2018 M L D 298
Sindh Rented Premises Ordinance (XVII of 1979)---
----Ss.2 & 15---Ejectment petition---Ground of personal bona fide need of landlord---Landlord being one of the legal heirs/co-sharers of original landowner---Entitlement of co-sharer alone to file ejectment petition---Scope---Tenant contended that ejectment petition was not maintainable as all legal heirs/co-sharers had not moved the Trial Court---Landlord contended that anyone of the co-sharers could move Trial Court after the demise of original owner (their father) and that they required demised property for personal need in wake of changed circumstances---Validity---Record revealed that the evidence led by the landlord was in-consistent with the ejectment application which could not be shaken in cross-examination by the tenant who had not produced any evidence in rebuttal rather made various admissions as mentioned in the eviction order, passed by the Rent Controller who after appreciating the evidence and considering the material aspects of the case had allowed the ejectment application---Section 2 of Sindh Rented Premises Ordinance,1979 stipulated the definition of "landlord" which meant the owner of the premises and included a person who was for the time being authorized or entitled to receive rent in respect of such premises---Application for ejectment filed by co-sharer could not be defeated on the ground that remaining co-sharers were not joined as applicants in the ejectment petition---Co-owner could file ejectment proceedings against a tenant without impleading other co-owners---Mother of applicant had also expired to whom the tenants were paying rent and after her death tenants had not paid rent to any of the legal heirs as per their own admission---Co-sharer could initiate ejectment proceedings against the tenants without joining the other co-sharers---No illegality or infirmity having been noticed in concurrent findings of the courts below, constitutional petition was dismissed accordingly.
2002 SCMR 1112; 2000 CLC 1841; Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429; Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903; Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033 Mst.Rehana Hafeez v. Muhammad Ali alias Ehsan through L.Rs. 2014 CLC 1242 ref.
Muhammad Zahid Kabeer for Petitioners.
Ghulam Muhammad for Respondent No.1.
Date of hearing: 7th November, 2016.
BAHADAR KHAN VS ABDUL KHALIQ2018 M L D 298[Sindh]Before Khadim Hussain M. Shaikh, JBAHADAR KHAN and another---PetitionersVersusABDUL KHALIQ and 2 others---RespondentsC.P. No.S-809 of 2016, decided on 07/02/2017.
JUDGMENT
KHADIM HUSSAIN M. SHAIKH, J.---Through this petition, the petitioners namely Bahadur Khan and Ghulam Haider Khan have called in question judgment dated 14.04.2016, passed by the learned II-Additional District Judge, Karachi Central, dismissing Rent Appeal bearing F.R.A.No.41/2015 re-Bahadur Khan and another v. Abdul Khaliq, filed against the order dated 12.03.2015, passed by III-Senior Civil Judge/Rent Controller, Karachi Central in Rent Case No.119/2009 re-Abdul Khaliq v. Bahadur Khan and another, whereby the ejectment application, filed by the respondent Abdul Khaliq, was allowed and the petitioners were directed to vacate the demised shop and hand over its vacant possession to the respondent within 60 days from the date of the said order.
2.Briefly the facts of the case are that the respondent Abdul Khaliq filed Rent Application under Section 15 of Sindh Rented Premises Ordinance, 1979, before the Rent Controller, alleging therein that late Abdul Maqbool Khan, who was owner/landlord of property bearing Plot No.5. Passban No.1, Nawab Siddiq Ali Khan Road. Karachi, which includes the demised shop, expired on 12.08.1994, leaving behind the applicant respondent Abdul Khaliq and six others as his surviving legal heirs and, thus, after his demise, respondent Bahadur became one of the co-sharers in the aforesaid property. The demised premises was let out by the father of respondent Abdul Khaliq to the petitioners, who are brothers inter-se and joint tenants, carrying on business in the demised premises under the name and style of Messrs Tariq Water Supply. The petitioners are presently paying rent to the respondent Abdul Khaliq's mother at the rate of Rs.600/- per month, which was paid up to January, 2009. Respondent Abdul Khaliq has six children, but for want of premises cannot do his own independent business to earn livelihood for himself and his family members and is working with his brother in one of the shops in the same building on monthly salary of Rs.6000/-, which hardly meet the basic requirements of Respondent Abdul Khaliq, who in good faith and bona fide needs wants to start his own independent business in the demised premises. Respondent Abdul Khaliq time and again approached and requested the petitioners to hand over the possession of the demised premises to him as the same is required by him for his own personal bona fide use. As his approaches yielded no fruit, hence, he filed the aforementioned Rent Application, seeking ejectment of the petitioners.
3.The petitioners filed their join written statement, wherein they have stated that the Rent Application is not maintainable. The petitioner No.1 is doing his business in the name and style of Messrs Tariq Water Supply in a shop of Mst.Sajida Begum widow of Abdul Mabood Khan, who being landlady of the demised premises is receiving rent from the appellant since 1994 and the petitioner No.2 is carrying on his sanitary business in another shop. The ejectment application has been filed with mala fide intention. They further stated that the respondent is doing business with his brother since long in another shop.
4.Applicant/Respondent Abdul Khaliq filed his affidavit-in-evidence at Ex.A, CNIC at Ex.A/1 and agreement at Ex.A/2 and affidavit of witness Mustafa Kamal as Ex.A.W/1, who both were subjected to cross-examination by the learned advocate for the petitioners. Then the opponent/petitioner No.1 Bahadur Khan filed his affidavit-in-evidence and produced at Ex.O and rent receipts at Ex.O/1 and Ex.O/2 and the opponent/petitioner No. 2 Ghulam Haider Khan also filed his affidavit-in-evidence at Ex.O/2, and, they were subjected cross-examination by the learned counsel for the applicant/respondent No.1.
5.After hearing the parties' counsel the learned Rent Controller, allowed the rent application, vide eviction order dated 07.05.2012, directing the petitioners to vacate the demised shop and hand over its possession to the respondent within 60 days. The opponents/petitioners being aggrieved filed the aforementioned F.R.A. before the learned District Judge Karachi Central, which was ultimately heard and decided by the learned II-Additional District Judge, Karachi Central vide judgment dated 14.04.2016, dismissing the appeal, hence this petition.
6.The learned counsel for the petitioners has mainly contended that the respondent No.1 is co-sharer in the demised premises by way of inheritance from his father Abdul Mabood Khan, who was owner and landlord of the demised premises; that the petitioners remained tenants of Abdul Mabood Khan and after his demise, they used to pay the rent to his wife Mst. Sajida Begum who has also expired: that the rent application filed by the respondent Abdul Khaliq without joining other co-sharers i.e. his brothers and sisters was not maintainable; that the petitioners have handed over possession of one Shop to the applicant/respondent No.1, after institution of the rent case on his request, and, per him, the respondent No.1 does not require the demised premises for his personal need; and, that the impugned judgment and order, passed by the learned Courts below are not sustainable. He, therefore, prays that the petition may be allowed and the impugned judgment and order may be set-aside.
7.Learned advocate for the respondent has mainly contended that the petitioner has filed the instant petition by concealing the material facts; that the eviction order, passed by the Rent Controller and the judgment passed by the appellate Court, are based on evidence; and, that the concurrent findings of the learned Courts below do not suffer from any illegality. He, therefore, prays that the petition may be dismissed.
8.I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
9.From a perusal of the record it would be seen that the evidence led by the respondent was consistent with the ejectment application, which could not be shaken or dislodged in cross-examination by the petitioners, who have also not produced evidence of the nature in rebuttal rather the petitioners made various admissions, having material bearing to the case, mentioned in the eviction order, passed by the learned Rent Controller, who after appreciating the evidence and considering the material aspects of the case, had allowed the ejectment application. The relevant paragraphs of the impugned eviction order dated 12.03.2015, are reproduced here:--
"In this regard, I have gone through the evidence of the parties. The opponent No.1 has admitted in his cross-examination. "It is correct to suggest that after death of Abdul Mabood Khan, I used to pay rent to his widow namely Mst.Sajida Begum. It is correct to suggest that applicant is also one of the legal heirs of Abdul Mabood Khan. It is correct to suggest that on 20.5.2014, Mst.Sajida Begum expired. It is correct to suggest that I am not paying rent to any of the legal heirs including the applicant after death of Mst.Sajida Begum. It is correct to suggest that in instant case no other legal heir has filed any objection against the applicant if the shop is being vacated by me."
It is pertinent to mention here that the applicant is co-owner of the property falls in definition of landlord, which is given in SRPO, 1979, which is reproduced as under:
2. Definitions.
(f) "landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises.
It is settled principle of law that Application for ejectment filed by co-sharer cannot be defeated on ground that remaining co-sharers were not joined as applicants in ejectment petition. A co-owner can file ejectment proceedings against a tenant without impleading other co-owners.
Reliance is placed on case laws reported in 2002 SCMR 1112 and 2000 CLC 1841.
2002 SCMR 1112
S. 15---constitution of Pakistan, 1973, Art.185 (3)---Ejectment of tenant---Bona fide personal need of landlord---Entitlement to ejectment on personal requirement---High Court allowed appeal filed by co-owners of the premises and modified the order passed by Rent controller---Validity---High court had properly assessed the evidence on record and legally and equitably came to the conclusion that the co-owner and proved his requirement in good faith---Where no misreading or non-reading or misapplication of law was pointed out, Supreme court declined to interfere---Leave to appeal was refused. [1113]A.
2000 CLC 1841
b)---S.15---Entitlement of co-sharer to file ejectment application---Co-Sharer was perfectly entitled to initiate ejectment proceedings without impleading other co-sharers. [1850] B
Furthermore, the mother of applicant has also expired to whom the opponents were paying rent and after the death the opponents have not paid rent to any of the legal heirs as per own admission of opponent."
10.It further reveals that the learned II-Additional District Judge, Karachi Central, after reappraisal of the evidence, dismissed the appeal filed against the eviction order, concurring the findings rendered by the learned Rent Controller. For the sake of convenience the relevant paragraph of the impugned judgment, passed by the learned appellate Court, are reproduced here:--
"From the perusal of evidence available on record it appears that the respondent/applicant has admitted in his cross-examination that he was working at his brother's shop since last four years but nowadays he is not working with him and then the respondent/application by demolition the passage in front of his house made shop for his livelihood and such fact has been admitted by the appellant/opponent No.2 in his cross-examination. Both the appellants/opponents have neither denied the claim of the respondent/applicant for his personal bona fide use in their written statement nor in their Affidavits-in-Evidence and it is a settled law that if a fact is deposed by any party which is not cross-examined by another party then it is presumed that the other party has admitted such fact deposed by the party. In the present case the appellants/opponents have not denied the claim of the respondent/applicant for his personal bona fide use therefore it amounts their admission in respect of claim of the respondent/applicant for his personal bona fide use. It is a settled law that parameters of each case are primarily on its own facts which have to be taken into consideration for deciding the point whether the landlord requires the premises in good faith or not and, he is required to state in his application only the material facts which constitute cause of action along with those facts which prima facie shows that the requirement is according to law and is made in good faith. In the instant case the respondent/applicant has taken ground that the demised shop is required to him for his personal bona fide use and his versions are supported by his witness Mustafa Kamal and they both are unanimous that the demised shop is required to the respondent/applicant in good faith for his personal bona fide use therefore the versions of respondent/applicant are appearing to be true which can be accepted as bona fide and as such on the basis of evidence available on record the respondent/applicant has established his personal bona fide need of the demised shop for running his own business.
So far as relationship of landlord and tenant between the parties is concerned the appellant/opponent No.1 in his cross-examination has admitted that after death of Abdul Mabood Khan he was paying rent to his widow namely Mst.Sajida Begum and that the respondent/applicant is one of the legal heirs of late Abdul Mabood Khan. He has also admitted that Mst.Sajida Begum has expired on 20.5.2014 and since then they are not paying rent to any of the legal heirs including the respondent/ applicant.
It has also come on record the appellants/opponents after the death of Mst.Sajida Begum on 20.5.2014 have not paid rent to any of the legal heirs of the deceased Abdul Mabood Khan including the respondent/applicant therefore they have also committed default in payment of rent to the legal heirs of above named deceased including the respondent/applicant therefore on the basis of evidence available on record the respondent/ applicant has established his personal bona fide need of the demised shop for running his business and relationship of landlord and tenant is also existing between the parties as such impugned order passed by trial Court is legal and proper which is sustainable in law and does not require interference by this Court."
11.In view of the above, I am of the view that conclusion drawn by the Rent Controller and the Appellate Court to the effect that the need of landlord is bona fide on the appraisal of the evidence appears to be justified and in accordance with the law, and, thus, there are concurrent findings of the facts rendered by the Courts below against the petitioner; there is no cavil to the legal proposition that concurrent findings of the facts rendered by the Courts below cannot be interfered with in the constitutional jurisdiction by this Court, for, constitutional jurisdiction being discretionary in nature, is very limited, which primarily, is intended to provide the expeditious remedy to intervene into a matter in which illegality in the impugned judgments or orders and/or jurisdictional defect is floating on the surface without elaborate investigation into the disputed questions of facts. Moreover, the co-sharer can initiate ejectment proceedings against the tenants without joining the other co-sharer. Reference can be made to the case of Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others (2002 SCMR 429), wherein the Hon'ble Supreme Court of Pakistan has held that:-
"a co-sharer can file ejectment proceedings against a tenant without impleading other co-sharers. The wisdom behind such principle is that co-sharer acts on behalf of and represents the interest of all the co-owners of the property."
In case of Muhammad Shoaib Alam and others v. Muhammad Iqbal (2000 SCMR 903), the Hon'ble Supreme Court of Pakistan, has observed that:--
"Statement of landlord on oath if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that requirement of landlord was bona fide."
In case of Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others (2003 MLD 1033), a single bench of this Court has observed that:--
"by conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislator 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. The dictum laid down in the case of Secretary to the Government of the Punjab (supra) also postulates similar view and is fully applicable to the facts and circumstances of the present case. No case for interference in the concurrent findings of facts recorded by the two Courts below is thus made out."
In case of Mst.Rehana Hafeez v. Muhammad Ali alias Ehsan through L.Rs. (2014 CLC 1242), a single bench of this Court has observed that:--
"concurrent finding as recorded by the Courts below, particularly in rent matters, cannot be disturbed by this Court in its constitutional jurisdiction, unless any grave illegality, jurisdictional error or perverse finding on facts is pointed out by the petitioner."
12.In view of what has been discussed above, I am of the considered view that the concurrent findings, rendered by the Courts below in the impugned order and judgment, after appreciating the evidence in accordance with the dictum laid down by the Hon'ble Superior Courts, do not suffer from any illegality or perversity or jurisdictional defect. Learned advocate for the petitioners has also not been able to point out any illegality or infirmity or perversity qua the findings of the Courts below and he has also not been able to point out any jurisdictional defect in the impugned judgment and order, attracting exercise of constitutional jurisdiction of this Court. Accordingly, the petition, being devoid of merit, is dismissed with no order as to costs. The petitioners are directed to vacate the demised premises and hand over its vacant possession to the respondent Abdul Khaliq in sixty (60) days from the date of pronouncement of this judgment.
MQ/B-13/Sindh Petition dismissed.
2018 M L D 298
Sindh Rented Premises Ordinance (XVII of 1979)---
----Ss.2 & 15---Ejectment petition---Ground of personal bona fide need of landlord---Landlord being one of the legal heirs/co-sharers of original landowner---Entitlement of co-sharer alone to file ejectment petition---Scope---Tenant contended that ejectment petition was not maintainable as all legal heirs/co-sharers had not moved the Trial Court---Landlord contended that anyone of the co-sharers could move Trial Court after the demise of original owner (their father) and that they required demised property for personal need in wake of changed circumstances---Validity---Record revealed that the evidence led by the landlord was in-consistent with the ejectment application which could not be shaken in cross-examination by the tenant who had not produced any evidence in rebuttal rather made various admissions as mentioned in the eviction order, passed by the Rent Controller who after appreciating the evidence and considering the material aspects of the case had allowed the ejectment application---Section 2 of Sindh Rented Premises Ordinance,1979 stipulated the definition of "landlord" which meant the owner of the premises and included a person who was for the time being authorized or entitled to receive rent in respect of such premises---Application for ejectment filed by co-sharer could not be defeated on the ground that remaining co-sharers were not joined as applicants in the ejectment petition---Co-owner could file ejectment proceedings against a tenant without impleading other co-owners---Mother of applicant had also expired to whom the tenants were paying rent and after her death tenants had not paid rent to any of the legal heirs as per their own admission---Co-sharer could initiate ejectment proceedings against the tenants without joining the other co-sharers---No illegality or infirmity having been noticed in concurrent findings of the courts below, constitutional petition was dismissed accordingly.
2002 SCMR 1112; 2000 CLC 1841; Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429; Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903; Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033 Mst.Rehana Hafeez v. Muhammad Ali alias Ehsan through L.Rs. 2014 CLC 1242 ref.
Muhammad Zahid Kabeer for Petitioners.
Ghulam Muhammad for Respondent No.1.
Date of hearing: 7th November, 2016.
JUDGMENT
KHADIM HUSSAIN M. SHAIKH, J.---Through this petition, the petitioners namely Bahadur Khan and Ghulam Haider Khan have called in question judgment dated 14.04.2016, passed by the learned II-Additional District Judge, Karachi Central, dismissing Rent Appeal bearing F.R.A.No.41/2015 re-Bahadur Khan and another v. Abdul Khaliq, filed against the order dated 12.03.2015, passed by III-Senior Civil Judge/Rent Controller, Karachi Central in Rent Case No.119/2009 re-Abdul Khaliq v. Bahadur Khan and another, whereby the ejectment application, filed by the respondent Abdul Khaliq, was allowed and the petitioners were directed to vacate the demised shop and hand over its vacant possession to the respondent within 60 days from the date of the said order.
2.Briefly the facts of the case are that the respondent Abdul Khaliq filed Rent Application under Section 15 of Sindh Rented Premises Ordinance, 1979, before the Rent Controller, alleging therein that late Abdul Maqbool Khan, who was owner/landlord of property bearing Plot No.5. Passban No.1, Nawab Siddiq Ali Khan Road. Karachi, which includes the demised shop, expired on 12.08.1994, leaving behind the applicant respondent Abdul Khaliq and six others as his surviving legal heirs and, thus, after his demise, respondent Bahadur became one of the co-sharers in the aforesaid property. The demised premises was let out by the father of respondent Abdul Khaliq to the petitioners, who are brothers inter-se and joint tenants, carrying on business in the demised premises under the name and style of Messrs Tariq Water Supply. The petitioners are presently paying rent to the respondent Abdul Khaliq's mother at the rate of Rs.600/- per month, which was paid up to January, 2009. Respondent Abdul Khaliq has six children, but for want of premises cannot do his own independent business to earn livelihood for himself and his family members and is working with his brother in one of the shops in the same building on monthly salary of Rs.6000/-, which hardly meet the basic requirements of Respondent Abdul Khaliq, who in good faith and bona fide needs wants to start his own independent business in the demised premises. Respondent Abdul Khaliq time and again approached and requested the petitioners to hand over the possession of the demised premises to him as the same is required by him for his own personal bona fide use. As his approaches yielded no fruit, hence, he filed the aforementioned Rent Application, seeking ejectment of the petitioners.
3.The petitioners filed their join written statement, wherein they have stated that the Rent Application is not maintainable. The petitioner No.1 is doing his business in the name and style of Messrs Tariq Water Supply in a shop of Mst.Sajida Begum widow of Abdul Mabood Khan, who being landlady of the demised premises is receiving rent from the appellant since 1994 and the petitioner No.2 is carrying on his sanitary business in another shop. The ejectment application has been filed with mala fide intention. They further stated that the respondent is doing business with his brother since long in another shop.
4.Applicant/Respondent Abdul Khaliq filed his affidavit-in-evidence at Ex.A, CNIC at Ex.A/1 and agreement at Ex.A/2 and affidavit of witness Mustafa Kamal as Ex.A.W/1, who both were subjected to cross-examination by the learned advocate for the petitioners. Then the opponent/petitioner No.1 Bahadur Khan filed his affidavit-in-evidence and produced at Ex.O and rent receipts at Ex.O/1 and Ex.O/2 and the opponent/petitioner No. 2 Ghulam Haider Khan also filed his affidavit-in-evidence at Ex.O/2, and, they were subjected cross-examination by the learned counsel for the applicant/respondent No.1.
5.After hearing the parties' counsel the learned Rent Controller, allowed the rent application, vide eviction order dated 07.05.2012, directing the petitioners to vacate the demised shop and hand over its possession to the respondent within 60 days. The opponents/petitioners being aggrieved filed the aforementioned F.R.A. before the learned District Judge Karachi Central, which was ultimately heard and decided by the learned II-Additional District Judge, Karachi Central vide judgment dated 14.04.2016, dismissing the appeal, hence this petition.
6.The learned counsel for the petitioners has mainly contended that the respondent No.1 is co-sharer in the demised premises by way of inheritance from his father Abdul Mabood Khan, who was owner and landlord of the demised premises; that the petitioners remained tenants of Abdul Mabood Khan and after his demise, they used to pay the rent to his wife Mst. Sajida Begum who has also expired: that the rent application filed by the respondent Abdul Khaliq without joining other co-sharers i.e. his brothers and sisters was not maintainable; that the petitioners have handed over possession of one Shop to the applicant/respondent No.1, after institution of the rent case on his request, and, per him, the respondent No.1 does not require the demised premises for his personal need; and, that the impugned judgment and order, passed by the learned Courts below are not sustainable. He, therefore, prays that the petition may be allowed and the impugned judgment and order may be set-aside.
7.Learned advocate for the respondent has mainly contended that the petitioner has filed the instant petition by concealing the material facts; that the eviction order, passed by the Rent Controller and the judgment passed by the appellate Court, are based on evidence; and, that the concurrent findings of the learned Courts below do not suffer from any illegality. He, therefore, prays that the petition may be dismissed.
8.I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
9.From a perusal of the record it would be seen that the evidence led by the respondent was consistent with the ejectment application, which could not be shaken or dislodged in cross-examination by the petitioners, who have also not produced evidence of the nature in rebuttal rather the petitioners made various admissions, having material bearing to the case, mentioned in the eviction order, passed by the learned Rent Controller, who after appreciating the evidence and considering the material aspects of the case, had allowed the ejectment application. The relevant paragraphs of the impugned eviction order dated 12.03.2015, are reproduced here:--
"In this regard, I have gone through the evidence of the parties. The opponent No.1 has admitted in his cross-examination. "It is correct to suggest that after death of Abdul Mabood Khan, I used to pay rent to his widow namely Mst.Sajida Begum. It is correct to suggest that applicant is also one of the legal heirs of Abdul Mabood Khan. It is correct to suggest that on 20.5.2014, Mst.Sajida Begum expired. It is correct to suggest that I am not paying rent to any of the legal heirs including the applicant after death of Mst.Sajida Begum. It is correct to suggest that in instant case no other legal heir has filed any objection against the applicant if the shop is being vacated by me."
It is pertinent to mention here that the applicant is co-owner of the property falls in definition of landlord, which is given in SRPO, 1979, which is reproduced as under:
2. Definitions.
(f) "landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises.
It is settled principle of law that Application for ejectment filed by co-sharer cannot be defeated on ground that remaining co-sharers were not joined as applicants in ejectment petition. A co-owner can file ejectment proceedings against a tenant without impleading other co-owners.
Reliance is placed on case laws reported in 2002 SCMR 1112 and 2000 CLC 1841.
2002 SCMR 1112
S. 15---constitution of Pakistan, 1973, Art.185 (3)---Ejectment of tenant---Bona fide personal need of landlord---Entitlement to ejectment on personal requirement---High Court allowed appeal filed by co-owners of the premises and modified the order passed by Rent controller---Validity---High court had properly assessed the evidence on record and legally and equitably came to the conclusion that the co-owner and proved his requirement in good faith---Where no misreading or non-reading or misapplication of law was pointed out, Supreme court declined to interfere---Leave to appeal was refused. [1113]A.
2000 CLC 1841
b)---S.15---Entitlement of co-sharer to file ejectment application---Co-Sharer was perfectly entitled to initiate ejectment proceedings without impleading other co-sharers. [1850] B
Furthermore, the mother of applicant has also expired to whom the opponents were paying rent and after the death the opponents have not paid rent to any of the legal heirs as per own admission of opponent."
10.It further reveals that the learned II-Additional District Judge, Karachi Central, after reappraisal of the evidence, dismissed the appeal filed against the eviction order, concurring the findings rendered by the learned Rent Controller. For the sake of convenience the relevant paragraph of the impugned judgment, passed by the learned appellate Court, are reproduced here:--
"From the perusal of evidence available on record it appears that the respondent/applicant has admitted in his cross-examination that he was working at his brother's shop since last four years but nowadays he is not working with him and then the respondent/application by demolition the passage in front of his house made shop for his livelihood and such fact has been admitted by the appellant/opponent No.2 in his cross-examination. Both the appellants/opponents have neither denied the claim of the respondent/applicant for his personal bona fide use in their written statement nor in their Affidavits-in-Evidence and it is a settled law that if a fact is deposed by any party which is not cross-examined by another party then it is presumed that the other party has admitted such fact deposed by the party. In the present case the appellants/opponents have not denied the claim of the respondent/applicant for his personal bona fide use therefore it amounts their admission in respect of claim of the respondent/applicant for his personal bona fide use. It is a settled law that parameters of each case are primarily on its own facts which have to be taken into consideration for deciding the point whether the landlord requires the premises in good faith or not and, he is required to state in his application only the material facts which constitute cause of action along with those facts which prima facie shows that the requirement is according to law and is made in good faith. In the instant case the respondent/applicant has taken ground that the demised shop is required to him for his personal bona fide use and his versions are supported by his witness Mustafa Kamal and they both are unanimous that the demised shop is required to the respondent/applicant in good faith for his personal bona fide use therefore the versions of respondent/applicant are appearing to be true which can be accepted as bona fide and as such on the basis of evidence available on record the respondent/applicant has established his personal bona fide need of the demised shop for running his own business.
So far as relationship of landlord and tenant between the parties is concerned the appellant/opponent No.1 in his cross-examination has admitted that after death of Abdul Mabood Khan he was paying rent to his widow namely Mst.Sajida Begum and that the respondent/applicant is one of the legal heirs of late Abdul Mabood Khan. He has also admitted that Mst.Sajida Begum has expired on 20.5.2014 and since then they are not paying rent to any of the legal heirs including the respondent/ applicant.
It has also come on record the appellants/opponents after the death of Mst.Sajida Begum on 20.5.2014 have not paid rent to any of the legal heirs of the deceased Abdul Mabood Khan including the respondent/applicant therefore they have also committed default in payment of rent to the legal heirs of above named deceased including the respondent/applicant therefore on the basis of evidence available on record the respondent/ applicant has established his personal bona fide need of the demised shop for running his business and relationship of landlord and tenant is also existing between the parties as such impugned order passed by trial Court is legal and proper which is sustainable in law and does not require interference by this Court."
11.In view of the above, I am of the view that conclusion drawn by the Rent Controller and the Appellate Court to the effect that the need of landlord is bona fide on the appraisal of the evidence appears to be justified and in accordance with the law, and, thus, there are concurrent findings of the facts rendered by the Courts below against the petitioner; there is no cavil to the legal proposition that concurrent findings of the facts rendered by the Courts below cannot be interfered with in the constitutional jurisdiction by this Court, for, constitutional jurisdiction being discretionary in nature, is very limited, which primarily, is intended to provide the expeditious remedy to intervene into a matter in which illegality in the impugned judgments or orders and/or jurisdictional defect is floating on the surface without elaborate investigation into the disputed questions of facts. Moreover, the co-sharer can initiate ejectment proceedings against the tenants without joining the other co-sharer. Reference can be made to the case of Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others (2002 SCMR 429), wherein the Hon'ble Supreme Court of Pakistan has held that:-
"a co-sharer can file ejectment proceedings against a tenant without impleading other co-sharers. The wisdom behind such principle is that co-sharer acts on behalf of and represents the interest of all the co-owners of the property."
In case of Muhammad Shoaib Alam and others v. Muhammad Iqbal (2000 SCMR 903), the Hon'ble Supreme Court of Pakistan, has observed that:--
"Statement of landlord on oath if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that requirement of landlord was bona fide."
In case of Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others (2003 MLD 1033), a single bench of this Court has observed that:--
"by conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislator 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. The dictum laid down in the case of Secretary to the Government of the Punjab (supra) also postulates similar view and is fully applicable to the facts and circumstances of the present case. No case for interference in the concurrent findings of facts recorded by the two Courts below is thus made out."
In case of Mst.Rehana Hafeez v. Muhammad Ali alias Ehsan through L.Rs. (2014 CLC 1242), a single bench of this Court has observed that:--
"concurrent finding as recorded by the Courts below, particularly in rent matters, cannot be disturbed by this Court in its constitutional jurisdiction, unless any grave illegality, jurisdictional error or perverse finding on facts is pointed out by the petitioner."
12.In view of what has been discussed above, I am of the considered view that the concurrent findings, rendered by the Courts below in the impugned order and judgment, after appreciating the evidence in accordance with the dictum laid down by the Hon'ble Superior Courts, do not suffer from any illegality or perversity or jurisdictional defect. Learned advocate for the petitioners has also not been able to point out any illegality or infirmity or perversity qua the findings of the Courts below and he has also not been able to point out any jurisdictional defect in the impugned judgment and order, attracting exercise of constitutional jurisdiction of this Court. Accordingly, the petition, being devoid of merit, is dismissed with no order as to costs. The petitioners are directed to vacate the demised premises and hand over its vacant possession to the respondent Abdul Khaliq in sixty (60) days from the date of pronouncement of this judgment.
MQ/B-13/Sindh Petition dismissed.
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