Order
Sheet
IN THE HIGH COURT OF SINDH, KARACHI
C.P.
No.S-1238 of 2023
[ Tasleemullah (late)
through his legal heirs v. Rehman Masood and others]
Petitioner: Through Mr. Sikandar Khan, Advocate.
Date of Hearing & order: 26.08.2025
O R D E R
ARSHAD HUSSAIN KHAN,
J. The petitioners
through instant constitutional petition have challenged the judgment dated 05.09.2023
passed by VI-Additional District Judge, Karachi-Central in FRA No.84/2020
whereby order dated 10.09.2020 passed
by the Ist Rent Controller, Karachi-Central in Rent Case No.177/2014, rejecting
the ejectment application, was upheld and FRA was dismissed.
2. The brief facts of the matter
are that Tasleemullah, predecessor-in-interest of the petitioners, filed an
ejectment application against the respondent on the grounds of default in
payment of rent and sub-letting without the consent of the landlord, registered
as Rent Case No.177 of 2014. The learned XIIth Rent Controller,
Karachi-Central, after recording the evidence of the parties and hearing
learned counsel, dismissed the ejectment application vide order dated
31.10.2017. Aggrieved by the said order, the predecessor-in-interest of the
petitioners preferred F.R.A. No.304 of 2017. The learned VIth Additional
District Judge, Karachi-Central, vide order dated 29.11.2018, allowed the
appeal, set aside the impugned order, and remanded the matter back to the learned
Rent Controller with directions to decide the same afresh on the basis of the
available evidence, material on record, and after hearing the parties, within
the shortest possible time in accordance with law. In the second round of
litigation, the learned Ist Rent Controller, Karachi-Central, again
dismissed the ejectment application vide order dated 10.09.2020. The
said order was assailed through F.R.A. No.84 of 2020, which too was
dismissed vide order dated 05.09.2023 by the learned VIth Additional
District Judge, Karachi-Central. The petitioners have now impugned the said
orders through the instant Constitutional Petition
3. Learned counsel for the petitioner contends that impugned
judgment and order passed by both the
Courts below are against the law, equity and natural norms of justice; that
both the Court below have failed to appreciate evidence, facts and arguments
advance on behalf of the petitioners; that both the decisions are suffering
from illegalities and irregularities and also suffer from conjectures,
surmises, assumptions and presumptions, as such, the same are not sustainable
in the eyes of law and liable to be set-aside; that the impugned judgments are
not based on cogent, convincing and plausible reasons / grounds; that the
impugned judgment and order are void, ab-initio and having been passed due to
non-reading and misreading of evidence, as such, the same are liable to be
set-aside.
4. Heard learned counsel for the petitioners
and perused the record carefully.
5. In the instant case, both the Courts
below have recorded concurrent findings of fact, and the petitioners have
failed to bring on record any material to demonstrate that such findings are
either perverse, suffer from a jurisdictional defect, or are the result of
misreading or non-reading of evidence. In view thereof, learned counsel for the
petitioners was specifically confronted to satisfy this Court regarding the
maintainability of the present petition against concurrent findings; however,
he was unable to point out any error of law or procedural irregularity in the
passing of the impugned judgment/order. It is a well-settled principle of law
that concurrent findings of fact recorded by the Courts below are not to be
interfered with in constitutional jurisdiction, save in extraordinary
circumstances where patent illegality, perversity, or jurisdictional defect is
demonstrated. No such circumstances have been shown in the present case.
6. The jurisdiction conferred under Article 199 of the Constitution
is discretionary with the objects to foster justice in aid of justice and not
to perpetuate injustice[1]. It may also be observed that the ambit of a
writ petition is not that of a forum of appeal, nor does it automatically
become such a forum in instances where no further appeal is provided[2],
and is restricted inter alia to appreciate whether any manifest illegality is
apparent from the order impugned. It is also well settled that where the fora
of subordinate jurisdiction had exercised its discretion in one way and that
discretion had been judicially exercised on sound principles the supervisory
forum would not interfere with that discretion, unless same was contrary to law
or usage having the force of law.
7. It is also well settled principle of
law that the High Court in exercise of its constitutional jurisdiction is not
supposed to interfere in the findings on the controversial question of facts,
even if such findings are erroneous. The scope of the judicial review of the
High Court under Article 199 of the Constitution in such cases, is limited to
the extent of mis-reading or non-reading of evidence or if the findings are
based on evidence which may cause miscarriage of justice but it is not proper
for this Court to disturb the findings of facts through reappraisal of evidence
in writ jurisdiction or exercise this jurisdiction as substitute of revision or
appeal. The Supreme Court of Pakistan in the case of Farhat Jabeen v.
Muhammad Safdar and others [2011 SCMR 1073] has held as under:-
"Heard. From the impugned judgment
of the learned High Court, it is eminently clear that the evidence of the
respondent side was only considered and was made the basis of setting aside the
concurrent finding of facts recorded by the two courts of fact; whereas the
evidence of the appellant was not adverted to at all, touched upon or taken
into account, this is a serious illegality committed by the High Court because
it is settled rule by now that interference in the findings of facts
concurrently arrived at by the courts, should not be lightly made, merely for
the reason that another conclusion shall be possibly drawn, on the reappraisal
of the evidence; rather interference is restricted to the cases of misreading
and non-reading of material evidence which has bearing on the fate of the
case."
8. A perusal of the order passed by the learned Rent Controller reflects that the eviction application was filed by the petitioner on the grounds of default in payment of rent and sub-letting without the consent of the landlord. Upon appraisal of the evidence led by both sides, the Rent Controller came to the conclusion that the petitioner/applicant had failed to establish the jural relationship of landlord and tenant between himself and respondent No.1. Consequently, the ejectment application was dismissed. The said findings were thereafter assailed before the appellate Court, which, upon a re-examination of the record, upheld the order of the Rent Controller by assigning detailed and cogent reasons.
9. Prima facie, there appears no illegality and irregularity in
the concurrent findings of the two Court(s) below while deciding the matter.
Further, learned counsel for the petitioners has also failed to make out a case
for interference into concurrent findings of two Courts below hence,
constitutional jurisdiction of this Court cannot be exercised which, otherwise,
is not only limited but could only be exercised in exceptional circumstances which
are lacking in instant case.
10. In view of the facts and circumstances of
the case as discussed above, the instant petition, being devoid of merit, is
dismissed in limine alongwith pending applications.
JUDGE
Naveed
PA