MUHAMMAD ROSHAN ESSANI, 1.--- I propose to dispose of C.P. No. 672 of 2002 and C.P. No. 922 of 2002 by this single order as both arise out of same judgment.
2. By these Constitutional petitions the petitioners have assailed the judgment of District Judge, Karachi East dated 17.5.2002 in FRA No. 693/2001.
3. The brief facts of\ the case are that petitioners are occupying six shops as tenants situated on the ground floor of building on plot No. 16 Bahadur Abad Chaurangi, Karachi prior to the purchase of property by respondent in 1994. The three shops are in possession of Mirza Muhammad Naseer Baig petitioner, in Petition No. S-922/2002 while the remaining three shops are in possession of petitioners Nos. 1 to 3 in C.P. No. S-922/2002 individually. In the month of October, 1997 the respondent dram Muhiuddin voluntarily retired as Senior Vice President. United Bank Limited under golden hand shake scheme. In June, 1998 the respondent filed the ejectment proceedings before the Rent Controller against the petitioners contending that he required the shops . In question for his. Personal bona fide need as he wanted to open a departmental store for which he required entire ground floor admeasuring 3600 square feet and the first floor, which was already in his occupation, mention in the details of 15 sections which he planned to establish.
4. The petitioners in their written statements denied the good faith and bona fide requirement of respondent. They stated that respondent can establish the departmental store on the first floor of tenement as many departmental stores in the city are running on first and second floors of the buildings. It is further averred that the respondent is causing them unnecessary trouble and is adopting legal and illegal devices to get the tenement vacated. The petitioner in C.P. No. 922 of 2002 and petitioner No. 3 in C.P. No. 672/2002 admitted the respondent as landlord and owner whereas petitioners Nos. 1 and 2 in Petition No. S-672/2002 denied him to be the landlord. They contended that the respondent is a benami owner without disclosing the name of so-called real owner. They also challenged the maintainability of the application on the ground that single application cannot be filed jointly against different tenants.
5. The Trial Court dismissed the ejectment application by judgment dated 10.11.2001. The respondent preferred appeal against the judgment of Trial Court i.e. Rent Controller and it was allowed by District Judge, Karachi East by impugned judgment dated 17.5.2002.
6. The operative part of impugned judgment is reproduced herein below in extensor- "The main reasons assigned by her for dismissing the ejectment application are that after purchasing the property the appellant did not immediately retire and remained in service for three years and that the first and as the second floors of the building were already in his possession where he could start his business without dislodging the old tenants and that he by involving them in civil and criminal litigation had failed to maintain peaceful relations with the tenants. I am afraid, the reasons are not sustainable in law. There is nothing in law to say that a landlord who does not retire from service immediately on purchasing property cannot afterwards plead personal requirement. There is also no force in the argument of Mr. Jameel Ahmed, Advocate for the respondent No. 1 that the appellant having voluntarily retired for availing more monetary benefits cannot deprive the old tenants of their living as he had already sufficient resources for his living and need not do any business. In the case of Muhammad Bashir v. Shaukat Hussain, reported in 1991 SCM R 846 it has been clearly held that there was no legal impediment for a rich man having no child to seek ejectment of his tenant for the purpose of starting his own business. In the case of Khawaja Imran Ahmed v. Noon Ahmed and others, reported in 1992 SCMR 115 l it has been observed that it would be against all cannons of justice to deprive a landlord, who has retired from service and wants to employ himself in some business, of the use of his own property unless it was shown that his need was not bona fide. In the case of Messrs. F.K. Irani and Company v. Begum Feroze, reported in 1996 SCM R 1178 it was held that suitability of opening a departmental store in any one of the available premises entirely depended upon discretion of the landlord and unless it was shown that the intended business could not be carried out in that area his bona fides could not be doubted. In the present case, it has been proved that the area was suitable for establishing departmental store as the tenants have themselves admitted that there were many other departmental stores also. The proprietor of the respondent No. 1 who in his affidavit had asserted that many departmental stores were successfully running on upper floors and in case the appellant wanted to establish any departmental store he could do so on the upper floors of the building, has admitted in his cross-examination that none of the departmental stores referred to by him was without ground floor. Further stating that it was not in his knowledge that the appellant required the ground floor for opening departmental store though the very case was filed on that ground. From such statement on his part at least one thing- is clear that his contention that the appellant did not require the premises in good faith for personal use was without any basis. The respondent No. 2's attorney has also stated in has cross-examination that he did not know if the appellant required the premises in question genuinely for opening a departmental store. This shows that the respondents had nothing to challenge or rebut the contention of the appellant that after his retirement from service he wanted to do business by opening a departmental store in the premises which was admittedly suitable for the intended business.
There is also no force in the contention of Mr. Muhammad Jameel that the appellant having received a handsome amount on his retirement under the Golden Hand Shake Scheme, it was not necessary for him to do any business particularly when he lacked experience and had no family to support. As mentioned above, a landlord cannot be deprived of his right of doing business in his own premises, merely because he was a rich man or lacked experience. In the cases of Juma Sher v. Sabaz A.I and Mst. Zubeda v. Muhammad Nadir, reported in 1999 SCMR 1062 and 1999 M LD 3011 (Kar.) respectively it has been held that a landlord was not required to prove that he had sufficient experience of the intended business. There is no legal requirement of any qualification' or experience for doing business of a departmental store. Moreover, banking is a business related profession and the appellant having good experience in banking can very well manage a departmental store. As regards the contention of uprooting old tenants, it may be mentioned that in the case of Mst. Zubeda (supra) it was observed by his lordship Mr. Justice Rana Bhagwandas (as then he was) that any inconvenience or disturbance which is to be faced by a tenant on his ejectment would not come even on any compassionate ground in the way of landlord seeking ejectment on the ground of personal requirement.
Maintenance of peaceful relations by a landlord with his tenants is not a prerequisite for seeking ejectment on the ground of personal requirements. The Rent Controller has clearly erred in dismissing the ejectment application for such a reason. In the alleged criminal litigation (counter cases) the appellant was neither accused nor witness. The dismissal of appellant's or previous owner's ejectment cases filed on other- grounds against the respondents will have no affect on the present case in which the appellant has successfully proved his personal requirement.
Mr. Syed Faiq Hussain, Advocate for the respondents Nos. 2 and 3 has also challenged the finding of the Rent Controller on the issue of the relationship, of landlord and tenant between the parties as; according to him, the appellant in his cross-examination had admitted that he was simply a benami owner while the real owner was S.H.Q. On reading the cross-examination as a whole it can be easily gathered that it is a hypographical mistake in which word "correct", in place of word "incorrect" has been mistakenly typed. The appellant on coming to know about the mistake had moved application before the Rent Controller for its correction but the Rent Controller had dismissed it on the ground that it was belated without giving any decision on the point by observing that the contention of the appellant that when all the tenants had accepted him as owner and it was case of nobody that any S.H.O. Was the owner there was no occasion for him to admit such a suggestion, would be considered at the time of judgment. It appears that at the time of passing judgment this aspect slipped from the mind of the Rent Controller.
As mentioned above, the respondents Nos. 1 and 4 have admitted the appellant to be owner and landlord of the building while the respondents Nos. 2 and 3 have called him as benami owner without disclosing as to who was the real owner. Younas Hatim Karbalai the attorney of the respondent No. 2 and Shahid Hussain Khan the proprietor of the respondent No. 3 in their cross- examination have stated that no other person had given them any notice for the payment of rent.
Shahid Hussain had further stated that the appellant had been visiting and taking care of his property as landlord. There is also no force in the argument of Mr. Faiz Hussain that in Rent Case No. 518/1996 which the appellant had filed for the ejectment of the respondent No. 2 on the ground of default in the payment of rent.. Issue about the relationship was decided against him (the appellant) as the copy of the judgment dated 27.5.1998 passed by the Rent Controller-III, Karachi East produced on record shows that no such issue was framed in that case and the ejectment application was dismissed by holding that the respondent No. 2 was not liable for ejectment as the default in the payment of rent. If any, was of technical nature. In his cross-examination in that case the respondent No. 2 had stated that the previous owner after selling the building had left without leaving any address and that he knew that the property in question was in the name of the appellant. There is thus no weight in the contention of the respondents Nos. 2 and 3 that the appellant was not owner and landlord of the premises.
At the time of arguments none of the learned counsel for the respondents pressed their objection to the maintainability of the ejectment application. There is no bar for filing one application against several tenant's when the ground of ejectment is common. In this regard reference can be made to 1993 CLC 2258.
For the reasons mentioned above, the appeal is allowed with no order as to cost. The respondents are directed to hand over vacant possession of the premises to the appellant within six months hereof subject to their payment of rent regularly within time."
7. During the pendency of petitions, the petitioner No. 1 in C.P. No. 672/2002 expired. The counsel for petitioner No. 1 moved application under Order XXII, Rule 6 read with Section 151, C.P.C. With a prayer that the names of legal representatives of petitioner No. 1 may be brought on record. By order dated 19.12.2002 this Court by consent of counsel for respondent allowed the application and legal representative of deceased petitioner No. 1 were impleaded as party.
8. The legal representatives of petitioner No. 1 in C.P. No. S-672/2002 entered into compromise with respondent No. 1 and moved such joint application, which was allowed by order dated 21.1.2003, the contents whereof are reproduced herein below in extenso:- "20.1.2003.
Mr. Lqbal Kazi for petitioner.
Mr. Faisal Arab for respondent No. 2.
A joint application has been filed by the petitioners Nos. 1(a) to 1(c), which is signed by the respondent No. 2, petitioner Nos. 1(a) to (c), attorney of petitioners Nos. 1(a) to (c) and the counsel for respondent No. 2 as well as for petitioners Nos. 1(a) to (c), with the prayer that they have compromised the matter, whereby the petitioners Nos. 1(a) to (c) shall forego their tenancy rights in respect of premises being shop No. 4, Kazi Courts, plot No. 16, Bahadurabad Cooperative Housing Society, Karachi and its possession will be handed over immediately to respondent No. 2.
Sd/- JUDGE"
I have heard Mr. Iqbal Kazi, learned counsel appearing on behalf of petitioners in C.P. No. 672/2002 and Mr. Naimuur-Rehman learned counsel on behalf of petitioner in C.P. No. 922 of 2002.
9. I have also heard Mr. Faisal Arab learned counsel appearing on behalf respondent in both the petitions.
10. The main thrust of the arguments advanced by the learned counsel appearing on behalf of petitioners is that upon evaluation of evidence another view is possible therefore, the impugned judgment of Appellate Court is liable to be set aside.
11. The crux of the arguments of learned counsel appearing on behalf of respondent is that the evaluation of evidence' is not the task of this Court in its Constitutional jurisdiction.
12. It is well-settled that the discretion conferred upon the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be exercised as a matter of course. The superior Courts have always exercised this jurisdiction with restraint and used discretion vested in them in consonance with the well-known and well-understood principles recognized by law. In Constitutional jurisdiction High Court does not interfere with a finding of fact or evaluate the evidence. The only order could be struck down by the High Court in Constitutional jurisdiction, which is without lawful authority or is of no legal effect. Merely because one right of appeal is provided, therefore Constitutional jurisdiction can be invoked as a matter of course on the ground that another view of the matter is possible is not tenable. In the ease of M/s. Mehraj (Pvt.) Ltd. v.
Miss Laima Saeed and others, reported in SBLR 2003 Sindh 391 = PLR 2003 (Kar) 1501 a Bench of this Court held as under:- "It may be observed that by conferring only one. Right of appeal under Section 21 of the Sindh, Rented Premises Ordinance, 1979 the legislature in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances interference by this Court in exercise of its Constitutional jurisdiction under Article 199, in the judicial orders passed by the Tribunals, merely on the ground that another view of the matter is also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of the statute".
13. Again in the case of Saifullah v. Muhammad Bux and 2 others, reported in 2003 M LD 480 it was held as under:- "I am of the considered opinion that question pertaining to appreciation of facts cannot be resorted to, in exercise of Constitutional jurisdiction by this Court, for the simple reason that in doing so the petition shall be converted into a revision or second appeal and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated. A writ petition is not substitute either for revision or the second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case or lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law has been violated. No Constitutional petition in rent matters and in all such cases in which no second appeal or revision is provided in law, shall be entertained, until and unless there is a jurisdictional error committed by the Courts below. The exercise of jurisdiction in a perverse or arbitrary manner or ignoring the material available on record or violation of any provision of law, substitutive or procedural, causing miscarriage of justice or violation of established principles of administration of justice shall bring the case within the purview of jurisdictional error".
14. The operative part of impugned judgment reproduced herein above shows that the contentions urged before this Court by the learned counsel appearing on behalf of the petitioners were considered and rightly repelled by the Appellate Court. The impugned judgment does not suffer from any illegality or material irregularity. Resultantly petitions stand dismissed in limine alongwith pending applications with no order as to costs.