' FAROOQ ALI CHANNA , J.---The petitioner, through this constitution petition, has called in question the concurrent findings recorded by learned 1st Additional District Judge, Karachi (East)
(hereinafter referred to as the Appellate Court) in First Rent Appeal No,258/2010, vide order dated 1041-2010 and learned IInd Senior Civil Judge and Rent Controller, Karachi (East) (hereinafter referred to as the Rent Controller) in Rent Case No,58/2009 vide Judgment dated 14-5-2010, whereby the Rent Controller allowed the ejectment application, which in First Rent Appeal was maintained by the Appellate Court.
2. Briefly the facts of the case are that respondent No,1, being owner/landlady of plot No,33-F, Commercial Area, Mohammad Ali Memorial Cooperative Housing Society, Karachi, filed ejectment application under section 14(1) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) against the petitioner for his eviction from shop No,6 situated in Lari Building (hereinafter referred to as the demised shop) rented out to him by her deceased husband.
The respondent No,1 being widow and on attaining the age of 63 years, exercised her statutory right to get the possession of the demised shop in terms of section 14(1) of the Ordinance, 1979, approached the petitioner, requested him orally so also served upon him the legal notice requiring him to vacate the demised shop so as to she may establish her business but of no avail, hence she filed the ejectment application.
3. The petitioner pursuant to the notice, appeared before the learned Rent Controller, filed written statement, denying the averments of the ejectment application. His stance was that the respondent No,1 has no legal character over the demised shop, neither she was the lawful owner nor landlady; hence there was no relationship of tenant and landlady between them.
4. Learned Rent Controller recorded the evidence led by both the parties and after affording an opportunity of hearing framed the points for determination and allowed the ejectment application, the petitioner assailed the ejectment order of the learned Rent Controller in first rent appeal, which was also dismissed.
5, I have heard learned counsel for both the parties and perused the record.
6. Learned counsel for the petitioner, amongst others, has focused mainly on the legal aspect of the case and has contended that the respondent No,1 along with demised shop also claimed herself to be the owner of other shops situated in the same building and filed ejectment proceedings against the tenants of Shops No,3 and 4 on the same grounds under section 14 of the Ordinance, 1979, which were allowed, the respondent No,1 after obtaining thb possession of said tenements let out the same to some other tenants, whereas the ejectment proceedings in respect of another shop were ended on compromise and the tenant was allowed to continue tenancy, however subject to increase in rent. The above facts manifest that the respondent No,1 has already been facilitated in terms of section 14(1) of the Ordinance, 1979; therefore, she is not entitled to the same relief sought for in the ejectment .Proceedings in hand. To support his contentions, learned counsel has relied upon the case of Syed Hassan Askari Rizvi v. Muhammad Aziz (PLD 1989 SC 1).
Learned counsel has further contended that no two months notice required under section 14(1) of the Ordinance, 1979 was served upon the petitioner; as such the ejectment application was not maintainable. In this respect learned counsel has referred the cases of A.R.Tahir v. Messrs Muhammad All and Sons (1993 SCMR 1652) and Abdul Malik v. Mst. Maryam Bai (1997 CLC 915).
7. Conversely, learned counsel for respondent No,1 has contended that she being widow and aged about 63 years is entitled to have the vacant possession of the demised premises for personal bona fide use, her such right is granted under section 14 of the Ordinance, 1979, the petitioner being tenant cannot be allowed to oppose the requirement of owner/landlady for the personal bona fide use of the demised premises. Learned counsel has further contended that both the Courts below have examined all/factual as well as legal aspects of the case, perused the evidence led by both the parties and thereafter came to the concurrent findings that respondent No,1 being widow and aged about 63 years was entitled to have the possession of the demised premises under section 14 of the Ordinance, 1979, such concurrent findings of the two Courts below based upon evidence brought on record, supported by the cogent reasons cannot he reappraised by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution, 1973.
8. The perusal of record and pleadings reflects that the petitioner at initial stage of the proceedings had taken the plea, challenging the maintainability of the ejectment application under section 14(1) of the Ordinance, 1979 on the ground mentioned in para No,7 of the written statement that the respondent No,1 has already filed Rent Cases Nos.59/2009 and 61/2009 against other tenants of Shops Nos. 3 and 4 situated in the same building, on the same plea, under the same provisions of the Ordinance, 1979, however, both the Courts below did not consider the above legal plea. The petitioner has also filed C.M.A.No,637/2013 stating therein that during pendency of this petition, the respondent No,1 after obtaining the possession under section 14(1) of the Ordinance, 1979 of Shops Nos.3 and 4 situated in the same building has let out the same to another tenant berrylicious company, therefore, she is not entitled to have the benefit/facility under section 14(1) of the Ordinance, 1979. The respondent No,1 through her advocate has filed objections in shape of Counter Affidavit to C.M.A. No,637 of 2013, wherein she has not disputed the aforesaid assertions of the petitioner. On the contrary, in para No,3 of the counter affidavit jt is admitted that the petitioner had taken the aforesaid plea at initial stage of the proceedings before the .Trial Court, however his plea was not appreciated by the trial Court so also Appellate Court. In para No,4 it is also admitted that the respondent No,1 through the Rent Case No,59 of 2009 obtained the possession of Shops Nos.3 and 4 froM the tenant Muhammad Saleem Khan, which are in personal use of the respondent No,
1. In para No,5 it is further admitted that the respondent No,1 also filed Rent Cases against all the tenants of Lari building and obtained vacant possession of tenements through proper litigation except the demised shop, which was the part and parcel of Zeenan Restaurant, possession whereof has also been obtained through the Court proceedings.
9. From the above admissions it is proved undoubtedly that the respondent No,1 being widow and aged about 63 years has already availed the facility provided under section 14 of the Ordinance, 1979. It is established law that the owner of premises under different tenements of same character cannot get all the tenancies vacated but is entitled to get only one tenancy vacated under section 14 of the Ordinance, 1979, such provision being special in nature creating restricted rights cannot be extended to other tenancies even though the premises got vacated may not be sufficient for the requirements of landlord. However, for the purpose of obtaining the premises on the ground of bona fide need the landlord has remedy to file application under section 15 of the Ordinance, 1979.It has also been held in case of Mst. Razia Khatoon v. Dr. Roshan H. Nanjt and another (1991 SCMR '840) that where two separate tenancies are involved, both of the same character i,e, residential or commercial, they cannot be got vacated by recourse to section 14 of the Ordinance, 1979. In view of the above, the honourable Supreme Court was pleased to declare the landlord entitled to get only one shop vacated.
9. The above reasons persuade me to hold that the respondent No,1 after seeking the ejectment of tenants from shops Nos.3 and 4 in terms of section 14 of the Ordinance, 1979 has let out the same to other tenants; therefore, she is not entitled to the same relief/facility under section 14 of the Ordinance, 1979. Both the Courts below have ignored the petitioner's legal plea about the maintainability of ejectment application under section 14(1) of the Ordinance, 1979 on the ground that respondent No,1 has already availed the said facility, as such the impugned judgment/order of both the Courts below are perverse, not based on law. Plea of learned counsel for the respondent.
No,1 that the concurrent findings of facts recorded by both the Courts below cannot be interfered in writ jurisdiction is not sustainable because the view taken by both the courts below is not only contrary to the established principles c of law but also to evidence on record. Thus this Court is competent and justified to have interference in exercise of constitutional jurisdiction under Article 199 of the Constitution, 1973. Accordingly, I set aside the Judgment/Order passed by both the Courts below and dismiss the Rent Case No,58 of 2009.
' Petition is allowed.