1. ' In the instant petition it is sought to challenge the judgment dated 3-11-1981 passed in Rent Appeal No,155 of 1979 whereby learned District Judge accepting the appeal and setting aside the impugned order of the Additional Rent Controller Karachi Cantonment.
2. ' The brief facts of the case are as follows:- ' The petitioner is tenant of the respondents Nos.2 and 3 in respect of shop premises on Plot No,61-C Commercial Area No, "A" Defence Housing Authority, Karachi at the monthly rent of Rs,600 since December, 1972. The respondents Nos. 2 and 3 filed an application for his ejectment in the Court of Additional Rent Controller Karachi Cantonment on. 27-2-1976. This was registered as Case No,18 of 1976. The respondents 2 and 3 sought eviction of the petitioner on the grounds that (1) he has not tendered or paid rents and is a willful defaulter in the payment of rents from 1-1-1975 onwards upto the date of the filing of the said application, (2) the petitioner in breach of the conditions of the tenancy has effected major structural changes in the shop premises without the prior approval or permission of the respondents 2 and 3 and has otherwise damaged the premises under his occupation and has materially reduced the value of the property and has lowered its utility value in that at the time of bringing about structural changes he has damaged the property removed the teak doors and is tempering with the structural value and (3) the respondents 2 and 3 need the premises for their own bona fide use and requirements in good faith.
3. ' The petitioner filed his written statement and denied the allegations made in the ejectment application. He stated in the written statement that he has always paid and tendered rent in time and was liable to pay rent for the year 1975 on or before 30th of December, 1975. The petitioner also denied that the respondents 2 and 3 need the premises for their own bona fide use and requirements in good faith.
4. ' Out of the pleading of the parties the trial Court framed the following four issues:- "(1) Whether the opponent is defaulter in the matter and payment of rent?"
(2) Whether the applicants need premises for their own bona fide use and requirements in good faith?
(3) Whether the opponent has brought about unauthorized alteration and impaired the value of the building?
(4) What should the decree be?"
5. ' In the trial Court, on the side of the respondents 2 and 3, their father Saeed Akhtar was examined and on the side of the petitioner he examined himself and his witnesses Ahmed Hasan, Hmani Noorullah and Abdul Rauf.
6. ' The learned trial Court after recording of the evidence of the parties and after hearing arguments of the learned counsel for the parties dismissed the ejectment application by order dated 1-3-1979.
7. ' The respondents Nos.2 and 3 being aggrieved against the order dated 1-3-1979 of the learned Additional Rent Controller, Karachi Cantonment have preferred an Appeal No,155 of 1979 before the District Judge, Karachi on the grounds mentioned in the Memo of Appeal.
8. ' The learned District Judge, after hearing the arguments of the learned counsel for the parties allowed the appeal of the respondents Nos.2 and 3 by judgment dated 3-11-1981. The petitioner in the instant petition seeks to challenge the impugned judgment dated 3-11-1981 as illegal.
9. ' Mr. Khalid M. Ishaq the learned counsel for the petitioner has raised the following contentions:-
(1) That the petitioner is not a defaulter.
(2) That the respondents Nos.2 and 3 has contended that the petitioner has committed wilful default, the respondents Nos. 2 and 3 have not proved bona fide requirement.
(3) That the learned District Judge has misconstrued document Exh.P.W.2 and also misread the evidence.
10. ' On the other hand Mr.Muhammad Ali Sayeed the learned counsel for the respondents Nos.2 and 3 has contended that the petitioner has committed wilful default, the respondents Nos. 2 and 3 have proved bona fide requirement and the learned District Judge has not misconstrued the document Exh.P.W.2 and also has not misread the evidence.
11. ' I have carefully considered the aboVe submissions made by the learned counsel for the parties before me and have gone through the pleadings and depositions of the parties annexed to this petition. I have also gone through the cases cited by the learned counsel before me as well as through the impugned order and judgment.
12. ' Admittedly, this is a constitutional petition and not a Second Appeal, and consequently the impugned judgment of the learned District Judge can only be attacked on limited grounds unlike Second Appeal where the scope of such attack is wider.
13. ' The learned counsel for the petitioner has contended that the payment of the rent was not made to respondents 2 and 3 because they and their mother were not available in the country and in such circumstances the petitioner could postpone the payment of rent and the default on the part of the petitioner was not intentional. It was also contended that the petitioner tried to pay the rent to the father of the respondents 2 and 3 but he refused to take it. The respondents Nos.2 and 3 filed ejectment application on 27-2-1976. It was stated therein that the petitioner had not tendered or paid rents and is a wilful defaulter in the payment of rents from 1-1-1975. The petitioner denied the contents of para. 3 of the ejectment application and averred therein that he had always paid and tendered rent in time and was liable to pay rent for the year 1975 on or before the 30th September, 1975. The father and attorney of the respondents Nos.2 and 3 was examined as P.W.No,1 and stated that the petitioner committed breach of the terms and conditions made in agreement of tenancy dated 1-1-1973 P.W..Exh.2. At the time of filing of the ejectment application, the petitioner was in arrears of rent from 1-1-1975. Prior to this also, he had defaulted in the payment of rent from 1-1-1974 to 31-1-1974. To a suggestion in cross-examination the P.W. stated that it is correct that he would not accept the rent on the expiry of the agreement. To a suggestion in cross-examination P.W. stated that it is not correct that he has been pressing the petitioner to revise the rent of the disputed shop. The petitioner has stated on oath that on 7-4-1976 he paid rent from January 1975 to April, 1976 in the Court of the Rent Controller vide Receipt No, 3017. The petitioner stated that he used to meet, Saeed Akhtar once or twice a month in the year, 1975 and during the period he tried to pay him the rents and the said Saeed Akhtar said that it is family affairs and that when MRs,Akhtar will come back she will receive the rent. He did not send the petitioner any letter or registered notice after September, 1975 in this behalf. He further stated in his examination-in-chief that the reason for not sending this notice was because his Rs,1,800 were held, in deposit and it was considered a family affairs as they were meeting occasionally. The petitioner in his cross- examination has stated as follows:- "I see clause (5) of the Agreement and it has been mentioned that the rent will be paid in advance.
14. I went to Mr.Saeed Akhtar ten times to pay the rent. I do not remember the dates. The applicant's father did not say that the tenancy agreement has expired so he will not receive the rent. 'After she left I approached Mr.Saeed Akhtar for collecting rent. He refused to accept the rent on the ground that the agreement had already expired and that MRs,Jamila Akhtar was not in the country so let her come and we would decide future terms of agreement.' It is correct, I said foregoing in my examination-in-chief. It is correct that I approached Mr. Saeed Akhtar when tenancy agreement was expired. The tenancy agreement was expired on 31-12-1975. I do not remember the date since when I started depositing the rent in the Court."
15. ' It is clear from the record that the petitioner had failed to pay rent from 1-1-1975 to 2-5-1976. The explanation which the petitioner has given for non-payment of rent is that the mother of the respondents 2 and 3 had entered into the agreement of rent on behalf of respondents 2 and 3 who used to receive the rent, was out of the country and as such he could not pay or tender the rent.
16. The petitioner in his written statement has admitted that mother of the respondents 2 and 3 has told him to pay rent to her or to her husband and it is admitted by the petitioner that Saeed Akhtar, the father of the respondents Nos.2 and 3, was available in Karachi and he used to meet him off and on. It is also the case of the petitioner that the rent of the previous year was paid by him to Saeed Akhtar and he had produced such receipt and therefore, the petitioner could have paid the rent to Saeed Ahhtar. The learned District Judge held that "It is also clear from the evidence of the petitioner that he tried to offer the rent after the expiry of the agreement. It is clear that the petitioner had already committed default".
17. ' The learned District Judge held that according to tenancy agreement the rent was to be paid in advance every year. The respon dents have produced the original rent agreement and according to clause 5 the rent of the year was payable in advance on or before 30-9-1974 but the case of the petitioner is that the rent of 1975 was payable in advance but it was to be paid on or before 30-9- 1975. The learned District Judge held that rent of the year was to be paid in advance by 30th September of the previous year. He further held that admittedly the rent was to be paid in advance which means the rent was to be paid before the period in question had started and therefore, the year started and not after the expiry of nine months of the year. The learned District Judge held that the petitioner committed wilful default in payment of rent to the respondents 2 and 3. I am, therefore, satisfied that findings of fact arrived at by the learned District Judge about wilful default is neither perverse nor arbitrary nor in violation of established principle of law nor does it suffer from any defect to hold that the conclusion arrived by respondent No,1 that the advance rent was to be paid in advance by 30th September of the previous year seems to be inconsonance with the terms of the tenancy agreement.
18. ' I am of the view that the word "Advance" means literally a pay ment before hand, that is, for the year 1975 the payment was to be paid in advance and not after the expiry of nine months, that is, on or before 30-9-1975 as contended by the learned counsel for the petitioner.
19. ' The learned counsel for the petitioner has contended that the respondents 2 and 3 did not prove bona fide requirement. The father and attorney of the respondent appeared in the witnesses-box and stated that his wife and the respondents 2 and 3 are proprietors of the firm known as "Ektar and Ektar" which is registered with K.D.A. and taxation authorities. He stated that respondent No, 2 is interior decorator and respondent No,3 is complete Engineer and the shop in question is required for their buisness and they do not know any other shop in Karachi. The case of the petitioner is that the respondents 2 and 3 were interested to enhance the rent or to sell the property. The petitioner examined Mr.Abdul Rauf an Advocate of the respondents 2 and 3 and Ahmad Hussan who is a contractor. The deposition of these two witnesses show that Saeed Akhtar the father and attorney of the respondents and the petitioner had negotiated for the sale of the disputed shop but the negotiations were not materialized. The learned counsel for the petitioner has contended that the daughter and son are not in Pakistan and they have gone to Canada and they have not yet qualified interior decorator and computer Engineer. It is pertinent to note that the father and attorney of the respondent No,2 has stated that they are taking short courses in decoration and computer Engineering respectively and the duration of courses arc for three or four months. The contention of the learned counsel for the petitioner has no force as Saeed Akhtar never stated that they are not qualified interior computer engineer. In the case of Fazal Azim and others v. Tariq Muhammad and others PLD 1982 SC 218 at 219 the Hon'ble Supreme Court held:- "The admitted fact that respondent No, 1 went abroad cannot by itself be considered as showing lac of bona fides. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time during the pendency of eviction pro ceedings. If during such a period he employs himself in a gainful occupation that as a general proposition, would not negate the assertion of bona fide on his part. In this case, the learned Courts below it seems misinterpreted the law, when raising a presumption in this behalf, against the landlord."
20. ' The observation of the Hon'ble Supreme Court are applicable to the facts of the instant case as the respondents Nos.2 and 3 have gone abroad for the purpose of short courses.
21. ' It is well-settled legal position that assertion of the landlord on oath as to requirement of the shop for their personal use have to be accepted as bona fide if consistent with their averments in their application and not shaken in cross-examination or disproved in rebuttal.
22. ' I am, therefore, satisfied that the finding of fact arrived at by the learned District Judge above bona fide requirement is neither perverse nor arbitrary nor in violation of established principles of law.
23. ' The question, therefore, which arises for consideration is as to whether the impugned judgment passed by the respondent No,1 is without jurisdiction, lawful authority or to set aside judgment. It is not denied that the respondent No,1 has got exclusive jurisdiction to decide appeals against the orders of the Rent Controller Cantonment. In the instant case an appeal was preferred by the respondents Nos.2 and 3 against the order of dismissal of ejectment application filed by them.
24. ' As held in the case of Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 the expression in Article 199 (1)(a)(ii) of the Constitution of Petition being without lawful authority and of no legal effect is an expression of art and refers to the juris dictional defects and distinguished from mere erroneous decisions whether on questions of facts or even of law. The High Court in exercise of its extraordinary jurisdiction is only concerned whether the learned District Judge had acted within its jurisdiction and if a Court having jurisdiction to decide a matter has decided the same wrongly or incorrectly that will not render such judgment as without lawful authority. I am of the view that this Court will not interfere with the impugned judgment merely because in its opinion the judgment is wrong as in that case it would make this Court's jurisdiction undistinguishable from that A exercisable in a full-fledged appeal which plainly is not the intention of the constitution makers, Similarly in the case of Rahim Shah v. The Chief Election Commission of Pakistan and others PLD 1973 SC 24. It has been held that although the conditions for grant of writs which obtained in the English Court did not apply to High Court of Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. The scope of interference by the High Court is, therefore, limited to the inquiry whether the District Judge has in deciding the appeal acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the finding recorded by the respondent No,l.
25. ' I cannot substitute my opinion as against the opinion formed by the Appellate Court, that is, the respondent No,l. The findings cannot be interfered with in writ jurisdiction. The judgment is based on cogent reasons and does not suffer from any legal infirmity.
26. ' In view of the above, the writ petition fails and is hereby dismissed. However, in the circumstances of the case, there shall be no order as to costs.