' ABDUL RASOOL MEMON, J.--- Petitioner Muhammad Sanawar Khan has filed these two constitutional petitions impugning orders dated 5-8-2009 passed by respondent No,3 in Rent Cases Nos.283 and 282 both of 2006 and judgments dated 23-2-2010 passed by respondent No,2 in First Rent Appeals Nos.192 and 193 whereby rent applications and F.R.A. Filed by petitioner against respondents were dismissed, hence the instant petitions by this count.
2. Case of the petitioner is that he purchased house No,53/216, Darakhshan Society, Kala Board, Malir, Karachi and shifted on the upper portion of the said house as lower portion/ground floor of the house dividing in two portions, which was in occupation of tenants, namely Akhtar Khan and others respondents Nos.1 and 2 in C.P.417 and Sheikh Zafar Rahman and others in C.P. No,418 of 2010.
Petitioner sent a notice to both the tenants informing them about the change of ownership which was replied by the tenants respondents but instead of admitting him as landlord they tried to dispute the ownership and demanded copy of sale deed from him, ultimately he filed above cited rent cases for ejectment of respondents.
3. In the rent applications, the petitioner took the plea that he has fifteen family members and all of them are living in six rooms therefore they are facing hardship and two of his sons are also married having children so also his one daughter is married and living in a rented house somewhere else.
Per petitioner he had filed a Rent Cases Nos.265 and 266 of 2004 against the respondents mentioned above which were dismissed for non-prosecution. The petitioner sought ejectment of the respondents on the ground of personal bona fide need of his family. He also stated that he has retired from service on attaining the age of sixty _years. It was further claimed that the respondents have committed default in payment of rent, water, electricity and conservancy charges and the property tax as well as have raised illegal construction in front of the house.
3. The respondents filed their written objections denying the averments of the rent applications and pleaded that on receiving legal notice regarding change of ownership they contacted Imtiazul Haq Quddoos, previous owner of the demised premises, who told them that neither he had executed any power of attorney nor any sale deed in favour of the petitioner, thus respondents required the petitioner to supply copy of sale deed enabling them to enter into agreement but he did not respond them. It was further stated that prior to filing of the Rent Cases Nos.465 and 466, the petitioner had also filed Rent Cases Nos.654 and 655 of 2001 against the respondent in the Court of IXth Senior Civil Judge, Karachi East almost on the same grounds which were proceeded and dismissed and according to them instant rent applications were filed to harass them and to waste time of the 'respondents on one or the other grounds. They also denied default and payment of utility bills to the authority concerned and even the ground of personal need of petitioner.
4. To prove his assertion petitioner examined himself by filing his affidavit in evidence at exhibit A-1 and was cross-examined by the respondents and then closed his side. On the other hand respondents/ tenants filed their affidavit in rent application mentioned above repeatedly and they were also, cross-examined by the counsel for the petitioner.
5. From the pleadings of the parties the learned Rent Controller framed the following points for deciding both the rent applications :
(1) Whether the opponent has committed wilful default in payment of rent, utility bills in respect of rented premises i.e, left side of portion of ground floor of house No,53I216, Darakhshan Society, Kalaboard, Malir, Karachi?
(2) Whether the opponent made any alteration in the demised premises?
(3) Whether the applicant requires the rented premises for his personal bona fide need?
(4) What should the order be?"
6. After hearing the counsel for the parties the Rent. Controller answered the above points Nos.1 and 3 in negative and while answering the point No ..4 dismissed the ejectment applications of the petitioner. In appeals the order of Rent Controller was maintained vide impugned judgments.
7. Learned counsel for the petitioner argued that findings of the two courts below are not based on the evidence provided by the petitioner; that the plea ,of personal requirement in previous applications for ejectment against the respondents does not bar the filing of second application on the ground of new cause of action; that petitioner in his evidence has clearly stated that he has a large family of fifteen members and this piece of evidence is not controverted by respondents therefore the petitioner .Has proved his plea of personal bona fide need; that for default sufficient material is available on record and that mere non-issuance of notice or having other property in occupation in same locality shall not debar the petitioner from claiming eviction of the tenants on the ground of old age and retirement; that for alteration and additions the contention of the petitioner has not been denied in cross-examination; that the trial court after recording the cross- examination of the petitioner in rent case No,282 , .Copy whereof .Was kept in other rent case and by' doing so committed a gross-illegality and travelled beyond the mandatory provisions of law which cannot be cured and this legal defect vitiated the whole trial of the case. In support of his contentions he has placed reliance on the following case law:
1. Malik Aman v. Haji Muhammad Oufail (PLD 1976 1446)
2. Mst. Bibi Husan Bano v. Fazal Hussain (PLD 2000 Karachi 119)
3. Miss Afifa v. M.A. Saleem Khan and another (1984 CLC 1995)
4. Muhammad Rafiq and others v. Khalid Rauf and others (1984 CLC 2135)
5. Abdul Jabbar Khan v. Ismail through his legal heirs (1998 CLC 1050)
8. Conversely, learned counsel for the respondents supported the findings of both the learned lower courts and contended that on the point of default petitioner admitted in his cross- examination that the respondent had not committed any default; that for ground of personal bona fide need petitioners did not examine even any members of his family and so also he could not rebut the contentions of the respondents that he was in occupation of second and third floor of the demised premises, which was sufficient for his need; that neither mandatory notice as required under section 14 of the Sindh Rented Premises Ordinance, 1979 was issued to the respondents nor the petitioner substantiated that he was not in occupation of any other premises for his use.
Rebutting the contentions of petitioner in respect of mode of recording the evidence before the trial Court, he submitted that neither any sort of objection was raised by petitioner side before the Rent Controller nor it was agitated before the 1st Appellate Court or even this ground is not taken in the memo. Of petitions, therefore, at this belated stage he cannot agitate this point. In support of his contentions he has relied on the following cases:
1. Syed Hassan All v. Muhammad Hanif (PLD 1994 SC 716)
2. Saleh Muhammad and another v. Allah Yar (1989 SCMR 540)
3. Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398)
4. Allies Book Corporation through L.Rs, v. Sultan Ahmad and others (2006 SCMR 152)
5. Mst. Noorunissa v. Qamurul Huda (1988 CLC 1833)
6. Muhammaa Latif v. District Judge,' Karachi (South) (2009 YLR 2234)
7. Mst. Jamila v. Muhammad Iqbal and 2 others (2013 MLD 52)
8. Muhammad Islam v. Saeed Ahmea Butt and 2 others (2013 CLC 280)
9. Heard the learned counsel for the parties and perused the record.
10. The constitutional jurisdiction of the High Court to interfere in the matter of rent is very much limited and confined only to ascertain whether the appellate court has not floated the provisions relating to the constitution or failed to follow the law relating thereto, as laid down by the apex court in a case of Mazhar Hussain Shah through legal heirs v. Member Board of Revenue Punjab Lahore and others (2006 SCMR 959). In these proceedings concurrent findings of facts arrived at by two courts below in the rent case are challenged, therefore, keeping in view the dictum laid down by the Honorable Supreme Court I have to examine the concurrent findings of the two courts below.
11. Before divulging on the merits of case, it would be necessary to decide the legal objection raised by the petitioner's counsel as to procedural defect in recording cross-examination of petitioner. It is admitted fact on record that the petitioner had filed two Rent Applications Nos.282 and 283 both of 2006 in the Court of VIth Rent Controller Karachi, contents of these two applications are same and identical. Petitioner has taken plea that his cross-examination in one case was only recorded and it was copied and kept in other case. In both affidavits in evidence of petitioner has mentioned identical/similar grounds of ejectment. Record reveals that cross-examination was recorded on 4- 3-2008 while judgment was passed by trial court on 5-8-2009, during this long period of about one and half year counsel for the petitioner had not objected before the Rent Controller or even before the 1st Appellate Court. Even this ground has not been taken in memo. Of these two petitions but surprisingly this ground has been agitated during arguments. Similar controversy had arrived in the cases before the Honourable Supreme Court in the case of Muhammad Saleh and another v.
Allahyar 1989 SCMR 540 wherein it was held that the plea raised by the petitioner that evidence recorded in one case copied-in verbatim in other case cannot be declared fatal as the appellant could have objected regarding the mode of recording of evidence before the trial Court. In the instant case as stated hereinabove no such plea was raised before the two Courts below if he was prejudiced in any manner but he having failed to do so, therefore, before this third forum such objection cannot be sustained. During arguments learned counsel for the petitioner has not been able to point out that how the petitioner was prejudice by the alleged mode adopted by the learned trial Court for recording cross-examination of the petitioner and how recording of evidence in one case damaged the stance of the petitioner in the other case and how the same were different from each other. Even otherwise the petitioner has been non-suited on his own omission and the proceedings of the case but he is not aggrieved by any procedural defect on the part of the learned trial Court in losing the case on merits. After six years of recording of evidence I do not find any ground to throw the parties in another round of litigation on this ground.
12. Now reverting to the case on merits, on the point of default in payment of rent petitioner in cross-examination the petitioner has clearly admitted that no default was committed by respondents, relevant portion of his statement is reproduced hereunder:- "It is correct that the tenants are deposing the rent in the MRC Nos.7 and 8 of 2005 before this Court. It is correct that I have not produced any document for default which proves that default has been committed in this case. It is correct that I have not produced any utility bills including water and conservancy charges before this Court. It is correct that tenant paid the water and conservancy charges, in this respect, a bill has also been annexed by the tenant along with written statement as Annexures AI3 and A/4.
13. In view of the above admission of the petitioner, I am of the opinion that petitioner has miserably failed to establish his plea as to alleged default committed by respondents and the trial Court and the appellate Court have not committed any illegality in answering the above point against the petitioner.
14. So far the personal bona fide need of the petitioner is concerned, it is admitted fact on record that prior to this on similar facts and circumstances, he had lost his case before the rent controller, and this fact is not denied by him in his cross-examination. Nothing has been brought on record that after losing his first case, any new cause of action accrued to the petitioner for personal bona fide need of the demised premises. Moreover, respondents in their affidavit in evidence have D clearly stated that premises were not required by the petitioner in good faith because second and third floors of the premises in question had already been in occupation of the petitioner which appears to be quite sufficient accommodation for their family. This evidence of respondents could not be shattered. In cross-examination the petitioner admitted that.
"It is correct that I have taken ground of personal need in rent case Nos.654 and 655 of 2001. It is correct that the Court decided that point against me in Rent Cases Nos.654 and 655 of 2001."
15. On the point of additions and alterations in demised premises, no evidence has been brought on record by the petitioner to substantiate his plea, therefore, the findings of both the courts below are in accordance with the material brought on record. In respect of the plea taken by the petitioner on the ground of his age and retirement, it is an admitted fact on record that no notice in this regard was served upon the respondents. Moreover, now it is established on record and the tenants have proved that landlord is in possession of second and third floor of the building which has nexus with the demised premises therefore, the provisions of section 14 of the Ordinance, 1979 are not attracted in the circumstances of this case.
16. In the circumstances discussed above, I am of the considered view that these petitions merit no consideration and same are hereby 1 dismissed accordingly.