' SYED MUHAMMAD FAROOQ SHAH, J.---The petitioners by invoking the extraordinary Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973, assailed the concurrent findings of both Courts below, relating to their ejectment and have prayed for the following reliefs:-- "(i) That this Hon'ble Court may graciously be pleased to allow the above petition in favour of the petitioners above named and against the respondents, to struck down/set aside. The Impugned orders dated 8-3-2010, passed by Hon'ble Court of IXth Senior Civil Judge/Rent Controller Karachi South, in Rent case No.117 of 2005, which is upheld by the learned. Additional District Judge Karachi South vide its order dated 23-4-2011, both the aforementioned impugned orders, being illegal and having no legal effect or consequences. Resultantly, the ejectment application filed by the respondent ,No.01, bearing Rent Case No.117 of 2005, against the petitioners above named may be dismissed with special costs.
(ii) That the ejectment order dated 8-3-2010, passed by the Hon'ble Court of IXth Senior Civil Judge/Rent Controller Karachi South and upheld/confirmed by the Vth Additional District Judge, Karachi (South) in ERA No. 192 of 2010 may be suspended till final disposal of the above petition.
(iii) Any other/further/better relief which this Hon'ble Court may deem just and proper may be awarded to the petitioner No. 1 above named".
2. Precisely, the relevant facts are that the rent Case No. 117 of 2005, filed by the administrator of Saint Francis Church, through its attorney Fr. Samson Shukardin, on many grounds of eviction including that petitioner No. 1 being tenant changed the nature of business from Barber shop to restaurant and then assumed the business of wood/biddings in the shop premises. It is asserted that he had also subletted the demised premises to petitioner No.2 @ Rs. 8000 per month, who started wood works in it, causing nuisance to the school children. Personal requirement of the demised premises has also been urged by the respondent No.1 /landlord to extend the school building as per building construction plan and averred that the construction plan of the building has been approved by KBCA and in spite of request, the petitioner did not vacate the shop in question. It was also asserted that 'the case premises belongs to Roman Catholic and it is not ever used for business purpose. The said premises was let out only on the basis that whenever the school building will need to be extended, the tenant will vacate the same. Pleadings of the parties shows that petitioner has also filed a Civil Suit No.912 of 2003 against the respondent No.1 for permanent injunction with the prayer that he may not be dispossessed from the case premises without due course of law. Record reveals that the respondent No.1 has earlier filed a rent case No.876 of 2003 for eviction of the petitioner No.1/opponent No.1 but the same case was withdrawn by the respondent No.1. On conclusion of rent proceedings of instant case, the Rent Controller has allowed the ejectment application bearing No.117 of 2005, on the ground of sub-letting, personal bona fide requirement and creation of nuisance. The rent order was assailed by the tenant/petitioner in First Rent Appeal No. 192 of 2010. By judgment dated 234-2011, the learned Vth Additional and District Judge, Karachi (South) after dilating upon each issue, maintained the findings of original court of rent controller and consequently, dismissed the Appeal.
3. Arguments advanced by both sides' advocates at length have been considered, in light of the case-law, cited by them. Record has also been perused.
4. Learned counsel for the petitioner at the very outset submitted that the ejectment proceedings were not maintainable under the law as the same were filed by an incompetent person and since the earlier rent case No. 876 of '2003 was withdrawn, therefore, a fresh rent case invoked the principle of res judicata. It is contended that the trial Court did not consider the evidence adduced by the petitioner and the case-law relied upon by their counsel.
5. On the other hand, learned counsel for the respondent/landlord has shown, an authority letter with the signature and seal of the Bishop Everest Pinto, issued on the special resolution of Council Member of Church and the letter dated 18-3-2003, issued by KBCA to Bishop Everest Pinto, showing him owner/administrator of the property; KBCA has also issued a letter of approval for construction of building plan, dated, 22-1-2004, in respect of the case premises, in the name of said Bishop.
Keeping in mind such facts both learned lower Courts answered the issue of maintainability of rent proceedings in affirmative. So far as the ground to file a fresh rent case is concerned, undoubtedly, the ejectment proceedings may be initiated on fresh grounds and since there were fresh grounds of ejectment of the petitioners, therefore, learned Rent Controller while placing reliance on PLD 1985 PLD SC 20(2) and 1981 SCMR 528 held that afresh rent case is maintainable. With regard to remaining three grounds of eviction settled by the Rent Controller and duly discussed in First Rent Appeal No.192 of 2010, learned counsel for landlord submitted that the tenant/petitioner No.1 sub- letted the demised property to the petitioner No.2 illegally and unauthorizedly, created the sub- tenancy and is receiving the rent @ Rs.8,000 per month from him, in respect of the case premises and the petitioner No.2 started business of wood and bidding in the demised premises. Evidence brought on the record by landlord shows that the petitioner No.2 Muhammad Aziz Memon is doing the business in it, who has larified in his evidence, to be the salesman of the tenant/petitioner No. 1.
6. While taking into consideration, the ground of personal need in good faith and to discard the claim of the landlord, the tenant is required to show some concrete evidence of mala fide on the part of the landlord. In instant case the landlord specifically stated in his affidavit-in-evidence (annexure P/5), the ground of sub-letting of the said premises to the petitioner No.2, at the rent of Rs.8,000 per month and that the said wood work business is causing nuisance and constant disturbance to the school children as well as during prayer time. In para-4 of his affidavit in evidence, the landlord stated that the property of Roman Catholic Church has never been used for business purposes but the demised premises consisting on said one room, erected on the said plot was only let out to one Haji Moinuddin, being a very poor and deserving person, who undertook that it shall be vacated, whenever it will be needed to the administrator for extension purpose of school building. It is further stated that now administrator wants to extend the school building, as the number of students have been increased and such building plan for construction has been approved by the KBCA, which he has produced along with affidavit-in-evidence. He has further deposed that when the petitioner No.1 was requested to vacate the premises, he filed a Suit No.912 of 2010 for injunction. Having no other remedy, the landlord has filed the rent case on fresh grounds as the tenant/petitioner No.1 let out the premises to the petitioner No.2 on monthly rent of Rs.8,000 and thus created sub-tenancy. Moreover, KBCA has already approved building plan which includes the demised tenament. To clarify his position on personal bona fide need, landlord stated in his evidence that the demised premises belongs to _Roman Catholic Church, where innumerable students are getting their education, hence they require this room/demised premises in the possession of the petitioner, for extension of school building. He was subjected to lengthy cross- examination but no material contradiction has brought on the record.
6. On the other side, tenant/petitioner No.1 has filed the lengthy affidavit in evidence before rent controller spreading on 10 pages and also an affidavit in evidence of petitioner No.
2. Petitioner No.2 submitted that he is putting up in the premises as an employee of petitioner No.1 on salary of Rs.6,000 per month. In cross-examination, the tenant/petitioner No.1 admitted that his father was hair dresser and 3 and 4 persons were his employees. He has also admitted that the relation in between the administrator and his father were very cordial and after the death of his father, tenancy devolved in his name and he continued the business of his father. Later on, in the year, 2001, he converted the business into restaurant in the demised premises, without obtaining permission of administrator, again said that the permission was granted by the administrator orally, however admitted that on objection raised by the landlord/respondent No. 1, he stopped running the restaurant. He has also admitted that the business of wood and bidding was started after the restaurant. He has also admitted that at the time of filing of ejectment application, the building was in dilapidated condition. He has further admitted that he has issued the notice to the KESC, wherein he asked them to stop the work and to cut the power as the case is pending before Rent Controller with regard to payment of 'Pagri' by his father. Petitioner No. 1 'stated in cross that he did not produce any documentary proof of the payment of 'Pagri'. He has, however, admitted that at present besides himself one other person is working with him. Petitioner No.2 (alleged sub-lette) stated in cross-examination that he does not know the name of the landlord of the case premises and that neither he visited his house nor seen him personally. He has further admitted that he himself maintain and look after the shop in question alone and use to open it at 9:30 am and close it after Maghrib prayer and that he sits in the shop in question, full time, but he does not know the exact income of the said shop; he has shown his unawareness regarding hairdresser shop.
However, he has denied sub-letting of demised shop to him by the petitioner No.1.
8. Case-laws relied upon by the learned counsel for the petitioners are perused. In the case of HBL v. Zelins Limited and another (2000 SCMR 472), Hon'ble Court held that if objection was raised about the competence of the Officer of the bank, burden fell upon the bank to establish that the person instituting the ejectment proceedings was authorized by the Bank in that behalf, where such burden was not discharged by the Officers of the Bank, at any stage, of the proceedings, view taken by High Court and the Rent Controller that the application of ejectment in circumstances is not maintainable is an exceptionable. However facts and circumstances of the instant case reveals that the attorney of respondent was having authority to file the ejectment proceedings against the petitioner/tenant, therefore, this citation is not attracting in the circumstances of the present case.. Case-law reported in 2006 SCMR 437 relating to authorization to file the ejectment proceedings is also hot attracting. The identical case-law reported in PLD 1999 Lahore 450 relating to filing the application by authorized persons is equally not attracting. Citation reported as 2009 CLC '291 is also distinguishable, in the circumstances and facts of the present case. The citation reported as 1998 CLC 410 is also not attracting. In the case of Naeem Ahmed v. Mrs. Marim reported as 2000 MLD 442 relied upon by learned counsel for the petitioner, it was held that tenant could be evicted, if his act impaired the material value and utility of the premises. In another ruling reported as 2001 CLC 1778, it was held that the landlord having neither produced nor exhibited in evidence approved building plan, therefore, Rent Controller was not justified to order ejectment of tenant, on the ground of reconstruction of the premises, but in the present case, the applicant has produced the approved plan of construction issued by KBCA, therefore, this authority also goes against the petitioners. In 2005 CLC 3, it was held that without express and clear plea, showing the purpose for which demised premises was required by landlord, Court could not consider or decide the question of requirement and its reasonableness. This citation also distinguishable as the respondent has categorically stated that demised premises is required by them for extension of school building, after when they obtained approval of reconstruction plan from the concerned authority i.e. KBCA.
9. With regard to impairing the material value and utility of the premises and sub-tenancy, the reliance is being placed on 1993 MLD 219, wherein it is held that incumbent landlord was bound to show that tenant had divested himself of possession of premises in dispute and some one else had been inducted therein, who was enjoying benefits of premises, which in the instant case has been established by respondent No.1 by placing sufficient material evidence on record, therefore, the citation relied upon by the learned counsel for the petitioner does not favour him and goes against his contention. In 1993 SCMR 1163, the Hon'ble Supreme Court held that evidence on the record showed that the tenant himself was in possession and he had not parted with possession of any part of premises for subletting. However, in the instant case, the petitioner No. 2 has admitted that he is running the business of petitioner No.1 in the premises but he has cleverly shown him an employee of petitioner No. 1 instead of sub-letter.
10. It is settled law that in its constitutional jurisdiction under Article 199 of the Constitution, the High Court may not act as Court of appeal on the question of fact and the findings recorded by lower Appellate Court appears to be in consonance with evidence available on the record and the same did not call for any interference by this Court, resultantly, petition was dismissed in circumstances as held in cited case reported case as 2010 CLC 925. Suffice is to say that the citations relied upon by the learned counsel for the petitioner are not attracting in the facts and circumstances of the present case as there is concurrent finding of both learned lower Courts on the issue of subletting, personal bona fide requirements, nuisance and reconstruction of the premises.
11. Conversely, Mr. Shahbaz Sahotra, learned advocate for landlord/respondent No. 1 argued that admittedly the premises in question belongs to Roman Catholic Church and Bishop Everest Pinto being head/owner/landlord of the Christian Institutions, churches schools, hospitals, colleges etc: being Arch Bishop of Karachi, is an authority in this respect and this fact also narrated by the applicant in his cross-examination that bishop is the authority to authorize any person to look after all the relevant matters relating to the church. It is submitted that the authority letter issued with the signature and seal of bishop Everest Pinto on the special resolution of council members of church was placed on the record and another letter dated 18-3-2003 issued by KBCA to the bishop Everest Pinto being owner/administrator of the property was also placed on the record of the trial Court, therefore, he has the authority to appoint/authorize any person to the matter relating to the premises and the said position has been admitted by the tenant to be true and correct. Learned counsel emphatically submitted that there appears no substance in the contention of the learned counsel for the petitioners that the rent application was filed by an incompetent person. It is further submitted that material available on record shows that earlier rent case bearing No.976 of 2003, filed by the respondent was withdrawn and subsequent present rent case was filed by the respondent on new issues, therefore, principle of res judicata does not attract.
12. Mr. Sahotra, learned Counsel for the respondent/landlord contended that the petitioner No. 2 Muhammad Aziz Memon is putting up in the demised premises not being an employee of the petitioner No.1 but as a sub-lettee. It is submitted that sufficient evidence has adduced by the respondent NG.l to establish the ground of personal need of demised premises for extension of school's building but the tenant despite making promises, failed to vacate the same and the evidence of respondent No. 1 was gone unshaken. Dilating upon the issue of subletting, learned Counsel reiterated that the petitioner No.1 himself admitted in evidence that his father had acquired the premises in question for running the shop of hairdresser and on his death, the petitioner No. 1 continued business of his father but later on converted the business into a restaurant in the year 2001, without obtaining any written permission from the administrator of church for changing business of hairdresser to restaurant and thereafter for the business of wood and biddings, as machines installed for cutting the wood, causes nuisance during school time as well as at the prayer time. In support of his contention, learned counsel placed his reliance on the citations of Superior Courts. In the case of Dost Muhammad and another v. Muhammad Shabbir Hussain and another reported as 1981 SCMR 528, the apex Court in second ejectment application, filed by the respondent on changed circumstances of personal need, held, maintainable. In the case of Bashiruddin and others v. The Additional District Judge and others PLD 1985 Supreme Court 220) is also attracting in the circumstances of present case, on the issue of maintainability as plea of subletting had not been taken by the landlord in the earlier ejectment application, therefore, this was a fresh ground which has been accepted by the Rent Controller and upheld in appeal, therefore, order of eviction on that ground to the effect notwithstanding the dismissal of landlord's earlier application, which was based only on the ground of personal need and on the issue of reconstruction of the demised premises, approved by the competent authority/KBCA. Reliance is being also placed on Muhammad Ajmal Khan and others v. Rashid Shafique and others reported as (2012 SCMR 854). While referring the case of Saira Bai v. Syed Anees-ar-Rehman reported as 1989 SCMR 1366, learned counsel submitted that it is held by the Supreme Court that mere statement of landlord to the effect that he needed the premises in question for his personal need would be sufficient proof of personal need of landlord. He has also cited the reported case as (2004 MLD 587 Karachi) and (PLD 2003 Karachi 34) Muhammad Anwar Azim and another v. R.I. G Education Board.
12. (sic) The Apex Court in the case of Iqbal Book Depot and others v. Khatib Ahmed and 6 others (2001 SCMR 1197) held that even in case of non-construction of building, the same could have been got evicted on the ground of bona fide use, selection of area and nature of business is a choice of landlord and the same cannot be interfered with. In paragraph-11, Placitum-I, it is held that "order for eviction would require satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of premises. Eviction order could not be granted on vague allegations in eviction application. Plea of requirement would have to be supported by valid reasons as to how such requirement is genuine". In PLD 1986 Karachi 84, it is held that the ejectment application and the evidence led by the landlord proves that demised premises is required to establish the restaurant/hotel. In the case of Shakeel Ahmed v. Muhammad Tariq Farogh (2010 SCMR 1925), relevant page-1929 placitum f & g, the principle for seeking eviction of a tenant from the rented shop, on requirement of personal bona fide by the landlord, held, stands discharged the moment he appears in the witness box and makes such statement on oath or in the form of an affidavit in evidence as prescribed by law, if it remains unshattered in the evidence adduced by the opposite party. It is further held that it is not the requirement of law that the landlord, in order to prove bona fides of his personal need, shall keep himself away from all sorts of income generating ventures or to keep himself idle as long as the fate of his ejectment case, which may consume year and years together, is finally decided by the Court. It has further been held (at) relevant page 1930) "that 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."
13. For the forgoing reasons, I reached at the irresistible conclusion that the order of ejectment passed by the Rent Controller, maintained in the appeal is founded upon sound reasons, does not suffer from misreading, non-reading of evidence and also from the jurisdictional defect and there is no justification for interference in the concurrent findings, through the Constitutional jurisdiction of this Court, more particularly, sufficient unshattered evidence on the ground of subletting, personal bona fide need and reconstruction have been established. Resultantly, the petition fails and dismissed but with no order as to costs. The petitioners are however, allowed two months' time to vacate the premises, provided they continue to pay the monthly rent before the 15th of each calendar month.
' The petition is disposed of in the manner indicated above.