' AZIZ-UR-REHMAN, J-- Through this writ petition the legal heirs of Muhammad Essa Godil [since deceased] upon feeling aggrieved and dissatisfied with Judgment dated 29-8-2009 passed by 2nd Addl. District and Sessions Judge, Karachi, South in F.R.A. No.43 of 2007 [Muhammad Essa Godil [Deceased] through his legal heirs v. Mst. Sitara Jamil] whereby while he upholding the order dated 30-5-2006 passed by the Xth Sr. Civil Judge and Rent Controller, Karachi, South, in Rent Case No.1632 of 2000 [Mst. Sitara Jamil v. Muhammad Essa Godil [deceased] through his legal heirs] whereby the learned Rent Controller had allowed the ejectment application filed by the respondent No.1 against the petitioners was pleased to dismiss F.R.A. No.43 of 2007, have assailed the aforesaid judgment/order with prayer for setting aside the same and allowing the instant petition.
2. Brief and relevant facts of the case in the background.
3. Respondent io.1 [hereinafter means the landlady] is one of the co-owners of Plot No.209 AM, Saddar, Karachi as well as shops and flats constructed thereon [known as 'Mumtaz Mansion'].
Originally, it appears that [late] Ramzan Muhammad son of Imamuddin was the owner of the 'Mumtaz Mansion' who sold the said property to [late] Mst. Zahoor Fatima wife of [late] Ch. Muhammad Jameel including Flats Nos.1 and 2, situated on the First Floor [hereinafter means 'demised premises'] of 'Mumtaz Mansion'. The respondent No.1, is one of the legal heirs of [late] Mst.
Zahoor Fatima.
4. Regarding such sale of the property, dispute arose between [late] Ramzan Muhammad and
[late] Mst. Zahoor Fatima whereupon the vendor [late] Ramzan Muhammad filed a Civil Suit No.194 of 1972 against the vendee, [Mst. Zahoor Fatima] amongst others for declaration and cancellation of sale deed dated 13-3-1972'before this court. The aforesaid suit, nonetheless, was dismissed vide judgment dated 22-5-1984. Against such judgment and decree, [late] Ramzan Muhammad thereafter had preferred HCA No.72 of 1984 which upon hearing was dismissed vide short order dated 20-10-1992. Reasons for the short order were later-on recorded on 13-2-1993. The operative part of the detailed order reads as follows:-- "All the above-mentioned facts and circumstances prove that Ramzan Muhammad had signed the above-described documents knowing their contents and that there had remained nothing for the respondent Ch. Muhammad Jamil to prove. The learned Single Judge had, on appraisal of the evidence, arrived at correct conclusion and we have no reason to disagree with him.
' For the foregoing reasons we dismiss this appeal."
5. Against the aforesaid judgment passed in H.C.A. No.72 of 1982 [Ramzan Muhammad [since deceased] through his legal heirs] filed Civil Petition No.124-K of 1993 before Hon'ble Supreme Court of Pakistan but Hon'ble Supreme Court of Pakistan while, refusing leave to appeal, was also pleased to dismiss the same on 30-5-1993. The operative part of order dated 30-5-1993 reads as follows:-- "5. We are unable to find any flaw or legal infirmity in the reasoning adopted by the Division Bench of the High Court in the process of evaluation of evidence. No interference is called for and in the result leave is refused and this petition is dismissed as having no merits."
6. Upon purchase of the building ['Mumtaz Mansion' ] through registered sale deed the original tenant viz. Muhammad Essa Godil was informed/ intimated vide notice/letter dated 12-1-1972 about such purchase of 'Mumtaz Mansion' and inter alia was asked to pay rent to the new landlady/owner viz. Mst. Zahoor Fatima through her husband viz. Alhaj Ch. Muhammad Jameel as her duly constituted attorney.
7. Despite such request/demand, the original tenant [husband of petitioner No.1 and father of the other petitioners], failed and/or avoided to pay the rent/dues as requested. Under such circumstances, vide legal notice dated 24-3-1972, sent through registered post A/D, the tenant was called upon to make the payment of arrears/ current dues within three days of the receipt of notice failing which owner [landlady] would be constrained to file legal proceedings for the ejectment and recovery of rent. Through the aforesaid legal notice inter alia the tenant was also called upon to note that Mr. Ramzan Muhammad [vendor] or any person claiming through or under him has no right, title or interest left in the property ['Mumtaz Mansion'] and any nerson dealing with him, shall do this at his own risk and costs. Despite, receiving of the aforesaid legal notice/letter the tenant nevertheless, failed and/or avoided to comply with the instructions given/demand made upon him. Upon failure of the tenant, Rent Case No.759 of 1994, was filed in the Court of 1st Senior Civil Judge & Rent Controller, Karachi, South, on 8-4-1994 on two grounds i.e. 'wilful default' and 'personal bona fide need' of Respondent No.1 for her young son of marriageable age.
8. Upon service in the year 1996, the petitioner No.1 did appear in the afore-said rent case and after long long delaying tactics, she ultimately disclosed the death of her husband [Muhammad Essa Godil] on 19-12-1993 i.e. Sometime before filing of the rent case. Upon such disclosure, an application under Order I, Rule 10, C.P.C. Was filed for impleading/joining of the legal heirs of tenant
[late] Muhammad Essa Godil. Such application was seriously contested/opposed by the petitioner No.1 by way of filing 'counter-affidavit' thereto. On hearing, nevertheless, the said application under Order I, Rule 10, C.P.C. Was dismissed vide order dated 11-4-2000. The operative part of order dated 11-4-2000 passed by IXth Senior Civil Judge, Karachi South, reads as follows:-- "It appears that applicants had filed this ejectment application against a dead person which is nullity in the eyes of law and thus this ejectment application is not maintainable and liable to be dismissed. I therefore accordingly dismissed the application in hand as well as main ejectment application of this case, with no order as to cost however applicants would be at liberty to file fresh ejectment application against the legal heirs of opponent deceased Muhammad Essa and Godil before the court having jurisdiction." [Underlining is mine].
9. Upon dismissal of the earlier Rent Case, bearing No.795 of 1994 on 11-4-2000, fresh Rent Case No.1632 of 2000 [Mst. Sitara Jameel v. Muhammad Essa Godil through his LRs.] under section of 15 of SRPO, 1979 for ejectment of the Petitioners [tenants] was filed on 30-5-2000 in the court of VIIIth Senior Civil Judge/Rent Controller, Karachi, South, on the grounds of 'wilful default' regarding 'non- payment of rent' in respect of the 'demised premises' [i.e. Flats No.1&2 situated on the 1st Floor of 'Mumtaz Mansion' standing on Plot No.209 AM, Saddar, Karachi] as well as on the ground of bona fide need/requirement of the 'demised premises' for her son whose marriage was being delayed due to non-availability of sufficient and independent accommodation.
10. Upon service, the legal heirs of [late] Muhammad Essa Godil, filed their written statement, wherein inter alia it was clearly admitted that [late] Muhammad Essa Godil was a tenant in respect of two Flats Nos.1 and 2, First Floor of 'Mumtaz Mansion' standing on Plot No.209 AM, Saddar, Karachi @ Rs.75 per month for each flat [total Rs.150 only per month for both the flats].
11. Per averments, the said two flats. ['demised premises'] were, indeed, rented out to Muhammad Essa Godil [husband of petitioner No.1 and father of the other petitioners] however, by the previous owner [landlord] namely Ramzan Muhammad under the tenancy agreement dated 15-12-1969.
The filing of the Rent Case No.759/94, against [late] Muhammad Essa Godil in respect of the 'demised premises' and 'dismissal' thereof, was not denied. However, it was averred in the written statement that the respondent No.1 is not the 'exclusive owner' of the 'Mumtaz Mansion' where the 'demised premises' are situated. Per averments, the Rent Case No.1632 of 2000 filed by respondent No.1 is without permission/consent of the other legal heirs of deceased owner viz. Mst. Zahoor Fatima, [mother of respondent No.1], thus being incompetent was liable to be dismissed.
12. The allegations of 'wilful default' in payment of monthly agreed rent and/or 'bona fide need'/'requirement' of the 'demised premises' as pleaded by respondent No.1, was also denied. Per stand taken by the 'Petitioners, rent was offered but it was not accepted by respondent No.1 [landlady]. Per averments, the rent on such refusal is being deposited in MRC No.352 of 1994 in the Court of 1st Senior Civil Judge and Rent Controller, Karachi, South. The permission for filing of 'fresh rent case' by IXth Senior Civil Judge and Rent Controller, Karachi, South was also forcefully denied.
13. The receiving of letters dated 12-1-1972 and 24-3-1972 was not denied, but per averments, they were stated to be replied vide letters dated 21-1-1972 and 6-3-1972 respectively. The arising of 'cause of action' in favour of respondent No.1 [landlady] regarding filing of Rent Case No.1632 of 2000 [Sitara Jameel v. Muhammad Essa Godil], was, also vehemently denied.
14. In view of the controversial pleas raised, both parties led their evidence. The attorney of the respondent viz. Pervez Iqbal Khan filed his 'affidavit-in-evidence' as Exh. 'A'. The said witness was also 'cross examined' by the learned counsel for the petitioners and upon conclusion of evidence, respondent No.l's side was closed on 28-3-2002. From the petitioners' side, their attorney viz. Muhammad Siddique, thereafter filed his 'affidavit-in-evidence' as Exh. 'Oil'. The said witness also produced tenancy agreement as Exh. '0/1/A', certified true copy of rent case as Exh.'0/1/B', statement of rent paid as Exh. '0/1/B' to '0/1/C', rent receipt deposited in MRC as Exh.'0/1/Ds, letter of Excise and Taxation as Exh.'0/1/E', property and water tax paid by him as Exh.0/1/F, letter dated 8-11- 1993 as Exh.'0/1/G', letter dated 15-9-1193 Exh. '0/1/H', certificate of post office receipt and coupon of money order as Exh. '0/I/I' and special power of attorney as Exh.'0/1/J. Thereafter the witness wa. 'cross-examinec by learned counsel `...Or respondent No.1 [landlady] whereafter the side of the petitioners was also closed 15-4-2006.
15. The points framed for determination by learned Xth Senior Civil Judge and Rent Controller, Karachi, South, upon transfer of Rent Case No. 1632 of 2000 , filed under section 15 of SRPO, 1979, [Mst. Sitara Jameel v. [late] Muhammad Essa Godil] from the 'Court of VIIIth Senior Civil Judge and Rent Controller, Karachi, South, for disposal of the case, read as follows:--
(1) Whether the opponent has committed wilful default in payment of rent?
(2) Whether the applicant requires the flats in questions for personal use of her son namely Shahid Iqbal in bona fide good faith?
(3) What should the order be?
16. After hearing the arguments advanced by the learned counsel for the parties, Xth Senior Civil Judge and Rent Controller, Karachi, South, upon reaching the conclusion, under points Nos.1 and 2 that the petitioners [tenants] have committed 'wilful default' and 'demised premises' are also required by respondent No.1 [landlady] bona fidely, was pleased to allow the Rent Case No.1632 of 2000 under point No.3. The operative part of Order dated 22-1-2007 under points No.3 reads as follows 'POINT NO.3 ' In view of above discussion on Points Nos.1 and 2 I am of the opinion that the applicant has proved his case against the opponent. Therefore, opponent is directed to vacate the case premises and hand over its peaceful, physical possession to the applicant within 30 days from the date of this order."
17. The petitioners upon feeling aggrieved, impugned the aforesaid order through filing of F.R.A.
No.43 of 2007 [Muhammad. Essa Godil through his legal heirs v. Mst. Sitara Jameel] under section 21 SRPO, 1979 with the following prayer:-- "It is respectfully prayed, on behalf of the above named appellant, that this Hon'ble Court may be pleased to call the R & P of the Rent Case No.1632 of 2000 filed by the respondent against the appellants above named, and set aside the impugned order passed on 22-1-2007 against the appellants in the larger interest of justice and equity.
' Any other relief(s) which this Hon'ble Court may deem fit in and proper under the circumstances of the case."
18. On hearing of arguments, the learned 2nd District and Sessions Judge, Karachi, South, upon founding the same as devoid of any merits was pleased to dismiss F.R.A. No.43 of 2007 [Muhammad Essa Godil through his legal heirs v. Mst. Sitara Jameel] on 29-8-2009. The operative part of order dated 29-8-2009 passed by the learned appellate court reads as follows:- "In view of the above admission, I am of the opinion that the appellant/opponent has committed default in payment of rent, therefore, I am of the view that learned Rent Controller has rightly decided the point of default in affirmative. So far the personal requirement is concerned it is held by our superior courts that it is upon the landlord to choose the tenement for his personal use. The respondent/applicant has produced sufficient/material before the learned trial court for his personal requirement. On the other hand the appellant has miserably failed to prove that respondent/applicant did not require the premises in question for her son. In view of my above discussion I am of the opinion that learned R/C has rightly allowed the ejectment application and directed the appellant/opponent to vacate the premises in question. I found no merits in the appeal, hence the same is hereby dismissed accordingly. However the appellant is directed to vacate the premises in question within 90 days from the date of this order and hand over its possession to respondent/landlord." [Underlining is mine].
19. Against the aforesaid order, the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred in this court with a prayer for setting aside the judgment/order passed by the courts below and allowing the petition accordingly.
20. On 16-12-2013, when the case came up before me, I heard Mrs. Zubaida. Moton along with Uzma Yousuf, learned counsel for the petitioners and Mr. Muhammad Yaseen Azad, learned counsel for respondent No.1 and with their valuable assistance, have also gone through the available record before me.
21. Mrs. Zubeda Moton, learned counsel for the petitioners vehemently argued that both the courts below have failed to appreciate, that the Rent Case No.1632 of 2000 [Mst. Sitara Jamil v.
Muhammad Essa Godil [deceased] through his legal heirs] filed by one of the legal heirs of [late] Mst. Zahoor Fatima, was not only incompetent but also not maintainable under law. Per learned counsel, the case as framed and filed without joining of the other legal heirs, no doubt, is liable to be dismissed with cost. Mrs. Zubeda Moton, further contended that neither [late] Muhammad Essa Godil [husband of petitioner No.1/father of the other petitioners], nor the petitioners themselves had ever committed any 'wilful default' in payment of the agreed monthly rent.
22. Learned counsel further contended that the 'demised premises' was never required muchless bonafidely by the respondent No.
1. Per learned counsel, both the learned courts below have not only failed to appreciate the factum of old tenancy i.e. Since, 1969 but have also failed to hold that there was no 'default' in payment of rent. The rent, no doubt, was offered to the landlady but was refused. Per learned counsel the rent is being deposited in MRC No.352 of 1994 regularly. Learned counsel, further urged that the orders/ judgments passed by the both the courts below besides erroneous having been passed without properly appreciating the evidence.
23. Mrs. Zubeda Moton, learned counsel for petitioners' further urged that the mother of respondent No.1 [late Mst. Zahoor Fatima] was not the owner of 'Mumtaz Mansion' where the 'demised premises'
[2 flats] are situated. She further contended that at the time of taking the flats on rent huge amount was paid to the previous owner viz. [late] Ramzan Muhammad. Per learned counsel, reason for fixing the 'minimum rent' is obviously on account of such payment of huge amounts to the previous owner. Per learned counsel, an amount of Rs.38,800 [Rupees Thirty Eight Thousand and Eight Hundred only] is still due against the previous owner. Per learned counsel there is no arrears of rent or dues outstanding against the petitioners.
24. Learned counsel for petitioners, further urged that since, 1969 the 'demised premises' is in continuous possession of the petitioners, under tenancy agreement of 15-1-1969. Being old tenants cannot be evicted on the grounds of default and/or bona fide requirement of the 'demised premises', if any. Per learned counsel the advance amount of Rs.60,000 [Rupees Sixty Thousand only] for both the Flats under tenancy agreement dated 15-1-1969 be deemed converted automatically into 'possession value' i.e. 'Pugree' of the 'demised premises'. According to the learned counsel, the petitioners are not liable to be evicted from the 'demised premises' at the whims of the respondent No.1 [landlady] in view of the 'Pugree' paid to the old landlord/Owner viz. Ramzan Muhammad.
25. Against this, Mr. Muhammad Yaseen Azad, learned counsel for respondent No.1 vehemently argued that the petitioners besides 'wilful defaulter' are liable to be ejected from the 'demised premises' on the ground of personal 'bona fide need'. Mr. Muhammad Yaseen Azad, learned counsel for respondent No.1 further argued that, no doubt, Rent Case No.759 of 1994 was dismissed vide order dated 11-4-2000 passed by IXth Senior Civil Judge, Karachi, South, but permission/ liberty was given to respondent No.1 to file 'fresh ejectment application' against L.Rs. Of [late] Muhammad Essa Godil. Learned counsel further contended, that despite service of legal notice upon the tenants through registered post A/D dated 12-1-1972 and information/intimation therein to the effect that the building ['Mumtaz Mansion'] had been purchased by respondent No. l's mother [Mst.
Zahoor Fatima] from previous owner [Ramzan Muhammad] and the tenancy thereof had been attorned in her favour, the tenants, failed and/or avoided to pay the rent. Once again the tenants were requested to pay the rent to the new owners, but the petitioners [tenants] in their own wisdom did not pay any heed to such requests/demands. Such being the position, the petitioners committed 'wilful default' in payment of rent. Not only this, even the previous owner Ramzan Muhammad on 12-1-1972 had also intimated the tenants in the 'demised premises' about the 'sale transaction' of the property ['Mumtaz Mansion] and handing over possession thereof to Mst. Zahoor Fatima. Under circumstances, per learned counsel, the petitioners/[late] Muhammad Essa Godil should not have avoided/refused the payment of rent to new landlord/owner.
26. Per learned counsel, the averments made in the ejectment application regarding 'personal bona fide need' of the respondent No.1 for her son could not be denied much-less through evasive denials. The son of respondent No.1 [landlady] was young and of marriageable age but his marriage was delayed on account of non-availability of suitable accommodation. The son of respondent No.1, indeed, was living in two bedded apartment along with six family members. Under circumstances, per learned counsel, respondent No.1 required the 'demised premises' bonafidely.
The need of the respondent No.1 was not only bona fide but also based on good faith. As such both the learned courts below concurrently decided the case in favour of the respondent No.1 which needs no interference under the Constitutional jurisdiction of this Court.
27. The attorney [husband of respondent No.1] has not only deposed that the Petitioners had/have committed 'wilful default' in payment of monthly rent but had/have also deposed that the 'demised premises' are required bonafidely for the use of her son. During the 'cross-examination' , the petitioners' side, badly failed to shake the evidence of respondent's witness vis-a-vis commission of 'wilful default' in payment of rent and/or personal bona fide need'.
28. Per learned counsel as far as the alleged amount of 'Pugree' is concerned, the same has no legal sanctity behind it and the same, if any, paid to the old landlord/owner sometime, in the year, 1969 besides being not refundable cannot be adjusted against the liability of rent payable to the new landlord [owner] who purchased the building [Mumtaz Mansion'] where the 'demised premises' i.e. 02 Flats are situated. Even otherwise, learned counsel further contended, that the Rent Controller has no jurisdiction to get the 'pugree amount' adjusted at his will against the rent due to the new landlord/owner.
29. Mr. Muhammad Yaseen Azad, learned counsel for respondent No.1 vehemently argued that in the evidence `wilful default' on the part of the petitioners has been fully proved. It is the admitted position on record that the 'default' in payment of rent has been committed. Per learned counsel for respondent No.1, the trial court as well as appellate court have rightly allowed the ejectment application on the grounds of 'wilful default' in payment of rent as well as 'bona fide need' of respondent No.1 [landlady or her son]. The respondent No.1 has successfully discharged her burden of proving the case vis-a-vis 'wilful default' and personal bonafide need. Per Mr. Muhammad Yaseen Azad, the concurrent findings passed by the courts below are valid, proper and have been passed after proper appreciation of evidence thus need no interference much-less under the Constitutional jurisdiction of High Court.
30. Heard and record perused.
31. Before proceeding further the two letters sent to and admittedly received by petitioners predecessor viz Muhammad Essa Godil [the original tenant allegedly died on 19-12-1993] as being relevant are reproduced hereinbelow:--
32. {{TABLE}} A. "REGD WITH A/D KARACHI 12th Jan, 72 To,
1. Eastern & West Optical Service,
2. Rana Radoo 7. Manna
3. Zafar Sahib 8. Muhammad Shafi Ghulam Samdani 9. Chaudhri Hashmat Ali, Muhammad Ali, 10.
Iqbal Brothers, Sadiq Ali,
11. Muhammad Esa
12. Shaikh Mohd.Rafiq 209-A.M. Karachi 'Dear Sir, ' Under instructions from our clientess Mst. Zahoor Fatima, purchaser of building on Plot No.209- A.M. Karachi we have to address you as under:
(1) That our clientess has purchased the building on Plot No.209 A.M. From Ramzan son of Imam Din and has attorned your tenancy in favour of our clientess who alone shall hereinafter be entitled to receive rent, issue receipts and deal with the property which you may kindly, note.
(2) That our clientess's husband Alhaj Chaudhri Mohd.Jamil holds full General Power of Attorney who will be managing and looking after the property.
(3) You are therefore, requested, to call upon our client on the following address and show your papers for confirmation of your tenancy and hereinafter pay the rent and dues who shall issue you proper receipt. [Underlining is mine].
Thanking you, Yours faithfully, For MOHD.MOHSIN SIDDIQUI & CO., ADVOCATES Jamil Super Market 262-A.M Behind Sadar Cooperative Market, Saddar, Karachi."
B. "REGD WITH A/D Muhammad Essa Godil Resident of Flat No.1 & 2, First Floor Mamtaz Mansion 209 A.M.
Karachi KARACHI 24-3-1973 ' Dear Sir, ' Under instructions from our client Mst. Zahoor Fatima, Purchaser of building on Plot No.209 A.M.
We have to address you as under:-
(1) That as already intimated by our letter dated 12th January, 1972 on behalf of our client that our client is the sole ad exclusive owner of the building in which you are occupying premises No. Flat Nos.1 & 2 and all the formalities have been complied with.
(2) That Mr. Ramzan by his letter dated 12th January, 72 has attorned the tenancy ad duly intimated you tat in pursuance of the aforesaid notice you have not paid rent for the month/s of January, February and March, 1972.
(3) That under this notice you are called upon to make payment of the arrears as well as the current dues within 3 days of the receipt of this notice failing which our client shall be compelled to take legal proceedings for ejectment and recovery of rent at our sole risk as to cost and consequences. You may further note that Mr. Ramzan or any person claiming through or under him has no right, title or interest left in the property and any person dealing with him shall do at his own risk: [Underlining is mine].
' Yours faithfully, ' For MOHD.MOHSIN SIDDIQUI & CO., ADVOCATES SD/- Mohd.Mohsin Siddiqui)"
32. Though receiving of the above letters was admitted by Muhammad Essa Godil however, ownership of Mst. Zahoor Fatima through sale-deed dated 13-3-1972 was obliquely disputed by alleging that the general power of attorney executed by vendor Ramzan Muhammad in favour of one Alhaj Choudhry Muhammad Jameel [husband of vendee Zahoor Fatima] has been cancelled.
In this regard reference was made to the 'public notice' issued in daily 'DAWN' dated 18-3-1972. The stand so taken on the face of it was not only misconceived but also misleading in view of the fact that the sale-deed duly signed and executed in favour of vendee-Mst. Zahoor Fatima is early in time [i.e. Of 13-3-1972] than that of 'public notice' published in daily 'DAWN' of 18-3-1972.
33. Despite receiving of the aforesaid letters the original tenant [late] Muhammad Essla Godil [husband of petitioner No.1/father of the other petitioners], failed to pay the rent to the new owner.
It is worth to mention, that once a document is 'registered', then it can only be cancelled by another 'registered document' or through declaration of the court of competent jurisdiction.
34. Further upon registration of a document under Registration [Act XVI of 1908] the same besides acquiring the status of a 'public document', presumed to be a 'notice' to the general public from the date of its registration. On this aspect of the matter reliance can be placed on the case of ABBAS ALI SHAH and 5 others v. GHULAM ALI and another [2004 SCM R 1342], wherein it was observed as under:-- "5. The document which is registered under Registration Act, 1908 acquires the status of public document and general presumption of notice is attached with a registered document from the date of its registration and unless lack of knowledge is proved through the convincing evidence,: the presumption of notice shall be raised from the date of registration of document. In the present case, except the oral assertion of lack of knowledge, no evidence was brought on record and thus the presumption of the knowledge of sale or the registration of sale-deed would remain unrebutted.[Underlining is mind].
35. Besides the sale-deed dated 13-3-1972, is a 30 years' old document attaches itself the presumption of truth under Article 100 of Qanun-e-Shahadat, 1984 [10 of 1984]. Regarding this aspect of the matter reference can be made to case of MUHAMMAD IDREES AND OTHERS v.
MUHAMMAD PERVAIZ AND OTHERS [2010 SCMR 5] wherein it was held as follows:-- "4.... Under the law (as laid down by the apex Court in 1991 SCMR 703) the burden of proof is on the party, who alleges that an ostensible owner is "Benamidar" for him. Keeping in, view the above criteria and factors involved, it may be observed that Muhammad Younas the predecessor of petitioners, was elder brother of Muhammad Ayub, the predecessor of respondents Nos.1 to 6. Exh.
P. W/1 is the copy of the sale-deed, according to which the bargain was struck with the two brothers jointly. The sale-deed being thirty years old; presumption of truth is attached to it under Article 100 of the Qanune-Shahadat Order, 1984 and attesting witnesses are not required to be called and, as such, it is proved that the suit shop was purchased by the predecessors of the parties jointly and thus, the respondents Nos.1 to 6 are owners thereof to the extent of 1/2 share.
' It is an admitted fact that predecessor-in-interest of the petitioners and respondents are real brothers. Registered sale-deed executed and registered in favour of both the brothers.
It is a settled principle of law that registered document has sanctity attached to it and strong evidence is required to cast a aspersion on its genuineness. See Mirza Muhammad Sharif's case 1993 SCMR 462. It is also settled fact that sale-deed was executed in The year 1952. Therefore, it is 30 years old document. Under Article 100 of the Qanun-e-Shahadat Order, presumption is attached to 30 years old documents which is rebuttable presumption."
[Underlining is mine].
36. Moreover, under law filing of a IB rent case also amounts to notice. Reliance can be placed on the case of Messrs JODHPUR RAJASTAN COOPERATIVE HOUSING SOCIETY LTD v. MST. YASMEEN AZIZ [1996 M LD 1141] wherein it was held as under:-- "....Filing of ejectment case would amount to notice within the meaning of section 18 of the Rent Ordinance. The objection of section 18 of the Rent Ordinance is to enable the tenant to know as to whom he has to pay the rent and when an ejectment application is filed it would amount to a notice within the meaning of section 18 of the Rent Ordinance. Non-service of notice section 18 of the Rent Ordinance on the tenant would not amount to negation of the relationship of landlord and tenant between the parties. Reference is made to Maj. (Retd.). Muhammad Younus v.
Mehrajuddin (1986 SCMR 751), Muhammad Ragib v. Abdul Razak (PLD 1994 Kar. 20) and Pakistan National Shipping Corporation v. Messrs General Service Corporation (1992 SCMR 871). As soon as the appellants/tenants came to know that the respondent/landlady has become owner by virtue of mutation Order Exh.A/2, then within the 30 days from the date of service of notice of fling of ejectment application the rent due should have been paid."
37. The petitioners despite notice of change of ownership failed and/or otherwise, avoided the payment of rent to the new landlord [owner] thus rightly found guilty of 'wilful default' by the two courts below. The concurrent findings passed by the courts below on this score need no interference of this court under the exercise of its Constitutional jurisdiction which, no doubt, is limited in nature.
38. As far as bona fide need of respondent No.1 is concerned on record it is admitted position that the petitioners are tenants in the 'subject premises' since, 1969 at a total rent of Rs.150 [Rupees One Hundred Fifty only] per month for both the flats ['demised premises']. The son of respondent No.1, it is worth to note, is a grown up young person of marriageable age but had no proper independent accommodation. Under circumstances, applying the rule of equity, the demand of respondent No.1 for vacating the 'demised premises' cannot be called as inequitable, unjust or otherwise, not being bona fide. The concurrent findings of the court below based on evidence, on the grounds of 'personal bona fide need' and 'wilful default' are not open to any interference under the exercise of Constitutional jurisdiction even if, another conclusion could be arrived at from the evidence available on record. In the case in hand, it is not the case of the Petitioners that any provision of law has been flouted by the learned courts below. The disputed questions of facts cannot be gone through/considered by High Court in the exercise of its Constitutional jurisdiction. On this aspect, the relevant case-laws are as follows:-- ' A. PLD 1981 SC 246 [MUHAMMAD SHARIF AND OTHERS V. MUHAMMAD AFZAL SOHAIL AND OTHERS] wherein it was held as under:-- "Writ petitions from orders of Tribunals to be discouraged---Competency to decide includes to decide rightly or wrongly by Tribunal---Merely because another conclusion could be arrived at from evidence would not make it a case for interference under Art. 199---Filing of petitions to circumvent law or defeat legislative intention of speedy disposal of case, deprecated.
' Jurisdiction, exercise of limited scope of interference in matters involving final orders of District Judge qua eviction proceedings under WP Urban Rent Restriction Ordinance (VI of 1959)--- Interference confined to ascertainment as to if District Judge flouted provision of law or failed to follow law laid down by superior Courts."
' The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judge of the High Court took great pains to reappraise the evidence and to consider each and every contention raised by the petitioner's side before deciding the petition without realizing that, more often than not such petitions are merely a device to circumvent the amendment in the law and defeat the obvious intention of the Legislature." "It has been repeatedly held that a tribunal having jurisdiction to decide the matter is competent to decide it rightly or wrongly and the mere fact that another conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction." [Underlining is mine]. ...In our view the jurisdiction of the High Court to interfere in matters of the kind involved in the present case is a very limited one and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the law relating thereto as laid down by the superior Court ' B. IN PLD 2004 KAR. 502 [HAFIZ SHAFATULLAH V. MST. SHAMIM JOHAN AND ANOTHER], it was held as under:-- "Held, the legislature in its wisdom seems to have tried to shorten the span of litigation in rent cases--generally the interference in the orders passed by the tribunals is not called for".
' Reference is made to findings given in case reported in 2003 MLD 1033 Messrs Mehraj (Pvt.) Ltd. v.
Miss Laima Saeed and others) reproduced as under: "By conferring only one right of appeal, under section 21 of Sindh Rented Premises Ordinance, 1979- --The Legislators tried to shorten the span of litigation 'in rent cases---Exercise of constitutional jurisdiction under Article 199 in such cases merely on the ground that another view of the matter is also possible---Would defeat the spirit and object of the statute. [Underlining is mine] C. 2003 M LD 480 (KAR) [SAIFULLAH V. MUHAMMAD BUX AND 2 OTHERS], wherein it was held as under:- "....Petition--- Maintainability Contention of the petitioner was that both the Courts of Rent Controller and the District Judge had not properly appreciated the evidence--- Validity--- Question pertaining to application of facts could not be resorted to, in exercise of constitutional Jurisdiction by High Court." [Underlining is mine] .
D. IN PLD. 2001 SUPREME COURT 415 [SECRETARY TO THE GOVERNMENT OF THE PUNJAB, FOREST DEPARTMENT, PUNJAB, LAHORE THROUGH DIVISIONAL FOREST OFFICER V. GHULAM NABI AND 3 OTHERS], it was held as under:-- "Art. 199---Constitutional jurisdiction of High Court--Scope--- Disputed question of fact. Forums available in the hierarchy under the relevant law had decided all the controversial questions on the basis;: of record and in accordance with law---High Court could not go into disputed questions of fact in exercise of its constitutional jurisdiction."
Hence in my opinion this Court cannot interfere in matters where the two lower Courts have given concurrent findings against the petitioner, appreciation of evidence not found to be perverse no provision of the statute was found to have been so grossly violated as the orders were passed within its jurisdiction, all the matters being decided on the basis of evidence available on the record and in accordance with the law, hence in view of the above discussion and the case-law cited. I find that the impugned order required no interference and this petition is dismissed, accordingly. [Underlining is mine] .
39. Being relevant the admissions made by the petitioners' witness viz. Muhammad. Siddique during his 'cross-examination' are reproduced as follows:- "It is correct Mohd. Essa is tenant of Flats Nos.1 & 2. It is correct to suggest that rent of the both flats is Rs.150 It is correct that L.Rs. Of Essa are out of Pakistan. Vol: say that two are out of Pakistan and two are in Pakistan. Ms. Essa namely Mehfooza and her son namely Muhammad are out of Pakistan. I do not remember since how long they are out of Pakistan. It is correct to suggest in the year 2000 the above named Mst. Mehfooza and her .Son are in the Pakistan It is incorrect to suggest that signature of L.Rs. Of Essa Godil are a manipulated and forged on the power of attorney. I do not know how many tenants are in this building. Building consists upon two storeys. I was not present at the time of tenancy agreement between Muhammad Ramzan and Essa Godil dated 15-12-1969. It is correct that I am not witness of this tenancy agreement..... It is correct that on 12-1-1972 the present applicant had served the notice upon Essa Godil that rent to be paid to him It is correct that from 10-1-1975 to 10-12-1984 no rent was deposited It is correct that on 10-10- 1991 Rs.2700 rent was deposited and on 7-1-1993 Rs.3600 was deposited. I have deposited the amount in MRC bearing No.352/94 in the Court of Law. Again says that I do not remember correctly who filed the above MRC in the Court It is correct that I did not deposit the rent from 10- 12-1984 to 21-4-1986. It is correct that from 14-12-1987 to 29-1-1989 I did not deposit the rent. Vol: says that I deposited the property tax and other conservancy charges of the property. It is correct that I obtained the-permission from landlord to deposit the taxes to Government. I obtained the permission from Ramzan previous owner It is incorrect that I depose falsely and present applicant becomes owner in 1972. It is correct that on 18-7-1993 the present landlord had served the legal notice upon .Essa Godil for vacation of premises in dispute. Vol. Says that we replied the same through our counsel dated 27-7-1993.
40. Needless to say, that the admissions made in the pleadings, evidence/and/or in the 'cross examination' need no further proof. As such the above admissions be deemed as binding and proved. Moreover, the statement of a witness, if not challenged in 'cross examination' then such portion of the statement/deposition too be deemed as accepted against whom it is given. The witness of respondent No.1 in his evidence/'cross-examination' regarding 'wilful default' and 'personal bona fide need' all along remained consistent. Not only this the relevant portions of his 'deposition' on the issue of 'wilful default' and 'bona fide need' have gone unchallenged and/or unshaked during his 'cross examination'.
41. On the above aspect of the matter reliance can be placed on the following cases:-- a. FATEH MUHAMMAD through L.Rs. And others v. FIDA HUSSAIN SHAH through L.Rs. [2007 CLC 1885], wherein it was held as under:-- "9. The admission by the appellants and the other admission by the original vendor as far as back in the year 1917 was sufficient for the Court below to conclude that the nature of the transaction was sale and not mortgage. Further the appellant has not entered in the witness-box to support the assertions made in the written statement in the instant case. A written statement, where the defendant does not make himself available for cross-examination loses its force as a authentic piece of evidence, it cannot be acted upon and used as substantive piece of evidence. While holding so, I am fortified by the judgment in the case of Bakhat Bedar v. Naik Muhammad 2004 MLD 341. Further, in the case of Muhammad Rafiq and others v. Muhammad Ali 2004 SCMR 704, the apex Court has observed that once an admission is made in the written statement, no issue is required to be struck nor any further proof is required:" [Underlining is mine]. b. MUHAMMAD HASSAN and another v. LIAQAT ALI KHAN [2001 CLC 1743], wherein it was held as under:-- "1 find that what to speak of cross-examination even suggestion has not been given to the appellant that possession was not delivered as stated by the appellant. Needless to refer to the settled legal position that where a portion of statement of a witness is not challenged in cross- examination, then it shall be deemed that, the party against whom the evidence is being given accepts the same. [Underlining is mine. c. NAZIR AHMAD KHAN AND 2 OTHERS v. MUHAMMAD ASHRAF KHAN AND 3 OTHERS [PLD 1975 Karachi 598], wherein it was held as under:-- "As a rule pleadings are not evidence by themselves; but statements made by a defendant in the Written Statement could be used as evidence in cases where they amount to admission of the plaintiffs pleas. These admissions could be direct or even by implication, and in both cases are proof in themselves." [Underlining is mine].
42. 'Of course, admissions made by a party and/or his witness(es) in his pleadings and/or 'affidavit-in-evidence' would be binding upon such party in view of Article 113 of the Qanun-e- Shahadat Order, 1984 [P.O. No.10 of 1984]. For ready and convenience purposes Article 113 of Qanun- e-Shahadat Order, 1984 [P.O. No.10 of 1984] is reproduced herein:-- "113. Facts admitted need not to be proved:- ....No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing they agree to admit by any writing under their hands, or which, by any rule or pleadings in force at the time they are deemed to have admitted by their pleadings: ' Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission."
43. Also at this juncture I would like to refer to the provisions (f) (i) and (j) of section .2 of SRPO; 1979 which read as follows:-- "2. Definitions: -
(f) "Landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises.
(i) "Rent" includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid.
(j) "Tenant" means any persgn who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes: -
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant; "
44. Under the SRPO 1979, the definition of 'landlord' as provided in section 2(f) means any person who is 'owner' or entitled to receive the rent of the 'demised premises. Thus any person who is entitled in law to receive the rent does become a 'landlord' and can file an ejectment case under section 15 of SRPO, 1979. In case in hand, the existence of 'landlord' and 'tenant' relationship, wilful default in paym ent of monthly rent by petitioners [tenants] and 'bona fide need' of respondent No.1 [landlady] is evident from the available record. A tenant, it is worth to mention herein has no right to demand 'title document' from the landlord on receipt of notice within the meaning of section 18 SRPO, 1979.
45. No sooner the notice is served upon the tenant or it is otherwise, conveyed to him either in the judicial proceedings or by other reliable source the tenant is bound to accept new owner as his landlord. The tenant upon having notice of change of ownership if, did not pay rent to the new owner then he be deemed defaulter and liable to be ejected on this score as the case in hand is.
No illegality or infirmity has been pointed out by the learned counsel for the petitioners in the impugned judgment/ order passed by the learned courts below, thus the same in my opinion, did not call for any interference.
46. As far as the filing of Rent Case No.1632 of 2000 only by one of the legal heirs of late Mst. Zahoor Fatima [landlady] and non-maintainability thereof on this ground is concerned, the objection so raised besides misconceived is also misleading because the term 'landlord' also covers the co- owner. A co-owner until partition of the jointly owned property is also owner in each and every inch of the property, therefore, under this principle of law a co-share can competently file rent proceedings in respect of the property jointly owned. A co-owner/co-sharer later-on, if succeeds, in the partition suit then the 'demised premises' being part and parcel of the joint property would, indeed, be partitioned between the owners/co-sharers in accordance with law. Reliance is placed on the case of Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others [2002 SCM R 429], which reads as follows:-- "8 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."
' There is no cavil with the 'proposition' that any one of the 'co-owners' can competently file a case for eviction of a tenant from the jointly owned rented out premises.
47. As far as the objection regarding filing of the 'fresh rent case' is concerned, no doubt, it was filed with the permission of the court under Order dated 11-4-2000. The relevant 'portion of order dated 11-4-2000 passed by the IXth Senior Civil Judge, Karachi, South, reads as follows:- "It appears that applicants had filed this ejectment application against a dead person which is nullity in the eyes of law & thus this ejectment application is not maintainable and liable to be dismissed. I therefore accordingly dismiss the application in hand as well as main ejectment application of this case, with no order as to cost however applicants would be at liberty to file fresh ejectment application against the legal heirs of opponent deceased Muhammad Essa and Godil before the court having jurisdiction." [Underlining is mine].
' The objection, in view of the above position stands rejected as being also misconceived and frivolous.
48. The entitlement of the respondent K No.1 [landlady] to receive rent from the petitioners [tenants] cannot be questioned and/or disputed after having received the intimation notice about purchase of the 'demised premises' by her mother. After having taken the 'subject premises' on rent, it does not lie in the mouth of the petitioners to deny the ownership of the respondent No.1 and/or their obligations to pay the rent to the new landlady. Once the 'demised premises' are taken on rent then the petitioners in their capacity as tenant are precluded from denying the title of the landlady [landlord]. Under the doctrine of 'landlord-tenant relationship' once a tenant always a tenant.
49. As far as the contention of Mrs.Zubeda Moton, learned counsel for the petitioners regarding 'pugree' is concerned, it is suffice to add that 'pugree' has never received any legal sanctity under law. As such the tenants claim no benefit/premium thi the basis of 'pugree' even if, paid to the previous owner. 'Pugree' in ,fact is not an advance rent therefore, neither it can be adjusted against the arrears of rent nor otherwise would save the tenants from the consequences of 'default' in payment of rent having committed by a tenant. Payment of 'pugree', if any, does not debar the landlord/landlady from instituting the rent proceedings on the ground of 'wilful default' or bona fide personal need. Reliance in this regard is placed on the case of Muhammad Ashraf v. Ismail [2000 SCM R 498] wherein it was held as under: "Even assuming, for the sake of argument, that Pugri had been paid to the previous owner, as contended by the learned counsel, then too no adjustment of the arrears of rent against such Pugri can be claimed, when the property has already been sold to the present respondent; surely these respondents cannot, by any stretch, be made to suffer for the unlawful doings of others. In the result, we find no merit in the petition which is accordingly dismissed and leave is refused." [Underlining is mine].
50. Besides a tenant is not permitted under law to deny the proprietary rights of a landlord [landlady herein]. In the event of denial the tenant would render himself bound for delivering the 'demised premises' in his possession to the landlord instantly without any hue and cry. In the case of BARKAT MASIH v, MANZOOR AHMAD (deceased) through L.Rs. [Reported in 2006 SCM R 1068], it has been held as follows:- - (6)
" ... ...Even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in-question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences."
51. Likewise, in the case of ABDUL RASHEED v. MAQBOOL AHMED and others [2011 SCM R 320], it was held as follows:-- "5. We have heard both the learned Advocates Supreme Court. It is settled law that where in a case filed for eviction of the tenant by the landlord, am former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails. In this regard reference can be made to Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012) and Mst. Bor Bibi v.
Abdul Qadir (1996 SCMR 877). Insofar as determination of the relationship of landlord and tenant is concerned, such enquiry by the Rent Controller is of a summary nature. Undoubtedly the premises were taken by the petitioner on rent from the respondent and according to the former he later on purchased the same which was denied by the latter. Consequently, the relationship insofar as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller. "
52. I have minutely examined the concurrent findings of the two learned courts below impugned herein, which appear to be in accordance with law and based on evidence. I also do not find any illegality. Or irregularity in it so as to justify any interference of this court.
53. The upshot of the above discussion is that the concurrent judgments passed by the courts below warrant no interference. Under circumstances, the present petition is devoid of any merits thus dismissed however, with no order as to cob.
54. The petitioners [tenants], nonetheless are allowed one [01] month time to vacate and hand over 'peaceful possession' of the 'demised premises' to respondent No.1 [landlady] from today but subject to regular payment of monthly rent and utility bills payable by the tenants. In case, the ' demised premises' is not vacated and its 'vacant peaceful possession' is not handed over to the landlady then upon expiry of one [01] month from today, the learned Rent Controller, shall issue 'writ of possession' without notice to the tenants with police aid.
' Petition stands dismissed along with pending application.