SHAMSUDDIN ABBASI, J. Through Constitution Petition No. S-189 of 2023, the petitioner impugns judgment dated 31.01.2024, penned down by the learned Additional District Judge-X, Karachi (South), in First Rent Appeal No.229 of 2022, filed by the respondent No.1, whereby order dismissing the ejectment application, handed down by the learned Rent Controller-II, Karachi (South) on 09.09.2022 in Rent Case No. 246 of 2019, filed by the Respondent No.1 was set-aside. Directing the petitioner to vacate the demised premises and hand over its vacant and peaceful possession to the Respondent No.1 within a period of thirty (30) days from the date of the judgment.
2. Ejectment application under Section 15(2) of the Sindh Rented Premises Ordinance, 1979 (the "Ordinance") was filed by the respondent No.1 Lakhmichand Wadhwani through his legal heirs against petitioner seeking his eviction from Shop No.8, measuring 560 square feet, located on ground floor, Falcon Terrace on Plot No. COM-2/A, Block No.4, Clifton, Karachi (hereinafter referred to as the "demised premises) on the 'ground of willful default in the payment of rent since November, 2017 and personal bonafide need. The petitioner appeared and filed his written statement denying the relationship of landlord and tenant between the parties and pleaded that he (petitioner) and the respondent No.1 are partners at the ration of 30% and 70% respectively in the business running in the name of VGP Estate in the demised premises whereas no tenancy agreement ever executed between the parties as such the said business was being run by him with one Ghulam Hussain, father of Vendor of the demised premises since 1994, and that respondent No.1 never informed him about change of ownership and the cheques that have been issued by him relate to partnership business and not towards rent and that the ejectment application, filed by the Respondent No. 1, is result of dispute over partnership business, and the same is not maintainable.
3. Parties led their evidence. The learned Rent Controller, after assessing the evidence and hearing the parties respective counsel dismissed the ejectment application vide order dated 09.09.2022 observing that no relationship of landlord and tenant existed between the parties, The respondent No.1 preferred First Rent Appeal No.229 of 2022 and the learned Appellate Court vide its judgment dated 31.01.2023, while setting-aside the order of the learned Rent Controller, allowed First Rent Appeal, ordering eviction of the petitioner as detailed in para-I (supra) and aggrieved of the decision of the learned Appellate Court, the petitioner has filed this petition.
4. The learned counsel appearing on behalf of the petitioner has mainly argued that the impugned judgment passed by the learned Appellate Court is illegal, without any lawful authority and beyond jurisdiction. It is next submitted that there was no relationship of landlord and tenant between the parties, however, the learned Appellate Court while deciding the issue of existence of relationship in affirmative, ought to have remanded the matter to the learned Rent Controller instead of deciding the rent application at his own. It is also submitted that demised premises was in occupation of the petitioner as a partner and this fact has been affirmed the concerned/officer of FBR, who appeared as Court witness and deposed that the petitioner never shown demised premises as rented shop in his returns for the period from 2015 to 2021. The petitioner has spent huge amount on the renovation of demised premises, which finds support the case of the petitioner 'that demised premises was not a rented shop otherwise he would not invested a big amount, but this fact too was not considered by the learned Appellate Court. Per learned counsel, no notice under Section 18 of the Ordinance was neither issued by the legal heirs of respondent No.1 nor served on the petitioner. The learned counsel while emphasizing his submissions has submitted that the Judge of the learned Appellate Court has passed the impugned order without appreciating the evidence in line with the facts and circumstances of the case as well as applicable law, hence the same is bad in law and facts and liable to be set-aside and prayed for setting aside the judgment passed by the learned Appellate Court and dismissal of ejectment application, filed by the respondent No. 1, as ordered by the learned Rent Controller.
5. On the other hand, the learned counsel for the Respondent No.1 while controverting the submissions of learned counsel for the petitioner has submitted that the Respondent No.1 initiated legal proceedings against the petitioner, but the learned Rent Controller, without appreciating the evidence in line with the peculiar facts and circumstances of the case as well as applicable law, dismissed the same whereas the learned Appellate Court has rightly decided the issue of relationship of landlord and ordered eviction of the petitioner on the grounds of willful default and personal bonafide need, which is based on fair evaluation of evidence and documents brought on record and no illegality or material irregularity has been pointed out by the learned counsel for the petitioner in the judgment of learned Appellate Court calling for interference.
6. The learned AAG while supporting the impugned judgment of the learned Appellate Court being well-reasoned has adopted the same arguments as advanced by the learned counsel for the respondent No.1 and submitted that the petitioner has failed to make out a case for interference.
7. I have given my anxious consideration to the submissions of respective sides and perused the entire material available on record with their able assistance.
8. Relationship of landlord and tenant between the parties has been denied. Before proceeding further, it would be appropriate to look in the background of the matter. Along with ejectment application, the Respondent No. 1 filed an application under Section 16(1) of the Ordinance seeking directions to the petitioner to deposit arrears of rent as well as future monthly rent, which was allowed vide tentative rent order dated 04.11.2019 and since the petitioner failed to comply the tentative rent order, the Respondent No.1 filed an application under Section 16(2) of the Ordinance, which too was allowed vide order dated 23.11.2020, whereby the defence of the petitioner was struck off and he was ordered to be evicted from the demised premises. Against the order of the learned Rent Controller, the petitioner filed First Rent Appeal No.177 of 2020, which was dismissed vide order dated 22.01.2021 and impugning the order of the learned Rent Controller as well as learned Appellate Court, the petitioner filed C.P. No.S-76 of 2021 and this Court vide its order dated 22.04.2021, with the consent of the parties and subject to furnishing bank guarantee to the extent of 50% of the amount claimed by the Respondent No. 1 viz Rs. 1.7 Million, while setting aside both the orders of the two Courts below, remanded the matter to the learned Rent Controller with direction to decide tentative rent application afresh after framing an issue of existence of relationship of landlord and tenant between the parties and providing an opportunity to the parties to record their issues on that issue. Relevant excerpt of the said order is reproduced below:- "Accordingly, by consent the petition is allowed, the orders passed by the two courts below are set aside and the case is remanded to the Rent Controller with direction to frame an issue i.e., whether there exists relationship of landlord and tenant between petitioner and respondent No.1 and allow parties to record evidence in three weeks' time and decide the issue soon thereafter without wastage of time. The decision on that issue shall then decide application for tentative rent order and further proceedings.. It may however be clarified that in case the bank warrant is not furnished within stipulated time, as directed above, the defense shall then be deemed to be struck off and the executing Court will be at liberty to proceed with the execution application. Petition stands allowed in the above 'terms."
9. In compliance of the directions of this Court, the Rent Controller framed an issue of relationship of landlord and tenant and recorded evidence of both sides as well as one Shams Sadaruddin Almani, Inspector IR, Zone-II, RTO-I, Karachi, who appeared as Court witness on the application under Section 20 of the Ordinance, who produced Authority Letter, Computer Generated Tax Payer Registration Profile of petitioner and his tax returns from 2016 to 2021. The Rent Controller, after assessing the evidence and hearing the parties' respective counsel, while dismissing the applications under Sections 16(1) and 16(2) of the Ordinance also dismissed the main ejectment application holding that the Respondent No. 1 has failed to prove the point of relationship of landlord and tenant between the parties.
10. Findings recorded by the learned Rent Controller have been reversed by the learned Appellate Court through its judgment dated 31.01.2023, which is well-reasoned, based on fair evaluation of evidence and documents brought on record and application of conscious judicial mind. Relevant extract of the said judgment is reproduced below:- "20. He took specific plea that he was not given notice of change of ownership according to Section 18 if the Sindh Rented Premises Ordinance, 1979. According to definition of section 18 (supra) that whenever owner is changed then tenant is to be informed about the change of ownership by giving notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 by the new owner, within the period of 30 days, but there was no need for sending notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 to Nanik Ram Jeswani because, he himself had signed on the original conveyance deed for transfer and change of ownership from previous owner namely Siraj in favour of present owner Lakhmichand Wadhwani. Furthermore, the honorable Sindh High Court had held in 2004 CLC 289, 1990 MLD 2300 and 1990 MLD 2350 that the notice issued by the Rent Controller on filing of rent application by fresh landlord will come in the shape of notice under section 18 of Sindh Rented Premises Ordinance, 1979, therefore, the version of Nanik Ram Jeswani is immaterial and within support of documentary evidence........
23. Nanik Ram Jesurani took categorical plea that he had been enjoying the premises by denying relationship of land and tenant by taking specific plea that he has been enjoying possession in the capacity of business partner but Honorable Supreme Court in reported case of Abdul Rasheed v. Maqbool Ahmed and other published in 2011 SCMR 320 had held that tenant in such circumstances had to vacate the premises and file suit for specific performance of contract agreement, where after he would be given easy excess to premises in case he prevailed. I am further fortified by the dictum laid down in PLD 2014 Supreme Court 347 where the Honourable Apex Court in one same sort and kind of case on the basis of denial of relationship of landlord and tenant and by committing default had held that whenever tenant put up a plea in an ejectment application that he had purchased the property then he had to file a suit for his remedies and vacate the premises and thereafter if he succeeded, he would be entitled to take possession of the premises again........
26. The negative conduct of Nanik Ram Jeswani and orders passed by rent controller, first appellate authority and Honorable High court all specifically, lucidly and categorically denote that all these three forums had directed Nanik Ram for depositing the rent before the rent Controller but Nanik Ram Jeswani did not obey and follow the orders. When his defence was struck off then once again he sought the indulgence of Honorable High Court and after seeking direction from Honorable High Court he deposited the amount before this court. The rent application, affidavit in evidence, all orders passed by competent forums and conduct of Nanik Ram Jeswani speak volumes that he had committed willful, deliberate, contumacious default in payment of the rent.
33. In view of above discussion and reasons it is held that order passed by the Rent Controller Karachi South dated 09.9.2022, requires interference and findings given by Rent Controller/him are result of misreading of the evidence and contrary to the principle and dictum laid down and settled by the Honorable Apex Court and High Courts of Pakistan and Sindh, respectively as mentioned above, therefore same stands set aside and it is held that relationship of landlord and tenant exists among them and his legal heirs and Nanik Ram Jeswani, Nanik Ram Jeswani had committed willful, deliberate and contumacious default in the payment of rent of the rented premises, with effect from November 2017 till 31.1.2023, hence point No.1 and 2 stand replied as mentioned above...
34 ........... Dr. Muneel Kumar was examined and he was cross examined by the other party but he could not be shaken in the cross-examination and genuineness ground of personal need remained established. As once landlord comes in the witness box and deposes on oath or solemn affirmation that the rented premises is required for personal bona fide need and he is jobless then the rent controller has no power and authority to look behind the wisdom of the landlord. The rent controller has to see whether the rent application was filed just for increasing exorbitant rent or there is no truthfulness in bona fide personal need of landlord about rented premises. But in the present rent application there is no categorical plea that prior to present rent application already Lakhmichand had filed rent application wherein after increase of rent that rent application had been withdrawn by Lakhmichand Wadhwani or Wadhwani had also other properties and maliciously landlord/he wanted ejectment of the tenant but here no other property of landlord is shown by Nanik Ram Jeswani, hence there is no mala fide on the part of appellant/landlords.
36. In view of above discussion and reasons on Points Nos. 1 to 3 appeal stands allowed as prayed and thereby the impugned order dated 09.09.2022 passed in Rent Case No. 246 of 2019 stands set aside. Resultantly, ejectment application (Rent Case No. 246 of 2019) deem to have been allowed.
Resultantly, the respondent No. 1/tenant/opponent Nanik Ram Jeswani is hereby directed to vacate and handover the vacant and peaceful possession of rented premises to applicants/landlords within (30) thirty days from today without fail. The pending application under Order 21(2) read with Section 16(1) of SRPO, 1979 also stand disposed of being infructuous. Let copy of this judgment together with R and Ps in main rent case be sent to learned find Rent Controller.
Karachi South,"
11. Reviewing the findings, one put forward by the learned Rent Controller and the other set-forth by the learned Appellate Court, the findings recorded by the learned Appellate Court are found more convincing and outcome of fair evaluation of evidence and other material brought on record while the findings recorded by the learned Rent Controller appear to be based on misreading and non- reading of evidence and without application of conscious judicial mind. Pertinent to note that in like cases the owner/landlord would only require to establish that tenant has committed willful default in the payment of rent or that the rented premises is required by him for his personal bonafide need. In such eventuality, the initial burden would stand discharged when a representative or an authorized person on behalf of landlord, having stepped into witness box, reiterated on oath the reasonableness for his valid authorization to seek evidence of tenant on personal bonafide need as well as commission of default. This would carry presumption of truth, hence strong evidence would be required from tenant to rebut such evidence. The petitioner though asserted that he is not tenant of the respondent No.1 and enjoying the premises in the capacity of partner, but failed to place on record any evidence or any other material that may prove that his plea. On the other hand, sufficient material has been placed on record on behalf of the Respondent No. 1 on the point of existence of relationship of landlord and tenant, commission of default and personal bonafide need. In such a backdrop, I am of the view that the findings recorded by the learned Appellate Court are in accordance with law and outcome of fair evaluation of evidence and documents brought on record. 1 am also cognizant of the-fact that in case of conflicting decisions, the Appellate Court's findings should be given weight and respect unless it is clear from the record that such findings are not evidence-based and are materially illegal. Reliance in this behalf may well be made to the case of Rao Abdul Rehman (Deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others (2023 SCMR 815), wherein the Hon'ble Supreme Court has held as follows:- "12. In the case of Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1), the Court held that in case of inconsistency between the Trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary as has been held by this Court in the judgments reported, as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs, and others (2013 SCMR 1300)."
12. As to the contention that the learned Appellant Court while arriving at a conclusion of existence of relationship of landlord and tenant ought to have remanded the matter to the learned Rent Controller for decision afresh instead of deciding the rent application at its own. At this juncture, it would be appropriate to reproduce Order XLI Rule 24, C.P.C., which reads as under:- "Order XLI, Rule 24, C.P.C. Where evidence on the record is sufficient, the Appellate Court may determine case finally,- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
13. An Appellate Court while deciding a matter if found fit may decide the case on merits without remanding the case to the trial Court. The remanding of case caused prolongation of the agony of the parties. The purpose of above referred rule is to minimize hardships of litigants and unnecessary delay in disposal of cases. Reliance in this behalf may well be made to the case of Ashiq Ali v. Mst. Zamir Fatima (PLD 2004 SC 10), wherein it has been held as follows:- "7. We have also adverted to the contention as agitated on behalf of petitioner that the case should have been remanded which appears to be fallacious one as only those cases should have been remanded which could not be decided on the basis of available record as it would be in the interest of justice. We are of the firm view that if a controversy can be resolved on the basis of available evidence then the question of its remand I does not arise. It is well settled by now that where the evidence on record is sufficient for the Court concerned do decide the matter, itself, remand should not be ordered and moreso, a Court will not remand a case where the defect is due to the negligence and the default of the party desiring remand. In the case in hand the petitioners could have very conveniently taken appropriate steps to get the ex pane order set aside which was never done. In this regard we are fortified by the dictum as laid down in Pramatha Nath Chowdhury v. Kamir Mondal (PLD 1965 SC 434), Muhammad Saghir Bhatti v.
Federation of Pakistan (PLD 1958 SC (Pak) 221)."
14. In view of the analysis and. combined study of the entire material available before me, I am of the view that the learned Appellate Court has rightly allowed ejectment application ordering eviction of the petitioner from the demised premises whereas the learned Rent Controller through its order has wrongly dismissed the ejectment application, based on surmises and conjectures, which is liable to be set aside. Consequently, the order, impugned herein, passed by the learned Appellate Court is upheld arid that of the learned Rent Controller is set-aside. Resultantly, this Const. Petition No.S-189 of 2023 is bereft of any merit stand dismissed along with all pending applications, however, with no order as to costs.
15. In sequel to the above, the application under Section 151, C.P.C. (C.M.A. No. 5504 of 2022), filed in C.P. No. S-76 of 2021, (disposed of matter) is dismissed as being devoid of any merit.