' FAROOQ ALI CHANNA , J.---The petitioner Muhammad Ali through his attorney Kehan Kafi has filed this Constitution Petition against two orders dated 21-12-2009 and 19-7-2010 passed by learned Vth Additional District Judge, Hyderabad, (hereinafter referred to as Appellate Court) in F.R.A. No.10 of 2007. The appellate Court vide order dated 21-12-2009 allowed F.R.A. No.10 of 2007 and vide order dated 19.7-2010 dismissed the application under section 12(2), C.P.C. Filed by the petitioner.
2. Brief facts giving rise to file this constitutional petition are that Muhammad Suleman the father of Muhammad Sadiq (the respondent No.3) being owner of Shops Nos.1 and 5, situated at Plot No.10, Civic Centre, Unit No.6, Latifabad, Hyderabad (hereinafter referred to as subject shops) rented out to Muhammad Hussain the father of Ali Muhammad (the petitioner) under tenancy agreement in the year 1970. After the death of tenant Muhammad Hussain the petitioner Ali Muhammad became statutory tenant of respondent No.3 who after the death of Muhammad Suleman inherited subject shops. The respondent No.3 in year 2007 filed ejectment application under section 15 of Sindh Rented Premises Ordinance 1979 bearing Rent Application No.11 of 2007 against the petitioner on two grounds i.e.
1. The respondent No.3 requires the subject shops for personal bona fide use to establish business for himself and his sons and 2, default in payment of four months rent.
3. The petitioner contested the ejectment application filed written reply, denying the averments of ejectment application.
4. Learned Vth Senior Civil Judge/ Rent Controller, Hyderabad (hereinafter referred to as trial Court) recorded evidence of both the parties, framed points for determination and. After affording an opportunity of hearing to the counsel of both the parties, dismissed the Rent Application No.11 of 2007.
5. The respondent No.3 preferred F.R.A. No.10 of 2009 against the dismissal order of ejectment application. The Appellate Court issued notices to the petitioner directly by ordinary course of service so also published the notice in daily newspaper "Nawa-e-Waqt" dated 17-5-2009. However, the petitioner did not appear to contest F.R.A., therefore, the Appellate Court vide order dated 30-9- 2009 held the service good upon him, proceeded with F.R.A. Ex parte and allowed the same vide order dated 21-12-2009 observing that the petitioner after obtaining the order of his choice is avoiding to appear and to contest the appeal, therefore, he has no other option except to allow the appeal ex parte.
6. About three months after the order dated 21-12-2009 passed in F.R.A. No.10 of 2009, the petitioner through his attorney Kehan Kafi filed application under section 12(2), C.P.C., before the Appellate Court which was contested by the respondent No.3. The Appellate Court after hearing the counsel for both the parties dismissed the application under section 12(2), C.P.C. Vide order dated 19-7- 2010. Both the aforesaid orders are impugned in this Constitution Petition.
7. Mr. Ejaz Ali Hakro, Advocate for petitioner at very outset submitted that he does not press the prayer for setting aside the order dated 19-7-2010 passed on application under section 12(2), C.P.C.
And impugned the ex parte order dated 21-12-2009 only, whereby the Appellate Court allowed F.R.A.
No.10 of 2009. Since the order dated 21-12-2009 was assailed in this Constitution Petition after seven months, therefore, the learned counsel for petitioner was required to satisfy the Court about the laches to which learned counsel has contended that the impugned ex parte order bears no reason of granting the appeal therefore, the same is perverse, suffering from infirmity and bad in law, therefore, no limitation shall run for challenging such illegal order. The learned counsel has further contended that the delay in filing this petition against ex parte order dated 21-12-2009, was due to ill advise to file application under section 12(2), C.P.C. Instead of challenging the said order in Constitution Petition and the petitioner being ignorant of law shall not suffer on account of such ill advise. The petitioner prima facie has good case as the trial Court had dismissed the ejectment application and after recording evidence decided both the issues in favour of the petitioner. The Appellate Court has allowed F.R.A. Without affording an opportunity of hearing to the petitioner, therefore, the impugned order is liable to be set aside and the case be remanded to the Appellate Court with direction to decide the appeal on merits strictly in accordance with law. In support of his contentions regarding laches learned counsel has relied upon the cases reported as 'Irfan Merchant and others v. Federation of Pakistan and others (2013 CLC 853) ii. 'Mirpurklas Shugar Mills Ltd., and 22 others v. Federation of Pakistan and others' (2013 M LD 433) iii. 'Tahsil .Municipal Administration (T. M. A), Mandi Bahauddin v. Evacuee Trust Property Board Punjab, Lahore and others' (2004 YLR 1969) and iv. 'Amin Akhtar Jami v. Jahangir Alam' (1993 M LD 1530).
8. Conversely learned counsel for the respondent No.3 has argued that the petitioner was served properly by all modes of services including publication of notice in a daily newspaper 'Nawa-i- Waqt' Karachi vide publication dated 17-5-2009. However, the petitioner despite the service failed to appear, therefore, the Appellate Court had no other option except to decide the appeal ex parte, as such there is no illegally or irregularity in the impugned order dated 21-12-2009. The learned counsel has further contended that the petitioner being originally Irani national during pendency of ejectment application has shifted to Iran permanently and handed over the possession of the subject shops to his attorney, Kehan Kafi without consent of the respondent No.3. The original tenant is no more interested to proceed with the matter and his attorney Kehan Kafi is dragging the respondent No.3 in false litigation with the sole object to continue his illegal possession over the subject shops as long as possible. Learned counsel in support of his contentions has also relied upon the case of 'Messrs Mega Currency Exchange Company (Pvt.) Ltd., v. Senior Manager Commercial, C.A.A and 5 others' (2013 M LD 1670), 'Ghulam Haider and 4 others v. Member, Board of Revenue/Chief Settlement Commissioner, Old _Anarkali, Lahore and 11 others' (2001 CLC 115), 'Mrs. Amina Bibi v. Nasrullah and others' (2000 SCM R 296) and 'S.M. Nooruddin and 9 others v. Saga Printers' (1998 SCM R 2119).
9. I have heard the arguments and perused the record, so also the order dated 28-1-2009 passed by the learned Vth Rent Controller, 7 declining the prayer of respondent No.3 that he requires the subject shops for his personal bona fide use, observing that the applicant (respondent No.3) has not disclosed the nature of business to be started by his son nor sufficient funds or any experience to his son for running the business, he has also not disclosed that how the subject shops were suitable for establishing business by his son.
10. The above observations of the Rent Controller, appear to be contrary to the facts mentioned in para No.2 of the rent application wherein the respondent No.3 has categorically stated that the subject shops are required by him for his personal bona fide use and for his son. The trial Court did not consider the plea of respondent No.3 regarding his personal bona fide use, who was entitled to have the vacant possession of subject shops for establishing his business, mere lack of experience and not disclosing the nature of business intended to be established would not disentitle him from claiming ejectment of tenant. It is also recognized prerogative of the owner/landlord to choose any premises for his proposed business irrespective of its suitability which too is to be seen by him even the Court can suggest the suitability of premises to the owner/ landlord.
11. So far as the legal aspects regarding the laches is concerned, admittedly the impugned ex parte order was passed by Appellate Court on 21-12-2009 which despite the knowledge of the petitioner is assailed in this constitution petition after lapse of seven months. The Honourable Supreme Court in the cases of 'Manager, Jamu and Kashmir State Property v. Khuda Yar' (PLD 1975 SC 678) and 'Pakistan International Airlines Corporation and others' (PLD 2001 SC 676) has observed that aggrieved person may invoke the jurisdiction of the High Court under Article 199 of the Constitution within a "reasonable time" and interpreted "reasonable time" to be 90 days. Thus this petition also suffers from laches and liable to be dismissed on that score also.
12. In the citations relied upon by the learned counsel for the petitioner, a principle has been laid down that "laches cannot be equated with the statutory bar of limitation. Bar of limitation operates as legal bar for grant of remedy whereas laches operates as bar on equity". There can be no other view contrary to the aforesaid principle, however, the said principle shall apply keeping in view the facts and circumstances of each case. The facts and circumstances of this case are distinguishable as that of cases reported in above citations, therefore, the aforesaid principle shall not help the petitioner to rescue him from laches.
13. Besides abOve, I may mention here that on inquiry of this Court Kehan Kafi the attorney of petitioner present in Court admitted that the petitioner Mohammad Ali has gone to Iran about two years back, during said period he has not visited Pakistan nor he (the attorney) is in position to say that whether the petitioner will be back or not. He has also admitted that at present he is occupying the subject shops. In view of the above admissions, I am of the view that Kehan Kafi under the power of attorney is authorized by the petitioner Mohammad Ali to appear and contest the litigations in respect of subject shops. However, by virtue of power of attorney he shall not become the tenant nor entitle to retain the subject shops on behalf of the tenant as such, the respondent No.3 is entitled to be in possession of subject shops under the provisions of Sindh Rented Premises Ordinance.
14. For the reasons discussed above, I find no merits in the Constitution Petition which is dismissed accordingly. The petitioner is directed to vacate the subject shops within three months from the date of this order and hand over its peaceful possession to the respondent No.3.