Ps of main rent case with their assistance.
11. It is worthwhile to mention that during the rent proceedings, Syed Badarul-Hassan Zaidi, attorney of the respondent No,1 filed his affidavit-in-evidence and produced Special Power of Attorney executed in his favour, allotment order dated 18-12-1959, possession order, sanctioned letter, site plan, original tenancy agreement dated 4-1-1966 executed between the respondent No,1 and petitioner No,1, renewed tenancy agreement dated 21-1-1988 and legal notice sent to the tenant and during his cross-examination all documents were exhibited by the learned Rent Controller. The attorney has reiterated same facts as narrated by the respondent No,1 in her rent application.
During cross-examination counsel for the petitioners has not challenged the ownership of the respondent No,1 over the demised premises as well as no suggestion was put regarding the ownership of the petitioners regarding premises in question as such said fact remained unchallenged. Muhammad Sagheer filed his affidavit in evidence as witness in support of claim of the respondent No,1 and confirmed that renewed tenancy agreement dated 21-1-1988 was executed between the attorney of the landlady and the tenant Hassan Irani in his presence and he had signed said tenancy agreement as witness. He further stated that tenancy agreement was renewed as a previous tenancy agreement dated 4-1-1966 had expired. In cross-examination, he has stated that all parties signed tenancy agreement in his presence. He denied that he had not signed the tenancy agreement dated 21-1-1988.
12.In rebuttal, Muhammad Ali, attorney of the petitioners filed his affidavit-in-evidence and was cross-examined. The relevant portion of his cross-examination is reproduced as under:--- "I do not know who is the notary public. Tayyaba and Fatima had put their signatures on the General Power of Attorney in presence of my mother and other family members. Except my mother and other family member no other person was present at that time. It is correct that Tayyaba and Fatima have not been identified by the attesting authority in general power of attorney, which I have produced in court. It is correct that I have not produced the original certificate of deceased Hassan Arshadi. Voluntarily says original is lying in Iran with my brother- in-law. I have already produced copy of the death certificate of deceased Hassan Arshadi which I produce as Exh.0/5. I do not know there are difference in both the death certificates. It is 'correct that Exh.0/3 bears two stamps, whereas Exh.0/5 does not bear any stamp. It is correct that on both the death certificates signatures of the reporter are different. I do not know who has signed Exh.0/5 as reporter. I also do not know who has signed Exh.0/3 as receiver. I was born in 1966.
Presently I am not in possession of my NIC. The contents of my affidavit in evidence were not read over to me."
Muhammad All Futtwad Zada filed his affidavit in evidences as witnesses of the petitioners, and stepped-in in witness box. His cross-examination is reproduced as under:-- "I am Irani. Raza Saab has informed me about the facts of the case. He is on of Biman Ali. I am not conversant with the English language. I do not know about the signature on my affidavit in evidence. I do not know what has been mentioned in my affidavit in evidence".
At this juncture, I would like to refer following case-law:---
(i) In case of Haji Noor Muhammad and others v. Karachi Development Authority and 2 others, PLD 1975 Karachi 373, it has held that allottee of plot in scheme formulated under Karachi Development Authority Ordinance, 1957, allottee not merely a licensee or sub-licensee but has a right in rem in respect of plot allotted to him.
(ii) In case of General Manager, Pearl Continental Hotel, The Mall, Lahore/Rawalpindi v. Farhat Iqbal, PLD 2003 SC 952, it has held that High Court, under its constitutional jurisdiction cannot act as appellate authority and cannot substitute its findings for the findings of fact arrived at by the competent Court/Tribunal constituted under special law who has exclusive jurisdiction to adjudicate and decide the matter. High Court has to see whether the judgment /order impugned in the constitutional petition is with or without jurisdiction and if it is found to be without jurisdiction, only then it can interfere in the matter.
(iii) In case of Nasrullah Jan v. Mst. Farzana Begum, 2002 CLC 1523, has held that High Court does not sit as Court of appeal and cannot decide whether evidence suffered for conclusion arrived by lower forum and is not at all obliged to go into the merits of the case de novo, reappraise and assess evidence on question of personal need o landlord. High Court, while exercising in constitutional jurisdiction cannot disturb the concurrent findings of facts recorded by the Courts below reappraisal of evidence unless it is shown that the Courts below have either misread the evidence or perversely appreciated the evidence.
(iv) In case of Syed Abdul Qadeem v. Additional Secretary and Member Judicial, Government of Pakistan and others, 2004 YLR. 2097, it has held that it is well-settled that this court rarely interferes with concurrent findings of facts recorded by statutory tribunals unless it can be shown that some finding was recorded without there being any evidence to support it or a material part of the evidence adduced was completely ignored by the Tribunal below. In view of three concurrent findings of facts we do not think there is any room for interference in constitutional jurisdiction.
15. Perusal of the record, evidence adduced by the parties and case-law referred supra reflects that the respondent No,1 has produced all the necessary and relevant documents to establish her Ownership pertaining to Premises No,JV-34-S-4/A, '13' Road,. off Super Highway, 1 Laquatabad, Karachi, while refuting the claim of respondent and agitating their own claim of ownership, appellants are (only relying upon Excise Registration Extract P.T-1. While examining the contention raised by both parties supported with their respective documents in juxtaposition, the claim of the respondent No,1 seems to be entirely believable, trustworthy and inspiring confidence, therefore, the respondent No,1 has prima facie established her ownership regarding demised premises. The respondent No,1 has produced tenancy agreement dated 4-1-1966 which was signed by petitioner No,1 as well as witnesses, and even she has also produced rent receipts which were issued by her at the time of payment of rent 'by petitioner No,
1. Furthermore rent agreement was renewed by the parties vide written agreement dated 21-1-1988 which was signed by the respondent No,1 and petitioner No,1 as well as witnesses Muhammad Sagheer and Haji Muhammad Amin. During course of evidence, the respondent No,1 has also produced witness Muhammad Sagheer before the Rent Controller who filed his affidavit in evidence and supported the claim of the respondent No,1 in toto, and he was also cross-examined by the counsel for petitioners, but his evidence remained unshaken and unshettered. He clearly stated that parties had signed renewal rent agreement in his presence and he himself also put his signatures thereon.
16. Next contention averred regarding the death of the petitioner No,1, petitioners have failed to establish their claim that petitioner No,1 had died on 17-1-1986 at Bombay, India, as petitioners have produced two death certificates as Exhs.0/3 and 0/5, and contents whereof are self-contradictory and this facts has been admitted by the attorney of petitioners namely Muhammad Ali is his evidence (reproduced above) and even he has admitted that original death certificate is lying at Iran and there are differences in both death certificates, he was unaware the names of reporter of death information and recipient of death certificates. Moreover petitioner's witness Muhammad Ali Futtwad Zada has also not supported said fact in his cross-examination, therefore, both death certificates could not be believed and considered as trustworthy.
18. For the foregoing reasons, circumstances and identical case-law referred supra, I am of the considered view that the petitioner has failed to make out the case of interference in the concurrent findings recorded by the both courts below, whereby the learned Rent Controller has allowed ejectment application against the petitioner vide judgment dated 30-3-2005, which was maintained by the Appellate Court of learned II Additional District Judge, Karachi Central vide judgment dated 27-2-2004 passed in First Rent Appeal No,57 of 2004. No misreading, non-reading, illegality or infirmity has been pointed out by the petitioners for upsetting the concurrent findings, therefore, the impugned judgment passed by the learned Appellate Court does not call for any interference, hence same is upheld. Consequently instant constitutional petition filed by the petitioners being devoid of any legal force stands dismissed.