1. ' SYED HAIDER ALI PIRZADA, J.---This Constitutional Petition is directed against the order dated 17-7- 1988 passed by the respondent No. 1, whereby the application filed by the petitioner was rejected and refusing to frame preliminary issue about relationship of landlord and tenant between the parties.
2. ' The facts leading to the filing of the above petition are that the petitioner is tenant in respect of Shop No. K/12, Block No. 1, Serial No. 257, Shah Faisal Colony, Karachi at monthly rental of Rs, 200 per month vide tenancy agreement dated 30-11-1984 executed between the petitioner and one Zamir Baig son of Aziz Baig and said tenancy agreement was duly attested by Magistrate First Class on 3- 12-1984. The case, as set out in the petition, is that on 25-1-1986 the said Zamir Baig filed eviction application bearing Rent Case No. 7/86 against the petitioner on the grounds of default and personal requirement. He also filed the above-referred tenancy agreement alongwith eviction ejectment application. On 20-2-1986 the petitioner filed his written statement whereby resisting the eviction application filed by Zamir Baig. In the month of May, 1986 the said Zamir Baig filed his affidavit in evidence alongwith affidavit-in-evidence of respondent No.
2. It seems that the eviction application filed by Zamir Baig was dismissed vide order dated 29-11- 1987, and thereafter Zamir Baig did not file any First Rent Appeal in this Court, as such impugned order became final. It is further case of the petitioner that after final disposal of Rent Case No. 70 of 1986 on 29-11-1987 the respondent No. 2 filed ejectment application being R.C.No. 2/88 claiming himself and showing to be the owner and landlord of the petitioner in respect of the said disputed premises. The petitioner contested the application by filing the written statement on 9-3-1988. A preliminary objection was raised therein challenging the jurisdiction of the Controller. He pleaded in the written statement that there existed no relationship of landlord and tenant between the petitioner and respondent No.
2. Thereafter respondent No.2 filed his affidavit-in-evidence and as such the case reached the stage of evidence (i.e. cross-examination of respondent No.2).
3. ' The petitioner filed an application dated 7-7-1987 for framing the preliminary issue on the question of jurisdiction and relationship. The respondent No. 1, after hearing the learned counsel for the parties, dismissed the same vide his order dated 17-7-1988 and refused to frame preliminary issue. The petitioner being aggrieved has filed present petition. In support of petition, Mr. Manohar Lal appearing for the petitioner raised the following contentions:--
(1) That the impugned order is not based on the principles of law and justice and therefore it is illegal, null and void and ultra vires as the same has been passed without jurisdiction and in excess of jurisdiction.
(2) The eviction application filed by respondent No. 2 is hit by the principles of res judicata and as such it cannot be reagitated again in different form or with different name.
4. ' On the other hand, Mr. Khajumal D. Ladhor learned counsel appearing for respondent No. 2, supported the impugned order. Learned counsel for respondent No. 2 submitted that the eviction application was allowed and the petitioner has preferred First Rent Appeal in this Court which is still pending herein.
5. ' We have considered the contentions raised by the learned counsel for the parties. We have perused the impugned order and have gone through the documents available on the record.
6. ' It is not in dispute that Zamir Baig son of the respondent No.2 had filed eviction application being Rent Case No. 70 of 1986 before the IVth Senior Civil Judge, Rent Controller. Karachi East on two grounds namely default in payment of rent for the month of July, 1985 and personal requirement.
7. The petitioner contested the eviction application and controverted the allegation of default and personal requirement. It is also not in dispute that the said Zamir Baig filed his own affidavit-in- evidence in support of the eviction application besides affidavit-in-evidence of his father Aziz Baig, the present respondent No. 2 in the above petition. The petitioner filed affidavit-in-evidence of Gul Muhammad son of Khalilur Rehman. They were cross-examined by the respective counsel of the parties.
8. ' The Controller, on assessm ent of the evidence, adduced by the parties and after taking into consideration the arguments of the learned counsel decided point No. 1 in the negative. The Controller came to the conclusion that the default was not established.
9. ' The Controller found that Zamir Baig pleaded in his eviction application that he is landlord of the shop in question which is owned by his father Aziz Baig and Zamir Baig is duly constituted attorney of his father. Aziz Baig also filed affidavit-in-evidence wherein he stated that his son Zamir Baig is his attorney in respect of the shop in question. He further stated that the "applicant has acquired complete training of repairing of refrigerators, air-conditioners, washing machines etc. and the demised premises is bona fide required by him to establish his own business". It is advantageous to reproduce the relevant portion from the order dated 29-11 1987 which is as follows:--- "He has further stated that the applicant has acquired complete training of repairing of refrigerators,, air-conditioners, washing machine etc. and the demised premises is bona fidely required by him to establish his own business. He has also stated that till recently he was employed abroad and has returned, from abroad after the institution of this case and thus he is jobless and without earning and it has become more serious for the applicant to get the demised premises vacated to establish his own business to earn the livelihood for himself and other family members and also to provide some job to the applicant. It is evident from, the statement of Aziz Baig the applicant's father that he was employed abroad and has returned from abroad after the institution of this case therefore the ground of his personal need was not available to the applicant and such plea was not even raised in the ejectment application. Moreover the requirement as envisaged under clause (vii) of subsection (2) of section 15 of S.R.P.O., 1979 is, requirement of landlord or his spouse or any of his children and not his parents. If the applicant's father who is owner of the premises has been retired from his job and has returned to this country a fresh cause of action has arisen to him for filing the ejectment application and the ground of requirement of the premises for his personal bona fide use is not available to the applicant who is only son and attorney of his father.
10. ' In view of the above discussion this issue also decided in the negative."
11. ' In a case reported in 1984 SCMR at page 317, it was held that the question whether, relationship of landlord and tenant existed between the parties, was within the jurisdiction of Rent Controller. Such finding was not open to scrutiny and reversal in Constitutional jurisdiction. The dictum laid down in the above case is applicable to the facts of this case. It is an admitted position that the scope of Constitutional jurisdiction is very limited and is confined to ascertain as to whether the Tribunal or the appellate authority has violated the provisions of relevant statute or failed to follow the law related thereto. The High Court while exercising Constitutional jurisdiction cannot act as an appellate Court for appreciating the material on record except where the decision is based on absolutely no evidence on record.
12. ' In a case reported in PLD 1985 Kar. at page 1, it was held by a Division Bench of this Court that "against the decrees that may be passed in any one of these two suits an appeal can be filed before this Court either under the Law Reforms Ordinance or under section 12 of the Banking Companies Ordinance. There could be no better case of alternate relief being available".
13. ' In another case reported -in PLD 1981 SC at 246, it was held that "the jurisdiction of High Court to interfere in matters of the kind involved in the present case is a very limited one and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the law relating thereto as laid down by the superior Courts".
14. ' The petitioner has already filed FRA against the eviction order which is pending in this Court. As we are going to dispose of this petition purely on preliminary points of maintainability of the petition, therefore the points raised in this petition on merits need not be gone into.
15. ' In the result, we hold this petition as incompetent and dismiss it.