AZIZ-UR-RAHMAN, J.---Through this Constitutional Petition No.S-67 of 2018, the Petitioner herein [Tenant], has called in question Order dated 18.12.2017, passed by the learned District and Session Judge, Karachi- Central [Respondent No.3 herein], in Frist Rent Appeal No.49 of 2017 [Muhammad Azeem son of Muhammad Nasim v. Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain and 2 others], whereby, the 'impugned order' dated 10.4.2017 therein, passed by the learned IIIrd Rent Controller, Karachi-Central, in Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim. Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim], was allowed with direction to the Opponent [Tenant-Petitioner herein], to hand-over the vacant physical possession of the 'demised premises' to the Applicant Landlady [Respondent No.1 herein], within three [3] months w.e.f. 10.4.2017. The prayers sought by the Petitioner herein [Tenant], in the instant Constitutional Petition reads as follows:
(i) To set-aside the impugned order dated 18.12.2017 passed by the learned District and Sessions Judge Karachi Central/Respondent No.3 being appellate court is not maintainaNe under the law. ii) To set-aside the impugned order dated 10.04.2017 passed by the learned IIIrd Rent Controller Karachi Central/respondent No.2 being trial court is also not maintainable under the law as there was/is no relationship as a tenant and landlord between the parties. iii) To call the R&P's from both the below courts and suspend the operation of the both the impugned orders till the final disposal of this Petition. iv) That after hearing the parties and itself satisfied on the law points involved in the matter, the application under section 15 of S.R.P.O 1979 of the applicant may please be dismissed or to remand back the case to the trial court to re-hear the parties and pass fresh order considering the law points involved in the matter on merits. v) Any other relief (s) which this honorable court may deem fit and proper to the circumstances and facts of the case.
2. The relevant briefly stated facts giving rise/leading to the filing of the instant Constitutional Petition are that; the Respondent No.1-Landlady, as per 'averments' assertions' , made in the Rent Application, filed under Section 15 of Sindh Rented Premises Ordinance, 1979 [In short S.R.P.O. 1979] is the 'absolute' and 'sole owner' of House No.2/119, 'Shop' and under grounds 'Godown' No.7, situated at Commercial Area, Liaquatabad, Karachi, [here-onward referred to as the 'subject premises'].
3. The Petitioner herein [Tenant], as averred, in the 'Ejectment Application' of Rent Case No.224 of 2014 [Mst.
Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v.
Muhammad Azeem son of Muhammad Nasim], is a Tenant-Opponent [Petitioner herein], who was given the 'subject premises' i.e. [i]. Shop No.2/119, and [ii]. Under ground 'Godown' No.7, situated at Commercial Area, Liaquatabad, Karachi, on the rent of R.275/- and 250/- per month respectively, which rent with the passage of time was mutually increased upto 1540 in respect of each 'demised premises' total of which per month comes to Rs.3080/- [Rupees Three Thousand Eighty Only], in respect of both the 'demised premises'.
4. In the Rent Application filed under Section 15 of SRPO, 1979, it was specifically averred by the Applicant landlady [Respondent No.1 herein] that both the 'demised premises' i.e. [i] Shop No.2/119, and [ii]. Under ground 'Godown' No.7, situated at Commercial Area, Liaquatabad, Karachi, are required for 'personal use' of the Applicant-Landlady [Respondent No.1 herein]. Besides, as asserted, in the Ejectment Application, the Petitioner herein [Tenant], had also stopped the payment of agreed monthly rent since, last four [4] months. 'Para 11', of the Ejectment Application which pertains to the 'cause of action', for ready reference is reproduced herein- below:- "11. That the cause of action for filing the instant rent case arose to the applicant firstly when opponent stopped the payment of monthly rent since last four months, secondly when applicant visited to the opponent for taking monthly rent and requested him to vacate the rented premises, as the same are needed for his personal use, but the opponent started issuing threats of dire consequences and quarreling with the applicant, the same cause of action is still continued day by day till this ejectment application is allowed as prayed." [Emphasis supplied].
5. The prayers sought in the Ejectment Application on behalf of Respondent No.1 Landlady through her Special Attorney/ husband namely Asim Hussain son of Ansar Hussain for convenience purpose are reads as follows: a) To direct the opponent above-named and/or anybody/person else holding possession of the rent premises, to vacate the rent premises Viz. House No.2/119, Shop and Underground Godown No. 7, situated at Commercial area, Liaquatabad, Karachi, and to handover physical possession of the same to the applicant. b) To direct the opponent and / or anybody else holding possession of the rented premises on his behalf to pay arrears of monthly rent, since last 04 months to onwards @ Rs. 3, 080/- per month, and further to clear all the utility bills upto date to the concerned authorities or to deposit the same before this Hon'ble Court. c) Any other relief which this Hon'ble Court deem fit and proper may be granted to the applicant.
6. On service, the Petitioner herein [Tenant-Opponent], filed his 'written statement' wherein, not only the 'allegations'/'adverse assertions' made in the Ejectment application were 'denied' /'controverted' but in the written statement some 'Preliminary Objections' vis-a-vis maintainability of Ejectment Applicant [Rent Case No.224 of 2014], were also raised. The 'preliminary objections', are also reproduced herein-below:- A. That since no such name is listed in the names of L/Rs of the deceases owner Mst. Maqboolan Begum wife of Mr. Israr Hussain, the names of L/Rs given in the Notice under Section 18 of S.R.P.O. 1979 dated 17.08.1991 nor such name is given in the previous Rent Case No.474/1990 nor in the their Application under Order XXII, C.P.C. read with Section 18 of S.R.P.O. 1979 to bring the names of the L/Rs of the then owner/landlord therefore, the relationship of Landlord and Tenant is denied for want of intimation/information about the change of ownership of the premises in question, if any, hence the Applicant has no cause of action to file this Ejectment Case against the Opponent/ Tenant. Photo Copy of the previous Notice under section 18 given by the legal heirs of Mst. Maqboolan Begum wife of Israr Hussain dated 17.5.1999 is filed as Annex 0/1. [Emphasis supplied].
B. That the Application under Section 15 of S.R.P.O. 1979 filed by the Applicant is not maintainable for want of service of mandatory Notice under Section 18 of S.R.P.O. 1979 as no copy of any title deeds and documents is ever sent to the Opponent/Tenant, if any, in the name of the Applicant who is still stranger to the Opponent as the L/Rs of Late Mst. Maqboolan Begum were collecting the rent and they collected the monthly rent upto month of January, 2014 against proper receipt which is admitted fact even by the above named Applicant so called/ alleged owner/Landlord of the Shop No.2 and Godown No.7 those are two independent tenements taken on rent of which is received against separate rent receipts which too is a matter of record and shall speak itself [Emphasis supplied].
C. That even otherwise this misconceived Ejectment Application as framed and filed by the stranger to the Opponent is not maintainable for misjoinder of cause of action in respect of two different premises taken on rent on Pugri basis at different times. [Emphasis Supplied].
7. From the record, it transpires that during pendency of the Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim], the Respondent-Landlady, had also opted to file an Application under section 16[1] of S.R.P.O. 1979, with a prayer that the 'Tenant-Opponent' [Petitioner herein], be directed to deposit the Past monthly rent @ Rs.3080/- per month, in respect of both the 'demised premises' for a period of last four [4] months and 'future rent' at the same rate till the final disposal of the 'Main Ejectment Application' i.e. Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain and 2 others v. Muhammad Azeem son of Muhammad Nasim]. The said Application under section 16[1] of Sindh Rented Premises Ordinance, 1979 [In short S.R.P.O. 1979], was hotly contested by way of filing a 'counter affidavit' and 'affidavit-in-rejoinder' by Petitioner herein [Tenant] and Respondent No.1 landlady respectively.
8. Lastly, on 03.10.2014, when the above application under section 16[1] of S.R.P.O., 1979 came-up before the Court of learned IIIrd Rent Controller, Karachi-Central, then the said Application under Section 16[1] of S.R.P.O.
1979, was dismissed. The 'material part' of order dated 03.10.2014, is reproduced herein-below:- "The applicant's attorney filed affidavit-in-rejoinder to the written statement and counter affidavit to application under section 16(1), SRPO, 1979, wherein he admitted the payment of rent till January 2014, however, he denied the allegation of opponent that he has not been served with notice under section 18, SRPO, 1979. The applicant has submitted copy of tile doc. also along with rejoinder. [Emphasis Supplied].
Heard the learned counsel for the parties and perused the record, which reveals that the applicant is claiming arrears of rent since last 04 months i.e. from February 2014, while on the other hand the opponent has denied the relationship between the parties and landlady and tenant and default in payment of rent. According to him, he has paid rent upto January 2014 to the legal heirs of previous owner and thereafter, when they refused to receive the rent, he deposited the same in MRC No.16899/2014, and in support of his version he has filed photocopies of rent payment receipt in MRC and produced the original during arguments, which shows that the opponent has deposited rent w.e.f February 2014 to September 2014, of both the rented premises, thus there is no default in payment of rent, therefore, the application in hand is dismissed. However, the opponent is directed to deposit future rent for both the premises in instant case in advance w.e.f. October 2014. The amount of both the MRCs be adjusted in this case." [Emphasis Supplied].
9. The learned IIIrd Sr. Civil Judge and Rent Controller, Karachi-Central [Respondent No.2 herein], thereafter, in view of 'pro' and 'contra versions'/ 'divergent pleadings', permitted both the parties to lead evidence in 'pro' and 'contra' of their versions/contentions, by way of filing 'Affidavit-in-Evidence' of their witness[es].
10. Later on, Respondent No.1 Landlady through her Attorney/husband, namely Asim Hussain son of Ansar Hussain filed his 'Affidavit-in-Evidence' along with all the relevant documents i.e. Exh. 'A/7' to Exh. 'A/22'. The relevant 'averments' and 'assertions' regarding 'bona fide need' and 'default' in respect of the 'subject premises' made in 'para 7', 'para 8', 'para 9' and 'para 10' of Affidavit-in-Evidence read as follows:
7. That I say that the land lady and I, several times approached to the opponent, and requested to vacate the demised premises, but the opponent kept the land lady and me to one to another pretext, being constrained, the land lady sent a legal notice dated 02.04.2014, and another on 19.4.2014, but the both legal notices were refused by the opponent and were not received by him. (Photocopies of Legal Notices dated 29.3.2014, 19.04.2014 and Receipt of courier service along with confirmation are attached herewith and marked as annexure "C" to "C-1-3" [Emphasis supplied].
8. That since last 04 months, the Opponent refused to pay the rent to the Applicant, which also amounts to defauit as per Sindh Rented Premises Ordinance, 1979. [Emphasis supplied]
9. That I say that since last 04 months January 2013 the opponent refused to pay the rent to the land lady, which also amount to default as per SRPO, I further submit that the opponent was regularly paying me rent from may 2013, and he paid me rent till January 2014, thereafter he refused to pay me rent, and after filing my rent case the opponent disclosed about his MRC, bearing No.168/2014 in the name of previous owner with mala fide, in fact it was well in the knowledge of the opponent that I am the real owner of the property in question (Copies of Title Documents and Rent receipts are attached herewith and marked as annexures "D" to D/12"). It is further submitted that the opponent is not paying the electricity bill, which is outstanding against him which amounts to Rs.40,099/-, I have made several requests to the opponent to clear the same, but the opponent is refusing to clear all the dues to the K-Electric which are against him till 05.08.2014. Copy of K- Electric bill is attached herewith and marked as annexure "D-13" [Emphasis supplied].
10. That I say that the above demised premises House No.2/119, Shop and underground Godown No.7, Situated at Commercial Area, Liaquatabad, Karachi are required to the land lady for her personal use, therefore, the opponent is liable to vacate the same and hand over the peaceful vacant possession to the land lady, applicant." [Emphasis Supplied].
11. The "Affidavit-in-Evidence' and all other documents annexed therewith, were produced in the 'Examination- inChief' of the Deponent/ Attorney viz. Asim Hussain son of Ansar Hussain as Exh. 'A' and Exh. 'A/1' to Exh.
'A/22'. In this regard 'Para 4' of the ejectment order dated 10.04.2017, passed by learned IIIrd Rent Controller, Karachi-Central [Annexure 'A/1' to Mon speaks about the 'Examination-in-Chief' of Asim Hussain son of Ansar Hussian, who besides being a husband is also Special Attorney of Respondent No.1, is reproduced herein under:-- "4. The applicant's attorney filed his affidavit-in-evidence which he produced at 'Ex.A'. He has also produced original special power of attorney at 'Exh.A/1', original lqrar nama/Kiraya nama in respect of Godown at 'Exh.A/1', original power of attorney at 'Exh.A/2', original lqrarnama/ Kiraya nama in respect of shop at 'Exh.A/3', office copy of legal notice dated 29.03.2014 at 'Exh.A/4', original sealed envelope dated 02.04.2014, and receipt of courier at 'Exh.A/5' and its acknowledgement at 'Exh.A/6', original sealed refused envelope with receipt of courier dated 19.04.2014 at 'Exhs.A/7' and 'A/8' with its acknowledgment at 'Exh.A/9', original gift deed dated 07.04.2011 at 'Exh.A/10', eleven original rent receipts produced at 'Exhs. A/11' to 'A/21' respectively, original electricity bill in respect of 119, 120, commercial area, Liaquatabad, Karachi, for the month of July 2014 at 'Exh.A/22'. He was cross-examined by the learned counsel for the opponent and then his counsel closed his side on 26.04.2016." [Emphasis Supplied].
12. Upon closing, the Applicant-Landlady's side of evidence, the Petitioner herein [Tenant-Opponent], also led his evidence by way of filing an ' Affidavit-in-Evidence ' and 'documents therewith'. In the 'examination in chief' he produced his 'Affidavit-in-Evidence' at Exh.'O' and other documents at Exh.'O/2' to Exh. 'O/18'. Besides, the Petitioner [Tenant] in support of his stand also examined another witness namely Jameel Ahmed, whose 'Affidavit-in-Evidence' was produced in his 'examination-in-chief' and exhibited at Exh. 'OW/1'. 'Para 5' of Order dated 10.04.2017, passed by learned IIIrd Rent Controller, Karachi-Central, in Rent Case No.224 of 2014 [Mst.
Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v.
Muhammad Azeem son of Muhammad Nasim] which speaks about the 'Examination-in-Chief' of Petitioner herein [Opponent-Tenant], his witness Jameel Ahmed is also reproduced herein:- "5. The opponent filed his affidavit in evidence and produced the same at 'Ex.O'. He has also produced notice under section 18 of SRPO, 1979, dated 17.08.1991 at 'Exh.O/2', rent receipt bearing No.1540, dated 5.12.2013 at 'Exh.O/3', receipt No.21, dated 6.01.2014 at 'Exh.O/4', money order receipt at 'Exh.O/5, another money order receipt at 'Exh.O/6', certificate dated 27.3.2014 at 'Exh.O/7, copy of intimation of MRC No.168/2014 at 'Exh.O/8', receipt of payment in MRC No.168/2014 dated 4.2.2014 at 'Exh.O/9', receipt of payment in MRC No.168/14 dated 8.5.2014 at 'Exh.O/10', receipt of MRC No.168/14 for the month of August 2014 dated 9.8.2014, at 'Exh. O/11 receipt of MRC No.168/14 dated 2.7.2014, for the month of July 2014 at 'Exh.O/12', application for compromise I rent case No.474/1990 along with order passed therein at 'Exh.O/13'. I produce intimation notice of MRC No.169/14 at 'Exh.O/14', payment of rent receipt in MRC No.169/14, payment of rent receipt dated 9.4.2014, 5.5.2014, 9.6.2014 and 2.7.2014 at 'Exhs.O/15' to 'O/18'. The opponent also filed affidavit in evidence of his witness namely Jameel Ahmed, he produced his affidavit in evidence at 'Exh.OW/1'.
The opponent and his witness were cross-examined by the learned counsel for the applicant and then the learned counsel for the opponent closed his side. [Emphasis Supplied]
13. After recording 'Examination-in-Chief' and 'Cross-Examination' of the witnesses by the parties' opposite counsel, the learned IIIrd Rent Controller, Karachi-Central, in view of 'materials'/ evidence brought on record, thereafter, framed four [4] points for 'determination' of the dispute having been arisen/involved in the case in hand. The four [4] points for 'determination' settled, by the learned IIIrd Rent Controller, Karachi-Central, are as follows:-
1. Whether there exist relationship between the parties as landlady and tenant?
2. Whether the opponent has committed willful default in payment of monthly rent?
3. Whether the demised premises is required to the applicant for her personal bona fide need?
4. What should the order be?
14. Finally, on 10.04.2017, when Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim], came-up before the Court of learned IIIrd Rent Controller, Karachi-Central, then, after hearing learned counsel for both the parties and appreciation of the evidence/ materials available on record in its' true perspective, the learned IIIrd Rent Controller, Karachi-Central, thereafter, while, answering Points 1, 2 and 3, pertaining to the questions of [i] of 'relationship' between the parties i.e. as a landlady and tenant [ii]. 'Default' in payment of monthly rent by the tenant [Petitioner herein] and [iii]. 'bona fide personal' need of the Respondent No.1 herein, [Applicant-landlady], in 'affir-mative' resultantly, allowed the Rent Application and consequently the Petitioner herein, [Tenant-Opponent], was directed to hand-over vacant possession of the 'demised premises' to the Respondent No.1 herein, [Applicant-landlady] within, a period of three [3] months w.e.f. 10.4.2017. Parties to the Rent Application/Rent Case No.224 of 2014, nonetheless, were left to bear their own costs. The concluding 'Para 19', under 'Point No. 4', is reproduced herein-below:- "19. For what has been discussed above, the rent application is hereby allowed with directions to the opponents to handover the vacant possession of the demised premises to the applicant within three months. The parties are left to bear their own costs." [Emphasis Supplied].
15. The Petitioner herein [Tenant-Opponent], thus feeling 'dis-satisfied' with Order dated 16.04.2017 (Annexure 'A/I' to the Moll, whereby, the Ejectment Application was allowed by learned IIIrd Rent Controller, Karachi- Central, opted to file Frist Rent Appeal [In short FRA], No.49 of 2017 [Muhammad Azeem son of Muhammad Nasim v. Mst. Rani widow- of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain and 2 others], before the Court of learned District Judge, Karachi-Central. The said FRA No.49 of 2017, however, was also dismissed, on the same four [4] points, framed for 'determination' of the dispute involved between the parties to Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim] through the 'impugned Order' dated 18.12.2017 herein [Annexure 'A' to the MoP]. The relevant portion under the 'Point 5', of the 'impugned order' of 18.12.2017, reads as follows:- "In the light of above discussion on points Nos.1 to 4, I am of the view that the appellant/opponent has failed to establish his case for interfering with the impugned order dated 10.4.2017, passed by the learned IIIrd Rent Controller, Karachi-Central in R.C. No.224/ 2014 (Mst. Rani v. Muhammad Azeem) and I find no merits in this appeal and dismiss the same with no order as to costs." [Emphasis Supplied].
16. The present Petitioner herein [Tenant-Opponent], thus once again feeling 'aggrieved' by and 'dis-satisfied' with the 'impugned Orders'/'Concurrent Findings' of the courts below, has approach this Court 'inter alia' with a prayer that 'impugned Order' dated 10.04.2017 and 18.12.2017, passed by the courts below i.e. Respondents Nos.2 and 3 respectively, be set-aside, as the same besides, being erroneous, as such, have been passed without proper appreciation of 'evidence'/'materials' available on record in its' true perspective, as well as, law.
17. On 10.01.2018, when the above petition, came-up before the Court then, while granting the urgent Application, the following order was passed:-- "10.1.2018 Mr. Muhammad Habib Jalib for petitioner .x.x.x.x.
1. Urgency applicant granted.
2. Exemption application granted subject to all just exceptions.
3&4: Counsel submits that originally they were tenant of one Maqboola Begum and after the sad demise notice under section 18 of Sindh Rented Premises Ordinance, 1979 was issued to the petitioner disclosing the names of the legal heirs on 17.8.1991 which does not include respondent No.1 as being legal heir. She allegedly claimed to have acquired the property in question by way of gift from one Arif Hussain, one of the legal heir of Mst. Maqboola Begum. Subsequent notice under section 18 of Sindh Rented Premises Ordinance, 1979 was issued by respondent No.1 on 29.3.2014 which is claimed not to have been served upon the petitioner.
However, when enquired as to what steps were taken by petitioner after service of notice of ejectment application when he acquired knowledge of acquisition of this property by the respondent No.1, he has no answer and submitted that he waited for an order to be passed under section 16(1)A Sindh Rented Premises Ordinance, 1979. Further that such order under section 16(1) of Sindh Rented Premises Ordinance, 1979 was not placed on record. He requests for time to place copy of such order on record." [Emphasis Supplied].
18. Manifestly, Notice under Section 18 of S.R.P.O. 1979 [Exh. 'A/4'] was issued to the Petitioner herein [Tenant] on 29.03.2014. In proofs thereof, 'original sealed envelope' dated 02.04.2014, 'receipt ' of courier' and its' acknowledgement, 'original sealed refused envelop' with 'receipt of courier' dated 19.04.2014 with its acknowledgment, have been brought on record in evidence of Respondent No.1- Landlady's attorney as Exh.
'A/5' to Exh. 'A/9'. Despite, such Notice of Section 18 of S.R.P.O. 1979, and, even thereafter, of filing of the Ejectment Application under Section 15 of S.R.P.O. 1979, the Petitioner herein [Tenant-Opponent], however, in, a calculated manner, rather to say in his own wisdom, failed to pay the 'due and payable' rent to the Landlady- Applicant [Respondent No.1 herein], through her Special attorney/ husband viz. Asim Hussain son of Ansar Hussain. Later-on, when the above Petition was posted on 23.01.2018, before this Court then, this Hon'ble court while, granting the urgent application, also pleased to pass an order dated 23.01.2018. For ready reference Order dated 23.01.2018, is also reproduced herein below:- "23.1.2018 Mr. Muhammad Habib Jalib for petitioner .x.x.x.x.
1. Urgency applicant granted.
2&3: Learned counsel submits that during the proceedings an order under section 16(1) of Sindh Rented Premises Ordinance, 1979 was passed and the rent was claimed by the respondent w.e.f. February, 2014 however the rent application under section 16(1) of Sindh Rented Premises Ordinance, 1979 was dismissed as the subject rent had already been deposited as observed by the Rent Controller in its order dated 03.10.2014.
The Rent Controller, however, directed the petitioner to deposit the future rent from October, 2014 in the rent case which order the Petitioner has complied by depositing the rent, which is available at page 163. Learned Counsel submits that the notice itself was issued on 29.3.2014 and by that time the rent of February, 2014 had already been deposited which has been noticed by the Rent Controller yet the petitioner was held as defaulter of the period w.e.f. February, 2014 onwards which order was maintained by the appellate Court, which is not in accordance with law, pleadings and the order passed. [Emphasis Supplied].
Let notices be issued to the respondents for 06.02.2018. In the meantime no coercive action be taken."
19. Upon service, Respondent No.1 [Applicant-landlady] besides, filing 'objections' to the Memo of Petition [In short MoP], also filed a 'counter affidavit' in opposition/response to the Application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. [C.M.A. No.191 of 2018], which it is needless to say, was followed by way of filing an 'affidavit-in-rejoinder' on behalf of the Petitioner herein [Tenant-Opponent]. In 'counter affidavit' and in the 'affidavit-in-rejoinder' allegations'/'counter allegations' and 'adverse assertions' were denied/ controverted by the opposite parties.
20. Lastly, on 02.10.2019, when this Constitutional Petition No.S-67 of 2018 [Muhammad Azeem v. Mst. Rani through Special Attorney, Asim Hussain], came-up before me then, it was argued by Mr. Muhammad Habib Jalib, learned counsel for the Petitioner and then he while, reserving the right of rebuttal, the case was adjourned to 03.10.2019, for the arguments of Mr. Kashif Ali, learned counsel for the Respondents. Both learned counsel for the parties on 03.10.2019, concluded their arguments and case was thus reserved, for Order/Judgment.
21. Mr. Muhammad Habib Jalib, learned counsel for the Petitioner while, advancing his arguments vehemently, contended that the 'Special Attorney' namely Asim Hussain son of Ansar Hussain who is also husband of Respondent No.1, in 'collusion' with his wife namely Mst. Rani, landlady, has played 'fraud' upon the court by means of and through 'documentary evidence'. Per learned counsel, such fraud, as urged, cannot be ignored and/or brushed aside. According to Mr. Muhammad Habib Jalib, learned counsel for the Petitioner, since 'Special Attorney' viz. Asim Hussain [ who is husband of Respondent No.1 herein], was also attorney of one Arif Hussain [Donor], who is one of the legal heir of deceased Maqboola Begum [the original owner and landlady], as such, it is an act of committing of 'fraud' upon the court but both the courts below, have badly failed to 'inter alia' consider such important point. According to Mr. Muhammad Habib Jalib, since rent was received by Asim Hussain son of Ansar Hussain in his capacity as an 'Attorney of Arif Hussain' but 'no relationship' of a landlady and tenant between the Respondent No.1 and the Petitioner herein was in fact existing, though the said Asim Hussain son of Ansar Hussain besides being husband has also acted as a Special Attorney of Respondent No.1 [landlady].
22. According to Mr. Muhammad Habib Jalib, the lacking of relationship between Petitioner [Tenant] and Respondent No.1 [Landlady] was thus not properly considered by both the courts below while, passing the 'impugned orders' [Annexures 'A' and 'A/1' to the MoP] which, of course, is a patent illegality and irregularity rendering both the aforesaid orders besides being erroneous as illegal. Moreover, the rent proceedings initiated by the 'Special Attorney' on the basis of 'Special Power of Attorney' [Exh. 'A/1'] executed by Mst. Rani, in May, 2014, does not confer any power on the Special Attorney specifically, to initiate any rent proceedings in respect of the 'subject premises' i.e. Shop and Godown. On this point as well, the Rent Case was liable to be dismissed by both the Courts' below.
23. Moreover, as urged, by Mr. Muhammad Habib Jalib, learned counsel for the Petitioner herein [Tenant- Opponent], the 'Registered Gift' dated 7.4.2011 [Exh.'A/101, executed by one Arif Hussain, owner [Donor] of the immoveable properly/'subject premises' in favour of Respondent No.1, [Donee] was not disclosed until NOTICE under section 18 of Sindh Rented Premises Ordinance, 1979, was issued on 29.03.2014 [Exh.'A/4']. Learned counsel for the Petitioner next contended that since, the 'physical possession' of the 'subject premises', remained with the Petitioner/Tenant, since long i.e. 30.09.1985, as such, the 'Registered Gift Deed' dated 07.04.2011 [Exh. 'A/10'] as being without 'physical possession' of the 'subject premises' is of no legal effect. In this regard, the relevant part of 'Para 3', under the heading of Grounds, is reproduced herein-below:- "3. ...so in accordance under section 167 of Muhammadan Law a Gift Deed cannot be completed at all till the delivery of vacant and peaceful possession to the done by the donor but it is very much established as per the self document / gift deed produced by the attorney of the applicant. That the peaceful physical possession had never delivered by the donor to the donee at the time of gifted the property on 07.04.2011 so on this sole legal ground the applicant becoming owner of the property totally does not arise without taking peaceful vacant possession of the tenement shop and godown, so on this legal grounds applicant had not become the owner and the impugned order is itself liable to be set-aside."
24. Mr. Muhammad Habib Jalib, learned counsel for the Petitioner next contended that all rent receipts' Exhs.
'A/11' to 'A/21', pertain to the year, 2013 and last one is of January, 2014, which mean, that all the said 'rent receipts' have been issued, much prior to issuance of 'NOTICE' under Section 18 of Sindh Rented Premises Ordinance, 1979 dated 29.03.2014, [Exh.'A/4']. In this view of the matter as well, the question of 'default' in payment of rent, much-less, to Respondent No.1-Landlady, does not arise. According to Mr. Muhammad Habib Jalib, both the 'impugned orders' thus besides being erroneous, contrary to law have been passed without proper application of judicial mind by both the courts below. Both the impugned orders [Annexures 'A' and 'A/1' to the MoP] are thus liable to be set-aside by this Court under the exercise of Constitutional of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
25. Per Mr. Muhammad Habib Jalib, learned counsel for the Petitioner herein [Tenant-Opponent], indeed initially the mutually agreed rent was paid to the 'original landlady' namely Maqboolan Begum and after her death to her surviving legal heirs. Later on, w.e.f. April 2011, rent was paid to one of the legal heirs and owner of the 'subject premises' namely Arif Hussain son of Israr Hsussain. Further, no doubt, later on, rent was also being paid to the 'husband' and 'Special Attorney' of Respondent No.1, landlady viz. Mst. Rani widow of Asim Hussain in respect of the 'subject premises' on the direction of Arif Hussian son of Israr Ilussain [Donor], who in his capacity', as being owner of immovable property, Ground plus one storeyed, constructed on a commercial plot of land bearing No.119, measuring 66.66 sq. vds, situated at Ground No.2, Commercial Area, Liaquatabad, Karachi, where the 'subject premises' is situated had gifted his said immoveable property to Ms. Rani through a 'REGISTERED GIFT DEED' dated 07.04.2011 [Exh. 'A/10'].
26. Mr. Muhammad Habib Jalib, learned counsel for the Petitioner herein [Tenant] in view of the above assertion argue that at no 'cause of action', as claimed by Respondent No.1 landlady in 'para 11' of the 'Ejectment Application', has ever accrued in favour of Respondent No.1-Landlady, to file the 'Ejectment Application', muchless, on the grounds of 'default' and 'bona fide need'. The Ejectment Application, as such, instead of allowing it, was liable to be rejected 'inter alia' for want of any 'cause of action'.
27. Mr. Muhammad Habib Jalib, learned counsel for the Petitioner, in support of his contentions made reference to the case of Said Rehman and others v. Mst. S. Sardar Begum and others [PLD 2006 SC 554] wherein, in 'Para 7', thereof, it was observed as follows:- "7. We have anxious thought to the arguments raised at the bar. The contention of the learned counsel for the appellants that respondents were not owners of disputed property has no force for the reasons that Muhammad Saeed, Advocate who was a marginal witness of the rent deed had categorically stated in his examination-in- chief that he was the scriber of the deed executed by the respondents in favour of appellants on 13.7.1972.
Another marginal witness, namely, Sabir Hussain also supported the deed and verified his signature as marginal witnesses. Both the witnesses were subjected to cross-examination but theirevidence remained unshattered. It is settled principle of law that in rent cases only relationship of landlord and tenants is to he seen and not the title or ownership. When the relationship of landlord and tenant has been established then there is no need for placing on record ownership documents. The sanction by the Municipal Corporation for the proposed re- construction is also a valid ground for maintaining the ownership of the respondents, as the same cannot be obtained by a stranger. The learned High Court has passed an elaborate judgment by discussing each and every aspect of the matter. The case-law cited by learned counsel for the appellants is not relevant in the facts and circumstances of the case." [Emphasis supplied].
28. Lastly, while, concluding his arguments, Mr. Muhammad Habib Jalib, learned counsel for the Petitioner, forcefully submitted that since, both the 'impugned orders' of 10.4.2017 and 18.12.2017, [Annexures 'A' and 'A/1' to the MoP], passed by the courts below, whereby the Ejectment Application in Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v.
Muhammad Azeem son of Muhammad Nasim] was allowed and later-on, the same was maintained/upheld by the Appellate Court be set-aside and the 'Ejectment Application', in respect of 'demised premises', i.e. Shop No.2/119 and underground Godown No.7, situated at Commercial Area, Liauqatabad, Karachi, be dismissed with costs, otherwise, the Petitioner herein [Tenant] shall be seriously prejudiced.
29. Conversely, Mr. Kashif Ali, learned counsel for the Respondent No.1 [Landlady] strongly defended both the 'impugned orders' herein dated 10.4.2017 and 18.12.2017 [Annexures 'A' and A/1' to the MoP], passed by Respondents Nos.2 and 3 in Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim], F.R.A.
No.49 of 2017 [Muhammad Azeem son of Muhammad Nasim v. Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain and 2 others], respectively. According to Mr. Kashif Ali, both impugned orders, are not only lawful, valid but also have been passed after proper appreciation of 'evidence'/'materials' available on record before the learned courts below. Both the impugned orders, as alleged, need no interference of this Court under the exercise of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Mr. Kashif Ali, next contended that in the light of evidence brought on record, the Petitioner herein [Tenant], indeed, is not only a 'defaulter' in payment of rent/utility charges but also as, established in evidence of the Petitioner [Tenant] is liable to be ejected on the ground of 'personal bona fide need', as well.
30. Mr. Kashif Ali, learned counsel for the Respondent No..1[Landlady], next contended that the Petitioner [Tenant], in his good senses, has also admitted the 'relationship' of 'Landlady' and 'Tenant', therefore, filing of instant Constitutional Petition, against 'concurrent findings' of two [2] courts below, is nothing but a futile drill/attempt and wastage of time. Per Mr. Kashif Ali, as far as, the said Arif Hussian [Donor] is concerned, neither he is a party to the Rent Proceedings, nor otherwise, he has any claim against the Respondent- Landlady or vice versa. Making reference to Arif Hussain [Donor], by the Petitioner herein [Tenant] is nothing but to say is an attempt made in a calculated manner to mis-lead this Hon'ble Court. Such reference besides, irrelevant is in-appropriate. The allegation of 'mis-joinder' of any 'cause of action' as alleged besides being incorrect is of no legal effect. Rather, it seems a futile attempt on the part of Petitioner [Tenant] to justify the committed 'default' in payment of rent/utility charges. Anyhow, by way of raising such pseudo pleas, with ulterior motives, neither the situation can be confused nor this Hon'ble Court, can be mis-guided otherwise.
31. Mr. Kashif Ali learned counsel for Respondent No.1 landlady [Applicant] next contended that the Petition in hand, is nothing but wastage of time. Per Mr. Kashif Ali, the 'Donor' namely Arif Hussain son of Israr Hussain of the immoveable property including the 'subject premises' has no any claim in respect of the GIFTED PROPERTY in favour of Mst. Rani [DONEE] by registered Gift Deed dated 07.04.2011 [Exh. 'A/10'], as such, his non-joining in the Rent Proceedings, is of no legal effect. The making of reference to said Arif Hussain [Donor] by the Petitioner besides, being irrelevant seems a futile attempt to confuse the situation by way of sham, self- conflicting and self-contradictory pleas.
32. As far as, the allegations regarding 'Special Power of Attorney' executed by Respondent-Landlady, Mst.
Rani in favour of her husband namely Asim Hussain son of Ansar Hussain in respect of her lawfully owned property bearing House No.2/119/120, Commercial Area, Liaquatabad, Karachi, is concerned, in the said 'Special Power of Attorney' [Exh. 'A/11 indeed, a reference has been made to the 'subject property' in the very opening paragraph of the Special Power of Attorney [Exh 'A/11. It is needless to say, the 'subject premises' i,e.
Shop and Godown are also situated/part of the said 'Gifted property'. Even otherwise, as urged by Mr. Kashif Ali, the Special Power of Attorney [Exh2 A/11, has never been challenged the Petitioner herein [Tenant]. Like-wise, the Registered Gift Deed dated 02.04.2011 [Exh. 'A/101 in favour of Respondent-Landlady, is a 'genuine' and legally binding document has also gone un-challenged. No one including the Petitioner herein, can claim, ignorance of such a Registered document dated 02.04.2011 [Exh.'A/10']. Moreover, as urged by Mr. Kashif Ali, there is no dispute, regarding 'ownership' of the 'subject property'. The case of Respondent No.1-Landlady, as pleaded in Ejectment Application, is based on 'personal need' of Respondent No.1 Landlady and 'default' in payment of rent including electricity charges by the Petitioner herein [Tenant]. The Ejectment Application under section 15 of S.R.P.O. 1979 [As amended upto date], it is needless to say, was allowed, concurrently, by both the learned courts below, on the two grounds of 'default' and 'personal need'.
33. Per Mr. Kashif Ali, the tenant-Petitioner's worker and one Shama, at the given known address of the tenant, had refused to receive the 'courier'. The Petitioner herein [Tenant], as such, shall not be allowed to claim lack of knowledge about Notice under Section 18 of S.R.P.O. 1979, sent through registered post/courier [see Exh. 'A/4' to Exh. 'A/8'] The Petitioner herein [Tenant], it appears, in a 'calculated manner' coupled with 'ulterior motives', as well as, with mala fide intention had refused to receive the 'NOTICE' under Section 18 of Sindh Rented Premises Ordinance, 1979. Moreover, as evident from the 'Certificate' dated 27.03.2014 [Exh. '0/7'], the Applicant-Landlady, as alleged, has never refused to receive the 'money order' and this fact, has also been admitted by the Petitioner herein [Tenant], in his 'Cross-Examination'. The 'Postal receipts' also belie the Petitioner [Tenant] in its' version that he has no knowledge about the change of ownership.
34. Mr. Kashif Ali, learned counsel for Respondent [Landlady], while, advancing his arguments emphatically argued that contentions/pleas raised by the Petitioner herein [Tenant], are not only baseless, fabricated, self- thought but also concocted, vexatious and mis-conceived. 'Ex-facie' such pleas have been raised with an intent to deprive the landlady., from the use of the 'demised premises' and that too by raising pseudo and false pleas, otherwise, both the 'impugned orders' [Annexure 'A' and 'A/1' to the MoP], passed by the learned court 'below besides absolutely proper have been passed, after proper appreciation of the 'materials' and evidence available on record, in its' true perspective. In support of his contentions, Mr. Asif Kashif Ali, learned counsel for Respondent No.1 [Landlady], placed reliance on the case of Messrs Latif Brothers through Proprietor v. Mst.
Rasheeda [PLD 2001 Karachi 41]. The relevant portion on which reliance has been placed reads as under : 10....All these facts go to indicate that late Abdul Majeed used to collect the rent on behalf of the respondent as her husband as is customary in our social set-up. Be that as it may, the respondent claims ownership of tenement. Her son in his evidence has categorically stated that she is owner of the premises in question. He has also produced certified true copy of Extract from city survey record as Exh.16 which explicitly bears the name of the respondent as holder of the said property by virtue of gift dated 17-8-1971 constituting her ownership. Aforementioned statement of son of the respondent has gone unchallenged, rather, ostensibly on a suggestion, in his cross-examination lie has stated that it is correct that his mother was owner of disputed shop in the year 1971. Besides, the existence and authenticity of aforementioned document Exh.16 has not been challenged. Thus, for the purposes of this case, the respondent is owner of the premises in question and by virtue of being so she is landlady as per definition of landlord provided by section 2(f) of the Sindh Rented Premises Ordinance, 1979, which reads as follows: [Emphasis Supplied].
"Landlord means the owner of the premises and includes a person, who is for the time authorised or entitled to receive rent in respect of such premises."
35. Heard and perused the record.
36. As far as the contention of Mr. Muhammad Habib Jalib, learned counsel for the Petitioner [Tenant] regarding non-accrual of any 'cause of action' in favour of the Respondent-Landlady is concerned, it is significant to note, that 'para 11' of the 'Ejectment Application' mentions 'cause of action' for filing of the 'Ejectment Application'. Per said para 'cause of action', has arisen firstly, when the 'Opponent' [Petitioner herein], stopped the payment of monthly rent i.e. for last four [4] months [February, March, April and May, 2014]. Secondly, when the Respondent No.1, visited/ approached the Petitioner herein [Tenant], for taking monthly rent, as well as, when the Petitioner herein [Tenant], was asked to vacate the 'rented premises' as the same were needed by the Landlady [Respondent No.1 here], for personal use, but the Petitioner [Tenant] instead, of 'paying the rent' and 'vacating' the 'subject premises' besides quarreling, started the advancing of threats of 'dire consequences'.
Further, 'cause of action' continued to arise till the time 'Ejectment Application' is granted. This 'specific assertion' regarding 'cause of action' by Respondent No.1 herein, [Landlady], in the Ejectment Application, of course, belies the Petitioner herein [Tenant], in its' stand that no any 'cause of action', has arisen/accrued in favour of the Respondent No.1 herein [Landlady].
37. It is worth mentioning that 'cause of action' is a bundle or totality of 'essential facts' which an Applicant/ a Plaintiff prior to succeed, needs to prove. As far as, the case in hand is concerned, the requisite need has been done sufficiently by way of annexing 'various documents' [i.e. Exh. 'A/1' to Exh. 'A/22'] with Ejectment Application. Reliance on this aspect of the matter can be placed on the case of Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmir' Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others [2003 CLC 335] , wherein, it was observed as follows: "9.... 'Cause of action' has not been defined in the C.P.C. It is the bundle of facts, which have been alleged by the plaintiff in the plaint. It has been held in the case reported as National Development Finance Corporation v.
Messrs Leepa Shoes Ltd., Mirpur 1992 MLD 474 that to ascertain cause of action only the facts stated in the plaint are to be construed to determine whether they constitute a cause of action". It means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed." [Emphasis Supplied].
38. As far as, the denial of relationship between Respondent No.1-Landlady and Petitioner-Tenant is concerned, at this juncture, I would like to refer to and reproduce herein, the relevant 'assertions', made in 'Para 1' and 'Para 7' of the Memo of Petition [In short MoP], under the 'Heading of Grounds', herein below:- Para 1: ..."as the Respondent with the collusion of her husband who is Special Attorney of the Applicant so also one Arif Hussain who is a legal heir of Maqboolan Begun: have committed fraud with the learned trial court through documentary evidence... "[Emphasis supplied] Para 7: "That both the below courts have also miserably failed to consider the important question of law involved in the matter that the petitioner/ opponent paid the rent of the tenement firstly to its originally landlady Magboolan Begun: and after the death of Maqboolan Begum the rent is collected by the LRs. of Maqboolan Begum and last one LLR's Arif Hussain was collecting rent from the petitioner and on the direction of Arif Hussain the Petitioner paid the rent to the husband of present applicant"... [Emphasis supplied]
39. From the above 'assertions', it is established position, that the 'husband'/'Special Attorney' of Respondent No.1 herein [Landlady], was collecting the rent in respect of the 'subject premises' in his capacity, as attorney of Arif Hussain and Mst. Rani [Landlady]. At this point of time, it is also significant to note, that the 'immovable property' where, the 'subject premises' are situated, has been validly gifted by Arif Hussain son of Israr Hussain, in favour of Respondent No.1 herein [Landlady], namely Mst. Rani wife of Asim Hussain through a 'Registered Gift Deed' dated 07.04.2011 [Exh.'A/10']. The 'Special Power of Attorney' [Exh. 'A/1'], has also been duly executed by Respondent No.1 herein [Landlady] in favour of her 'husband'/'Special Attorney' namely, Asim Hussain son of Ansar Hussain. The Special Power of Attorney and registered Gift deed have also been brought on record as [Exh.'A/1' and Exh. 'A/10'] All such documents i.e. [Exh. 'A/1'] to [Exh.'A/22'], including [Exh. 'A/1'] and [Exh.'A/10'], have been duly 'exhibited' but without any objection on the part of the Petitioner herein [Tenant], hence, the 'hue' and 'cry', at this belated stage, is of no legal effect whatsoever.
40. The Ejectment Application thus filed by Respondent No.1 herein [Landlady], through her 'Special Attorney' viz. Asim Hussain is/was not only competent in law but also well maintainable. Needless to say, even otherwise; if an act is done by a person on behalf of another person but the same is without his 'knowledge' or 'authority' then also it either be 'ratified' or 'dis-owned' by such another person that is to say, in terms of Sections 196 and 197 of the Contract Act 1872 [Act No. IX of 1872]. If, the another person [principal] 'ratifies' such an act already done/ performed then, such act, shall be deemed as 'duly performed' under his authority. The act of 'ratification', may be 'expressed' by or 'implied' in the conduct of such person, on whose behalf, the act was performed/done earlier. In the present case, significantly, the Respondent No.1 landlady [Applicant], has never 'disowned' the acts done/ performed by Respondent No.1's landlady's attorney. Thus even if, an 'Ejectment Application' is filed [which, however, is not the case in hand], by a person having/holding no authority then too such defect, if any, can be 'ratified'. Manifestly, in view of the above, a suing party cannot be knocked out summarily. Even otherwise, it is for the principal to effectively, challenge the authority of an agent but no one else. In this regard, reference can be made to the case of Khyam Films and another v. Bank of Bahawalpur Ltd. [1982 CLC 1275], wherein, it was observed as follows:- "...In my opinion the fact that the person did or did not have authority can effectively be challenged only by the principal. If in spite of the objections taken the principal continues to recognise the authority of the agent to institute the suit I am inclined to think that this would amount to a ratification and the suit would still be a validly instituted suit. I am further clearly of the opinion that it is wrong on the part of the Court below to promptly frame a preliminary issue on such questions and then go on with it for a couple of years before the main claim comes to be considered. Such a practice is to be deprecated, If the plea of the kind as taken in this case is raised it may be tried along with the whole suit. I say so because my impress is that these pleas are taken recklessly and most of the time the idea is to delay the decision of the suit . These delays are detrimental to a healthy commercial practice." [Underlining is mine].
41. As far as, the allegation of lack of knowledge is concerned, the Petitioner herein [Tenant], under the facts and circumstances of the case cannot claim lack of knowledge of a 'Registered Gift Deed' dated 07.04.2011 [Exh. 'A/10' ] duly executed by the 'owner'/'donor' namely Arif Hussain son of Israr Hussain in favour of Respondent No.1 landlady, namely Mst. Rani [Donee], because under law, once a document is 'registered', it amounts to a notice to the 'whole world'. Further, in the case in hand the 'NOTICE' under section 18 of SRPO, 1979, [Exh. 'A/4'] has been 'refused' [See Exh. 'A/5' and Exh. 'A/6']. On this aspect of the matter reliance placed on the case of Abbas Ali Shah and 5 others v. Ghulam Ali and another [2004 SCMR 1342]. The relevant extract therefrom, reads as follows :- "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 the lack of knowledge is proved through the convincing evidence, the presumption of notice snail 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. It may be pointed out that the parties are closely related to each other and are also resident of the same area and the appellants being in possession of land as tenants in the ordinary circumstances would not be unaware of the bargain between the vendors and the vendees of the land , therefore, the plea that appellants had no knowledge of sale till filing the suit would not appeal to mind."...
[Emphasis supplied].
42. Further, as far as, the question of title of Respondent No.1 landlady is concerned, the same, as the case in hand is, has never been challenged by the 'Donor' namely, Arif Hussain son of Israr Hussain or, anybody else before the appropriate forum. Moreover, under Sindh Rented Premises Ordinance, 1979, a Landlord/landlady needs, not be necessarily, an owner of the 'rented premises' [which, however, is not the case in hand], but any person who is authorised otherwise, to collect the rent, is a 'Landlord'/Landlady'. The 'Ejectment proceeding', as such, if filed, the same, under law, are not only proper but also quite maintainable. In the case in hand, the Special Attorney under Special Power of Attorney [Exh. 'A/1'] who is also husband of Respondent No.1 landlady, is quite competent to file an Ejectment Proceedings.
43. Moreover, the allegations levelled by the Petitioner [Tenant] in respect of Registered Gift Deed' dated 07.04.2011 [Exh. 'A/10'] and Special Power of Attorney dated 03.05.2014 [Exh. 'A/1' are vague and evasive. The 'evasive denials', under law, are 'no denials' rather the same can be construed, as 'admission' on the part of Petitioner [Tenant]. In this regard reference can be made to the case of Ghulam Rasool through legal heirs and others v. Muhammad Hussain and others [PLD 2011 SC 119], wherein, it observed as follows:- "6. ...rather made an evasive denial in their written statement expressing their lack of knowledge in this regard, which is no denial as per the provisions of Order VIII Rules 3, 4 and C.P.C., rather such a denial may be constructed as an admission on their part. [Emphasis Supplied].
44. As far as, the contention of Mr. Muhammad Habib Jalib, learned counsel for the Petitioner herein [Tenant], regarding 'non-service'/'non-receipt' of notice under Section 18 of S.R.P.O. 1979, is concerned, firstly, in the evidence brought on record, it has been duly proved that NOTICE under Section 18 of S.R.P.O. 1979, was 'refused' and secondly, the Petitioner herein, [Tenant], even upon filing of the Ejectment Application, has deliberately, avoided and/or ignored/failed to pay the rent to Respondent No.1 landlady herein, through his Special attorney. The Petitioner herein [Tenant], it appears after refusal of the Notice and to confuse the situation, in his 'own wisdom', opted to deposit the rent already due for three [3] months i.e. February, 2014 to April, 2014 in respect of both the 'demised premises' in MRC No.168 of 2014 in the name of an already deceased owner/Landlady Maqboolan Begum. This position, is evident from Exh.'O/9' and Exh.'A/14', both dated 08.04.2014. The filing of an 'Ejectment Application', though under law, amounts to a 'notice' under Section 18 of SRPO, 1979, but despite such notice, the rent was not paid to Respondent No.1 landlady through her attorney. In this regard reliance can be placed on the case of Sardar Muhammad v. Khawaja Muhammad Nazar [2004 CLC 289] "7. Finally it was urged by Mr. Tariq that the appellant did not receive any notice from the respondent to attorn to him and, therefore, he was justified in depositing rent in M.R.C. and could not be ejected on account of default.
Without going into the factual controversy it might be sufficient to say that filing of the ejectment application itself having been treated as notice under section 18, there was no, justification for the appellant in not tendering rent to the respondent after notice of the application was served upon. His failure to pay rent thereafter clearly amounts to default. [Emphasis supplied]
45. The Respondent No.1 herein [Landlady], in the 'Ejectment Application', apart from alleging 'default' in payment of rent has specifically averred that the 'demised premises' i.e. H.No.2/119 and underground Godown No.7, situated at Commercial Area, Liaquatabad, Karachi are required to the Applicant-landlady for personal use. Per 'para 5' of the Ejectment Application, the 'Applicant's attorney'/'husband' namely Asim Hussain son of Ansar Hussain is running a shop, on rental basis who now, wishes to open/start his own showroom, at the 'subject premises'. The 'subject premises' as such, are also required to the Applicant for personal use. In this view of the matter, the Petitioner herein [Tenant] by no means, as alleged, oppose the 'Ejectment Application'. It is needless to say, that a Landlady, is not prohibited under law to seek Ejectment of a Tenant on the ground of 'personal need' for her husband, who evidently is running business in 'rented premises'. The need of a husband under the settled principle of law, falls within the 'ambit' of personal need. On the above aspect of the matter, reliance can be placed on the case of Ch. Shahbaz v. Rehmana Mirza [2003 CLC 917]. 'Para 6' therefrom, being relevant is reproduced herein-below: -
6. In Ghulam Mohyuddin v. Mst. Nazir Bibi 1983 SCMR 715 it has been held as under :-- "The requirement and need of. shop by landlady for business of the husband was held to be quite genuine and perfectly bona fide."
Identical question was examined by this Court in a case reported as Masood Ahmad v. Mst. Anwar Begum 1983 CLC 1139 and it was held as under: - "In the present case also, I am not inclined to differ with the concurrent findings of the two Courts below. It has come on the record that the husband of the respondent was doing Pheri work and had become sick and was unable to undertake that vocation. The landlady therefore wanted her husband to carry on business in the shop and earn livelihood for the family. This in my view will be a good faith and bona fide requirement of the landlady and cannot be said to be a matter beyond A the purview of the Rent Restriction Ordinance. The learned Additional District Judge has also rightly pointed out that in case the landlady did not occupy the premises, there were ample safeguards provided to the tenant by the Ordinance."
In case reported as Abdul Rashid v. Mst. Adila Musarrat 1982 CLC 149, this Court, while dilating upon the aforenoted preposition and after considering the aforenoted case of Muhammad Younus (heavily relied upon by the learned counsel for the appellant) came to the conclusion that the words used in section 13(3) (ii) (a) are of wide significance and the shop required by landlady for business by the husband from which the benefit is to accrue to the landlady, would necessarily amount to putting the shop for the landlady's own benefit.
Similarly this Court in a case reported as K.H. Hiramnek v. Shafqat Aslam and others 1997 MLD 1800, while replying upon Adamali Hasanali v. Mst. Rubab Bai PLD 1965 (WP) Kar. 408 and Abdul Rashid v. Mst. Adila Musarrat 1982 CLC 149 has held that "the landladies could lawfully seek eviction of disputed premises for the use and occupation of their husbands." Balochistan High Court in a case reported as Haji Gul Baran and another v. Mst. Rehana Mushtaq 2001 YLR 2451 while relying upon Ghulam Mohyuddin v. Mst. Nazir Bibi 1983 SCMR 715 and Masood Ahmed v. Mst. Anwar Begum 1983 CLC 1139 has held that now it is well-settled that there is no bar on the landlady for filing eviction application on the ground that the premises in dispute was required for the use and occupation of her husband as he was doing business in rented premises.
Resume of the case-law on the subject amply establishes that although the word "husband" has been sued in section 13(3) (ii) (a), of Punjab Urban Rent Restriction Ordinance, 1959, yet the need of the husband would include in the words "his own use" and that a landlady can legitimately file an ejectment petition, in respect of non-residential building, if she is able to prove that she requires if in good faith for the use of her husband. In the present case, I find that through the concurrent findings of fact the respondent has been able to prove that she requires the disputed shops of bona fide personal use of the husband of the respondent, who is doing business in the rented premises." [Emphasis supplied].
46. Further, Petitioner herein [Tenant] in loud voice has admitted in 'Para 7' of the 'Memo of Petition' [In short MoP], UNDER THE HEADING OF 'GROUNDS' that initially, rent of tenement was paid by the Tenant/ Petitioner herein to its' original Landlady namely Maqboolan Begum and upon her death to her LRs' and lastly to one of her LR Arif Hussain [the Donor of subject property], but subsequently on the direction of Arif Hussain [the Donor], rent was also paid to the 'husband'/ 'Special Attorney' of the Respondent No.1, Landlady viz, Mst. Rani [The 'Donee' of the subject property]. This clear cut admission, on the part of Petitioner herein [Tenant], indeed, is/was biding upon him, in view of Article 113 of Qanun-e-Shahadat [10 of 1984]. For the sake of conveyance, the same is also reproduced herein-under:-- "113. Facts admitted need not 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 pleading 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 admissions." [Emphasis Supplied].
47. Besides, on the above aspect of the matter, reference can be made to the case of Muhammad Zahoor and another v. Lal Muhammad and 2 others [1988 SCMR 322], wherein, it was observed as follows:-
9. ...The law with regard to admissions in the trial of a suit is contained in Order XII, rule 6 of C.P.C. which empowers the Court to pass judgment on admissions. But at the same time the proviso to Order VIII, rule 5, C.P.C. confers upon the Court a discretion to require any fact admitted in the written statement to be proved otherwise than by such admissions. This proviso is a reproduction of the proviso to section 58 of the Evidence Act which reads as under:- "Facts admitted need not 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 pleading 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 admissions." [Emphasis supplied] Section 31 of the Evidence Act further lays down that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of the Evidence Act. Monir in his book on the Law of Evidence has explained the distinction between the evidentiary admissions and admissions in pleadings in the following passage as under:- "Section 58 applies to admissions in pleadings, and not to evidentiary admissions; the rule embodied in it is, therefore, more properly a rule of pure procedure than of evidence. There is a fundamental distinction between admissions in pleadings governed by the present section and evidentiary admissions made relevant by the thirty-first section of the Act. The former are conclusive, but the latter are merely relevant and not conclusive unless they operate as estoppels; the former are made in contemplation of a particular litigation, but not so the latter. An admission in a pleading is a different thing from an evidentiary admission. It is generally understood to be a concession made by one of the parties that a fact alleged in the pleadings of the party opposed to him need not be proved. The section is, therefore, inapplicable where no pleadings have been filed. But an admission in a pleading is binding only in the proceedings in which it is made and may be shown to he wrong in subsequent proceedings."
[Emphasis supplied]
48. As far as, the ownership of Respondent No.1-lady, is concerned, a 'Registered Gift Deed' dated 07.11.2011, is available on record as Exh.'A/10' and which document has been exhibited without any objection. The original 'Registered Gift Deed' dated 07.11.2011, on the face of it, has been 'signed' and 'executed' by the Donor [who was the owner of the property], namely Arif Hussain [Donor] in favour of Respondent No. 1-lady ['Donee'] and bears, the signature of witnesses. The Petitioner herein, [Tenant], as such, now cannot be permitted to shed doubt/ assail such registered document by way of 'oral assertions' and that too in rent proceedings. Needless to say, even otherwise, 'documentary evidence' excludes 'oral evidence'. In view of this position, as well, the question of 'mis-reading'/'non-reading' of evidence, as alleged, by the Petitioner [Tenant] does not arise.
Moreover, the 'omission' on the part of Petitioner's [Tenant's] counsel to 'cross-examine' the witness of the landlady, on the material part of his evidence, in my view amounts to acceptance. The Petitioner [Tenant] now in no event, be allowed to approbate re-approbate or otherwise, raise the sham pleas, in an afterthought manner, with ulterior motives.
49. In the case in hand both the courts below have concurrently held that the Petitioner [Tenant] apart from a 'defaulter', the 'subject premises' is required to the landlady [Respondent No.1 herein], for 'personal need' i.e. of her husband to start his own business in the 'subject premises' to earn the livelihood of her family. In this view of the matter, as well, it cannot be urged that the 'subject premises' was/ is not required by the landlady, for her 'personal bona fide need'. Moreover, the 'concurrent findings' of two courts below, on the points of [i] 'default' and [ii] 'personal need are not open to any interference by this court, under the exercise of Constitutional jurisdiction of this Court particularly, when there is no 'material illegality[ies]'/'sirregularity[ies]', 'mis-reading'/'non- reading' of evidence/ materials available on record. The contentions of Mr. Muhammad Habib Jalib, learned counsel for the Petitioner, under the facts and circumstances of the case, is not only contrary, in-apt if, seen in juxtaposition of the facts of the case in hand but also seems mis-conceived. At this juncture, I would like to reproduce herein, the. 'Cross-Examination' of Petitioner herein [Tenant], namely Muhammad Azeem which reads as follow:- "Muhammad Azeem, opponent CROSS EXAMINATION BY KASHIF ALI.
It is fact that present rent case is filed by the applicant for enhancement of rent. It is fact that in term No.5 of the compromise, I am bound to pay rent regularly upto 5th day of Calendar month. I do not remember on what date money order was sent by me. It is fact that on 'Exh. O/5, the date is mentioned as 13.3.2014. It is also fact that on 'Exh. O/6', date of sending the money order is shown as 13.03.2014. It is fact that on 'Exh. O/6', the name of person receiving the money order is not mentioned. It is fact that on the both the money orders the address of the applicant is not mentioned. It is fact that in the certificate it is not mentioned that the applicant had refused to receive the money order. It is fact that applicant received the rents till January 2014. It is incorrect to suggest that on 02.4.2014 and 19.4.2014 applicant had issued notice under section 18 of SRPO to me but I refused to receive the same. It is fact that I have not produced any document of payment of pugre amount. It is fact that I have not produced any paid bill of utility charges. It is incorrect to suggest that the husband of applicant is not a well-established business men. It is incorrect to suggest that I own shops in the same locality. It is fact that two shops situated in the same vicinity are in the name of my wife which were given to her by her parents. It is incorrect to suggest that in the month of January 2014, I had promised with the applicant to vacate the demised shops but later on refused to vacate the same and filed the MRC. It is fact that husband of the applicant is working as carpenter. I do not know the shop in which the husband of applicant is doing his business is on rent with him. It is incorrect to suggest that the husband of the applicant was not able to pay the rent and the shop was closed and now he is jobless. It is incorrect to suggest that the demised shops are required by the applicant for her husband. It is incorrect to suggest that I have deposed falsely. [Emphasis supplied] No. Re."
50. On the other hand, the Respondent No. 1 's witness Mr. Asim Hussain son of Ansar Hussain in his 'affidavit- in-evidence' [Exh. 'A'] has specifically 'averred'/ 'deposed' about committing 'default' and 'personal need' of Respondent No.1 landlady. Being relevant 'Para 6', 'Para 8', 'Para 9' and 'Para 10' from the 'Affidavit-in- Evidence' of Asim Hussain son of Ansar Hussain, on the points of 'default' and 'personal need' are reproduced herein-below :
6. That I say that I am the husband of the land lady and I am also running my shop which is on rent basis, and now I am willing to open my own showroom at House No.2/119, Shop and Underground Godown No.7, Situated at Commercial Area, Liaquatabad, Karachi and is also willing to renovate the shops, therefore the same are required to the land lady and me our personal use.
8. That I say that the land lady and I, several times approached to the opponent, and requested to vacate the demised premises, but the opponent kept the land lady and me to one to another pretext, being constrained the land lady sent a legal notice dated 02.04.2014, and another on 19.04.2014, but the both legal notices were refused by the opponent and were not received by him.
9. That I say that since last 04 months January 2013 the opponent refused to pay the rent to the land lady, which also amount to default as per SRPO, 1 further submit that the opponent was regularly paying me rent from May 2013, and he paid me rent till January 2014, thereafter he refused to pay me rent, and after filing my rent case the opponent disclosed about his MRC, bearing No.168/2014 in the name of previous owner with mala fide, infact it was well in the knowledge of the opponent that I am the real owner of the property in question.
It is further submitted that the opponent is not paying the electricity bill, which is outstanding against him which amounts to Rs.40,099/-, I have made several requests to the opponent to clear the same, but the opponent is refusing to clear all the dues of the K-Electric which are against him till 05.08.2014.
10. That I say that the above demised premises House No.2/119, Shop and Underground Godown No. 7, Situated at Commercial Area. Liaquatabad, Karachi are required to the land lady for her personal use, therefore, the opponent is liable to vacate the same and hand over the, peaceful vacant possession to the land lady, applicant.
51. Moreover, from the 'various documents' i.e. Exhs. 'A/1' to 'A/22' including 'Electricity Bill' [Exh.' A/22'], it has been clearly established that the Petitioner herein [Tenant], is not only a 'defaulter' in respect of 'Rent'/ 'Electricity charges' but the 'subject premises', as evident from the record, is/was also required for personal need. On the question of 'default' in respect of payment of electricity charges, the onus was on the tenant to show that 'no default' had been committed in that regard but in this respect no concrete evidence, was brought on record by the tenant. Besides, the 2nd witness namely. Jamil Ahmed, is the 'brother-in-law' of the Petitioner is/was not an independent witness. Needless to say, 'Electricity charges', in terms of Section 2(i) of S.R.P.O., 1979, includes the 'rent', Section 2(i) of the S.R.P.O. 1979, being relevant is produced herein below:- "2[i] 'rent' includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid.
52. On the above aspect of the matter reliance can be made on the case of Abdul Ghafoor v. Mst. Amtul Saeeda [1999 SCMR 28], wherein, it was held as follows:- ...electricity charges being included in the definition of "rent", and the tenant being liable to pay the same, would make himself liable for ejectment in case of their non-payment when the same is clearly established by evidence before the Rent Controller." [Emphasis Supplied].
53. Apart from the above, in presence of 'registered postal receipts' Exh. 'A/5', to Exh. 'A/9', a presumption arises in favour of the sender of 'documents' including Notice under Section 18 of Sindh Rented Premises Ordinance, 1979, under Section 26 of General Clauses Act [1956]. For ready reference Section 26 of 'General Clauses' Act 1956, is reproduced herein below:-
26. Meaning of service by post.--Where any West Pakistan Act authorizes or requires any document to be served by post, whether the expression" serve" or either of the expressions "give" or send or any expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
[Emphasis Supplied].
54. On the aforesaid aspect of the matter reliance can be placed on the case of Rashid Ahmad v. Messers Friends Match Works [PLD 1989 SC 503], wherein, it was observed as follows:- On the principle embodied in section 26 of the West Pakistan General Clauses Act, 1956 it can be held that service of notice was effected as it was properly addressed and was sent by registered post. In such circumstances, the burden was on the respondents to prove that they did not receive the notice which they failed to discharge. [Emphasis Supplied].
55. Under the foregoing facts and circumstances of the case, I am of the firm opinion that 'concurrent findings' of the courts below, did not suffer from any illegality[ies] and/or infirmity[ies], as urged by Mr. Muhammad Habib Jalib, learned counsel for the Petitioner. Both the 'impugned orders' besides being in accordance with law, have been passed after proper application of the materials/ evidence available on record. Both the 'impugned orders' dated 18.03.2017 [Annexure 'A' to the MoP] and 10.04.2017 [Annexure 'A/1' to the MoP], do not suffer, as alleged, from mis-reading, non-reading of evidence/ materials available on record, as such, the same need no interference of this Court, under the exercise of Constitutional Jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Needless to say, this Court while, exercising jurisdiction under Article 199 of the Constitution, does not have jurisdiction to disturb the 'concurrent findings' unless and until, it are the result of 'mis-reading' and 'non-reading' of record, which, however, is not the case in hand.
56. In view of the foregoing discussion, I find no infirmity or illegality in the 'impugned Orders' /'concurrent findings' of the Courts below, therefore, this Constitutional Petition being devoid of 'any merits', has no force.
Accordingly, the same is dismissed along with the pending application[s], if any, however, with no order as to costs.