AZIZ-UR-REHMAN, J.---Through the instant Constitutional Petition No.S-2117 of 2018, the Petitioner namely Waseem Khan son of Waheed Khan has called in question two [2] orders dated 11.10.2017 [Annexure 'E' to the MoP] and 08.08.2018 [Annexure 'G' to the MoP] whereby, the learned IInd Rent Controller, at Karachi-Central [Respondent No.5 herein], allowed the Ejectment Application in Rent Case No.324 of 2015 [Asim Hussain son of Muhammad Moin-ul-Haq and 3 others v. Farooq Khan son of Waheed Khan and another], which ejectment order of 11.10.2017, was later on maintained through the 'impugned order' dated 08.08.2018 [Annexure 'G' to the MoP], passed by learned District Judge, Karachi-Central [Respondent No.6 herein] in First Rent Appeal No.288 of 2018 [Waseem Khan v. Asim Hussain and others]. The prayers sought by the Petitioner herein [Tenant] in the instant Constitutional Petition reads, as follows:-- A. To set aside the impugned Exparte Eviction Order dated 11.10.2017, passed by the learned llnd Rent Controller at Karachi Central/Respondent # 5, in Rent Case # 324/2015; and the Impugned Judgment dated 08.08.2018 passed by the learned District Judge at Karachi Central/Respondent # 6 in First Rent Appeal # 288/2018; B. To dismiss the Eviction Application of the Respondents # 1 to 4 bearing Rent Case # 324/ 2015.
C. To Award cost of the Petition, throughout; and D. Any other better relief, under the circumstances of the case.
2. The brief relevant facts giving rise to the filing of the above petition are that; Respondents Nos.1 to 4 [i] Asim Hussain son of Muhammad Moin-ul-Haq [ii].Tariq Ahmed Shah son of Rasheed Ahmed Shah [iii]. Pervaiz Ahmed Shah son of Rasheed Ahmed Shah [iv]. Muhammad Naseer Uddin son of Niaz Uddin, in their capacities as being 'landlords'/'owners' of a residential property bearing Plot No.2/412, measuring 90 sq.yds, Survey No.189, Sheet No. 17, Block-2, constructed on ground plus three [3] storeys, situated at Liaquatabad, Karachi, filed an Application under section 15 Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979], bearing Rent Case No.324 of 2015 [Asim Hussain son of Muhammad Moin-ul-Haq and 3 others v. Farooq Khan son of Waheed Khan and another], before the Court of learned IInd Sr. Civil Judge and Rent Controller, Karachi- Central, with the following prayers: It is therefore prayed on behalf of the applicant above named that this Honourable Court may be pleased to pass an Order for Ejectment of the Opponent from the demised tenement i.e. half-portion at 2nd Floor of Building at Plot No.2/412, Liaquatabad, Karachi, with direction to hand over vacant and peaceful physical possession of the demised premises to the Attorney of Applicants as well as the Opponents also be directed to clear the arrears of unpaid arrear rent w.e.f. April, 2014 @ Rs.1,650/- total amounting to Rs.26,400/- (Rupees Twenty Six Thousand Four Hundred only) as well as the pay/clear the outstanding/unpaid utility bills up-to-date.
2. Cost of the application and such any other better relief(s) which this honourbale Court may deem fit and proper under the circumstances of instant Rent case be awarded/granted.
3. Per 'averments' made in the Ejectment Application under section 15 of Sindh Rented Premises Ordinance, 1979, Mr. Farooq Khan [Opponent No.1], was inducted as a Tenant, in respect of 'half-portion' at 2nd Floor of Building at Plot No.2/412, Liaquatabad, Karachi ['subject premises'], in terms of Tenancy Agreement dated 17.06.2003 [Exh. 'A/I '], executed between Sajid Ahmed Shah [Owner-Donor] and Farooq Khan [Opponent No.1-Tenant], where-under the initial monthly rent in respect of the 'subject premises' was mutually fixed at Rs.4,200/- [Rupees Four Thousand Two Hundred only], per month with 'advance'/ 'security deposit' in the sum of Rs.5,000/- [Rupee Fire Thousand only], excluding utility charges i.e. electricity and gas charges payable directly by the 'Opponent-Tenant' to the concerned authorities.
4. Later on, the aforesaid 'immovable property', earlier owned and belonging to Wajid Ahmed Shah [Donor], was gifted out, by the said owner in favour of the 4 Applicants [Donees-now owners] i.e. by virtue of 'Registered Gift Deed' dated 03.03.2005 [Exh. 'A/3']. The said previous owner namely Wajid Ahmed Shah, 'as averred', at the relevant time, had not only introduced the Tenant [Opponent No.1], but had also directed him to pay onward monthly rent to the Landlord No.1, namely Asim Hussain son of Muhammad Moin-ul-Haq, where-after, as 'asserted', in the Ejectment Application the said Opponent No.1, as per instructions of 'old owner'/' landlord' had started the payment of 'monthly rent' to Applicant No.1 namely Asim Hussain Shah son of Muhammad Moin-ul- Haq [Respondent No.1 herein].
5. According to Applicants' 'version', in Rent Case No.324 of 2015 [Asim Hussain son of Moin-Ul-Haq and others v. Farooq Khan son of Waheed Khan and another], with the passage of time, the monthly rent in respect of 'subject premises' was gradually increased i.e. year after year upto Rs.1650/- per month. The 'monthly rent' lastly, paid for the month of March, 2014, by the Tenant Farooq Khan son of Waheed Khan [Opponent No.1], was/is in the sum of Rs.1650/-. The said Tenant, as 'asserted', later on, however, committed 'willful default' in payment of monthly rent i.e. April, 2014, onward's. The Applicant No.1, thereafter, time and again demanded the due payable rent in respect of 'subject premises', but to no avail. Besides, the tenant viz. Farooq Khan [Opponent No. 1], was not only remained a 'defaulter' but also sub-letted the 'tenement' to Opponent No.2 [Petitioner herein] and that too without any permission of the 'owners'/ 'landlords'.
6. Apart from, 'default', and 'sub-letting' of the 'subject premises' un-authorizedly by the said tenant namely Farooq Khan son of Waheed Khan, [Tenant], to one Waseem Khan, Petitioner herein . [Opponent No.2], the 'subject premises', as 'averred' in the Ejectment Application, was also required by Landlord No.1 in 'good faith' for the 'personal bona fide use' of Respondent No.1 herein [Applicant No.1-Landlord No.1]. Per 'averments', made in the Ejectment Application to this effect, the 'Opponents' namely [i]. Farooq Khan son of Waheed Khan and [ii]. Waseem Khan son of Waheed Khan [Petitioner herein], were also appraised/communicated about the personal bona fide need of the Applicant No.1, but they either failed and/or avoided in a calculated manner, to give any heed, even to this 'genuine' demand/request of the Applicant-landlord No.1 [Respondent No.1 herein].
7. Per Ejectment Application, the Applicant-Landlord No.1 [Respondent No.1], had not only demanded 'monthly rent', time and again but had also approached the Petitioner herein [Opponent No.2], to whom the 'subject premises' was sub-letted by the 'Opponent No.1' namely Farooq Khan son of Waheed Khan with same demand and request. The Petitioner herein [Opponent-Tenant], nevertheless, to avoid such request/demand somehow opted to file Civil Suit No.734 of 2015 [Waseem Khan son of Waheed Khan v. Asim-ul-Haq son of Moin-ul- Haq], before the Court of learned VIIth Civil Judge, Karachi, [Central], for 'permanent injunction' and with a further prayer for not to get the 'subject premises', vacated from the Petitioner herein [Plaintiff in Civil Suit No.734 of 2015], by Respondent No.1 herein [Applicant-Landlord No.1], without due course of law. The said suit, however, was later on, 'disposed of vide order dated 17.09.2015, passed by learned VIIth Civil 'Judge, Karachi [Central], as infructuous, however, with no order as to cost. Being relevant, order dated 17.09.2015, is reproduced herein-below: 17.09.2015.
Plaintiff filed Civil Suit for Permanent Injunction praying for not to vacate rented premises forcibly, illegally without due course of law.
Counsel for defendant submitted in writing on behalf of defendant wherein he stated that defendant has no intention to dispose the plaintiff illegally, unlawfully, without due course of Law and he filed RC No.324/2015 before learned IInd Rent Controller, District Central, Karachi.
I have heard and perused the record.
In view of statement of defendant, Civil Suit No.734/2015 is disposed of as infructuous, with no order as to costs." [Emphasis Supplied].
8. According to landlords' version upon 'sub-letting' the tenement to the Opponent No.2 [Petitioner herein], the later while, residing in the 'subject premises' started to use 'electricity' through 'KUNDA SYSTEM', i.e. illegally and un-authorizedly. Needless to say, the electricity of the 'subject premises' was dis-connected due to 'non- payment' of bills which dues/the outstanding amount, at the time of filing of Rent Case No.324 of 2015, was/is in the sum of Rs.1,46,408.35/-, as per electricity bill Ex.'A/4'. Further, un-paid/outstanding amount/charges of KW&SB was/ is in the sum of Rs.5,992/- as per water bill Ex.'A/5'.
9. In view of the above, Respondents Nos. 1 to 4 herein [Applicants-Landlords], were constrained to file the 'Ejectment Application', under Section 15. of Sindh Rented Premises Ordinance, 1979, [In short SRPO, 1979] for eviction of the two 'OPPONENTS' i.e. [i] Farooq Khan son of Waheed Khan and [ii] Waseem Khan son of Waheed Khan [Petitioner herein], on the grounds of [i] 'default' [ii] 'sub-letting' of the 'subject premises' by Opponent No.1 to Opponent No.2 [Petitioner herein] and [iii] 'personal bona fide' need of Respondent No.1 herein [Applicant-Landlord No.1].
10. Upon filing of the Rent Application under Section 15 of Sindh Rented Premises Ordinance, 1979, [Rent Case No.324 of 2015], the Notices/Summons thereof, were issued to the two [2] Opponents through 'bailiff', registered post A/D, and through the 'courier service'. On 15.12.2015, service upon the two [2] opponents was also 'held good' on the basis of pasting report of bailiff and 'publication' of court 'notice' in daily 'UMMAT'
Karachi, dated 05.12.2015. Per record, the matter was then fixed for filing 'written statement[s] by the two [2] Opponents. As per record, after lapse of a 'sufficient time' the Opponents, however, not only failed to file any written statement but also remained absent.
Resultantly, the two [2] Opponents were not only 'debarred' from the filing of 'written statements' but also they were declared as 'ex-parte' vide order dated 13.01.2016.
11. It is significant to note, that the Rent Case was filed on or about 28.07.2015 and service thereof, was 'held good' upon the two [2] Opponents [Tenants] therein, on 15.12.2015. Much before when the service was 'held good' upon the two [2] Opponents i.e. [i]. Farooq Khan son of Waheed Khan and [ii]. Waseem Khan son of Waheed Khan, the later i.e. Opponent No.2, it appears, besides filing Misc. Rent Case No.346 of 2014 [Waseem Khan son of Waheed Khan v. Asim-Ul-Haq son of Moin-Ul-Haq], sometime in March, 2014, before the Court of IInd Rent Controller, Karachi-Central [EVEN MISC. RENT CASE NO.324 OF 2014 HAS BEEN FILED AGAINST A WRONG PERSON] had also opted to file a Civil Suit No.324 of 2015 [Asim Hussain son of Moin- Ul-Haq and others v. Farooq Khan son of Waheed Khan and another], before the Court of learned IInd Sr. Civil Judge, Karachi-Central, IN MAY, 2014, for permanent injunction and with a further prayer that Plaintiff in Suit No.734 of 2014/Opponent No.2 in the Rent Case No.324 of 2015 [Asim Hussain son of Moin-Ul-Haq and others v. Farooq Khan son of Waheed Khan and another], may not be ejected from the 'subject premises' without due course of law. The said Civil Suit No.734 of 2014, later-on, however, was 'disposed of as infructuous on 17.09.2015.
12. The present Petitioner herein [Opponent No.2], though was party to Rent Case No.324 of 2015 from the very inception of Rent Case, filed on 29.07.2015 [Asim Hussain son of Muhammad Moin-ul-Haq and 3 others v. Farooq Khan son of Waheed Khan and another], but Petitioner herein [Opponent No.2], in his 'own wisdom'/rather to say, with bad intention filed an Application under Order I, Rule 10, C.P.C., with a prayer that the Petitioner herein, [Opponent No.2] namely Waseem Khan son of Waheed Khan, be joined, as a party in the Rent Case No.324 of 2015, though in the Rent Case filed on 29.07.2015, he is admittedly Opponent No.2 and not an 'INTERVENOR', as alleged in the Application under Order I, Rule 10, C.P.C. Being relevant, 'Para-2', 'Para-3', 'Para-4' and 'Para-6' of the said Application under Order I, Rule 10, C.P.C., filed by the Opponent No.2, [WRONGLY CALLING HIMSELF THROUGH OUT IN THE APPLICATION AS AN INTERVENER UNDER ORDER I, RULE 10, C.P.C. LIKEWISE, IN SUIT NO.734 OF 2014, RESPONDENT NO.1 [LANDLORD NO.1], IS A DEFENDANT AND NOT OPPONENT NO.1, NAMELY FAROOQ KHAN AS ALLEGED, IN THE PARA BELOW], are reproduced herein below:- Para-2. That the Intervener had acquired the Demised Premises from its Owner Mr. Wajid Ahmed Shah. During his lifetime, the said Mr. Wajid Ahmed Shah had introduced the Opponent #1, as his Grandson and had directed him to pay future rent to him which instructions the Intervener followed.
Para-3. That in the year 2014, the said Mr. Wajid Ahmed Shah expired at Karachi. After some period of time, the Opponent No.1, started to visit the Intervener with demand to vacate the Suit Property as early as possible. The Intervener when inquired into the matter and asked reason for doing so, the Opponent # 1 became annoyed and left the scene by extending threats of dire consequence. Later, the Opponent # 1 asked the Intervener to vacate the Demised Premises within stipulated period or be ready for his forcible dispossession. Being aggrieved, the Intervener filed a Civil Suit No. 734/2014 for the relief of Permanent Injunction so also started to deposit the monthly rent in M.R.C. # 346/2014 before the learned IInd Rent Controller, Karachi-Central.
Para-4. That during the proceedings of the Civil Suit # 734/2015 [Asim Hussain son of Moin-Ul-Haq and others v. Farooq Khan son of Waheed Khan and another], the Opponent # 1, on 17.09.2015, filed a Statement before the learned VIITH Civil Judge at Karachi Central that he will not dispossess the Intervener without due course of law. Upon such Statement, the learned Civil Judge disposed of the Civil Suit of the Intervener.
Para-6. That it would not be out of place to mention here that the Intervener is in physical and bona fide possession of the Demises Premises which fact has been admitted by the Opponent # 1 in the Civil Suit # 734/2014, yet the present Ejectment Application has been filed against one Farooq Khan, who neither is the tenant of the Demised Premises nor is in possession thereof. [Emphasis Supplied].
13. In RESPONSE to the aforesaid application under Order I, Rule 10, C.P.C., a detailed 'counter affidavit' of the Attorney of the Applicants'- landlors' [Respondents Nos.1 to 4 herein], was filed wherein, the 'adverse allegations' levelled by the Petitioner herein [Opponent No.2], were specifically denied/controverted. 'Para-2', 'Para-6' and 'Para-8' therefrom, being relevant are reproduced herein below:- Para-3. That I say that the contents of application under reply as whole are misleading and misconceived just to create confusion in the mind of this Hon'ble Court otherwise, the intervener was already impleaded in the present proceedings by making him party as opponent No.2, which is clearly mentioned in the title of my ejectment application-available on record.
Para-6. That I say that contents of Para-3 of under reply application, partly not denied being matter of record and partly is denied being misleading and misconceived and it is submitted that it was clearly mentioned in my statement filed in the Civil Suit No.734/ 2014 that I already have filed before competent Court of law a Rent Case bearing No.324/2015 for ejectment of Opponents-including the alleged intervener.
Para-8. That the contents of paras Nos.5 and 6 of under reply application are false, frivolous and misleading story of interveners crafty mind, otherwise fact is that in my statement filed the said Civil Suit No.734/2015, I had clearly stated that a Rent Case No.324/2014 has already been filed for ejectment of Opponents and on the (sic) of my such statement said civil Suit was disposed off. It is further submitted that the [with] mala fide intention and ulterior motives of the alleged and so-called intervener are floating on the face of under reply application, for lingering on the rent proceedings unnecessarily the alleged and so-called intervener moved under reply application, whereas he already was party as Opponent No.2 in this matter, so instead of filing under reply application, ought to file his written statement in this case.
14. It is worth to mention herein that Civil Suit No.734 of 2015 [Waseem Khan son of Waheed Khan v. Asim-ul- Haq son of Moin-ul-Haq], was in fact filed by the Opponent No.2 [Petitioner herein] against the Respondent No.1 [Landlord No.1], and not against the Opponent No.1, namely Farooq Khan son of Waheed Khan. In the Application under Order I, Rule 10, C.P.C., the Petitioner [Opponent No.2], perhaps with a view to create confusion, Respondent No.1 [Landlord No.1], has wrongly been referred to as an Opponent No.1 instead of Landlord No.1 [Respondent No.1 herein]. The material part of statement dated 09.09.2015, filed on behalf of the Defendant [who is Respondent No.1 herein-Landlord No.1], namely, Asim Hussain, in Civil Suit No.734 of 2015 [Waseem Khan son of Waheed Khan v. Asim-ul-Haq son of Moin-ul-Haq], reads as follows: 'STATEMENT'
"It is stated on behalf of the Defendant above named that the defendant will not eject the Plaintiff from the demised premises without due course of law and this Hon'ble Court may be pleased to direct the Plaintiff to appear in Rent Case No.324 of 2015 filed by the Applicant/ Defendant before the Court of IInd Rent Controller, Central and disposed of this case in the interest of justice. [Emphasis supplied]
15. On 18.05.2016, when the aforesaid Rent Case No.324 of 2015 [Asim Hussain son of Muhammad Moin-ul- Haq and 3 others v. Farooq Khan son of Waheed Khan and another], came-up before the Court of learned IInd Senior Civil Judge/Rent Controller, Karachi [Central], then, the Application under Order I, Rule 10, C.P.C., filed by the Petitioner herein [Opponent No.2], was dismissed. For ready reference 'relevant part' of order dated 18.05.2016, is reproduced herein below: I have heard both the advocates for the parties and perused the contents of this application as well as counter affidavit filed by the learned advocate of the applicant and statement filed by the learned advocate for the defendant in Civil Suit No.734/2014 Waseem Khan v. Asimul Haq, it appears that the intervener is already party in this suit as opponent No.2 and the statement shows that the learned advocate for the defendant submitted in his statement that the defendant will not eject plaintiff from the demised premises without due course of law and this Hon'ble Court may be pleased to direct the plaintiff to appear in rent case No.324/2015 filed by the applicant/defendant before the Court of learned find Rent Controller, Karachi-Central.
Since the intervener is already party in this rent case and he has knowledge about the pendency of this rent case, therefore, this application hearing no merits and the same is hereby rejected, with no order as to cost.
[Emphasis Supplied].
16. On dismissal of the Application under Order I, Rule C.P.C., the Petitioner herein [Opponent No.2], there- after, filed a 'REVIEW APPLICATION' of Order dated 18.05.2016, whereby, the Petitioner's [Opponent No.2's] Application under Order I, Rule 10, C.P.C., was dismissed but the said 'Review Application' was also dismissed on 02.12.2016, by learned IInd Rent Controller, Karachi-Central. The 'relevant portion' therefrom, reads as follows:- "I have heard the both advocate for the parties and perused the record it appears that the intervener is already party in the above rent case as opponent No.2. The bailiff reports of dated 03.08.2015 and 09.11.2015 are shows that the notice of this court has been served upon the intervener/Opponent No.2 Waseem Khan in presence of the witnesses. The intervener himself filed the Civil Suit No.734/2014 against the applicant before the learned 7th Civil Judge Karachi Central on dated 09.09.2015 in which clearly mentioned that the defendant will not eject the plaintiff from the demise premises without due course of law and this court may be pleased to direct the plaintiff to appear in rent case No.324/2015 filed by the applicant/defendant before the' court of 2nd Rent Controller central Karachi and dispose off this case in the interest of justice, on such statement of the applicant learned 7th Civil Judge, Karachi central dispose off the Civil Suit No.734/2015 as infructuous vide his order dated 17.09.2015. Since the intervener is already made party in this case by the applicant and he has fully knowledge about the pendency of this rent case and this court already passed the order on 18.05.2016 after hearing the both parties and considering all the records of the intervener and hearing of the learned advocate for the intervener, there is no any other ground is mention in this review application therefore the same is rejected with no order as to cost." [Emphasis supplied].
17. Pursuant to the 'ex parte order' dated 13.01.2016, the Applicants, Respondents Nos.1 to 4's herein [Landlords'] witness filed 'Affidavit-in-Ex-parte proof sometime in the month of February, 2016 through their 'General Attorney', namely Muhammad Yousuf son of Ismail on 12.12.2016 [Exh: Al, who thereafter, had alsb come forward/ stepped into the 'witness box' for recording his 'Examination-in-Chief' on 16.02.2016. In the 'Examination-in-Chief', the facts 'averred'/'narrated'/ deposed in the Ejectment Application were affirmed/reiterated by the said witness by way of producing his 'Affidavit-in-Ex-parte proof' as Exh.'A'. Besides, the said witness also produced other relevant documents i.e. Gift Deed as Exh.'A/3', K-Electric Bill as Exh.'A/4', Notice issued by K-Electric as Exh.'A/5', Bill of KW&SB as Exh.'A/6', in support of the Applicants/Landlord's stand/version. For ready reference the 'Examination-in-Chief' of Respondents' Nos.1 to 4 [Landlords'] witness is reproduced herein below:-- 16.02.2016 Rent Case No.324/2015 Muhammad Yousuf Further examination in chief to Mr. Muhammad Hanif Qureshi Advocate for the applicant I am applicant and attorney of all the applicants in this matter and filed my affidavit in evidence as Ex.A, which is true and correct to, the best of my knowledge, I produce the copy of copy of tenancy agreement as Ex.A/1, copy of registered General power of attorney as Ex.A/2, copy of gift Deed as Ex. A/3, copy of K-Electric bill as Ex.A/4, copy of notice issued by K-Electric to me as Ex.A/5, copy of bill of KW&SB as Ex.A/6, original of which seen and returned.
Cross of applicant declared as nil as the opponent has already declared as ex-parte vide order dated 13.01.2016.
18. Upon declaring both the opponents debarred from filing their 'written statements' through 'EX PARTE ORDER' dated 13.01.2016, and recording evidence of the Applicants' [Landlords'] witness/General Attorney, viz. Muhammad Yousuf son of Ismail, the Rent Case No.324 of 2015 [Asim Hussain son of Moin-Ul-Haq and others v. Farooq Khan son of Waheed Khan and another]. Both the OPPONENTS, however, as per their wish chosen to remain away/absent from the proceedings of the Rent Case No.324* of 2015, 'ex-facie' in the their own wisdom. The learned IInd Sr. Civil Judge and Rent Controller, Karachi, [Central], in view of the relevant record and evidence/materials available on record, found the Opponent No.1 as having acted in violation of the 'terms' and 'conditions' of 'Tenancy Agreement' [Exh.'A/1'], as well as, against the provision of Sindh Rented Premises Ordinance by sub-letting the 'tenement' ['subject premises'] to the Opponent No.2 [Petitioner herein]. Besides, the Opponent No.2 [Petitioner herein], was not only found in 'willful default' of the monthly rent in respect of the subject premises, but also in 'default' of payment of utility bills [See Exh.'A/4' and Exh.'A/5.]. As per 'averments'/'deposition' / 'evidence', available on record, the 'subject premises' was also found to be requited in good faith, by the Applicant No.1 [Landlord No.1], namely Asim Hussain son of Moin-Ul-Haq. Further, as per record, the payment of arrears of monthly rent was flately refused in the 1st week of July 2015, as well as, the vacation of the 'demised premises' was also refused to the Applicants [landlords'] despite their requests.
19. Even upon dismissal of [1]. the Application under Order I, Rule 10, C.P.C. on 18.05.2016, and [ii]. Review Application on 02.12.2016, Petitioner herein [Opponent No.2], in his own 'wisdom', opted to file a 3rd Application in Rent Case No.324 of 2015 [Asim Hussain son of Muhammad Moin-ul-Haq and 3 others v. Farooq Khan son of Waheed Khan and another], with a prayer for 'grant of permission' to 'Cross-Examine' the Applicants' [Landlords'] witness, whose 'Examination-in-Chief' was recorded long ago on 16.02.2016. The said Application, however, was later-on, dismissed on 18.01.2017, and the 'Ejectment Application' under Section 15 of Sindh Rented Premises Ordinance, 1979 [in Short SRPO, 1979], filed by Respondents Nos. 1 to 4 herein, [Landlords] i.e. [1] Asim Hussain son of Muhammad Moin-ul-Haq [ii]. Tariq Ahmed Shah son of Rasheed Ahmed Shah [iii]. Pervaiz Ahmed Shah son of Rasheed Ahmed Shah [iv]. Muhammad Naseer Uddin son of Niaz Uddin against two [2] Opponents namely [i] Farooq Khan son of Waheed Khan [Opponent No.1] [ii] and Waseem Khan son of Waheed Khan [Petitioner herein-Opponent No.2], for their eviction from the 'subject premises' i.e. half portion at 2nd floor of building at plot No.2/412, Liaquatabad Karachi was allowed. The material part of order dated 18.01.2017, reads as follows: On the basis of all that has been discussed above, where the applicant has succeeded to prove himself entitled for the relief claimed, thus this eviction application is allowed ex-parte against the opponent on the ground of default in payment of monthly rent and on the ground of personal bona fide need to the applicant No.1, consequently the opponents are directed to handover the peaceful and vacant possession of the demised premises to the applicant within a period of sixty [30] days hereof. The ejectment application stands allowed in the above terms with no order as to costs. [Emphasis Supplied].
20. From the record, it is an 'established position' that both the 'Opponents' were fully aware about the pendency of this Rent Case No.324 of 2015 [Asim Hussain son of Moin-UI-Haq and others v. Farooq Khan son of Waheed Khan and Waseem Khan], but they somehow, used delaying tactics i.e. by adopting other means 'except' to come forward and contest the case/lead evidence in 'rebuttal' of the Applicants'/ Landlords' stand/version and/or even otherwise, 'cross-examine' the Applicants' witness i.e. General Attorney, namely Muhammad Yousuf son of Ismail in the 1st round of litigation. The Applicants/Respondents Nos. 1 to 4 [Landlords], on the other hand had fully established/proved their case in evidence, recorded on oath by the learned Rent Controller Karachi [Central]. Needless to say, the Applicants' [Landlords'] evidence in the first round of litigation, had gone un-rebutted/un-challenged. In absence of any evidence from the side of both the Opponents including Petitioner herein [as Opponent No.2-Tenant], the evidence, led by the Applicants'
[Landlords], after' having gone un-rebutted, not only to be deemed as accepted by the Opponents but also the same as 'true' and 'correct'. Moreover, in the case in hand, it is an admitted position that both the 'Opponents', not only failed to file any 'written statement' [s] but also failed, ignored and/or otherwise, avoided to appear, bring/adduce any evidence in rebuttal of Applicant's version.
21. The Petitioner herein ['Opponent No.2'], nonetheless, feeling himself 'aggrieved' by and 'dissatisfied' with the Ejectment Order dated 18.01.2017 [Annexure 'B' to the MoP], filed a First Rent Appeal [In short F.R.A.], bearing FRA No.12 of 2017 [Waseem Khan son of Waheed Khan v. Asim Husain son of Moin-ul-Haq and 3 others], before the court of learned District Judge Karachi [Central], whereby, the 'Ejectment Application' under Section 15 Sindh Rented Premises Ordinance, 1979 [In short S.R.P.O, 1979], was allowed and the 'Opponents' including the Petitioner herein [as 'Opponent No.2'], was directed to vacate the 'subject premises' within thirty
30. days' w.e.f. 18.01.2017.
22. It is worth to mention herein, that after introduction of 'verification' of pleadings on oath, a court is 'empowered' A to proceed with the case, without calling for an 'Affidavit' -in-Exparte proof'. Reference, in this regard, can be made to the case of Malik Umar Aslam v. Sumaira Malik and another PLD 2007 SC 362 wherein, the Hon'ble Apex Court while, 'dilating upon' the aspect of 'verification' of the pleadings on oath, has observed as follows: "It may not be out of context to note that the verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with Section 6 of the Oaths Act, 1873, by adding the words "on oath or solemn affirmation" after the words verified in Rule 15(1) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath, the court has been empowered to proceed case ex-parte against the opponents and pass a decree, under Oder IX, Rule 6(1), C.P.C. without calling for an affidavit in ex parte proof. [Emphasis supplied]"
23. On 29.05.2017, when the aforesaid F.R.A. No.12 of 2017, [Waseem Khan son of Waheed Khan v. Asim Husain son of Moin-ul-Haq and 3 others], came-up before the Court of learned District Judge Karachi [Central] then, the same was allowed through Judgment dated 29.05.2017 [Annexure 'C' to the MoP]. The 'operative part' of the judgment dated 29.05.2017, reads as follows:- "It is pertinent to mention here that the appellant was served personally twice' with the notices besides, the notice was published in Daily Ummat Karachi dated 05.12.2015, thereafter, the service of notice was held good upon the appellant. The learned counsel for the appellant has failed to establish a case for setting aside the order for debarring the appellant from filing the written statement. Record reflects that notice was purposely served upon the appellant personally but he deliberately avoided to appear before the Rent Controller and got his side closed on his failure to appear before the Court. I do not find any reason, to set aside the order for closure of the side of the appellant to file written statement. Orders for proceeding with the cases ex parte, cannot be set aside mechanically. It is for the appellant to establish a good case that either he had no knowledge about the pendency of case or he was incapacitated to approach the learned Rent Controller and to file the written statement when was served with the notice. In the circumstances, I find no force in the contention of the learned counsel for the appellant that the order debarring the appellant is liable to be set aside.
[Emphasis Supplied]" .
Aggregating the above circumstances, I form my opinion that the order impugned in the appeal is not sustainable which accordingly is set aside. Appeal is allowed. Matter is remanded back to the learned Rent Controller to afford proper opportunity to the appellant to cross-examine the respondents and their witnesses on the affidavit in ex pante proof. [Emphasis Supplied].
24. The pleadings of the parties, itselves do not make it substantive piece of evidence until and unless, the 'assertions'/ 'averments' made in the pleadings are proved through evidence or otherwise, the same is admitted by the 'opposite party' or goes the same un-rebutted un-challanged. Further,' the document[s] brought on record through evidence and 'exhibited'. The opposite party then cannot challenge its' admissibility, merely on the basis of 'lip service'. In this regard reliance can be placed on the case of Muhammad Akram and another v. Mst. Farida Bidi and others [2007 SCMR 1719], wherein it was observed as follows:- "6... It is a settled law that pleadings of the parties are not substantive piece of evidence unless and until the averments made in the pleadings proved from the evidence in Court or admitted by the other party.
6-A... It is a settled law that document once it was brought on record and exhibited then the opposite party could not challenge the admissibility of the document in the Court..." [Emphasis Supplied].
25. The 'REMAND' of the case, as per the aforesaid Judgment dated 29.05.2017 [Annexure 'C' to the MoP], was without setting aside order dated 13.01.2016, whereby, both the 'OPPONENTS' i.e. [i]. Farooq Khan son of Waheed Khan and [ii]. Waseem Khan son of Waheed Khan, who is Petitioner herein [Opponent No.2], were not only debarred from filing of 'written statement' [s] but also they were declared as 'EX-PARTE'. The Opponent No.2 [Petitioner herein], as per said Judgment dated 29.05.2017, however, was allowed to only 'Cross- Examine' the witness of the Landlords'/General Attorney, namely Muhammad Yousuf son of Ismail, whose 'Examination-in-Chief', was recorded long ago on 16.02.2016. Later on, the said witness was subjected to lengthy 'Cross-Examination' by the learned counsel for the Opponent No.2, on 24.07.2017. For ready reference the 'Cross-Examination' of witness of Respondents Nos.1 to 4 herein [Applicants-Landlords] which is being the only piece of evidence from the Petitioner's side [Tenant side], is reproduced herein-below:-- 24.07.2017 Rent Case No.324/2015 Muhammad Yousuf Cross examination to Mr. Naveed Ali learned Advocate for the opponent.
It is incorrect to suggest that I have no power to record my evidence in this case, in the court on the basis of Ex.A/2. The opponent No.1 was used to pay the monthly rent prior to March 2014 to the Asim and others. I have no knowledge that the Asim and other were issued rent receipt or not to the opponent prior to March 2014, Vol. says I had received power of attorney in October 2014. It is fact that the date, time and month is not mention in my affidavit in evidence and ejectment application regarding the subletting by opponent No.1 to opponent No.2.
It is fact that the opponent is residing in demised premises of 45 square yards. It is incorrect to suggest that I mentioned in my affidavit in evidence that the demise premises is required to me for personal bona fide need in good faith. I have read the contents of my ejectment application. It is fact that in ejectment application it is mention that the demised premises is required to the applicant for his personal bona fide need in good faith. It is fact that I am attorney of the four applicants who filed the rent case. It is fact that this rent case filed by me on behalf of the applicants as attorney and it is clearly not mention in my ejectment application and in my affidavit in evidence that the demised premises is required to what purpose and to whom. It is fact that the opponent No.2 Waseem Khan was used to pay the rent to the applicant No.1. I have no knowledge that after the death of first owner Mr. Wajid, the applicant No.1 refused to accept the receiving the rent from the opponent No.2. I have no knowledge that the opponent No.2 used to pay the monthly rent when refused by the applicant No.1 from the receiving monthly rent in MRC No.346/2014, vol. says when I came to this court I know about the MRC. It is fact that I not given any notice to the opponents regarding the subletting the demise premises. It is fact that written notice was not given to the opponents for vacating the demised premises for personal bona fide need. I do not remember that it is mentioned in my affidavit in evidence and ejectment application regarding the verbal notice was given to the opponents for vacation of the demise premises. The opponent No.2 was used to pay the monthly rent to the applicant No.1 from the execution of tenancy agreement 2003 till March 2014. It is incorrect to suggest that the opponent No.2 Waseem is residing in the demised premises from 2003 till to day. It is fact that he first owner Mr. Wajid Ali Khan put his signature in English language on lease deed of the demise premises. The lease deed of the demised premises was executed in the year 1976. It is fact that he demised premises was gifted by the first owner to the applicants in the year 2005. It is fact that the first owner signed the gift deed in English language in which his CNIC is attached. It is fact that the CNIC of first owner was issued in 2002. It is fact that the first owner bears his signatures on the CNIC in English language. It is fact that the Ex.A/2 is shows IQRAR-E-MOTABAR. It is incorrect to suggest that the IQRAR-E-MOTABAR is not a tenancy agreement. It is fact that the IQRAR-E-MOTABAR is shows the signature of the first owner is bears in Urdu language. It is fact that IQRAR-E-MOTABAR was executed in 2003. It is incorrect to suggest that the IQRAR-E-MOTABAR was not executed in between the original owner and the opponent No.1 and the same has been prepared as forged one for filing this ejectment case. I have no knowledge about the residence of opponent No.1 after subletting the demised premises to the opponent No.2. It is fact that Ex.A/4 shows bill of Rs.1140/- and pertains to the June 2015, vol says I have not produce the same. It is incorrect to suggest that Ex.A/4 is pertains to whole building, vol says it pertains to the demise premises. It is fact that I produce he Ex.A/5 which shows the dues of Rs.147548/-. It is fact that the same notice was received to me. It is incorrect to suggest that the notice regarding the dues of Rs.147548/- was received to me and not received for opponent No.2. It is incorrect to suggest that the only one meter is installed on the whole building due to this notice was issued by concerned authority to me not to the opponent No.2. It is fact that I produce the notice of water Board for disconnection of the connection as Ex.A/6. It is fact that only connection is installed on the whole building,' vol says the bills are coming separately for each portions. It is incorrect to suggest that the applicants are responsible for the payment of electric bills and water conservancy. It is fact that I not produce any other separate bills of the E-Electric and water Board of the other portions of the House No.2-412, Liaquatabad Karachi. It is incorrect to suggest that I not produce the separate bills of K-electric and Water Board regarding the demised premises. I have no knowledge that the opponent No.2 Waseem filed the civil suit No.734/2014 against the applicant No.1. It is incorrect to suggest that I have no fully knowledge about the real fact as attorney. I have no knowledge that I mention regarding the filing of civil suit in my ejectment application and affidavit in evidence or not. It is fact that I mentioned in my affidavit in evidence that the original opponent Farooq left the demised premises and handed over the same to the opponent No.2 and went away. It is fact that I mentioned the address of the opponent No.1 as the same address of the demised premises. It is incorrect to suggest that I given the same address with malafidely despite of fully knowledge. Vol says I know the year 2015 that the Farooq left the demised premises and handed over the same to the opponent No.2. It is fact that when I know about the subletting the demised premises thereafter I mentioned the same in my ejectment application. It is incorrect to suggest that the opponent No.2 not committed any default in payment of the monthly rent. It is incorrect to suggest that the demise premises is not required to the applicants for their personal bona fide need in good faith. It is Incorrect to suggest that the opponent No.1 not subletted the demised premises to the opponent No.2. It is incorrect to suggest that I am deposing falsely before this Court. It is incorrect to suggest that the opponent No.1 is never residing in the demised premises. It is incorrect to suggest that IQRAR-E-MOTABAR is forged and fabricated documents. It is fact that the demise premises is situated in the second floor and the two and other portions viz. portions Nos.3 and 4 are given on rent basis to the tenants. It is fact that the opponent No.2 is used to pay the monthly rent in MRC with the rate of Rs.1650/- per month, it is fact that in my ejectment application and affidavit in evidence the monthly rent of the demised premises is mentioned as Rs.1650/- per month. It is incorrect to suggest that after the death of real owner, the some dispute was arose in between the applicants and opponent No.2 thereafter I filed this ejectment application on the basis of grudge. It is incorrect to suggest that I am deposing falsely before this Court.
[Emphasis Supplied].
26. On conclusion of the 'cross-examination' of the Respondents' Nos.1 to 4's [Landlords'] witness namely Muhammad Yousuf son of Ismail, lastly, when the Rent Case No.324 of 2015, filed by Respondents Nos.1 to 4 [Landlords] i.e. [i] Asim Hussain son of Muhammad Moin-ul-Haq [ii]. Tariq Ahmed Shah son of Rasheed Ahmed Shah [iii]. Pervaiz Ahmed Shah son of Rasheed Ahmed Shah [iv]. Muhammad Naseer Uddin son of Niaz Uddin filed against two [2] Opponents namely [i] Farooq Khan son of Waheed Khan [Opponent No.1] [ii] and Waseem Khan son of Waheed Khan [Petitioner herein-Opponent No.2], came-up before the Court then, the learned IInd Rent Controller Karachi [Central], in view of 'evidence' and 'materials' available on record and with the assistance of the learned counsel for parties, framed following six [6] points for 'determination of the dispute' involved in Rent Case No.324 of 2015.
Point No.1 Whether there is relationship exist in between the applicants and opponent No.1 as landlord and tenant?
Point No.2 Whether there is relationship exist in between the applicants and intervener/ opponent No.2 as landlord and tenant?
Point No.3 Whether the opponent No.1 has committed default in payment of the monthly rent from April 2014 till onwards?
Point No.4 Whether the opponent No.1 has sub-letted the demised premises to the intervener/ opponent No.2?
Point No.5 Whether the demised premises is required to the applicants for their personal bona fide need?
Point No.6 What should the order be?
27. The learned IInd Rent Controller Karachi [Central], upon hearing the arguments of learned counsel for the 'Applicants' /' Landlords' [Respondents Nos. 1 to 4] and perusal of materials available on record, while, answering the 'Points Nos.1 to 4', in 'AFFIRMATIVE', answered 'Point No.5', in 'NEGATIVE' which as seen pertains to the personal requirement of the Applicant No.1/ Landlord No.1 [Respondent No.1 herein].
Resultantly, under the last 'Point No.6', the 'Ejectment Application' filed under Ordinance, 1979, was allowed.
The Ordinance, 1979, was allowed. The 'operative part' of order dated 11.10.2017, [Annexure 'E' to the MoP], is reproduced herein below:- Point No.6.
In view of discussions made above, the rent ejectment application under section 15 of SRPO 1979, is hereby allowed with directions to the opponents to vacate and hand over the demised premises viz. Half Portion at 2nd Floor of Building situated at Plot No.2/412, Liaquatabad Karachi to the applicants within 60 days from the date of this order with no order as to cost. [Emphasis Supplied].
28. The Opponent No.2 [Petitioner herein] thus again feeling 'aggrieved' and 'dis-satisfied' with the Ejectment Order dated 11.10.2017 [Annexure 'E' to the MoP], passed by the learned IInd Rent Controller Karachi [Central], opted to file First Rent Appeal No. 288 of 2017 [Waseem Khan son of Waheed Khan v. Asim Hussain and 4 others], before the Court of learned District Judge Karachi [Central], with prayers as follows:- PRAYERS It is, therefore, most humbly and respectfully prayed that this Hon'ble Court may very kindly be pleased to pass the following orders as under.- A*. To set aside the Impugned Ex-parte Eviction Order dated 11.10.2017 passed by the learned lInd Rent Controller at Karachi Central in Rent Case # 324/2015; B*. To dismiss the Eviction Application of the Respondents bearing Rent Case # 324/2015.
C*. To award cost of the Appeal, throughout; and D*. Any other better relief, under the circumstances of the case. It is prayed in the larger interest of justice.
29. The aforesaid First Rent Appeal No.288 of 2017 [In short F.R.A.] when, came-up before the Court on 08.08.2018, [Annexure 'G' to the MoP] then, the ' learned District Judge Karachi [Central], in the light of submissions of learned counsel for the parties and materials available on record framed, the following three [3] points for determination of the dispute involved
1. Whether the relationship of landlord and tenant exist between the respondent/applicant and appellant/opponent?
2. Whether there is any illegality in the impugned order to interfere with the impugned order?
3. What should the order be?
30. The learned District Judge Karachi [Central], thereafter, upon hearing, learned counsel for the parties on the aforesaid points and perusal of the materials/evidence available on record while, giving findings on [i]. Point No.1, as proved and [ii]. Point No.2, as not proved, dismissed the FRA No.288 of 2017, [Waseem Khan son of Waheed Khan v. Asim Hussain and 4 others], under 'Point No.3'. The 'operative part' under 'Point No.3', reads as follows:- Point No.3.
In the light of discussion made in the forgoing paras, I am of the view that the appellant/opponent No.2 has failed to establish his case for interfering with the impugned Order dated 11.10.2017 passed by the learned IInd Rent Controller Karachi Central in R.C. No.324/2015 and I find no merits in this appeal and dismiss the same along with other applications with no order as to costs.
31. The Petitioner herein [Opponent No.2], once again feeling 'aggrieved' by and 'dis-satisfied' with the impugned order dated 08.08.2018, [Annexure 'G' to the MoP], passed by learned District Judge, Karachi [Central], opted to file instant Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, on 02.10.2018, with a prayer for setting aside the 'impugned orders' dated 11.10.2017 and 08.08.2018, passed by the learned IInd Rent Controller Karachi [Central], in Rent Case No.324 of 2015 [Respondent No.5 herein] and learned District Judge Karachi [Central], in FRA No.288 of 2018 [Respondent No.6] herein.
32. On 08.10.2018, when the above C.P. No. S-2117 of 2018 [Waseem Khan v. Asim Hussain and others], came-up before the Court, on an urgent Application then while, granting the urgent application notices were issued to Respondents Nos. 1 to 4 [landlords], through their General Attorney, as well as, Respondents Nos. 5 and 6, through learned Advocate General Sindh, for 22.10.2018
33. On service, when again the matter came-up before me on 29.10.2019, then, I heard Mr. Naveed Ali, learned counsel for the Petitioner [Opponent No.2-Tenant] and Mr. Muhammad Hanif Qureshi, learned counsel for Respondents Nos. 1 to 4 [Landlords], and also perused the record available before me minutely.
34. Per Naveed Ali, learned counsel for the Petitioner [Tenant-Opponent No.2], both the 'impugned orders' herein, are liable to be set aside, as the same, according to learned counsel for the Petitioner, have not been passed in 'conformity' with law and procedure. Both the 'impugned orders', as urged by learned counsel, are not only glaring examples of improper perusal/misappreciation of the materials/ evidence available on record but the same as urged have also been passed, in erroneous, whimsidal and impulsive manner. Mr. Naveed Ali, learned counsel for the Petitioner while, advancing his arguments, next contended that the learned Rent Controller Karachi [Central], while, passing the 'impugned order' dated 11.10.2017, [Annexure 'E' to the MoP], has failed to discuss the evidence/appreciate the evidence in its' true perspective.
35. According to Mr. Naveed Ali, learned counsel for the Petitioner [Tenant-Opponent No.2], both the Courts below, have badly failed and/or avoided to see and consider the 'bad intention' and 'mala fide attitude' of Respondents Nos.1 to 4 [landlords], with which they had approached the concerned court, that is to say, with un-clean hands. Like-wise, the Respondents Nos.5 and 6, as urged, by Mr. Naveed Ali, learned counsel for the Petitioner [Tenant], have also failed to look into the conduct of Respondents No.1 to 4 and their 'un-warranted' efforts for getting the 'demised premises' vacated from the Petitioner herein [Tenant] by means of hooks and crooks. The Ejectment Application [Rent Case No.324 of 2015], even otherwise, was liable to be dismissed, even in absence of 'WRITTEN STATEMENT and 'AFFIDAVIT-IN-EVIDENCE' on behalf of the Petitioner herein [Opponent No.2], as on the record no trust worthy materials were available on record. Moreover, through the 'Cross-Examination' of Respondents Nos.1 to 4's [Landlords'] witness, by the counsel of the Petitioner herein, nothing favourable viz-a-viz the Petitioner's [Tenant's] interest/stand, has come on record.
36. Mr. Naveed Ali next contended that both the 'Eviction Orders', [Annexures 'E' & 'G' to the MoP], passed by the courts below, are also suffering from material irregularities and illegalities. In this regard however, nothing was pointed out at the time of advancing arguments. Further, as urged, both the courts below have failed to consider that Petitioner's [Opponent No.2-Tenant's], stand that he is in a 'lawful possession' of the 'subject premises' i.e. half-portion at 2nd Floor of Building at Plot No.2/412, Liaquatabad, Karachi [Central], i.e. to say in his capacity, as being a tenant and who, as contended, did deposit the Rent in Miscellaneous Rent Application No.346 of 2014 [Waseem Khan v. Asimul Haq], filed on or about 14.07.2014, before the Court of IInd Rent Controller Karachi [Central]. At this juncture, it is worth to mention herein that the Petitioner, is 'willful defaulter' in payment of monthly rent, as well as, in payment of up-to-date utility bills [See Exh.'A/4'] and [Exh.'A/5']. Even in MRC No.346 of 2014 [Waseem Khan son of Waheed Khan v. Asim-ul-Haq], the name of landlord [Respondent No.1] has been wrongly mentioned.
37. Per Mr. Naveed Ali, learned counsel for the Petitioner [Opponent No.2-Tenant], the 'Tenancy Agreement' dated 17.06.2003 between the 'previous landlords' namely Wajid Ahmed and the actual Tenant [Opponent No.1], namely Farooq Khan besides, being bad in law, was also suffering from 'grave' and material irregularity.
This aspect of the matter , however, as contended was also not touched upon by learned Rent Controller Karachi-Central [Respondent No.5 herein] while, passing the earlier 'Ex-parte Eviction Order' dated 18.01.2017 [Annexure 'E' to the MoP]. In the Rent Appeal No.288 of 2018 [Waseem Khan v. Asim Hussain and others], though the finding on the ground of 'sub-letting', as seen was reversed but the said FRA No.288 of 2018, was wrongly/ erroneously allowed, on 08.08.2018 [Annexure 'G' to the MoP], mainly on the ground of 'default', though, as urged, by Mr. Naveed Ali, there was no any 'willful default', at all. The payment of monthly rent by the Petitioner herein [Opponent-2/Tenant], to Respondent No.1, as per record, has been paid only upto April, 2014.
38. Even otherwise, as contended by Mr. Naveed Ali, learned counsel for the Petitioner [Tenant-opponent No.2], upon refusal of monthly rent by Respondent No.1 herein, thereafter the same, is being regularly deposited in Misc. Rent Application No.346 of 2014 [Waseem Khan v. Asimul Haq], filed on or about 14.07.2014, which position, as urged, is in the knowledge of Respondents Nos. 1 to 4. Further, 'cross-examination' of witness'/'General Attorney' of the Respondents Nos.1 to 4 [Landlords], has also been ignored/sidelined at the time of passing the 'concurrent findings' under the 'impugned orders' by the courts below [Annexure 'E' and 'G' to the MoP].
39. Lastly, learned counsel for the Petitioner, herein [Opponent No.2-Tenant], forcefully submitted that 'Ex-parte Eviction Orders', passed by the courts below, besides, being erroneous are liable to be set-aside. Per Mr. Naveed Ali, both the 'impugned orders' [Annexures 'E and 'G' to the MoP], are not only 'contrary to law' but also against the law of 'natural justice' and settled norms of safe administration of justice. Even otherwise, as contended by Mr. Naveed Ali, matters/cases, under law needs to be decided on 'merits' and not on the basis of technicalities. Mr. Naveed Ali, while, concluding his arguments vehemently, prayed not only for allowing the instant Constitution Petition No.S-2117 of 2018 [Waseem Khan v. Asim Hussain and others] but also for dismissal of Ejectment Application i.e. Rent Case No.324 of 2015 [Asim Hussain son of Muhammad Moin-ul- Haq and 3 others v. Fraooq Khan son of Waheed Khan and another], otherwise, the Petitioner herein [Opponent No. 2-Tenant], shall be seriously prejudiced.
40. Conversely, Mr. Hanif Qureshi, learned counsel for Respondents Nos.1 to 4 [Landlords'], not only defended both the 'impugned orders' [Annexures 'E' and 'G' to the MoP] but also submitted that Petition in hand be dismissed, as the same has been filed against the 'concurrent findings' of the two [2] courts below which, under law, is not 'maintainable'. Per Mr. Hanif Qureshi, both the 'impugned orders' besides being lawfully passed, are not suffering from any material 'irregularities' and/or 'illegalities', as alleged by the Petitioner herein [Tenant].
Besides, there is no any, 'mis-reading', 'non-reading' of the 'materials'/'evidence' available on record. Both the courts below, it is needless to say, have passed the 'impugned order' after proper application of judicial minds and proper appreciation of the materials/evidence, available on record and that too in its' true perspective.
41. While, concluding his arguments, Mr. Hanif Qureshi, forcefully submitted that the Petitioner [Opponent No.2Tenant], on the face of record, is a 'willful defaulter' including 'default' in payment 'Monthly rent and utilities bills, and this factum is quite evident from Exh.'A/4' and Exh.'A/5'. Per Mr. Hanif Qureshi, since, the Petitioner has failed to file any 'written statement', 'Affidavit-in-Evidence' and/or otherwise, extract anything favourable through the 'CROSS-. EXAMINATION' of Landlords' witness. The instant Petitioner No.S-2117 of 2018 [Waseem Khan v. Asim Hussain and others], as such, is liable to be dismissed, otherwise, the Respondents Nos.1 to 4 herein [Landlords] shall be seriously prejudiced.
42. Heard and perused the record.
43. As far as, the allegations that the Ist Ejectment Order dated 18.01.2017 [Annexure 'B' to the MoP] was obtained at the back of 'Tenants' [Opponents], as an 'EX-PARTE' Order and that too, without 'proper service' and/or affording proper opportunity of being heard to Petitioner herein [Opponent No.2], are concerned, the same allegations on the face of record, are not only false, afterthought but also mis-leading. In this regard, and to belie, the Petitioner herein, in its' stand, the following 'portion', from the judgment dated 29.05.2017 [Annexure 'C' to the MoP], passed by learned Appellate Court in F.R.A. No.12 of 2017, filed by the Petitioner herein [Tenant], against the Respondents Nos. 1 to 4 [Landlords] as being relevant is reproduced, here-in- below:- Perusal of the record shows that after admission of the rent case, notices were issued against the appellant and respondent Farooq Khan. Endorsement of the bailiff Muhammad Jaffer on the notice for the date of hearing 19.8.2015, reflects that Waseem came at the door and he disclosed that he was brother of opponent [tenants] and received the notice. Endorsement of bailiff Hussain Abbas on the notice for the date of hearing 13.10.2015, reflects that respondent No.2, Waseem Khan met with him and he received the notice for him, and on behalf of respondent No.1 and the endorsement of bailiff Hussain Abbas for the date of hearing 13.11.2015 also shows that he was pasting the copy of the notice at the house of the appellant and respondent No.2, in the meantime Waseem Khan [Appellant] came and he received the copy of the notice. This notice bears the signature of Waseem [appellant] in Urdu. Diary dated 13.11.2015, maintained by the Rent Controller shows that it was ordered that notice be published in Daily Nawai Waqt Karachi and matter was adjourned for service. Diary dated 30.11.2015 reflects that the notice was not published on 15.12.2016, it was maintained that copy of newspaper received containing notice against the appellant and respondent No.2 whereupon service of notice by way of substitute service was held good and the matter was fixed for written statement. On 13.01.2016, the side of the appellant and respondent No.2 was closed and it was ordered that matter be proceeded against the appellant and respondent No.2 as they failed to appear before the Court. [Emphasis Supplied].
44. Like-wise, on the aspect of 'Ex-parte Order' dated 13.01.2016, the learned Appellate Court, while referring to the arguments of Mr. Naveed Ali for the Appellant [Petitioner herein], advanced at the time of hearing of F.R.A.
No.12 of 2017 [Waseem Khan son of Waheed Khan v. Asim Husain son of Moin-ul-Haq and 3 others] and reiterated herein, were dealt with in the manner as follows:- A. Adverting to the next contention of the learned counsel for the appellant that this court while deciding an appeal against an ejectment order can consider all the interlocutory orders which were not appealable. He has referred the case of Mst. Rukshana Shaheen v. Mehmood Zafar Malik 1994 CLC 1872. In this case the Hon'ble High Court has sobered observed that tenant against whom ejectment application was filed having failed to file written statement despite several adjournments, ex parte ejectment order was passed against him. Tenant along with application for setting aside ex parte ejectment order had filed unrebutted affidavit of his counsel in which it was stated by him that due to rush of work, file of case was misplaced and because of that he could not file written statement because of some plausible ground. Plausible ground having been shown by tenant for not filing written statement in time by filing unrebutted affidavit of his counsel, Rent Controller ought to have allowed tenant to file written statement. Even otherwise equity and natural justice demanded that no one should be condemned unheard. Ex parte order passed against tenant by Rent Controller for his failure to file written statement was set aside and case was remanded by the appellate Court for proceeding on merits on basis of pleadings of parties. In case of Mehmodo Ahmed v. State Life Insurance Corporation 1998 CLC 1987, the Hon'ble High Court of Sindh has observed that trial court passed interim order on an interlocutory application filed by the tenant. No appeal having been provided against interim order Under Section 21 Sindh Rented Premises Ordinance, 1979, High Court dismissed the petition assailing such order with observations that if Constitutional Petition was to be entertained at such state, the very purpose of 5.21 of the Ordinance would be defeated. Tenant would have opportunity to file appeal if the final order goes against him and then he could raise this ground too... [Emphasis Supplied].
B. Perusal of the record shows that after admission of the rent case, notices were issued against the appellant and respondent Farooq Khan. Endorsement of the bailiff Muhammad Jaffer on the notice for the date of hearing 19.8.2015, reflects that Waseem came at the door and he disclosed that he was brother of opponent (tenants) and received the notice. Endorsement of bailiff Hussain Abbas on the notice for the date of hearing 13.10.2015, reflects that respondent No.2, Waseem Khan met with him and he received the notice for him, and on behalf of respondent No.1 and the endorsement of bailiff Hussain Abbas for the date of hearing 13.11.2015 also shows that he was pasting the copy of notice at the house of the appellant and respondent No.2, in the meantime Waseem Khan (appellant) came and he received the copy of the notice. This notice bears the signature of Waseem (appellant) in Urdu. Diary dated 13.11.2015 maintained by Rent Controller shows that it was ordered that notice be published in Daily Nawai Waqat Karachi and matter was adjourned for service. Diary dated 30.11.2015 reflects that the notice was not published on 15.12.2016 , it was maintained that copy of newspaper received containing notice against the appellant and respondent No.2 whereupon service of notice by way of substitute service was held good and the matter was fixed for written statement. On 13.1.2016, the side of the appellant and respondent No.2 was closed and it was ordered that matter be proceeded against the appellant ad respondent No.2 as they failed to appear before the Court. [Emphasis Supplied].
C. Record reflects that notice was purposely served upon the appellant personally but he deliberately avoided to appear before the Rent Controller and got his side closed on his failure to appear before the Court. I do not find any reason to set aside the order for closure of the side of the appellant to file written statement. Orders for proceeding with the cases ex parte, cannot be set aside mechanically. It is for the appellant to establish a good case that either he had no knowledge about the pendency of case or he was incapacitated to approach the learned Rent Controller and to file the written statement when was served with the notice. In the circumstances I find no force in the contention of the learned counsel for the appellant that the order debarring the appellant is liable to be set aside. [Emphasis Supplied].
45. Further, on the aspect of maintainability of an appeal against an interlocutory order and difference between a 'final order' and 'interlocutory order', reference can be made to the cases of [i] Syed Saghir Ahmed Naqvi v.
Province of Sindh through Chief Secretary S&GAD, Karachi [1996 SCMR 1165] and [ii] Bank Al-Falah Limited v.
Inter Global Commerce Pakistan [Pvt.] Ltd. and 5 others [2017 CLD 1428], wherein, it was respectively observed as follows: [i]. 1996 SCMR 1165 9....There are so many laws on the statute books of the country which provide for an appeal only against the final order. In the Punjab Urban Rent Restriction Ordinance, 1959 proviso to section 15 reads "provided further that no appeal shall lie from an interlocutory order passed by the Controller. In the Cantonments Rent Restriction Act, 1963, section 23 provides any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court". In Sindh Rented Premises Ordinance, 1979, section 21 provides "any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order prefer an appeal to the High Court. In the Banking Companies (Recovery of Loans) Ordinance, 1979, proviso to section 12 reads: "Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court". A notification tinder the West Pakistan Waqf Properties Ordinance, 1961 could be challenged only by means of a petition under section 7 in the District Court and an appeal lay against the decision to the High Court. Both the Courts were placed under duty not to issue a temporary injunction or order restraining the Chief Administrator from taking over of assuming the administration, control, management and maintenance of property in respect of which a notification had been issued under section 6. While the suit or an appeal, as the case may be, was pending, such prohibitions, limitations and regulatory provisions with respect to appeal and grant of relief against the interlocutory orders were considered vis-a-vis the maintainability of the Writ Petition in the case Mumtaz Hussain alias Butta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450. On examining the statute, the Supreme Court held as hereunder:-- "As the said Ordinance has taken away the right of petitioner to interim relief learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings in the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law."
The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders. [Emphasis Supplied].
[ii]. 2017 CLD 1428
10. Black's Law Dictionary (Sixth Edition) defines final order as under: "One which terminates the litigation between the parties and the merits of the case and leaves nothing to be done but to enforce by execution what has been determined."
The words 'final order' and 'an interlocutory order' have now been settled from various pronouncements of the apex Court viz. "A final order means an order which finally disposes of the rights of the parties. The real test for determining whether the order is final ought to be this: 'Does the judgment or order, as made, finally disposes of the rights of the parties' ? If it does, then it ought to be treated as a trial order; but if it does not, it is then an interlocutory order. Similarly, in AIR 1933 PC 58, Sir George Lowndes observed:- "The finality must be finality in relation to the suit. If, after the order the suit is still alive in which rights of the parties have still to be determined, no appeal lies against it. The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one."
Furthermore, in order to constitute a final order, it is necessary that the order should be one by which the suit or the proceeding in either way is finally disposed of. The decision of an important and vital issue which may ultimately affect the fate of the proceeding is by itself not enough. The test to be applied is, whether the proceeding is disposed of completely and the case is not kept alive for being dealt within the ordinary way. The final order must contain a final adjudication of the matter in contest between the parties to the action.
11. Though the word 'interlocutory order' has not been defined anywhere either in the C.P.C. or in the F.I.O., 2001, but the appeals were made competent under C.P.C. against orders covered by Order XLIII but the legislature under subsection (6) of section 22 of F.I.O., 2001 clearly mentioned that no appeal shall lie against an interlocutory order which does not dispose of the entire case. It is thus clear that the word 'interlocutory order' has been used in contradistinction to the term "order". The legislature, in order to achieve the object that appeal shall lie only against the final order, did not stop after legislating that no appeal shall lie against interlocutory order but further qualified the interlocutory order, which does not dispose of the entire case. The intention of the legislature is crystal clear from the language employed in the provision that appeal can only be maintained against last or final order." [Emphasis Supplied].
46. The Petitioner herein despite repelling of his contention in respect of 'ex parte order' dated 13.1.2016, however, felt himself satisfied and opted thereafter, to only do/carry out on 24.07.2017, the 'Cross-Examination' of the witness of Respondents Nos. 1 to 4 herein, [Landlords] Muhammad Yousuf son of Ismail, whose 'Examination-in-Chief' was recorded long ago on 15.2.2016 but nothing favourable was extracted/come on record, as far as, the Petitioner's [Tenant's] case is concerned.
47. Regarding 'default' and 'subletting' the relevant paras from the 'Affidavit-in-Expart-proof' of evidence [Exh.'A'] of Landlord's witness reads as follows:
6. That I say that the Applicant No.1 time and again demanded monthly rent of the tenement from the Opponent No.1, who kept the Applicants on false hopes and promises but did not pay monthly rent form the month of April, 2014 till date so also he is not paying utility bills now the Opponent No.1 has sub-let the tenement to the Opponent No.2.
7. That I say that the Opponent No.1 has sub-let the tenement to the Opponent No.2, who now has been residing in the tenement and he has been using stolen electricity 'though the KUNDA SYSTEM illegally and unauthorisedly, as the electricity has been disconnected due to non payment of bills, which now has accumulated to Rs.1,46,408.35, whereas unpaid / outstanding charges of KW&WB are Rs. 5 ,992/-
8. That I say that the Applicant No.1 for want of monthly rent so many times visited tenement but every time Opponent No.2 met there with the Applicant No.1, who informed the Applicant No.1 that Opponent No.1 has rented out the tenement to him and he has instituted a case in Court of Law, against the Applicant No. 1.
10. That I say that the Opponent No.1 in violation of the terms and conditions of tenancy agreement as well as against the provisions of Sindh Rented Premises Ordinance has sub-let the tenement premises to Opponent No.2 so also he has committed willful default in payment of monthly as well as utility bills are not being paid by the Opponents, apart from it, the tenement premises is also required in good faith by the Applicant No.1 for his personal bona fide use. However, the Opponents in the first week of July, 2015 flatly refused either to pay arrears of monthly rent or to vacate the demised premises.
11. That I say that in view of the above mentioned facts and circumstances, it is therefor humbly prayed on behalf of the applicants abovenamed that this Honourable Court may be pleased to pass an Order for Ejectment of the Opponents from the demised tenement i.e. half-portion at 2nd Floor of Building at Plot No.2/412, Liaquatabad, Karachi, with direction to hand over vacant and peaceful physical possession of the demised premises to the Attorney of Applicants as well as the Opponents also be directed to clear the arrears of unpaid arrear rent w.e.f. April, 2014 Rs.1,650/- total amounting to Rs.26,400/- (Rupees Twenty Six Thousand Four Hundred only) as well as to pay/clear the outstanding/unpaid utility bills up-to-date.
48. Under law, it is needless to say, an ejectment order can rightly be executed in Execution against a person came into possession of the 'demised premises' through a Tenant, as the case in hand is. Moreover, merely an agreement to sale does not confer any right of ownership upon a person, as such, one on the basis of a Sale Agreement cannot claim any protection under section-53-A of the Transfer of Property Act 1882 [XVI of 1882]. In this regard, reliance can be placed on the case of Wajid Ali Khan v. Shaikh Murtaza Ali and 2 others [2003 SCMR 1416], wherein, it was held as under:--
8. It is well-settled principle of law that mere agreement to sell does not confer any right of ownership upon any person, therefore, the petitioner cannot claim the protection under section 53-A of the Transfer of Property Act, 1882. This Court in the case of Muhammad Sarwar v. Muhammad Shafi (1986 SCMR 1638) while dealing with identical question of fact and law, has observed at (a) and .(b) of page 1640 under: "It is well-settled that an order of ejectment can be executed against a person having come into possession of subject property through the tenant: Be that as it may the respondent having obtained an order of eviction from competent forums was not required to seek the relief of possession afresh in the suit filed by him on the plea that the petitioner was in occupation of the same house through the original tenant".
49. The 'Affidavit-in-Expart-proof' evidence [Exh.'A'] and all other documents produced in the evidence of Landlords i.e. Exh. 'A/1' to Exh. 'A/6' have gone 'un-rebutted'/ 'unchallenged', as the Petitioner [Opponent No.2], has neither filed any 'written statement' and/or 'Affidavit-in-Evidence' 'except' to do the 'cross-examine' of Landlords' witness namely Muhammad Yousuf son of Ismail on 27.04.2017.
50. From the evidence and documents i.e. [Exh.'A'] to [Exh.'A/6 I including 'electricity bills' [Exh.'A/4'] and bills of KW&SB [Exh.'A/6'], it has been clearly established that the Petitioner herein, [Tenant], is a 'defaulter' in respect of 'rent'/'electricity' and 'water charges'. On the question of 'default' in respect of payment of electricity and water charges, indeed, the onus of proof lies on the shoulders of a Tenant, to show and establish from the record, he did not commit any default. In this regard, however, in the, case in hand, no concrete evidence either has been brought on record by the Petitioner herein [Tenant] and/or otherwise, anything favourbale was extracted/ come on record in the 'Cross-Examination' of the Landlord's witness namely Muhammad Yousuf/ General Attorney of Respondents Nos.1 to 4 [Landlords]. Needless to say, rent includes 'Electricity charges', water charges in terms of Section 2 [i] of SRPO, 1979. Being relevant, Section 2 [i] of the S.R.P.O. 1979, 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.
51. On the aforesaid aspect of the matter reliance can be placed 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].
52. In para. 2 of the application under Order X, Rule 1, C.P.C., filed by the Petitioner herein, it was specifically stated that the Petitioner herein, was asked to vacate the 'demised premises' or be ready for his so-called 'forcible dispossession'. On account of such demand/threat, the Petitioner herein [Opponent], it appears, filed a Civil Suit No.734 of 2014, with a prayer for 'permanent injunction'. Besides, the Petitioner herein [Tenant], also started to deposit the 'monthly rent' in MRC No.346 of 2014 [Waseem Khan v. Asimul Haq]. Even in MRC the rent has been deposited in the name of Asim-ul-Haq instead of Asim Hussain, [Respondent No.1 herein], filed by the Petitioner herein [Opponent No.2] before the learned IInd Rent Controller, Karachi-Central. In view of this position, the denial of any 'cause of action' in fvour of the Landlords for filing Rent Case No.324 of 2015 [Asim Hussain son of Moin-ul-Haq and others v. Farooq Khan son of Waheed Khan and another], besides being false is of no legal effect. In this regard, it is suffice to say, cause of action is a bundle or totality of 'essential facts' stated in the plaint. Reliance on this aspect of the matter, can be placed on the case of Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri 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. [Underlining is ours].
53. Apart from the above pleas, taken by the Petitioner herein [Opponent No.2] are not only 'self-destructive' but also 'self-contradictory' as well. Moreover, the Petitioner herein [Tenant's] denial are not only 'evasive' but the pleas taken are also in-consistent. Besides, the Petitioner herein, on one hand denies any notice from the Landlords [Respondents Nos.1 to 4 herein] and on the other hand, a Civil Suit was filed on the basis of such demand for permanent injunction against Respondents Nos.1 to 4 herein [Landlords]. Indeed, such contradictory stand of the Petitioner [Tenant], and evasive denials leads to the conclusion that the Petitioner [Tenant], in fact has no true and genuine case. In this regard reference, can be made on the cases of [i]. Dr. Aftab Shah v. Pakistan Employees Cooperative Housing Society Ltd. And 5 others [2006 CLC 342] and [ii].
Ghulam Rasool through Legal Heirs and othes v. Muhammad Hussain and others [PLD 2011 SC 119], wherein it was observed as follows:- a. 2006 CLC 342 "15. ....When one stand is taken at one point of time and a different stand at another, and both stands do not reconcile with each other, then this act by itself lead to the presumption that such person does not have a genuine cause of action. The conflicting stands amount to destroying ones own cause of action and, therefore, the entire foundation of plaintiffs claim is to be treated as false"
PLD 2011 SC 119 "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]..
54. Moreover, the 'averments'/ 'assertions', made in the Ejectment Application, under Section 15 Sindh Rented Premises Ordinance, 1979, the evidence led on behalf of the Landlords and documents produced in evidence as Exh.'A/1' to Exh.' A/ 6' have also gone 'unrebutted' / 'unchallenged'. Further, manifestly, in the 'Cross- Examination' of Respondents Nos.1 to 4's [Landlords'] witness, nothing favourable to the Petitioner herein [Tenant] has been extracted. The Petitioner herein [Tennant] besides, failing to file any 'written statement'/'Affidavit-in-Evidence' and/or produce any documents, through the 'Cross-Examination' of Landlords' witness has also failed to confront the witness with any such document. All the 'assertions'/'averments' of the Landlords thus be deemed as admitted by the Petitioner herein [Tenant]. The general denials on the part of Petitioner [Tenant], is of no effect/consequences or otherwise, has any 'evidentiary value'. The Petitioner herein [Tenant], has also failed to lead any evidence or put himself to any 'Cross-Examination'. It is a fundamental principles of law that if, a material fact is 'deposed' in 'Examination-in-Chief' but it goes 'un-rebutted' in 'Cross- Examination' then, the same be deemed as admitted. Like-wise, the contents of document[s], filed with the plaint/ rent application ought to be presumed as correct until and unless their against comes satisfactory materials/evidence on record. On this aspect of the matter reliance can be placed on the case of [i]. Muhammad Yasin v. Shabbir Ahmed [1985 CLC 2111] [ii] Muhammad Aril v. Karachi Port Trust through Board of Trustees [2009 MLD 686], wherein respectively, it was observed as follows :- a. 1985 CLC 2111 ..Absence of cross-examination on this point clearly shows that assertion made by the landlord is not called in question by the tenant. In support of this view reliance is placed by the learned counsel on Qasim and others v.
State PLD 1967 Kar. 233. Although this was a criminal case but the principle laid down in the reported case is that under sections 137 and 138 of the Evidence Act if there is no cross-examination on the fact deposed in the Examination-in-Chief the presumption is that evidence is deemed to have been accepted by the party against whom it was given. The reliance is also placed on another case Muhammad Mujibur Rehman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537 in which the principle stated in the above mentioned case is reiterated."
[Emphasis Supplied]. b. 2009 MLD 686 "....It is settled principle of law that the documents, which may be filed by the plaintiff with the plaint of the suit, are to be presumed to be correct so far its contents are concerned, until and unless satisfactory material comes on the record to record satisfactory findings, that too in a very clear term, that one or more documents so attached with the plaint of the suit are not to be acted upon or not to be given any importance.
55. In the present case, both the courts below, have concurrently, held that the Petitioner [Tenant] is a 'defaulter' i.e. in respect of rent and utility bills, as such, the 'concurrent findings' of two courts below, on the points of 'default' is not open to any interference by this court, under the exercise of Constitutional jurisdiction of this Court muchless, when there is no any 'material illegality[ies]. irregularity[ies]', 'mis-reading'/'non-reading' of evidence/ materials available on record. In this regard reliance can be placed on the case of Muhammad Sardar and 3 others v. Federal Land Commission through the Chairman, Inland and 27 others [2004 YLR 1689], wherein it was observed as follows:- "It is settled principle of law that this Court has no jurisdiction to disturb the finding of fact of the Tribunals below unless and until the same is result of misreading and non-reading of the record while exercising power under Article 199 of the Constitution as the law, laid down by the Division Bench of this Court and by the honourable Supreme Court in the following judgments:-- Board of Intermediate and Secondary Education Lahore v. M. Massadaq Naseem Sindhu PLD 1973 Lahore 600.
Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260."
56. From the evidence and documents' i.e. Exh. 'A/1' to 'A/6' including 'Electricity Bill' [Exh. 'A/4 ] and KW&SB's bill [Exh 'A/6'], it is an established position that the Petitioner herein [Tenant], is a 'defaulter' of 'Rent', 'Electricity charges' and 'water charges' in respect of the 'subject premises'. Regarding default of 'Rent', 'Electricity' and 'Water charges', the onus of proof is on the shoulders of Tenant [Petitioner herein]. In this regard, however, from the Petitioner's side [Tenant's side], no any concrete evidence has come on record. Needless to say, under law, rent includes 'Electricity and Water charges', i.e. in terms of Section 2 [i] of SRPO, 1979.
57. In view of what has been discussed above, I have come to the conclusion that 'concurrent findings' of the courts below, 'impugned' herein, did not suffer from any illegality[ies], infirmity[ies], mis-reading and/or non- reading of the materials/evidence available on record. Both the 'impugned orders' [Annexure 'E' and 'G' to the MoP] thus besides, being quite in accordance with law, have been rightly passed and that too after proper 'valuation'/'appreciation' of the 'materials'/ 'evidence' available on record. The same, as such, needs no interference of this Court. This Court while, exercising jurisdiction under Article 199 of the Constitution, does not have any jurisdiction to disturb the 'concurrent findings' of the courts below unless and until, it are the result of 'mis-reading' and/or 'non-reading' of record/ evidence.
58. In view of all the above, I find no II 'infirmity' or illegality in the 'impugned Orders'/'concurrent findings' of the Courts below. The Constitutional Petition in hand, thus besides being devoid of 'any merits', is without any force.
Accordingly, the same is dismissed along with the pending application[s], if any, however, with no order as to costs.