' AQEEL AHMED ABBASI, J.--- Being aggrieved and dissatisfied by judgment dated 15-11-2011 passed by the learned IVth Additional District Judge, Karachi (Central) in First Rent Appeal No,85 of 2011, whereby the learned Appellate Court while upholding the ejectment order of the learned Rent Controller dated 18-4-2011 passed in Rent Case No,295 of 2009 on the ground of personal requirement against the petitioner, has dismissed the appeal of the petitioner, who has filed instant constitution petition with the prayer to set aside both the judgment/order passed by the Courts below in the instant case.
2. Brief facts as recorded in the impugned judgment passed by the learned Appellate Court are that the respondents filed rent application under section 15 of Sindh Rented Premises Ordinance, 1979 against the petitioner stating therein that respondents Nos.1 to 6 are the legal heirs of deceased Muhammad Ali, who died at Karachi on 29-1-2001, they became the owners/landlords of the Shop No,3, situated at Plot No,2/869, Sufi Muhammad Suleman Qadri Market, Liaquatabad, Karachi, after the death of their husband/father being inheritance property vide family settlement decision dated 27-8-2004 and the said settlement was also filed by the respondents and their family members before the learned trial Court in Civil Suit No, 600 of 2003. The petitioner was already in possession of Shop No,3, situated at Plot No,2/869, Sufi Muhammad Suleman Qadri Market, Liaquatabad, Karachi, being tenant and after the family settlement, it was conveyed to petitioner, who accepted the respondents as owners/landlords and started to pay monthly rent to the respondents from October, 2004. It is asserted that at the time of becoming the owners/landlords, the monthly rent of the shop was Rs,380/- p.m. Later on the rent was increased upto Rs,580/- p.m., which was paid by the petitioner to the respondents upto the month of July, 2008, and thereafter stopped the rent without any notice or information, as such, respondent No,1 sent a legal notice dated 19-1-2009 through her counsel by registered A/D in which demanded rent from August, 2008, so also vacant possession of the shop within 15 days for the personal bona fide use of her sons, namely, Faisal Ali and Obaid Ali to start their own business of tailor and mobile phones as both sons of respondent are jobless. The petitioner replied the said legal notice. It is asserted that respondents are facing great difficulties in running their house-hold expenses as both the sons of respondent are jobless and their father has also died. The petitioner has not denied the personal bona fide need of respondent in her reply of legal notice, however, did not vacate the subject tenement. Hence, the respondents filed rent application for eviction of the petitioner before the Rent Controller. The petitioner resisted ejectment application by filing written statement in which she denied the allegations made in the ejectment application and stated that respondents have not filed any heirship certificate regarding the total members of L.Rs, and she also did not file any Guardianship Certificate of minors from competent Court of law. It is averred that initially on 5-9-1998, the owner of the property Sufi Muhammad Suleman and after his death on 6-1-2002, the brother of said owner, namely, Abdullah alias Salam become the attorney/landlord and with his permission and consent, the petitioner purchased the rented shop from its tenant/occupant (Agha Khan) on pugri/goodwill by paying him a sum of Rs,1,75,000/- through a sale agreement and she also paid a sum of Rs,1,75,000/- to said attorney/landlord for change of rent receipt and after that she invested in the tenement with the consent/permission of landlord and also spent an amount of Rs,3,00,000/- for its renovation and designing, whereafter, the said Abdullah alias Salam issued receipt in favour/name of petitioner. It is averred that respondent and her sons started quarrel with all shop-keepers of premises even with said authorized person (Abdullah alias Salam) and forcibly kicked out him. From his duties/collecting of rent from premises which matter was also heard in UC as well as in Town Nazim's office and after that the respondent started efforts for ejectment of petitioner and received rent till 2008, after refusal the rent of August, 2008, same was sent through money order but refused, therefore, petitioner deposited the same in Court in MRC No,595/2008 and till today depositing the same without committing any default. It was averred that the respondent or her sons have no personal bona fide need of said shop and only due to personal grudge as the petitioner and her husband refused to vacate the shop forcibly and disclosed the mala fide of respondent and her sons before the Nazim, beside this the shop became very costly has a good will due to investment and efforts of petitioner and now cooked up this false story of default and personal bona fide need otherwise they are doing their business of gold and want to evict the petitioner from his valuable business place, hence application may be dismissed with special cost.
3. After concluding the evidence of both the parties and on the basis of pleading, the learned Rent Controller formulated following points for determination:---
(1) Whether the applicant required the shop in question for personal bona fide use of her sons?
(2) Whether the opponent has committed default in payment of rent to the applicant from the month of August, 2008?
(3) What should the order be?
' After hearing the parties, the learned Rent Controller allowed the ejectment application on the ground of personal bona fide need of the respondent with directions to the petitioner to vacate and hand over possession of the shop in question to the respondents within 45 days from the date of order.
4. Being aggrieved by the ejectment order passed by the learned Rent Controller, the petitioner filed first rent appeal before the learned IV" Additional District Judge, Karachi (Central), who vide impugned judgment has upheld the finding as recorded by the learned Rent Controller and dismissed the appeal. However, 60 days' time was allowed to the petitioner to deliver the peaceful and vacant possession of the tenement to the respondent from the date of the judgment.
5. Learned counsel for the petitioner has vehemently assailed the finding of both the Courts below for being perverse. It has been contended by the learned counsel that both the Courts below have seriously erred in law and fact by ordering ejectment of the petitioner from the subject tenement on the sole ground of personal bona fide requirement of the respondents, without deciding as to whether the respondents are the owners of the demised premises in terms of section 2(g) of Sindh Rented Premises Ordinance, 1979 or not. Per learned counsel, petitioner raised specific objection with regard to the ownership of the respondents but in spite of such objection, no issue was framed by the Courts below whereas, no finding has been recorded in this regard. It is further contended by the learned counsel that the documents which were produced by the respondents to establish their ownership in respect of the subject tenement, are not legal and valid title documents, whereas order of the learned IInd Senior Civil Judge, Karachi (Central) dated 22-9-2004 in Civil Suit No,600 of 2003 passed on an application under Order XXIII, Rule 3, C.P.C., does not show that the respondents are owners of the subject tenement, hence, reliance placed on such documents by the Courts below was misconceived in law and facts. It has been argued by the learned counsel that personal requirement can be claimed only if landlord is the owner as well in terms of section 2(g) of the SRPO, 1979, whereas a landlord, who is not an owner of the subject tenement, cannot file application seeking ejectment of the tenant on the ground of personal need. It has been further argued by the learned counsel for the petitioner that the impugned judgment is liable to be set aside on the ground that the same was passed by the learned Appellate Court after a period of about four months from the date when it was reserved for judgment, hence, according to learned counsel, the same was passed in violation of mandatory provisions of Order XX, Rule 1(2), C.P.C.
Learned counsel has further argued that the respondents did not file an application under Order XXXII, Rule 7, C.P.C. For appointment of guardianship on behalf of the minors in the instant case, therefore, the Courts below were not justified to allow the ejectment of the petitioner from the subject tenement without appointing the mother of the minors as guardian. It has been prayed by the learned counsel that instant petition may be allowed and both the impugned judgment/order passed by the learned IVth Additional District Judge, Karachi (Central) and IInd Rent Controller, Karachi (Central) respectively may be set aside. In support of his contention, learned counsel for the petitioner has placed reliance in the following cases:---
(1) Syed Khursheed Ali Jaffery v. Jamiluddin Siddiqui (1993 CLC 2511)
(2) Muhammad Naseeruddin v. Mst. Hashmat Bibi (PLD 1993 Karachi 300)
(3) Messrs Sattar Brothers v. Messrs Hanif Jee & Sons (2005 CLC 1696)
(4) Muhammad Kashif Kamal Siddiqui v. Mirza Farooq Baig (1990 MLD 1009)
(5) Mst. Hashmat Bibi v. Muhammad Rail and another (1980 CLC 967)
(6) Smt. Vidayabai and others v. Moorajmal I 1980 SCMR 267)
(7) State Life Insurance Corporation of Pakistan v. Mst. Maroof Jan and 2 others (PLD 1986 AJK 121)
(8) Qamruddin through his legal heirs v. Hakim Mahmood Khan (1988 SCMR 816)
6. Conversely, learned counsel for the respondents has vehemently opposed the maintainability of the instant petition and submitted that a constitution petition under Article 199 of the Constitution of Pakistan, 1973, against the concurrent finding as recorded by the Courts below is not maintainable. It has been further contended by the learned counsel that no error or illegality has been pointed out by the petitioner in the impugned judgment/order passed by the Courts below nor learned counsel for the petitioner has pointed out any misreading or non-reading of the evidence which were produced by the parties in the instant case. Per learned counsel, the case of the respondents, requiring ejectment of the petitioner from the subject tenement on the ground of personal bona fide need, stood established in view of the statement on oath of the respondent, which remained unshaken, and also in view of the evidence produced by the respondents in this regard. Per learned counsel, the petitioner has no case on merits, therefore, has attempted to raise technical objections, which are neither tenable in law nor warranted under the facts and circumstances of this case. It has been contended by the learned counsel for the respondents that the petitioner has admitted the relationship of tenant/landlord and also acknowledged respondents as co-owners of the subject tenement and has been depositing rent in M.R.C. In the name of the respondents, hence, cannot revert back from such factual and legal position on a false pretext that respondent is landlord but not the owner of subject tenement. Per learned counsel, reference to the judgment of the Civil Court with regard to entitlement of the respondents over subject tenement by the petitioner in rent proceedings besides being irrelevant, is also based on mala fides, whereas, the petitioner cannot, at this stage, either challenge or seek modification of such judgment/order passed in favour of the respondents by the competent Court of civil jurisdiction regarding their entitlement in respect of subject tenement. Learned counsel for respondents has also read out the impugned judgment and the evidence produced by petitioner, and submitted that even witnesses of the petitioner have also acknowledged the ownership and entitlement of the respondents over subject tenement. It has been further contended that in terms of section 2(t) of SRPO, 1979 "landlord means the owner of the premises and to include a person for the time being authorized or entitled to receive rent in respect of such premises", therefore, any distinction, which the learned counsel for the petitioner has attempted to create in the instant case is misconceived. It is further contended by the learned counsel that the objection regarding violation of Order XX, Rule 1(2), C.P.C. Raised by the petitioner in the instant case, is also misconceived in law, as delay in announcement of judgment is not fatal to the proceedings and cannot be the sole ground for setting aside such judgment, particularly, when the entire facts, evidence and the contention of the parties has duly been recorded by the learned Judge. It has been contended by the learned counsel for the respondents that both the Courts below have recorded concurrent finding in favour of the respondents with regard to bona fide personal need, which does not suffer from any misreading or non-reading of the evidence, hence does not require any interference by this Court while exercising its constitutional jurisdiction. It has been prayed that instant petition, being devoid of any merits, may be dismissed with cost and the petitioner may be directed to hand over the peaceful vacant possession of the subject tenement to the respondents.
In support of his contention, learned counsel for the respondents has placed reliance in the following cases:
(1) Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178)
(2) Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others (2002 SCMR 429)
(3) Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others (2011 SCMR 408)
7. I have heard learned counsel for the parties and perused the record. Before examining merits of the case or the maintainability of the instant petition, which has been filed against concurrent finding recorded by the two Courts below in rent proceedings, I would first dilate upon the objection raised by the learned counsel for the petitioner regarding violation of Order XX, Rule 1(2), C.P.C. By the learned Rent Controller, as according to the learned counsel, the ejectment order has been passed by the learned Rent Controller after expiry of the period as provided under Order XX, Rule 1(2), C.P.C. From perusal of the impugned judgment passed by the learned appellate Court, it is seen that said objection was also raised by the learned counsel for the petitioner before the appellate Court, which aspect of the matter appears to have been dealt exhaustively by the learned IVth Additional District Judge, Karachi (Central) in the impugned judgment after referring to the record and R&Ps. It has been observed by the learned appellate Court that on 27-1-2011 final arguments were heard by the learned Rent Controller, whereafter, matter was adjourned to 14-2- 2011 for announcement of judgment, on which date, the learned Presiding Officer was busy, whereas, both the learned counsel for the parties attended and the matter was adjourned to 31-3- 2011 for the same purpose. However, on such date, the learned Presiding Officer was on leave, thereafter, the matter was adjourned to 18-4-2011 when the judgment was announced in presence of both the learned counsel for the parties and ejectment application was allowed. After having noted the above facts, the learned appellate Court, while placing reliance in the judgment of the Hon'ble Supreme Court in the case of Juma Khan and others v. Mst. Bibi Zenaba and others PLD 2002 SC 823, was pleased to hold that no prejudice whatsoever, has been caused to the either party from the delay in pronouncement of the judgment, whereas, the directions as contained under Order XX, Rule 1(2), C.P.C. Are directory and not mandatory. Similar view has been followed by the Hon'ble Supreme Court in its recent judgment in the case of Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others reported as 2011 SCMR 408, wherein, the Hon'ble Supreme Court, white following the aforesaid judgment along with several other judgments defining the nature of the provisions of Order XX, Rule 1(2), C.P.C. Has held that the provisions as contained under Order XX, Rule 1(2), C.P.C. Are directory and not mandatory in nature.
In view of hereinabove facts and legal position as settled by the Hon'ble Supreme Court in the aforesaid judgments, the objection with regard to violation of Order XX, Rule 1(2), C.P.C. Appears to be misconceived in fact and law both, whereas, no prejudice whatsoever, has been shown by the learned counsel for the petitioner, which is caused to either party from alleged delay in pronouncement of judgment, as entire evidence and the grounds raised by both the parties have been duly discussed in the impugned order passed by the learned Rent Controller.
8. Now I would take up the second objection as raised by the learned counsel for the petitioner in the instant case, whereby, it has been objected that the respondent could not file the ejectment application on the ground of personal need as she is not the owner of the subject tenement in terms of section 2(g) of SRPO, 1979, whereas the documents produced by the respondent were not proper legal title documents in respect of subject tenement. From perusal of the ejectment order of the learned Rent Controller as well as the impugned judgment passed by the learned appellate Court, it is noted that this aspect of the matter has also been examined in detail by both the Courts below, whereafter, finding has been recorded to the effect that the respondent is the landlord and the co-owner in respect of the subject tenement. Record further shows that this fact has also been acknowledged by the petitioner, which can be further verified from the statement of the attorney of the petitioner recorded on oath before the learned Rent Controller. Moreover, in the written statement filed before the learned Rent Controller, the petitioner did not raise any specific objection with regard to relationship of petitioner and respondents as tenant and landlord. It has also come on record that the petitioner, after having accepted the respondent as owner and co- sharer of the subject tenement, initially paid rent to the respondents up to August, 2008 whereafter, started to deposit the same in MRC No,595/2008 in the name of the same respondents. Nothing contrary has been produced by the petitioner which may create any doubt with regard to entitlement or co-ownership of the respondent over the subject tenement. Documents of title in respect of subject tenement were produced by the respondent before the learned Rent Controller, including the order of the learned Civil Court in Suit No,600 of 2003 and the settlement between the legal heirs of the admitted previous owner in respect of the subject tenement, No one has come forward to claim exclusive title over subject tenement nor anyone, including the petitioner, has disputed the title of the respondent over subject tenement. In the absence of another claimant, seeking title over the subject tenement, petitioner cannot be allowed to subsequently dispute the title of the respondent in an attempt to create a false ground with regard to relationship of landlord and tenant between the parties. The petitioner has admittedly acknowledged the respondent as one of the co-sharer and landlord of the subject tenement, therefore, such objection by the petitioner at this stage appears to be misconceived in fact and law both.
9. It will be advantageous to refer to the provisions of section 2(f) of SRPO, 1979, which shows that "landlord means the owner of the premises and to include a person for the time being authorized or entitle to receive rent in respect of such premises". Whereas, perusal of provisions of section 2(g) of SRPO, 1979 shows that "personal use means the use of premises by the owners thereof or his wife (or husband), son or daughter". Keeping in view the definition of "landlord" and "personal use', as referred to hereinabove, and the admitted fact that the respondent is the landlord and co-sharer of the subject tenement, there seems no factual and legal impediment for the respondent in seeking ejectment of the petitioner from subject tenement on the ground of personal bona fide need as argued by the learned counsel for the petitioner. In the case of Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429, the Hon'ble Supreme Court while dealing with the competency of an ejectment application filed by a co-sharer of the property has held as under:--- "Even on merits, if the co-sharers succeed in the partition suit, demised premises being part and parcel of the joint property would be partitioned between the co-sharers according to law. Learned counsel relied upon a judgment of this Court in Abdul Ghani v. Abrar Hussain (1999 SCMR 348) in support of is contention but in our view the principle laid down in the precedent case is not attracted in the circumstances of the case. On the contrary, general rule of law has been that a co- sharer can file ejectment proceedings against a tenant without impleading other, co-sharers. The wisdom behind such principle is that co-sharer acts on behalf of and represents the interest of all the co-owners of the property."
' In view of hereinabove facts, and by applying the ratio of aforesaid judgment, the objection of the learned counsel for the petitioner with regard to competency of the respondent to file ejectment application appears to be misconceived and not tenable in law.
10. Reverting to the merits of the claim of the respondent seeking ejectment of the petitioner from subject tenement on the ground of personal bona fide need of respondent and her two sons, it may be observed thit statement on oath of respondent ix this regard has remained unshaken in the cross-examination by the counsel for the petitioner. No evidence or material, contrary to the assertion of the respondent with regard to her claim of bona fide personal need, was brought on record by the petitioner before the learned Rent Controller or has been produced even before the learned appellate Court and before this Court as well. The learned counsel for the petitioner has mainly argued on technical grounds as referred to hereinabove, instead of pointing out any error, misreading or non-reading of the evidence by the learned Rent Controller or the appellate Court, while recording concurrent finding in favour of the respondent. In the case of Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178, the Hon'ble Supreme Court, while examining the scope of personal bona fide need of landlord, has held, as under:--- "In the latter case, while approving Hasan Khan and relying on Tauhid Khanum v. Muhammad Shamshad 1980 SCMR 50 it was observed that on the issue of personal need, statement on oath, if consistent with the application and not shaken in cross-examination or disapproved in rebuttal is sufficient to prove that it is bona fide. Applying this test, we find that the respondent has been consistent and the evidence produced is not in conflict or inconsistent with the ejectment application. No evidence in rebuttal has been produced to shake the testimony nor in cross-examination the witnesses have shown any infirmity to discredit it.
' The suitability of opening a departmental store in anyone of the available premises entirely depends upon the discretion of the landlord. However, such need and discretion should be real, genuine and not tainted with mala fides. Reference can be made to Malik Muhammad Ramzan v.
General Iron Stores and another 1995 SCMR 1125."
11. In view of hereinabove facts, and by applying the ratio of the judgment, as referred to hereinabove, I am of the opinion that the impugned judgment does not stiffer from any illegality nor contains any perverse findings on facts, hence does not require any interference by this Court in its constitutional jurisdiction. Moreover, concurrent finding as recorded by the Courts below, particularly in rent matters, cannot be disturbed by this Court in its constitutional jurisdiction, unless any grave illegality, jurisdictional error or perverse finding on facts is pointed out by the petitioner. Accordingly, instant petition being devoid of any merits is hereby dismissed, however, with no order as to cost. The petitioner may handover peaceful vacant possession of the subject tenement to the respondent within two months from the date of pronouncement of this judgment.