' AQEEL AHMED ABBASI, J.--- Being aggrieved and dissatisfied with the judgment dated 21-7-2010 passed by the learned VIIth Additional District Judge (South) Karachi in F.R.A. No.503 of 2001 whereby the order passed by the learned Vth Senior Civil Judge and Rent Controller dated 19-1- 1995 in Rent Case No.1848 of 1992 dismissing the ejectment application filed by the respondent, has been reversed and the appeal- filed by the respondent has been allowed, the petitioner has filed instant Constitutional Petition with the prayer to set aside the aforesaid impugned judgment.
2. Brief facts as stated by the petitioner for the purposes of disposal of instant petition are that late Jehangir R. Kakalia was a tenant of the State Bank of India and in occupation of a part of the godown in the rear portion of the State Bank of India Building compound In the year 1965; after Pakistan-India war, the State Bank of India property was declared as enemy property and it vested in the Custodian of Enemy Property. The said property was subsequently acquired/purchased by State Bank of Pakistan i.e. Respondent No.2 from the Custodian of Enemy Property along with the portion in which the petitioner was tenant. In the year 1973, the respondent bank filed ejectment proceedings against late Jehangir R. Kakalia, who was in occupation of the subject tenement and was carrying on his business therein. Such ejectment proceedings culminated in the Hon'ble Supreme Court of Pakistan through a reportedjudgment i.e. Jehangir Rustom Kakalia v., State Bank of Pakistan 1992 SCMR 1296, wherein the Hon'ble Supreme Court held that respondent State Bank of Pakistan could not prove the case of personal bona fide requirement, hence the request of State Bank of Pakistan seeking ejectment of late Jehangir R. Kakalia was declined. After dismissal of the ejectment case of the respondent by the Hon'ble Supreme Court, as referred to hereinabove, the respondent filed another Rent Case No.1848 of 1992 seeking ejectment of the petitioner on similar ground of personal requirement wherein it was stated that the subject premises is required by the respondent bank to provide for storage room for the valuable documents of the bank. Written Statement was filed on behalf of the petitioner wherein the claim of the respondent was seriously disputed. Whereas, it was stated, claim of respondent bank is based on mala fides and the personal requirement claimed by the respondent bank is not genuine, as the respondent bank has sufficient accommodation available with them in the State Bank Building situated on McLeod Road as well as several other buildings either owned by State Bank or taken on rent, for the purposes of storage of their valuable documents. Details of such buildings and the area available with the respondent bank was also given, whereas it was urged by the petitioner before the learned Rent Controller that the subject tenement which is situated in the small portion of the State Bank of Pakistan Building and being used as a godown is not required in good faith for the personal bona fide requirement of the respondent Bank. The learned Rent Controller dismissed the rent case filed by the respondent vide order dated 19-1-1995, wherein it was held that the respondent Bank has sufficient accommodation available with them for establishing any record room, whereas the respondent bank also failed to prove the plea of personal bona fide need. An appeal was filed by the respondent bank against the order of the learned Rent Controller before the learned VIIth Additional District Judge (South) Karachi, who vide impugned judgment dated 21-7-2010 has set- aside the ejectment order of Rent Controller, whereas the petitioner has been directed to vacate the subject premises viz. The portion of godown in the rear portion of State Bank of Pakistan Building and to handover its vacant and peaceful possession to the respondent bank within 60 days from the date of the order. Such order passed in First Rent Appeal has been assailed by the tenant through instant Const. Petition.
3. Learned counsel for the petitioner has vehemently argued that the impugned judgment suffers from misreading and non-reading of the evidence, whereas the learned Appellate Court has failed to appreciate that the respondent Bank had sufficient accommodation available with them for the purposes of storing their valuable record/documents. It has been contended by the learned counsel that the State Bank of Pakistan besides being owner of huge buildings have also acquired during allthese years number of other buildings and accommodation for the purposes of storing their valuable documents as stated in the ejectment application. However, according to learned counsel, such facts were not disclosed by the respondent and the same were brought on record by the petitioner in order to dislodge the claim of the respondent and to show their mala fides to the learned Rent Controller, who after having taken cognizance of such facts and the material produced by the parties was pleased to dismiss the ejectment case: filed by the respondent. Per learned counsel, instant ejectment application filed by the respondent bank after dismissal of the previous case by the Hon'ble Supreme Court, on similar grounds was not maintainable in view of principle of res judicata, hence liable to be dismissed on this account alone. However, per learned counsel, the learned Appellate Court failed to appreciate this legal aspect of the matter and also ignored the decision of thee Hon'ble Supreme Court passed in the instant case in the earlier round of proceedings wherein it was held that the respondent Bank has failed to prove personal bona fide need. It has been contended that the respondent bank did not disclose the entire facts particularly the detail of the accommodation available with the respondent bank, which was brought on record by the petitioner. It has been contended that such non-disclosure by the respondent bank depict malafidely on the part of respondent bank, therefore, was not entitled to seek ejectment of the petitioner on the ground of personal bona fide need. Ft has been contended that since in the instant ejectment application no new ground for seeking ejectment of the petitioner from subject tenement has been urged by the respondent, whereas similar grounds have already been considered by the Hon'ble Supreme Court in the case of the same parties- through their judgment reported as Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296, therefore, instant ejectment proceedings are hit by principle of res judicata. Moreover, per learned counsel, the respondent has miserably failed to establish personal bona fide requirement, particularly in view of sufficient reasonable acconimodation available with the respondent Bank to store their valuable documents/record. It has been contended by the learned counsel for the petitioner that once it was brought on record by the tenant that the landlord has sufficient accommodation, it was the duty of the landlord to establish that the accommodation available with the landlord was not sufficient or suitable, whereas it was also incumbent upon the landlord to establish that the personal requirement of the subject tenement is based on good-faith. While concluding his arguments, learned counsel for the petitioner has submitted that the impugned judgment based by the learned VIIth Additional District Judge (South) Karachi besides containing perverse, finding of facts and law, does not contain any valid reason for setting aside the order passed by the learned Rent Controller, hence the same is liable to be set aside. In support of his contention, learned counsel for the petitioner has referred the following case-law:---
(1) Habibur Rahman v. Faqir Muhammad PLD 1983 Lah. 425,
(2) Muhammad Mumtaz v. Superintending Engineer, Highway Circle, Sargodha and 4 others 1987 SCMR 205,
(3) Muhammad Yusuf and another v. Muhammad Ibrahim Khandwani PLD 1991 Karachi 226,
(4) Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303,
(5) Masud Ahmad Siddiqui v. Rashid Hasan and another PLD 1994 Karachi 219,
(6) Noor Muhammad v. Zamir Ahmad Qidwai 1994 CLC 1751,
(7) Latif Ahmad v. Mst. Farrukh Sultana 1996 SCMR 1233,
(8) Iftikhar Ali v. Ch. Abdul Hafeez 1997 MLD 560
(9) Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta AIR 1999 SC 2507,
(10) Muhammad Shaft v. Haji Shaista Khan 2002 SCMR 480.
4. Conversely, learned counsel for the respondent, at the very outset has opposed the maintainability of the instant petition and argued that the scope of invoking constitutional jurisdiction under Article 199 of the Constitution of Pakistan, 1973 in rent matters is limited to examine as to whether any provisions of Rent Laws has been violated and not followed, or to see as to whether any jurisdictional error or any perverse finding of fact, which is contrary to available record, has been recorded by the learned Rent Controller or the Appellate Court. Per learned counsel, in the constitutional jurisdiction neither disputed facts can be examined nor detailed re- examination of evidence is required. Similarly, per learned counsel, the ground of misreading or non-reading of evidence can be a valid ground in appeal or revision but not in Constitutional Petition. It has been contended that the principle of res judicata is not applicable in rent matters as the very purpose of Sindh Rented ?Remises Ordinance, 1979 is likely to be defeated, if such contention of the learned counsel for the petitioner is accepted. Per learned counsel, a landlord can file more than one case in similar or on different grounds against tenant seeking ejectment of the subject tenement while referring to earlier round of ejectment proceedings filed by the respondent against the petitioner. It has been contended by the learned counsel for the respondent that in earlier round of ejectment proceedings since no specific purpose was mentioned by the respondent for which ejectment of subject tenement was being sought, therefore, the Hon'ble Supreme Court was pleased to observe that in view of non-mentioning the specific purpose for which the subject tenement is required by the landlord, therefore, the respondent Bank could not succeed in establishing personal bona fide requirement. Learned counsel has referred to the concluding para of the judgment of the Hon'ble Supreme Court reported as Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296 in the instant case in the earlier round of proceedings, and submitted now the respondent has specifically mentioned and disclosed the reasons for which purpose the subject premises is required.
5. After having raised hereinabove legal objection with regard to maintainability of the instant petition, learned counsel for the respondent has also referred to the ejectment application filed by the respondent under section 15(1) of SRPO, 1979 on the ground of personal bona fide requirement, written statement and the evidence produced by the parties before the Rent Controller to show that the respondent bank has specifically disclosed the purpose for which the subject tenement is required by the respondent i.e. Personal bona fide need to establish record room wherein the valuable documents of the respondent Bank could be stored. Per learned counsel, reference by the learned counsel for the petitioner to the availability of accommodation with the respondent is misconceived in law and fact, as according to learned counsel, neither the respondent Bank has sufficient accommodation available for the purposes of establishing the store room nor the respondent can be deprived of his right to claim ejectment of the subject tenement for the use of the respondent as per his own choice. It has been argued that the respondent bank cannot be deprived the possession of the subject tenement which is required for personal bona fide need for an indefinite period of time. It has been contended that the choice of the landlord while seeking personal bona fide requirement has duly been recognized by Hon'ble Superior Courts in various judgments, hence a landlord cannot be non-suited on this ground as incorrectly argued by the learned counsel for the petitioner. While referring to previous round of litigation between the parties, learned counsel for the respondent has referred to the relevant para of the decision of the Hon'ble Supreme Court in the case of petitioner and respondent bank reported as Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296 whereby, previous ejectment application of the respondent bank was declined by the Hon'ble Supreme Court only on the ground that the respondent bank did not disclose the purpose for which subject tenement was required. Whereas, per learned counsel, in the instant proceedings the respondent had categorically stated that the subject tenement is required for personal bona fide need to establish for the purposes of storing the record/ documents by the respondent Bank. Hence, according to learned counsel for the respondent, contention of the learned counsel for the petitioner whereby it was suggested that the respondent has filed instant ejectment proceedings against the petitioner on similar ground as raised in the previous rot.Nd of litigation is incorrect. It has been contended by the learned counsel for the respondent that the respondent has established personal bona fide requirement i.e. Storing the valuable documents/ record, which fact was never disputed by the petitioner either before the learned Rent Controller or before learned Appellate Court, whereas the only objection raised by the petitioner was that since the respondent Bank has sufficient accommodation for the purposes of storing their valuable documents/record, therefore, the requirement of personal bona fide need on the part of respondent was based on mala fide. It has been further argued by the learned counsel for the respondent bank that if the respondent would have sufficient accommodation then it would not have acquired further accommodation on rent as stated by the petitioners themselves, whereas a tenant cannot object the suitability or the right of choice of the landlord requiring the tenement for personal bona fide need. While concluding his arguments learned counsel for the respondent has submitted that instant petition having no merits is liable to be dismissed in limine with cost. In support of his contention, learned counsel for the respondent has referred the following judgments:-
(1) Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246,
(2) Shakeel Ahmed and another v.. Muhammad Tariq Farogh and others 2010 SCMR 1925,
(3) Muhammad Latif v, District Judge Karachi (South) and others 2009 YLR 2234,
(4) Messrs Mehran (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033,
(5) S. Muhammad Saddiq & Company v. Dawate-Hadiya Akbar Ali Hassan All Trust, Rawalpindiwala Building through Managing Trustee 1999 CLC 1102,
(6) Zahir Hussain and others v. Abdul Attique 1985 SCMR 1016,
(7) Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCMR 1152,
(8) Zarina Ayaz v. Khadim All Shah 2003 SCMR 1398,
(9) Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366, (10) Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. 2006 SCMR 117.
6. Learned counsel for the respondent in order to distinguish the facts of instant case from the previous proceeding, has also referred to the judgment upon which the reliance has been placed by the learned counsel for the petitioner and submitted that none of the cited case is of any assistance to the petitioner as the facts of the instant case are entirely distinguishable from the facts of the present case as neither any misreading, non-reading or illegality has been pointed out by the learned counsel for the petitioner in the impugned judgment passed by the learned Appellate Court. It has been prayed that instant petition being devoid of any merits is also liable to be dismissed with cost.
7. I have heard both the learned counsel, perused the record and examined the case law relied upon by both the learned counsel for the parties. The ejectment proceedings in the instant case were filed by the respondent on the ground of personal bona fide requirement for establishing the record room for keeping the record of different sections in the building of State Bank of Pakistan in which the subject tenement is situated. From perusal of the contents of the ejectment application filed under section 15 of Sindh Rented Premises Ordinance, 1979, it is noted that while seeking ejectment of the petitioner from subject tenement the respondent Bank has given the detail of all the locations as well as non-availability of vacant space for organizing the new record room in both the buildings of State Bank of Pakistan. It is also noted that sufficient detail with regard to buildings owned as well as acquired on rent by the respondent i.e. State Bank of Pakistan along with the details of various departments functioning therein with particular reference to non- availability of space for establishing record room has also been given. In paras 11 and 12 of the application under section 15 of Ordinance, 1979, it has been specifically stated that the subject tenement is urgently required for respondent Bank personal/official need in good-faith for establishing its record room in the said premises and to keep the record of different sections whereas reasons for its suitability have also been given. On the other hand, from perusal of the contents of the written statement filed by the petitioner before the learned Rent Controller, it is observed that personal bona fide requirement of the respondent Bank for establishing the record room in subject tenement has not been disputed, whereas the claim of the respondent Bank has been opposed for being mala fide on the grounds that the respondent Bank has sufficient accommodation available for the purposes of establishing record room to store their valuable documents. Before this Court also the learned counsel for the petitioner has mainly given emphasis on the sufficiency of the accommodation already available with the respondent Bank, whereas, it has been alleged that the respondent Bank is not in need of establishing record room to store their valuable documents in the subject tenement. It will not be out of place to observe that the petitioner while filing written statement before the learned Rent Controller has taken pains to give minute details of the properties either owned or acquired by the respondent Bank on rent, however, nothing has been brought on record to show that the personal bona fide requirement of the respondent Bank to establish record room for the purposes of storing their valuable documents in the subject tenement is not genuine. Reference to the previous ejectment proceedings in the instant case is also of not much assistance to the petitioner for the reason that the Hon'ble Supreme Court dismissed the case of the respondent Bank reported as Jehangir Rustom Kakalia v.
State Bank of Pakistan 1992 SCMR 1296 by observing that the claim of the respondent Bank was vague in nature, whereas it was not pointed out by the respondent Bank as to for what particular purpose the subject tenement is required. Whereas, in the instant case the respondent Bank while seeking ejectment of the petitioner from subject tenement on the ground of personal "bona fide need has specifically mentioned the purpose of personal requirement i.e. For establishing record room to store the valuable documents/record of the bank.
8. The tentative assessm ent of the material and the evidence produced by the parties in the instant proceedings shows that the respondent Bank, after having given the relevant details of the accommodation in the building in which subject tenement is situated, as well as in other buildings either owned or acquired on rent by the bank, has sufficiently discharged its burden to prove that no sufficient accommodation is available with the respondent bank for the purposes of establishing record room to store their valuable documents/record. Moreover, it is well settled principle of law in rent cases that a landlord cannot be denied his right to choose suitable accommodation which may be required for personal bona fide need. Similarly, whereas a tenant cannot raise any objection relating to sufficiency or suitability of accommodation by the landlord except in the cases where the requirement of personal need by the landlord is based on mala fides. In the instant case nothing has been brought on record which may suggest that the personal requirement of the respondent Bank was based on mala fide or the personal need of the respondent was not genuine. It will not be out of place to observe that a landlord cannot be deprived indefinitely from getting the fruits and enjoying the possession of a premises owned by him. It will be advantageous to refer to the following judgments of the Hon'ble Supreme Court relating to the legal issues involved in the instant case.
9. In the case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925, the Hon'ble Supreme Court has held as follows:--- "Here it may also be observed that the selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one and therefore no restriction can be imposed upon the landlord/appellant No.1 on the pretext of restoration of his clearing and forwarding license during thy pendency of rent case."
10. In the case of Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. And others 2006 SCMR 117 the Hon'ble Supreme Court has held as under:--- "Right of landlord to claim possession from a tenant is regulated by Rent Collector only to the extent to examine whether the request of landlord for possession is inspired with "good faith", or is frivolous or mala fide. Sufficiency or insufficiency of accommodation available with a landlord is a matter of individual taste and discretion with which neither Controller nor the Appellate Authority would ordinarily interfere. All that Controller has to see or the Appellate Authority has to examine is whether the landlord requires the premises in "good faith" for his own occupation or use or for occupation or use of his spouse or any of his children. Expression "require the premises in good faith" cannot be confined to precise, identical and invariable definition nor any hard and fast rule can be propounded as to encompass all possible eventualities which could arise due to particular facts and circumstances of a case. Bona fide requirement cannot be turned down simply on assumption of tenant that proposed business could not be carried out profitably in the tenanted premises. Even otherwise, it is a fundamental right of landlord to shift his business or to change its nature so long it remains lawful and not against the public interest."
"10. The respondents cannot be permitted to say that their long standing established business would be uprooted on account of their ejectment but the fact remains that for rehabilitating a landlord, the tenant must make room for the owner and find out an alternate accommodation. In case the respondents have enjoyed tenancy rights for almost fifty years they cannot claim a life long tenancy rights in the demised property."
11. In the case of Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366 the Hon'ble Supreme Court has held as follows:--- "7. The appellant made an application under section 15 of the Ordinance. Under this provision the Controller has to make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order if he is satisfied that the landlord requires the premises in good faith for his occupation and use or for the occupation and use of his spouse or any of his children. Therefore, the only condition to be satisfied by a landlord is that he requires the premises in good faith. Good faith has not been defined in the Ordinance but it has been defined in section 2, subsection (27) of the West Pakistan General Clauses Act, 1956, as follows:- "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not."
12. In the case of Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCMR 1152, the Hon'ble Supreme Court has held as follows:--- "6. Even otherwise C.P.C. As such is not made applicable to the proceedings under the Sindh Rented Premises Ordinance, 1979. Only powers of Civil Court under the provisions contained in Code of Civil Procedure 1908 in respect of: (i) summoning and enforcing the attendance of any person and examining him on oath, (ii) compelling production or discovery of documents, (iii) inspecting the site, and (iv) issuing commission for examination of witnesses or documents have been given under section 20 of the Ordinance. Therefore, if a landlord states in his application that he requires the premises in good faith for his own occupation or use or for the occupation or use of spouse, any of his children would be sufficient. If a question arises whether a landlord does not require the premises in good faith then it can be shown by cross-examining him on his affidavit or anybody else whose affidavit is filed that he does not require the premises in good faith. In this context some times, disclosure of the nature of the business which a landlord wants to do in the shop premises might be relevant, but a statement to that effect in the application in the absence of any provision in the Sindh Rented Premises Ordinance, 1979 requiring the landlord to state the nature of business, would neither be fatal nor essential. Indeed, a landlord may think of doing a particular business and states so in his application but nothing prevents him under the law from doing any other business if the situation or the environment of the shop is changed or he finds that that particular business cannot be carried on profitably in the shop. Any such restriction, even if provided by law, would be hit by Article 18 of our Constitution which provides freedom of trade or business or profession subject to the provision contained in the provision contained therein."
13. In the case of Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398, the Hon'ble Supreme Court has held as under:- "7. The repeated verdicts of superior Courts in general and the Supreme Court in particular have almost become absolute on the point that even if a landlord has many premises in a vicinity, it is own subjective approach, choice and decision as to which one in particular is desired to be occupied. No one else has a right to interpret the circumstances from his own point of view and by making allusions to different attending circumstances of the case.
14. It will not be out of place to refer to the judgment of the Hon'ble Supreme Court in the case of Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 Supreme Court 246, wherein the Hon'ble Supreme Court of Pakistan while defining the scope of writ jurisdiction in the rent matters has held as under:- "6. 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 Courts."
Further reference this regard can be made to the case of Muhammad Latif v. District Judge Karachi (South) and others reported as 2009 YLR 2234 and Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033.
15. In view of hereinabove facts and by applying the ratio of the judgments of the Hon'ble Supreme Court supra, I am of the opinion that the impugned judgment does not suffer from any illegality, non-reading or misreading of evidence. On the contrary, it depicts correct legal position, hence does not require any interference by this Court in its constitutional jurisdiction. Accordingly, instant petition being devoid of any merits is hereby dismissed along with listed application. The petitioner is directed to vacate the premises in question i.e. The portion of godown in the rear portion of State Bank of India Building, 1.I. Chundrigar Road, Karachi and to hand over its vacant and peaceful possession to the respondent within three months from the date of announcement of this judgment.