1. MUHAMMAD SALEEM JESSAR, J.---Through instant petition, the petitioner has challenged the Order dated 20.5.2017 passed by learned IXth Additional District Judge, Karachi South in F.R.A. No,130/2016 whereby he dismissed the appeal filed by the Petitioner against the Order dated 07.03.2016 passed by learned Vth Rent Controller , Karachi South in Rent Case No,1 116/2013.
2. Brief facts giving rise to the filing of instant constitutional petition are; that respondent No,1 filed rent case against the petitioner stating therein that he is the co-owner and landlord of building known as Paracha Mansion constructed on Plot No,A.M.9,III-B-12, Muhammad Bin Qasim Road, Karachi, the opponent / petitioner is the tenant in respect of fiat No,20-B, situated at Ground Floor , of said Paracha Mansion, Karachi, at monthly rent of Rs,275/- payable in advance on or before 10th of each calendar month. It was further state d that husband of the petitioner being a Homeopathic Doctor was runnin g his clinic in the tenement. He had expired about 25 years back and presently opponent is running a tuition centre in the premises in question. It was further asserted that the son of the respondent namely Muhammad Naseem Paracha is married having a child of few months and is residing with the applicant/respondent. Now the said son of the applicant has decided to live independently as such applicant / respondent wants to shift his married son with his spouse in the premises in question, therefore, the premises in question is itquired by the applicant for personal use of his son in good faith. He further averred despite repeated his requests to vacate the premises and hand over its possession to him, the petitioner / opponent has been avoiding and then flatly refused to vacate the same.
3. Upon service of notice the petitioner filed written statement wherein she stated that the applicant is neither a co- owner , nor landlord of the premises in question and nor even rent collector in respect of the premises in question and that there is no relationship of landlord and tenant between the respondent and the petitioner . She further stated that Paracha Mansion belongs to Late Muhammad Ibrahim and other landlords and there are a large number of legal heirs and that several litigations/disputes are pending between the co-owners/legal heirs of Late Muhammad Ibrahim in respect of title, rights of ownership and the right of receiving rents from the tenants of the building owned by late Mohammad Ibrahim wherein the flat question is situated. She further asserted that at different occasions said legal heirs have been demanding rent and/or asking her for withholding the rent of rental premises. The opponent had been paying the monthly rent of the premises in question to Late Muhammad Ibrahim and after his death the monthly rent was being collected by and paid to Shake el Ismail Paracha who claimed, himself to be one of the co-owners and landlords of the subject building namely Paracha Mansion. She further stated that on 3.12.1992 a public notice as sent to the tenants of Paracha Mansion by Mr. M. Amin Memon, advocate of Messrs Ameen Law Associates on behalf of Mst. Neelofar Khanum, the plaintif f in Suit No,1618/1992 intimating thereby to the tenants that the building in dispute is a property of joint ownership and in this regard a Civil Suit bearing No,1618/1992 is pending. The petitioner/opponent further stated that she is an old tenant in the premises in question for the last about 50 years ago and had paid huge amount of pugree. It was averred that the petitioner has been paying the rent promptly and regularly to the aforesaid Muhammad Shakeel Ismail who used to issue rent receipts in her favour . She further asserted that in view of severe disput es / litigations amongst the legal heirs of late Mohammad Ibrahim over the disputed property known as "Paracha Mansion" particularly with regard to title and ownership rights and receiving monthly rents of the tenements from the tenants of the building and also keeping in view the public notices, the petitioner in order to avoid default in payment of monthly rent, started depositing the monthly rent of the premises in question in the competent court of law in the name of all the legal heirs. She started depositing monthly rent of the demises premises @ Rs,300/- from January 1993 in the Court vide MRC No,64/93 up to the month of December 2015. She further stated that subsequently it was revealed to her that in view of observations made in the Order dated 5.7.2012 passed by Honourable Supreme Court of Pakistan in Civil Petition No,177-K of 2012, the applicant / respondent was no more the co-owner or the landlord of the property in question, thus there existed no relationship of landlord and tenant between the parties; therefore he had no authority or right to file the ejectment application on the basis of personal requirement. She also stated that the premises in question is commercial premi ses and is situated in a renowned commercial area and it is not a flat and it is not inhabitable at all. Since the applicant / respondent is no more the co-owner of the premises in question, therefore he has no locus standi and right to seek ejectment of the petitioner , thus the rent application is not maintainable.
4. It is also stated in the written statement that the alleged requirement of the premises in question for the personal use of the son of the respondent is based on bad faith. She asserted that House No,111, situated at Ameer Khusro Road, Karachi, where the son of the respondent namely Muhammad Naseem Paracha is residing, is a big house and a huge accommodation is available therein. According to her, at the time of filing the ejectment application, the adjacent commercial premises bearing No,16-A, situated in the Paracha Mansion was lying vacant and was in possession of the respondent but he deliberately and with mala fide intention suppressed this fact from the Court.
5. She further stated that only the upper floors of Paracha Mansion consist of 30 independent flats and out of which more than 10 flats are still lying vacant but this fact was also suppressed by the respondent. It was further averred that for the last 50 years the premises in question is in occupation of the petitioner wherein she is running a tuition Centre which provides education to a number of students. She further stated that huge amount of pagree was paid in respect of the premises in question which is situated in pagree fetching area and presently its pagree value has very much increased which also lured the respondent. She prayed for dismissal of the ejectment application.
6. On the pleadings of the parties, learned Rent Controller framed the issues regarding (i) the maintainability of the rent case in view of the observation of the Honourable Supreme Court that the applicant is not co-owner of the premises and (ii) the personal bona fide need of the applicant for his son. After recording of evidence and hearing counsel for the parties, Rent Controller allowed the ejectment application vide Order dated 07.3.2016. The said order was challenged by the Petitioner in appeal which was dismissed by the appellate court vide impugned Order , hence this petition.
7. I have heard the learned counsel for the parties and perused the material available on the record.
8. Learned counsel for the petitioner contended that the two courts below erred in law and on facts while passing the impugned orders. He further contended that the impugned orders are based on misreading and non-reading of evidence. According to him, both the courts below have decided the matter in a hasty and mechanical manner without appreciating the facts on record and the evidence adduced by the parties. He further contended that the two courts below have not applied judicious mind to the pleadings of the parties and the law involved. He further submitted that both the courts below failed to examine carefully the entire record of the case and decided the matter on the basis of surmises and conjectures. He submitted that in view of the observations made by Honourable Supreme Court in the order dated 08.02.2013, the respondent is not a co-owner of Paracha Mansion wherein flat in question is situated, and therefore there is no relationship of landlord and tenant between the parties. According to him, the two courts below have not given due weight and assessment to this aspect of the case and have decided the said issue in a haphazard manner . He further ' conten ded that the courts below have not decided the issue of personal bona fide need of the respondent in a proper manner as there are number of vacant flats in the same building namely Paracha Mansion which could be utilized by the respondent for his personal need. He further contended that no plausible explanation has been given by the respondent to use specifically the flat occupied by the petitioner and not to use any other flat lying vacant in the building. He prayed for setting aside the orders passed by the courts below . In support of his contentions he relied upon the case of Muhammad Hafeez and another v . District Judge, Karachi East and another 2008 SCMR 398 .
9. Conversely , learned counsel for the respondent contended that instant constitutional petition is not maintainable as the concurrent findings of the courts below in rent matter cannot be challenged in constitutional petition. He further submitted that the two courts below after examining the pleadings of the parties and hearing both. the parties have passed well-reasoned orders. He further contended that the petitioner has concea led the subsequent order of the Honourable Supreme Court wherein the respondent has been declared as co-own er of the building in which flat in question is situated. He further contended that now it is well settled principle enunciated by the Superior Courts that it is the prerogative of the landlord to choose any premises owned by him which better suits to him as he is the best judge of his personal need. According to him, in the instant case neither there is any jurisdictional error, nor there is any perversity , illegality or infirmity in the impugned order/judgment, therefore, the same having been passed in accordance with the law, need no interference. He prayed for dismissal of the petitions. He relied upon the cases of Syed Amjad Ali Shah v. Iqbal Ahmed Farooqi and others PLD 1985 SC 244 and Alamgir Khan through L.Rs, and others v. Haji Abdul Sittar Khan and others 2009 SCMR 54 and case of Pakistan Institue of International Affairs v.
10. Naveed Merchant and others 2012 SCMR 1498 .
11. In the first instance, I would like to deal with the issue of relationship of landlord and tenant between the parties. It appears that in support of this plea the petitioner relied upon the order dated 05.7.2012 passed by Honourable Supreme Court in Civil Petition No,177-K of 2012. The said order was passed at the time of granting leave to appeal. The operative part from the said order upon which the petitioner has placed reliance is reproduced as under:-- "We have heard the learned counsel for the petitioner and respondent in person. The respondent in reply to a query about his share as a co-owner in the produced extract from the property register of Karachi District and stated that only his two sons and brothers , namely Shakeel Paracha are the owners of the property in question.
12. From the extract it appears that Respondent is not co-owner of the property ."
13. It appears that Mohammad Aslam Paracha i,e, respondent No,1 herein was the respondent in the aforesaid Civil Petition which was converted into Civil Appeal No,43-K of 2012. However , at a later stage the Honourable Supreme Court while hearing-the said Civil Appeal, vide its order dated 08.2.2013 held as under:-- "We have heard the learned counsel for the appellants-tenants. Leave in this case was granted solely on the basis that the respondent-landlord had not been able to establish that he was a co-ow ner in the premises in question.
14. Learned counsel appearing for the respon dent-landlord has taken us to the written statement filed on behalf of the present appellants. It is clearly stated in para 1 of the written statement as under: - "Para 1 of the application is admitted to the extent that the applicant is the co-owner of the building known as Paracha Mansion but it is denied that he is the landlord of the opponents".
15. Since it has been admitted in the pleadin gs of the appellants that the respondent is a co-owner of the building in dispute, there remains no question as to the ownership of the respondent-landlord. "
16. It appears that the petitioner although relied upon the order dated 05.7.2012 which was passed at the time of granting leave to appeal, however he did not make pointation to the order dated 08.02.2013 which was passed subsequently while hearing the Civil Appeal wherein Honourable Supreme Court has observed in clear terms that respondent' No,1 herein was also a co-owner of the property in question. The plea taken by the petitioner that at the time of filing the ejectment application the respondent was not holding status and legal character of co-owner has also no force in view of the fact that the ejectment application was filed on 13th November , 2013 whereas the order of Honourable Supreme Court whereby the respondent was declared as co-owner of the subject property was passed prior to filing of ejectment application i,e, on 08th February . 2013.
17. In addition, it may be observed that the petitioner at page-4 of his written statement has herself admitted in clear terms that she was depositing monthly rent in MRC No,64/93 in the name of Muhammad Shakeel Paracha and all legal heirs including respondent No,1 herein , in this view of the matter , the petitioner by her conduct has clearly admitted respondent Mohammad Aslam Paracha to be one of the co-owners/landlords of Paracha Mansion wherein the flat in question is situated. In this view of the matter it can safely be held that the findings of the two courts below on this point are absolutely correct and in accordance with the factual as well as legal position.
18. As regards the other issue regarding personal bona fide need of the respondent, it seems that the respondent in the rent application as well as in the evidence adduced before the learned Rent Controller has pressed this issue on the ground that his son namely Naseem Paracha is married having a few moths old child, therefore, the respondent intends to get his said son shifted with his spouse in the flat in question occupied by the petitioner . It is well settled principle of law that sole testimony of the landlord is sufficient to establish his personal bona fide need if the statement of the landlord on oath is consistent with his averments made in the ejectment application.
19. Reference in this connection can be made to the case of Jumma Sher v. Sabz Ali reported in 1997 SCMR 1062 . In the case reported as Jehangir Rustam Kakalia v. State Bank of Pakistan (1992 SCMR 1296 ) it was held by Honourable Supreme Court as under:-- "..S.15...Personal need... issue of... On issue of personal need, assertion of claim on oath by landlord if consistent with his averments in his application and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that requirement of landlord is bona fide."
20. Similar view was taken also in the cases reported as Messrs M. Kassam and Brothers v. Sharbat Khan (1992 MLD 1225 ) and Farkhunda Jawaid v . Ilnd Additional District Judge and others (2008 CLC 362 ).
21. The defence taken by the petitioner/tena nt was that the respondent also owned other flats in the same building which were lying vacant and that he has not furnished any explanation as to why he specifically needs the flat in question occupied by the petitioner and cannot use other flats for his personal bona fide need. In this connection, suffice it to refer to the well settled principle of law that it is the prerogative of the landlord to select any of his properties for his needs and the tenant has no right to raise any such objection and even the Rent Controller cannot make any suggestion in this regard.
22. In the case reported as Mst. Akhtari Begum v. Muhammad Qasim (2000 SCMR 1937 ) it was held by Honourable Supreme Court as under:-- "Even otherwise, the suitability of premise s for personal requirementis to be judged by the landlady herself and she could not be compelled to accept any other premises if she preferred her choice for one of the shops."
23. Reference can also be made to a judgm ent passed in the case of Muhammad Shafi v. Muhammad Adam Khan reported in 1983 CLC 2657 , wherein it was held that it is the choice of the landlord to select premises which suits him best among many premises. In another case reported as International Computers Limited v. Standard Chartered Bank Limited and others (PLD 2012 Sindh 481 ) this Court held as under:-- "12... Furthermore it is a settled principle of law, recognized by the apex court that it is the exclusive prerogative of the landlord to choose any building amongst others suitable for expanding or establishing the business and no body including the tenant of the premises required for personal bona fide use, can insist/suggest any other premises to the landlord for his business then, disclosing or not, the other building belonging to him in the ejectment proceedings would be immaterial."
24. It appears that the petitioner/ tenant has also taken the plea that the premises in question is situated in commercial market having shops of meat, chicken and general store, therefore the personal need of the respondent to use the premises in question for residential purpo se is not genuine and has not been established by the respondent. In this connection, suffice it to say that if any premise is basically and specifically mean t for residential purpose, then if subsequently the tenant uses such residential premises for commercial use, it would not change the status and character of the said premises from residential to commercial. In the case of Syed Amjad Ali Shah v. lqbal Ahmed Farooqi and others reported in PLD 1985 Supreme Court 242, it was held by the apex Court as under:-- "Ss.13 & 11.. Place rented as residential premises... Change in character of residential premises into commercial...
25. Bona fide personal need of landlord for residential use... Notwithstanding change in use of a residential unit to a non-residential unit, with or without consent of landlord, or landlord also found responsible for converted use of a residential unit by tenant, it would not amount to change of character of building for purpose of eviction under S.13 as from a residential building and requirement of landlord (if it was on that basis would also have to be for residential use.)"
26. In view of above factual as well as legal position, the petitioner/tenant could not succeed in shaking/shattering the evidence of the respondent on this point, therefore it could safely be held that the issue of personal bona fide need has also been successfully proved by the respondent/landlord.
27. The petitioner/tenant has also claimed that the premises in question has been occupied by her for about last 50 years and that pagri amount was paid in respect of the premises in question, therefore, the respondent is not legally authorized to get the petitioner evicted from the subject premises. In this connection it may be observed that first of all the petitioner has not produced any tangible material in order to prove the factum of payment of pagri amount and secondly , even for the sake of arguments it is presumed that pagri amount was paid by the petitioner in respect of the premises in question, even then it would not debar the responden t/landlord to seek eviction of the petitioner on the ground of his personal bona fide need. In the case reported as Mohammad Sharif v. Iftikhar Hussain Khan (1996 MLD 1505 ) it was held as under:-- "--S.15 (2) (vii) Bona fide personal need of landlord...payment of "pagri" effect...of...Nothing was in law which would bar ejectment under Sindh Rented Premises Ordinance 1979, for personal bona fide need of landlord in case which payment of pagri, he could file suit for recovery of same in civil court in accordance with law ... Mere fact that pagri had been alleged to have been paid to landlord would not debar landlord from seeking ejectment of tenant ground of personal bona fide need of his son."
28. In another case reported as Saadat Ali Bain v . S. Buz' Ellahi (1991 CLC 623 ) following observations were made:-- "No provision of law existed which pagri could stand in way of landlord in seeking eviction of tenant if otherwise landlord had remedy under Ordinance."
29. Similar view was also taken in the case s reported as Mst. Nargis Bano v. Rahman Bhai (1993 CLC 266) and Raees Ahmed Pasha v . Kakaluddin and others (2004 MLD 587 ).
30. Yet there is another aspect of the case. In the case reported as Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan Karachi and 2 others (PLD 2005 Karachi 554) while discussing the scope of the constitutional petition in respect of rent maters it was held that the jurisdiction of this court under Article 199 of the Constitution is extra-ordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Therefore, normally such jurisdiction is not to be exercised by the High Court to interfere with the discretionary orders of the subordinate Courts, where jurisdiction has been conferred upon it by some special statutes. In the case of Hafiz Shafatullah v. Mst. Shamim Jahan and another (PLD 2004 Karachi 502), it was observed that it has been repeatedly held that by conferring only one right of appe al under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislature in its wisdom seemed to have tried to shorten the span of litigation in rent cases and in such circumstances interference by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial orders passed by the Tribunal of competent jurisdiction, merely on the ground that another view of the matter was also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute.
31. In the instant case nor there is any jurisdictional error, neither any perversity , and illegality or infirmity was found in the orders passed by two courts below . Needless to mention that constitutiona l jurisdiction is a discretionary jurisdiction which is meant to foster justice and to remedy the wrong but could not be allowed to be invoked in routine course as an additional remedy to hamper the findings of fact, correctly recorded by the forums below .
32. For the foregoing reasons, I do not see any justification to interfere with the conc urrent findings of the two courts below with the result petition is dismissed along with all pending Misc. Applications. Petitioner is directed to hand over vacant and peaceful possession of the premises in question to respondent No,1 Mohammad Aslam Paracha within a period of 90 days from the date of this judgment, subject to payment of monthly rent in advance and in case of default, the Petitioner/ tenant would be evicted without notice through execution proceedings.