' The petitioner has filed this constitutional petition to challenge the order of District Judge, Karachi, dated 18th July, 1981 whereby the learned Judge had accepted the appeal of respondent Mrs. Anjum A. Rab against the order of Additional Rent Controller, Karachi Cantonment in Rent Case No. 39 of 1979, dated 10th January, 1980. By her order dated 10th January, 1980 the learned Additional Rent Controller, Cantonment Karachi had dismissed the ejectment application of respondent of Mrs. Anjum A. Rab filed by her under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act). The property in question is a residential house bearing No. 36/B situated in 1st East Street, Defence Services Officers Co-operative Housing Society, Karachi. It was rented but by the landlady i.e. The respondent to the appellant by a lease agreement, dated 8-10- 1977 for a period of 18 months commencing from 12-10-1977 with the stipulation that "the period of tenancy may be extended for a further period on such terms and conditions as may be agreed upon by the lessor and the lessee after expiry of initial period of 18 months of the terms and this lease." It was further stipulated that the lessee (petitioner) will use the premises solely for residential purposes.
2. About the renewal of the lease it was stipulated as follows :- "That the lessee wishing renew the lease or vacate the demised premises should inform the lessor in writing at least two months in advance of the expiry of this Agreement. In case of renewal of this lessee, the lessee will pay full next twelve months' advance rent and hire charges."
' The lease was to expire, on 8-4-1979. During the pendency of the lease rent was enhanced from Rs. 2,500 to Rs. 4,000 per month, on 28-3-1979. The petitioner sent a cheque for Rs. 48,000 being advance rent from 10-4-1979 onward in puruance of the stipulation in the lease-agreement pertaining to extension of the lease. By her letter dated 31-3-1979 the respondent returned the cheque saying that she was not prepared to extend the lease because her husband Commodore Hamid Rab was proceeding on retirement from Pakistan Navy w. e. f. 30th April, 1979, and therefore, she requires the house for her and her husband's bona fide ttse. As the petitioner did not vacate the bungalow, hence the respondent landlady filed ejectment application on 12-5-1979 before the Additional Rent Controller, Cantonment, Karachi.
3. In his written statement the petitioner did not press his point regarding extension of the lease after April, 1979 in pursuance of the relevant clause of the agreement reference to which has been made above. In para. 3 of the ejectment application the respondent specifically stated that the lease had expired, on 8-4-1979 and that prior to its expiry she had informed the petitioner through notice that she required the bungalow for her personal use as her husband was due to retirement on 30-4-1979. In reply to this para. The petitioner stated in his written statement that after expiry of the period of lease (in April, 1979), her became statutory tenant and that the respondent was not entitled to eject him. In para. 6 of his written statement he further stated that she is living with her father in her father's house and as such she does not require the rented premises for her personal use. He admits in this---para. That her husband is residing in Government accommodation provided to him during his service in the Navy, but it is denied that her husband shall be required to vacate the Government premises after his retirement. It is not denied that the husband of the respondent was due to retire in April, 1980.
4. The learned Additional Rent Controller recorded evidence of the parties and came to the conclusion that the bona fide requirement was not proved by the respondent. This finding was based on some correspondence between her husband and one property agent regarding the sale of this bungalow before filing of the ejectment application. It was sought to be proved that the respondent wanted to sell this bungalow to one M. A. Qazi and Muhammad Asbraf and for this purpose the ejectment application had been filed so that more price could be extracted from the prospective purchaser of the bungalow.
5. Against the decision of the Rent Controller the respondent landlady filed appeal before the District Judge, Karachi who accepted the appeal, reversed the order of the Rent Controller and allowed the ejectment application of the respondent on the following grounds, namely :-
(i) It was proved that the respondent had been living in a rented house of her father and that her husband Commodore Hamid Rat was due to retire in April, 1980 ;
(ii) That it was not proved that respondent or her husband had any other alternate accommodation or house ;
(iii) That the fact that at some time the husband of the respondent had entered into correspondence with certain prospective purchaser before the filing of the ejectment application would not be a ground for holding that the requirement of the landlady was not bona fide. The landlady might have changed her mind for selling the rented premises in view of the impending retirement of her husband who would be required to vacate the official accommodation.
6. Learned counsel for the petitioner has urged that the rent application filed by the landlady was premature, that bona fide requirement was not proved and that the petition was barred by virtue of first proviso to section 17(4) of the Act. This proviso is as follows :- "Provided that where the tenancy is for a specified period agreed upon between the landlord and tenant, the landlord shall not be entitled to _pply under this subsection before expiry of such period."
' This plea is based on the basis of the letter of the petitioner, dated 20-3-1979, whereby a cheque for Rs. 48,000 was sent to the respondent as advance rent for 12 months in pursuance of the stipulation for extension of the lease for 12 months from 8-4-1979. His plea is that the lease shall be deemed to have been extended up to April, 1980. Hence the rent application which was filed in May, 1979 was liable to be dismissed as being premature.
7. So far as the last mentioned point is concerned, the contention of Mr. Akhter Mahmud learned counsel for the petitioner appears to be that the petitioner was entitled to extend the period of lease unilaterally simply by sending advance rent for the 12 months following the date of expiry of the lease. The contention runs counter to the stipulation in the lease agreement which has been reproduced above. The extension of lease was to take place by agreement of both the parties. The lease, further stipulated that the tenant had to intimate the landlady two months prior to the expiry of the lease about his intention to extend the lease. In the present case the petitioner acted unilaterally without obtaining any consent of the landlady for extension of the lease. Again he did not comply with the stipulation which required him to intimate the landlady two months prior to the expiry of the lease period regarding his intention to extend the lease. The original lease had expired, on 8-4-1979, whereas the letter for extension of lease with a cheque of Rs. 48,000 was sent by the petitioner, on 28th March, 1979 i.e. About 10 days before the expiry of the lease. These facts are not disputed. The letter whereby the cheque of the petitioner was returned to him by the respondent has been produced by the landlady in her evidence as Exh. P. W.
2. This latter is dated 31st March, 1979 and was addressed to the petitioner in reply to the latter's letter dated 28th March, 1979. The plea of the petitioner that the lease had been extended for a further period of 12 months has, therefore, been disproved by his own evidence. Moreover, in the written statement he does not state that the original lease for 18 months had been extended for a further period of 12 months in pursuance of the relevant clause of the lease agreement. On the contrary he states in para. 3 of his written statement as quoted above that after the expiry of original lease his status was that of a statutory tenant.
8. It is again contended that the respondent's husband was due to retire in April, 1980 whereas the ejectment application has been filed in May, 1979 and, therefore, it cannot be said that at the time of the filing of the ejectment application there was any bona fide requirement of the house. This plea is also untenable because the case was finally decided by the learned District Judge on 18-7- 1981 and the husband of the landlady had retired long before this date. Hence even if the petition was premature at the time when it was filed, but if it became mature during the pendency of the proceedings, the ejectment proceedings were not liable to be vitiated on the ground of being premature. In the case of Mst. Amino Begum and others V. Ghulam Dastagir (1), it has been held that where an ejectment case is filed before the expiry of statutory period under section 30 of the Displaced Persons Act of 1958, but if the period expires during ejectment proceedings, ejectment application shall not be liable to be dismissed on the technical ground of being premature. The same view has been taken in the case of Shaikh Muhammad Shafi and 2 others (2). The learned appellate Court was, therefore, justified in rejecting the plea of the petitioner that the ejectment application was premature.
9. Much emphasis has been laid by Mr. Akhter Mahmud on the plea that the landlady had no bona fide requirement of this house. In support of this plea he has referred to the evidence of the landlady Mrs. Anjum A. Rab, her husband Commodore Hamid A. Rab, D. W. S. Hassan Ahmed (the petitioner), Ahmed Khan Bhatti, the Estate and Property Dealer and come letters which were exchanged between Commodore Hamid A. Rab and the Estate Dealer regarding the sale of the rented premises. All this correspondence has taken place before filing of the ejectment application.
Th learned appellate Court had considered all this evidence and documents and came to the conclusion that this evidence did not disprove the bona fide requirement of the respondent and her husband because by the time of filing the ejectment application, they could have changed their mind due to impending retirement of Commodore Hamid A. Rah.
10. The question is whether the appellate Court finding of fact is sole perverse, whimsical, arbitrary or against the well-established principle of law {{FOOT NOTE}}
(1) PLD 1978 SC 220 (2) 1983 CLC 262 {{FOOT NOTE}} ' So as to call for interference by this Court in exercise of constitutional jurisdiction. It is possible that on the basis of the evidence a different conclusion could have been drawn but this would not be a reason for interfering with the finding of fact arrived at by the first appellate Court in exercise of the appellate powers. It may be remembered that this Court is hearing this petition in its constitutional jurisdiction and not as a second appellate Court. Hence the finding of fact of the first appellate Court, even if wrong, would not be liable to be interfered with in exercise of constitutional jurisdiction. In exercising such jurisdiction this Court has even more limited powers than also second appellate Court.
11. Reference in this connection may be made to the case of Habibur Rehman v. Bashir Ahmed and others (I) in which following observations were made :- "We have been noticing, of late, that notwithstanding the fact that the Legislature, in its wisdom, has abolished the second appeal in cases under the West Pakistan Urban Rent Restriction Ordinance and has made the orders of the District Judge as final, yet the parties, probably after obtaining legal advice, have taken to filing writ petitions in the High Court against the final order passed by the appellate Court, merely to take another chance or to delay their eviction, hoping that the matter shall take considerable time to be disposed of or that in any case the High Court while dismissing their writ petition may be pursuaded to allow further time for vacating the premises in question. The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judge of the High Court take great pains to re- appraise the evidence' and to consider each and every contention raised by the petitioner's side before deciding the petition without realising that more often than not, such petitions are merely a device to circumvent the amendment in the law and defeat the obvious intention of the Legislature, namely, a speedy determination of cases under the Urban Rent Restriction Ordinance.
Such frivolous applications not only cause the poor litigants to incur unnecessary expenditure but also result in the waste of valuable public time and should, therefore, be discouraged by the High Court. It has been repeatedly held that a tribunal having jurisdiction to decide the matter is competent to decide it rightly or wrongly and the mere fact that another conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction."
' Although the above observations were made in connection with an ejectment case under the West Pakistan Urban Rent Restriction Ordinance of 1959, but the ratio of the decision shall also apply to ejectment cases under the Cantonments Rent Restriction Act in which also there is no provision for second appeal. In the case of Muhammad Hussain Munk and others v. Sikandar and others (2) it was held that- "it is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case it would make the High Court's jurisdiction in distinguishable from that exercisable in a {{FOOT NOTE}}
(1) PLD 1981 SC 243 (2) PLD 1974 SC 139 {{FOOT NOTE}} ' fullfledged appeal, which plainly is not the intention of the Constitution-makers."
' In the case of Nawaza v. The Additional Settlement and Rehabilitation Commissioner, Gujrat and another (1) the Supreme Court observed as under :- "The High Court, in the exercise of its writ jurisdiction, in a case like this, does not act as a Court of facts and ought not to enter into and decide disputed questions of fact, although it can interfere with a finding of fact given by a subordinate Court or a tribunal or other authority if the finding is based on no evidence or is based on a complete misreading of the evidence. In the present case, the learned Single Judge himself decided certain questions of fact which the Rehabilitation Authorities had no occasion to determine. In this circumstance, the judgment and order of the learned Judge are plainly wrong inasmuch as he exceeded the writ jurisdiction available to the High Court and usurped the functions of the Rehabilitation Authorities. The judgment of the Letters Patent Bench which affirmed the decision of the learned Single Judge is, therefore, equally bad in law."
' In the case of Javed Manzoor and another v. Member (Revenue), Board of Revenue, Punjab and others (2), it was held by the Supreme Court that "Writ petitions are meant for ensuring that excess of jurisdiction be corrected and not for interfering with the exercise of discretion of Courts which have the jurisdiction for it."
' In the case of Madan Gopal and 4 others v. Moran Bepari and 3 others (3), it has been observed that concurrent findings of civil Courts on points of facts should not be interfered with and that this ,ule shall also apply to such findings of facts which are not concurrent. The relevant observations of the Honourable Supreme Court may be reproduced hereunder with advantage which are as follows :- "The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as bid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in.The decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has failed to determine some material issue of law or usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it, would not possess that same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative {{FOOT NOTE}}
(I) PLD 1970 SC 39 (2) 1981 SCM R 117
(3) PLD 1969 SC 617 {{FOOT NOTE}} ' merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial-Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
' I am, therefore, satisfied that the finding of fact arrived at by the learned District Judge about the bona fide requirement is neither perverse nor arbitrary nor in violation of established principles of law nor does it suffers from any jurisdictional defect and as such is not liable to be interfered with in view of the pronouncements of the Courts in this behalf referred to above.
' The petition is, therefore, dismissed with no order as to costs.