' SYED MUHAMMAD FAROOQ SHAH, J.---The petitioner, through this petition has challenged the judgment, recorded by the learned 5th Rent Controller, Karachi South, in Rent Case No.239 of 2005, filed by the respondent No.1, for ejectment of tenant namely Muhammad Shahzad Sultani (husband of petitioner), whereby the ejectment application was allowed, consequently, Execution Application No.18 of 2006 was filed and the possession of the rented flat/premises was handed over to the respondent No.l.
2. From perusal of record, it appears that after her eviction from the demised premises, petitioner Mst. Shabana Anjum/wife of the tenant has shown her appearance before the trial court by filing different applications, which included application under Order XXI, Rule 26 read with section 151, C.P.C, second application under Order I, Rule 10, C.P.C. And third application under section 12(2), C.P.C. For setting aside the ejectment order. These applications were filed on 28-11-2006 and after dismissal of said applications, the respondent No.1 has preferred First Rent Appeal No. 138 of 2009 on 15-5-2009, after a period of about 30 months of ejectment order, dated 23-11-2006. Through the captioned petition the petitioner, has made a prayer to set aside the impugned order dated 30-5- 2007, passed by the learned appellate Court.
3. Necessary facts for decision of instant petition are that respondent No. 1/landlord Muhammad Gulzar had filed rent case No.1147 of 2003, against tenant/husband of the petitioner, which was dismissed by order dated 29-1-2005/ for want of territorial jurisdiction and thereafter landlord has filed a fresh case No 239 of 2005, before the Court having jurisdiction, whereby the tenant was directed to vacate the premises within sixty days.
4.. According to the respondent No.1, he is owner/landlord of AlHussaini Chambers, Dawoodpota Road, Saddar, Karachi and husband of petitioner is tenant in the demised premises viz. Flat No.2, 2nd Floor at the monthly rent of Rs.750 per month. Averments of the rent proceeding reveals that the tenant has paid rent till the month of December, 2001 and thereafter has failed to tender the rent till filing of ejectment application. Respondent No.1 (landlord) further stated that he requires the premises for his personal bona fide use. It appears that on admission of rent application, notices were issued to the tenant through bailiff as well as through TCS courier service and by way of pasting of the notice on his address by bailiff of the court and a notice was also published through publication in daily "Nawa-e-Waqt" Karachi, dated 8-2-2006. Service against tenant was held good on 14-3-2006 and thereafter on failure to file written statement, the matter was proceeded ex parte against the tenant and landlord was required to file affidavit in ex parte proof, which was duly presented on 13-5-2006, wherein respondent No.1 has reiterated the grounds of ejectment of tenant for his personal bona fide use as well as on wilful default of payment of rent.
Consequently, the rent application was allowed vide order dated 10-7-2006, followed by writ of possession. Perusal of record further transpires that petitioner/wife of the tenant has filed application under section 12(2), C.P.C: beside two other interlocutory applications mentioned above, wherein she has categorically stated that she was never served with a notice and that it was in the knowledge of the landlord during proceedings of earlier case No. 1147 of 2003 that the tenant was confined at Iran jail and that the petitioner represented him. In such view of the matter, as per petitioner, the service has not been effected under the provisions of law, as neither tenant nor petitioner were in knowledge about the rent proceedings.
5. Arguments advanced by learned counsel for the parties are considered in light of the rulings of superior courts and record has also been perused.
6. Learned counsel for the petitioner submitted that neither the petitioner has committed default in payment of rent nor the landlord needs the demised premises for personal bona fide requirement.
It is submitted that on refusal to accept monthly rent, the same was deposited in MRC No.1113 of 2003 and thereafter the petitioner is regularly depositing the rent in court. It is next contended that the landlord has constructed two flats on the roof of tenament and some other newly constructed flats were rented out to different tenants, therefore, the landlord has failed to show as to why his demand to establish business in the demised premises could be held satisfactorily. To support his contention, learned counsel placed reliance on 2011 SCMR 1306. It is further submitted that the ex parte order passed in rent proceedings can be challenged through application under section 12(2), C.P.C. Or by way of appeal, so petitioner challenged the order by way of application under section 12(2), C.P.C, without filing any appeal and after decision of application under section 12(2), C.P.C, she preferred the appeal and the order of appellate court is impugned before this Court. Learned counsel has also placed reliance on 1992 SCMR 707, 2012 MLD 39, 2013 YLR 1584, 1985 CLC 256 and PLD 2007 Karachi 50(a).
7. Conversely, the learned counsel for landlord/respondent No.1 has vehemently denied the statement of petitioner/wife of the tenant and contended that neither the petitioner is tenant nor she is paying monthly rent, though she was in full knowledge about the proceedings of the instant case, hence the plea of misrepresentation and fraud is totally uncalled for particularly, the notice was sent to the tenant at the address of demised premises through TCS, returned delivered with report of courier that Mst. Shabana Anjum (petitioner) had received the notices on 13-4-2005 and 18-11-2005. Similarly, the notice was sent to the tenant through registered post AD and the AD, the acknowledgement due receipt returned, which bore the signature of petitioner but on her nonappearance, the notice was also published in daily newspaper "Nawa-eWaqt" Karachi, dated 8-2-2006; infact, the petitioner has shown her appearance earlier in Rent Case No. 1147 of 2003, therefore, she was having knowledge of present case and it was not the duty of landlord to locate the addresses of tenant who was reportedly confined in some prison of Iran. By order dated 5-5- 2009, on application under section 12(2), C.P.C, the learned trial court has considered all the aforementioned facts and reached at the conclusion that despite service made upon the petitioner, she did not appear before the trial Court in subsequent proceedings of rent case No. 239 of 2005, intentionally and deliberately, hence the trial court has rightly allowed the ejectment application. It is next contended that the appellate court while deciding First Rent Appeal No. 138 of 2009, filed by the petitioner, has observed that the appeal has been filed at belated stage without explaining the reasons of delay, nor sought condonation of delay under section 5 of Limitation Act, thus the appeal against ex parte order is hopelessly time barred; that the learned appellate court has further observed that three applications filed by the petitioner before the court of Rent Controller were decided but she has not specifically mentioned that which one she wanted to be set aside, either the order on application under section 12(2) C.P.C. Or order passed on application under Order I, Rule 10, C.P.C. Learned counsel referred the cases of superior courts in support of his contentions. The cases are 1985 SCMR 893, 1999 MLD 2132, 1996 MLD Karachi 821, NLR 1980 Civil Lahore 509, 2000 CLC Karachi 1997, 1976 SCMR 79, 2009 MLD Karachi 7, 2000 SCMR 1197 and 2000 SCMR 953..
8. The learned counsel for landlord submitted that the petition is not maintainable in law on the ground that there is no relationship of landlord and tenant between the respondent No.1 and petitioner. It is further submitted that the original tenant Muhammad Shahzad Sultani (husband of the petitioner) never challenged the ejectment order dated 10-7-2006, as such the petitioner has no locus standi to institute and contest this petition. Learned counsel further submitted that the petitioner did not prefer appeal against the ejectment order dated 10-7-2006 within stipulated period of 30 days as required under section 21 of S.R.P.O. 1979, therefore, the same is liable to be dismissed. It is next contended that the notices/summons of ejectment application were duly served upon the petitioner, which is evident from the record, therefore she cannot be allowed to say that she had no knowledge of rent proceedings, as no legal defect or infirmity exists in matter of service by affixation against tenant on part of Rent Controller since Rent Controller was not bound by intricacies and technicalities of Code of Civil Procedure. Therefore, presumption was that notice was served on tenant by virtue of Article 129 of CL(e) of Qanun-e-Shahadat Order, 1984 as well as under Section 27 of General Clauses Act. Service was also effected through courier post service i.e. TCS but the tenant or the petitioner had chosen to remain away from the court proceedings and to take advantage of their negligence. Learned counsel submitted that if at all, the tenant i.e. Husband of the petitioner was confined in jail of Iran, then how the petitioner contested rent proceedings in his absence, without any lawful authority and that the question of service is disputed question of fact which cannot be questioned in constitutional jurisdiction as held in reported judgment by this Court in PLD 2004 Karachi 203.
9. Learned counsel for the landlord argued that the petitioner has not filed any appeal against the ejectment order dated 10-7-2006, therefore, this petition is not maintainable as the remedy of appeal, provided under section 21, S.R.P.O. 1979, available to the petitioner has not been exhausted.
On the issue of 'Pagri' learned counsel placed his reliance on PLD 2007 Karachi 50 and submitted that in the cited ruling it was held that payment of 'Pagri' is not a hindrance in or bar against seeking the eviction of tenant under section 15(viii) of S.R.P.O.
1979. Per learned counsel for the landlord it is an admitted position that original tenant, husband of petitioner namely Muhammad Shahzad Sultani has not filed any proceedings against ejectment order passed by the Rent Controller vide order dated 10-7-2006, therefore, this petition is not maintainable as subtenant/tresspasser/encroacher will not sail with the original tenant in the same boat. In such context, reliance is being placed on 2007 CLC page 535, wherein it is held that all owners could not be landlords or possessors or occupiers of their properties and all possessors or occupiers could not be tenant of the owners and mere possession or occupation cannot be sufficient for conferring status of tenant; sub-tenant had no independent right of his own and had to stand or fall, sail or sink with the tenant and had no right to claim tenancy or pay rent or file appeal against orders of ejectment, when the original tenant had not appealed.
10. While considering the submissions made by both the sides, I reached at the conclusion that it is now settled law as laid down by the Hon'ble apex courts that the choice lies with the landlord to select any tenement for his personal need and for this purpose the tenant or the court has no locus standi to give their advice for alternate accommodation as held in the case of Pakistan Institute of International Affairs v. Naveed Merchant 2012 SCMR 1498. Bona fide requirement of landlord/owner may conveniently be placed after pronouncement of apex court, starts from the case of Saira. Bibi v. Syed Anees-ur-Rehman 1989 SCMR 1366 and subsequent decisions reported in 2002 SCMR 241 (Jehangir Rustum Kakalia v. Hashwani Sales Services) and 2001 SCMR 1197 (Jabal Book Depot v.
Khatib Ahmedi. In the case of F.K. Irani v. Begum Feroz) 1996 SCMR 1178 the Hon'ble apex Court held that B suitability of business and selection of area is choice of landlord and the same cannot be interfered with.
11. Circumstances of the present case reveals that the appeal under section 21 of S.R:P.O. 1979 was not preferred within stipulated period but at belated stage of about thirty months, therefore, the appeal was rightly treated to be time barred. More-so, it is not the responsibility or duty of the landlord to locate or to find out the address of the tenant, where he is serving or allegedly confined.
Service of notice to the tenant on the address of demised premises through his family members is a sufficient proof of valid service.
12. Whatever mentioned above, I am satisfied that the order of ejectment passed by the tribunal below founded upon sound reasons and there is no justification for interference in constitutional jurisdiction by this Court, more particularly, the eviction order has not been challenged by filing appeal within required period as prescribed under section 21 of SRPO 1979, therefore, the petitioner being wife of the tenant is having no locus standi, authority or right to contest the proceedings on behalf of her husband/tenant. Facts of the instant case shows that during rent proceedings, spreading on a span of more than 10 years, the tenant did not show his appearance before the court and it has not been explained by the petitioner that for how long the tenant shall suffer the imprisonment or confinement in a prison of Iran. Suffice it to say that there is no mala fide on the part of the landlord, and more particularly, the landlord should not suffer due to confinement of the tenant in the prison of Iran for indefinite period.
13. The crux of the aforementioned discussion is that the appeal as required under section 21 of S.R.P.O. 1979 has not been preferred against ejectment order and appeal filed at belated stage against order passed on application under section 12(2), C.P.C. Was rightly dismissed by the learned appellate court. The concurrent findings recorded by both learned courts below are well reasoned and 'do not -require any justification for interference by this Court as there is no illegality or material irregularity, misreading or non-reading of evidence. The orders passed by both Courts below are maintained being proper, legal and in accordance with law. The case-law relied upon by the learned counsel for the petitioner is not attracting in the peculiar facts and circumstances of the present case. The petition filed by Mst. Shabana Anjum claiming herself to be the wife of tenant is having no merits for consideration, particularly, in light of the dictum as laid down by the superior, courts, mentioned supra.
14. It shall be pertinent to mention here that by order dated 3-6-2010, passed in this petition (C.P.
NO. S-378/2009) by learned single Judge of this Court, the petitioner was again put in possession through Nazir by breaking open the locks, with aid of police. Learned counsel for the landlord, at this juncture stated that Nazir of this court be directed to restore the possession of the demised flat/premises to the landlord, to meet the ends of justice. In peculiar facts and circumstances of the case, as evident from the record, the order dated 3-6-2010, pertaining to suspension of concurrent judgments/orders of both lower Courts below, is recalled, consequently, the Nazir of this Court is directed to restore the possession of the demised premises to the respondent No.1, with aid of concerned police, if need so, but on expiry of 30 days' period, subject to deposit of rent and utility bills by the petitioner.
' Captioned petition is dismissed in the above terms along with listed applications. There shall be no order as to costs.