1. ' Judgment, dated 23-7-2002 passed by the learned District Judge, Karachi-East, allowing Rent Appeal No,662 of 2001 (Mst. Mariam Yousuf v. Mst. Khalida Farooq) filed by the tenant and thereby setting aside the ejectment order, dated 10th October, 2001 passed by the learned Vth Rent Controller, Karachi-East, in Rent Case No,732 of 1998, has been called in question through this Constitutional petition.
2. ' The facts in brief are that shop bearing No,5, Shadman Arcade, Sir Syed Road, P.E.C.H.S., Karachi, (hereinafter referred as the "demised shop") was let out by landlady Mst. Khalida Farooq to Mst.
3. Mariam Yousuf initially at the rate of Rs,16,000 per month somewhere in 1994, which was subsequently enhanced to Rs,18,000 per month. After about four years landlady filed an application for ejectment of the tenant mainly on the ground of personal bona fide need as her husband desired to start his own business in the said shop and no other place was available for him for the said purpose, whereas the tenant and her sons have other places of business in Karachi such as "Usmania Sweet Mart" and "Usman Jewelers".
4. ' Written statement was filed by the tenant stating therein that initially the rent as settled was Rs,16,000 per month which was subsequently enhanced to Rs,18,000 per month in view of the demand of the landlady. It was further stated that rent was paid up to December, 1998 at the said enhanced rent hereafter the landlady again started pressing for enhanced rent at the rate of Rs,20,000 per month which was declined by the tenant. Since the landlady refused to accept the rent at the settled rate of Rs,18,000 per month, hence the tenant started depositing the same in Court by filing M.R.C. No,834 of 1998. It was denied that the demised shop was required by the landlady for bona fide personal need of her husband or that any such requests were ever made by her on that ground. According to the tenant a fake ground has been set up by the landlady to get the demised shop vacated as the request for the enhancement in rent was refused by the tenant. It was further stated that, in fact, the landlady and her husband were carrying on their business in the demised shop before letting out the same to the tenant, but it was given up and abandoned in the year 1994 as the husband of the landlady was unable to run and manage the said business. It was further pleaded that fixtures and furniture with huge investment for improvement of the business were made by the tenant. It was also pleaded that the tenant has also made other payments to the landlady such as security deposit amounting to Rs,2,03,500 (Rupees two lac three thousand five hundred). It was further stated that the landlady had committed default in making payment of the electricity bills and tax to the Excise and Taxation Department for which notice was served upon the tenant who has paid the electricity dues amounting to Rs,25,000 on 29-11-1994 and Rs,11,887 and Rs,7,598 respectively on behalf of the landlady.
5. 'In support of her case landlady examined herself and her husband Muhammad Farooq whereas the tenant examined her husband and attorney Haji Muhammad Yousuf and her son Muhammad Ashraf who appears to have been running the business on behalf of his mother Mst. Mariam Yousuf. After evaluating the evidence on record, the only point for determination "whether the applicant required the premises in question for bona fide need for her husband in good faith?", was replied by the learned Rent Controller in affirmative and application for ejectment was allowed directing the tenant to hand over the vacant and peaceful possession of the demised shop to the landlady within 60 days from the date of order.
6. ' Rent Appeal No,662 of 2001 was filed by the tenant in the Court of learned District Judge,- Karachi- East, which was allowed and the ejectment order passed by the learned Rent Controller was set aside resulting in dismissal of the ejectment application. The petitioner/ landlady wants to assail the said judgment through this Constitutional petition.
7. ' I have heard Messrs S.M. Afzal, Advocate for the petitioner/ landlady, and Mr. S. Fazalur Rehman, Advocate for respondent No, 1/tenant.
8. ' Contention of the learned counsel for the petitioner/landlady is that the learned District Judge/Appellate Court has failed to take into consideration the personal bona fide need of the landlady and the evidence adduced on her behalf has been ignored without any lawful justification. The main thrust of the arguments of learned counsel for the petitioner/landlady is that Muhammad Yousuf who is husband and attorney of the tenant, as well as her son Muhammad Ashraf who appears to be running the business on behalf of his mother had agreed and showed their willingness to vacate the demised shop subject to certain conditions, as is evident from their statements in cross-examination conducted on 9-1-2001, and the said admissions were given due weight by the learned Rent Controller, but the learned Appellate Court has discarded the same in an arbitrary manner. The learned counsel further argued that in view of various precedents from the High Courts and apex Court a landlord or landlady is not required to prove which business he/she shall do or from where the finances will be arranged for such business, hence that said ground cannot be made a basis for rejecting the ejectment application filed on the ground of personal bona fide need/ requirement.
9. ' Learned counsel further argued that the learned Appellate Court has travelled beyond its jurisdiction while referring to certain documents referring to bank loan although the said documents were not exhibited at the trial stage. It was vehemently denied that landlady was going to sale the demised shop to one Saleem for Rs,30,00,000. He further argued that it has been admitted on behalf of tenant/respondent No,1 in cross-examination that she has already two shops viz. "Unman Jewlers" and "Usmania Sweet Mart" whereas admittedly the petitioner/landlady has no other accommodation for the purpose of doing business by her husband. The learned counsel for the petitioner while denying the demand of higher rent has argued that even if it would have been so, it would not negate the bona fide requirement of a landlord. The learned counsel in support of his contentions has placed reliance on the cases of (1) Habib Bank Limited v. Anis Ahmad and 7 others 2001 SCM R 981 and (2) M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCM R 200 and on the ground of personal bona fide requirement, he has relied upon the cases of (1) Agaria Amir Ali v. Abdul Majid 1993 SCM R 67, (2) Muhammad Iqbal and another v. Mst.
10. Saeeda Bano 1993 SCM R 1559 and (3) Muhammad Aziz v. Mst. Azmat Begum PLD 2000 Kar.
41. So far the admission of tenant made in cross-examination and its effect reliance has been placed on the case of Abdul Rashid v. Baboo through his Legal Heirs 2002 SCM R 168.
11. ' Mr. S. Fazalur Rehman, learned counsel for respondent No,1, has argued that the petitioner/landlady has failed to establish her bona fide personal requirement and use of the demised shop by her husband. ' He has referred to the statements of the landlady and her husband who in their cross-examination have admitted that before letting out the demised shop to respondent No,1/tenant, husband of the petitioner was doing his business which was closed and shop was let out to the respondent/tenant. He further argued that it has been admitted by the landlady and her husband that they had obtained a loan of about Rs,2,50,000 from the Habib Bank by mortgaging the shop in question and they have not been able to repay the loan and they were negotiating to sale the shop to one Saleem for Rs,30,00,000 but bargain has not been finalized.
12. Copy of the judgment and decree in the suit filed by Messrs Habib Bank Limited against the landlady (Civil Suit No,142 of 1999) was also placed on record to show the failure to repay the loan.
13. Learned counsel has further argued that it has not been shown as to what business the husband of the landlady wanted to start after having abandoned the business about four years prior to the filing of the ejectment application. It was, thus, vehemently urged that the alleged need and requirement is neither bona fide nor genuine. With reference to the admissions made by son of the tenant in his cross-examination showing willingness to vacate the premises within a period of one year and subject to return of Rs,3,00,000 being the amount of security deposit and payment of certain utility bills on behalf of the landlady, the learned counsel has argued the the view taken by the Appellate Court is just and reasonable and such willingness on the part of a young man appeared to be due to close relationship between the parties which is not disputed and furthermore such willingness expressed by the son of the tenant is not binding upon her as he was not even attorney of his mother viz. The tenant.
14. ' So far the maintainability of this Constitutional petition is concerned, Mr. S. Fazalur Rehman has argued that the Legislature in its wisdom did not provide any provision for revision or second appeal and, as such, a Constitutional petition is not maintainable. He further argued that a forum having jurisdiction to decide a dispute is competent to decide the same either rightly or wrongly and it cannot be called in question in a Constitutional petition. In support of his contention learned counsel has referred to the cases of (1) Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246,. (2) Noor Ali and others v. Mst. Sayeda Parveen Iqbal and others 2000 M LD 695, (3) Mst. Huma and another v. Muhammad Ashfaque and others 2001 PLC 325 and (4)
15. Suleman Mala and others v. Khawaja Muhammad Ramzan and others SBLR 2002 Sindh 1498.
16. ' Mr. S.M. Afzal, Advocate in. Rebuttal has argued that the earlier view that a Tribunal having jurisdiction has powers to decide a case rightly Qr wrongly is no more a good law in view of rule laid down by the Honourable Supreme Court in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447. He has further argued that indeed Constitutional jurisdiction of this Court is not a substitute of appellate or revisional jurisdiction, but in appropriate cases, this Court is competent to pass appropriate orders and to set aside, modify, or quash the impugned orders/judgments.
17. ' In order to appreciate the contentions of the learned counsel for the parties, I have given due consideration to their arguments, and with their able assistance have examined the pleadings of the parties, evidence on record and the two judgments passed by the two Courts below. I have also gone through the case-law cited at bar in support of the respective contentions.
18. ' There is no cavil with the proposition that Constitutional jurisdiction of this Court is not an alternate of a second appeal or revision. It is also well-settled that if a Court or Tribunal has the jurisdiction to decide certain issue, the discretion so vested in it should be exercised in accordance with the settled principles of law. The view expressed in the case of Muhammad Sharif (supra) is no more a good law, in view of the rule laid down by the Honourable Supreme Court in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 wherein it has been held with reference to the cases of Muhammad Hussain Munir PLD 1974 SC 139 and Zulfiqar Khan Awan 1974 SCM R 530 as under:-- "It is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter, has jurisdiction to decide it 'rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with law when the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
19. ' It has been further held by the Honourable apex Court as under:-- "It need hardly be said that under Article 4 of the Constitution of the Islamic Republic of Pakistan, it is right of every individual to be dealt with in accordance with law where the law has not been correctly or properly observed a case for interference by the High Court in exercise of its Constitutional jurisdiction is made out.
20. ' Thus, it will be seen that High Court in appropriate cases where it is shown that determination of the Tribunal is erroneous on the point of law, arbitrary or result of non-reading of the material on record can exercise its jurisdiction under Article 199 of the Constitution of Pakistan. Each case has to be examined keeping in view the said rule more particularly when the Legislature in its own wisdom has decided not to give a right of second appeal or revision under a particular statute. Occasions may arise when the two Courts/Tribunals below or the First Appellate Court/Authority may have acted illegally, without jurisdiction, or committed gross illegality in reading the evidence or interpreted the same against the well-settled principles of law. In the instant case the findings of the two Courts below are not concurrent. The learned Rent Controller has passed the ejectment order while holding that the demised shop was required by the landlady for personal bona fide requirement of running business by her husband, particularly coupled with the willingness of the attorney of the tenant as well as her son as disclosed in their cross-examination that they were ready to vacate the demised premises within one year time subject to return of Rs,3,00,000 which was obtained by the landlady from the tenant on account of security deposit, and payment of certain utility bills by the tenant on behalf of the landlady. The learned Appellate Court while allowing the appeal has observed that "merely because appellant's son in his cross-examination had shown willingness to vacate the premises, it cannot be said that personal need of respondent had been established" and "such willingness on the part of the young man expressed by him in cross-examination appears due to the close (sic) Appellate Court further observed that appellant could not be bound for such type of willingness by her son as there is nothing to show that he was authorized to do so as he was not her attorney. It was rightly pointed out by Mr. S.M. Afzal, learned counsel for the petitioner/landlady, that apart from the above-referred evidence of the son of the tenant showing willingness to vacate the demised shop, the attorney/husband of the tenant Mst.
21. Maryam Yousif in his cross-examination has also stated that he was ready to vacate the demised shop, subject to conditions stated therein. The relevant par of his evidence is as under:-- "If the applicant gives in writing that the premises in question is required for herself for doing the business personally and if he intend to rent out the premises she will give the premises to me on the same rate of rent which is Rs, 18,000 but I need one year time for vacating the premises subject to return of Rs,3,00,000 which she had obtained from me."
22. ' The next sentence in continuation is "applicant is only ready to give two months' time for vacating the premises in question". ' during the hearing of this petition in order to get the matter amicably settled, the parties were called in Court. Tenant agreed to pay enhanced rent up to Rs,25,000 per month but landlady declined to accept the same and stated that demised shop is required for personal bona fide use by her husband and, as such, there was no occasion for her to accept enhanced rent even at the rate of Rs,50,000 per month. She also showed her willingness to pay Rs,3,00,000 to the tenant on account of security deposit and the payment of electricity charges, etc. Though she was not liable to pay anything in excess to the amount of security deposit. She was made to understand the implications of section 15-A of the Sindh Rented Premises Ordinance, 1979, relating to imposition of fine which shall not exceed one years rent of the building or the premises, as the case may, to be paid immediately before the possession was obtained and the right of the tenant to apply to the Controller for an order directing the landlord/landlady to restore the possession of the demised premises to the tenant who was evicted, if the demised premises so got vacated was re-let to any person other than the previous tenant or if it is put to a use other than personal use, within one year of such possession. The landlady categorically stated that she has no intention to re-let the demised shop to anybody else or to use for purpose other than for which she wants to eject the tenant.
23. ' In view of the discussion made above, I am of the considered view that it is a fit and appropriate case for exercise of Constitutional jurisdiction under Article 199 of the Constitution of Pakistan. I would, therefore, set aside the order of the learned District Judge passed in appeal and restore the ejectment order dated 10th October, 2001 passed by the learned Rent Controller subject to payment of Rs,3,00,000 (Rupees three lac) by the landlady in the Court of Rent Controller. Since more than one year has already passed from the date of statement of the son and the husband/attorney of the tenant, hence sixty days' time is granted to the tenant to vacate the demised shop subject to payment of Rs,3,00,000 by the landlady to her tenant being the amount of security deposit, etc. As referred above.
24. ' These are the reasons for the short order announced on 31-3-2003 which is reproduced below and shall be deemed to be a part of this order in details:-- "For the reasons to follow this Constitution petition is allowed.
25. ' The judgment, dated 23-7-2002 passed by the learned District Judge, Karachi-East, in F.R.A. No,662 of 2001 is set aside and the ejectment order passed by the learned Rent Controller is restored/maintained. Sixty days time from today is granted to the respondent/tenant to vacate the demised premises/shop. The petitioner shall pay Rs,3,00,000 (Rupees three lac) to the respondent/tenant on account of security deposit and payment of certain bills by him on behalf of the petitioner by depositing the same in the Court of learned Vth Rent Controller, Karachi-East, in R.C. No,732 of 1998 within thirty days from today and The tenant shall be entitled to withdraw the same after handing over the vacant possession to the petitioner/landlady. The tenant shall continue to deposit monthly rent at the agreed rate during this period of sixty days. In case of default in payment of rent or in case the demised premises/shop is not vacated within the specified time, the learned Rent Controller shall issue writ of possession without any delay in the matter. In case the above-referred amount of Rs,3,00,000 is not deposited by the petitioner/landlady as ordered above, this petition shall stand dismissed. There will be no order as to costs."