ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
C.P.No.S- 78 of 2010
DATE ORDER WITH SIGNATURE OF JUDGE
1. For Katcha Peshi.
2. For hearing of MA 778/10.
Date of hearing: 24.5.2010.
Date of order: 4.6.2010.
Mr. Jagdish R. Mullani, Advocate for petitioner.
Mr. Shakeel Ahmed Shaikh, Advocate for respondent No.1.
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O R D E R
AQEEL AHMED ABBASI, J- Through instant petition, the petitioner being tenant in respect of the subject premises has impugned the judgment dated 25.1.2010 passed by learned IInd Additional District Judge, Hyderabad, whereby Ist Rent Appeal No.67/2009 has been dismissed and the order dated 31.7.2009 passed by learned IVth Senior Civil Judge & Rent Controller, Hyderabad has been maintained.
The learned counsel for the petitioner has submitted that both the impugned orders are illegal and the same are based on misreading and non-reading of evidence. Learned counsel further states that relationship of landlord and tenant was disputed by the petitioner whereas no notice U/s 18 of the Sindh Rented Premises Ordinance, 1979 was ever served upon the petitioner by respondent No.1. Learned counsel further argued that even on merits, the respondent No.1 had no case for seeking eviction of the petitioner from the subject premises on the ground of personal bonafide need and default as the petitioner has not committed any default in payment of rent in respect of the subject property nor the respondent No.1 has established personal bonafide need. He further argued that respondent No.1 is not exclusive owner of the premises and is only co-sharer/co-owner hence cannot file the rent proceedings in his own capacity without impleading the other co-sharers as party to these proceedings. The learned counsel further argued that since there was no agreement between the petitioner and the respondent No.1 hence the petitioner was not required to pay advance rent. It is further argued that rent was deposited till 10.12.2008 whereas in March 2009 rent for the months of January and February was also deposited in terms of Section 15(2) of the Sindh Rented Premises Ordinance, 1979, no default in payment of rent has been made by the petitioner. The learned counsel further referred to the examination-in-chief as well as cross-examination of the respondent No.1 to show that the claim of the respondent No.1 for personal bonafide need is not genuine as the respondent No.1 is owner of other properties as well. In support of his contentions, the learned counsel has placed reliance on the following cases:-
1. Javed Khalique Vs. Mkuhammad Irfan (2008 SCMR 28).
2. Muhammad Hafeez and another Vs. District Judge, Karachi East and another (2008 SCMR 398).
3. Hafeezuddin and 2 others Vs. Badaruddin and 2 others (PLD 2003 Karachi 444).
Learned counsel therefore, concluded that impugned judgment may be set aside and the instant petition may be allowed.
Conversely, the learned counsel for respondent No.1 has vehemently opposed the maintainability of instant petition on the ground that both the Courts below after examining the entire evidence adduced by the parties have given concurrent finding in favour of the respondents which cannot be impugned through constitutional petition. The learned counsel further argued that constitutional jurisdiction in the rent matters cannot be invoked in a routine manner and the same is to be exercised in exceptional cases where either there is conflicting judgment of Rent Controller and the Appellate Court or there is some jurisdictional error or patent illegality manifest on the face of impugned order. Learned counsel has read out the impugned judgment as well as the judgment passed by Rent Controller and also referred to the evidence adduced by the parties to show that the respondent being the co-owner of property filed ejectment application on the ground of personal bonafide need and default in payment of rent and other charges etc. The respondent adduced his evidence and was subjected to cross-examination. The learned counsel also referred to the written objections filed U/s 19 of the Sindh Rented Premises Ordinance by the petitioner/opponent to show that claim of the respondent/applicant of personal bonafide need and default in payment of rent by the petitioner has not been specifically denied whereas evasive reply by disputing the ownership of respondent/applicant has been made. It is further argued by learned counsel for respondent that learned Rent Controller after thorough examination of the evidence adduced by both the parties and after formulating points for determination including the relationship of landlord and tenant, willful default in payment of monthly rent from December 2008 by the petitioner and the requirement of personal bonafide use, has given detailed finding in favour of the respondent on every point. He further argued that Appellate Court has also considered all the objections raised by the petitioner and after formulating points of determination has given his finding in favour of the respondent which requires no interference by this Court in its constitutional jurisdiction. In support of his contentions, the learned counsel has placed reliance on the following cases:-
1. Muhammad Hanif and another Vs. Muhammad Jamil Turk and 5 others (2002 SCMR 429).
2. Hafiz Shafatullah Vs. Mst. Shamim Jahan and another (PLD 2004 Karachi 502).
3. Saifullah Vs. Muhammad Bux and 2 others (2003 MLD 480).
I have heard both the learned counsel, perused the impugned judgment and the case law relied upon by the parties and record produced by them.
It appears that ejectment proceedings were filed by the respondent against the petitioner in respect of tenement i.e. two rooms area 200 sq.ft Ist Floor situated at 561-A opposite Sanam Plaza Tando Wali Muhammad Hyderabad on the ground of willful default from the month of December 2008 and the personal bonafide need of son of the respondent. The respondent Naushad Ali filed his affidavit in evidence in support of his contentions in which the same assertions were made. He also produced Extract from Property Register Card of Survey No.561 as Ex.12/A/1, Extract from Property Register Card of City Survey No.563 as Ex.12/A/2, Extract from Property Register Card of City Survey No.562 as Ex.12/A/3 and rent receipts No.41, 44, 47 and 50 as Ex.12/B/1 to 4. The respondent was duly cross examined by learned counsel for the petitioner on 8.7.2009 (cross-examination and the annexted extracts are available at page 67 to 75 of the file). Perusal of the evidence of respondent shows that in view of Extract/Property Register Card (available at Page 69) the demised premises stood mutated in the joint name of respondent and other co-sharers on 21.9.1972. Similarly the rent receipt No.47 issued in the name of petitioner reflects Rs.800/- rent for the month of October whereas Rs.1800/- has been shown as arrears. In his cross-examination, the respondent has specifically mentioned that the property is transferred jointly to the co-sharers including the respondent as co-owner, and the demised premises which was given to the petitioner was exclusively owned by the respondent. It appears that such contention could not be refuted by the petitioner. The claim of the petitioner of having sent the rent through money order has also been specifically denied hence the burden to prove the payment of rent of defaulting period was shifted upon the petitioner. The petitioner could not discharge the burden through evidence, for having paid the rent to the respondent for the defaulting period.
The written objections were filed wherein the petitioner mainly disputed the ownership of the tenement, whereas it appears that no specific denial regarding the claim of respondent of personal bonafide need and default in payment of rent has been made. The petitioner on the one hand disputed the ownership of the respondent, whereas at the same time claimed to have sent money order to the respondent in respect of defaulting months and has also annexed rent receipts for the earlier period issued by respondent in respect of the said tenement which establish that the petitioner had the knowledge about the ownership of the tenement in the name of respondent which was also duly acknowledged by the petitioner by tendering rent throughout to the respondent. It further appears that petitioner did not examine himself personally and was represented through attorney who filed his affidavit in evidence in the conformity with written objections alongwith rent receipts for the months of May and June dated 5.7.1991 issued by the respondent as Ex.19/A and also receipt of money order Ex.19/B purportedly to have been issued to the respondent for the sum of Rs.1600/-. However, there appears no endorsement of receipt of such money order by the respondent or any one on his behalf. He also filed his power of attorney as Ex.19/C and also fled affidavit in evidence as Ex.20. He was cross examined by the counsel for respondent on 22.7.2009. During his cross-examination, the attorney of the petitioner has deposed as under:-
“I have gone to the house of applicant alongwith the opponent about 1 and 1 ½ years back for making some complaint that the another tenant adjacent in same premises has raised nuisance. The opponent has disclosed me that he has spent Rs.80,000/- for repair of the demised premises. It is not in my knowledge that the applicant wants to marry his son and requires the demised premises for his son. It is incorrect to say that I am deposing falsely at the instant of attorney of the opponent.”
Perusal of the written objections and the annexures filed by the petitioner show that objections regarding ownership of the demised premises besides being contrary to the facts in view of the documents filed by the respondent, were ill founded on the contrary the petitioner attorney himself has admitted the fact of tendering of rent to the respondent for earlier period without any objection. Similarly the claim of the respondent duly supported by affidavit in evidence regarding the personal bonafide need of the respondent’s son and default in payment of rent and other charges also appears to have not been seriously denied by the petitioner whereas an evasive attempt is made to show that disputed rent was sent to the respondent through money order whereas no acknowledgement of such money order has been filed by the petitioner. It is now well settled law that once the landlord claims personal boanfide need, files affidavit in support of his claim which remains unrebutted or unshaken by the opponent, is considered sufficient evidence in support of such claim. Similarly the claim of landlord for personal boanfide need of the premises and default in payment of rent cannot be denied by merely disputing ownership of the tenement, particularly having acknowledged the same by tendering rent for a considerable period without any objection by tenant, furthermore when there is no other claimant of ownership of said premises. It appears that grounds of eviction of the tenant from the rented premises have remained unshaken and the petitioner has failed to adduce any evidence contrary to the assertion of claim of the respondent in this regard. As regards the objection of petitioner relating to competency of a co-sharer in the property to file ejectment proceedings, the same stands replied by the judgment of Honourable Supreme Court in the case of Muhammad Hanif Muhammad Hanif and another Vs. Muhammad Jamil Turk and 5 others (2002 SCMR 429) wherein it has been held as under:-
“8. Even on merits, if the co-sharers succeed in the partition suit, demised premises being part and parcel of the joint property would be partitioned between the co-sharers according to law. Learned counsel relied upon a judgment of this Court in Abdul Ghani v. Abrar Hussain (1999 SCMR 348) in support of his contention but in our view the principle laid down in the precedent case is not attracted in the circumstances of the case. On the contrary, general rule of law has been 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.”
As regards personal bonafide need of the landlord and evasive reply by the tenant, the Honourable Supreme Court in the above referred judgment has held as under:-
“Evasive replies of the petitioner’s witness as regards the bonafide requirement of the premises by respondents were adequate enough to warrant an inference that they failed to refute the plea advanced by the respondents. At any event, there is nothing on record to reflect that the desire and need of the respondents for additional accomodation for self-occupation was tainted with malice or ulterior motive. Reliance on Mulakh Bano v. Gohar Bano (1976 SCMR 314) and Muhammad Amir v. Khan Bahadur (PLD 1996 SC 267) in this connection is of no assistance to the petitioners as both the case are distinguishable on facts.”
It has also been held by the Honourable Supreme Court in the said judgment that finding of Appellate Court can only be discarded if it is not based on correct appreciation and analysis of evidence or is contrary to material of record or is arbitrary or perverse on the face of it, whereas in the instant case there are concurrent findings in favour of the respondent as well as burden was upon the petitioner to show that such findings are arbitrary or perverse on the fact of it. In view of the facts of this case and the material produced by the parties, I am of the view that petitioner has failed to discharge this burden.
As regards to the maintainability of constitutional petition in rent matters, reliance has been placed in the case of Hafiz Shafatullah Vs. Mst. Shamim Jahan and another (PLD 2004 Karachi 502) in which it has been held as under:-
“12. Besides, the scope of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in rent cases has been discussed by this Court in many cases. It has been held by me in the case of M/s Mehraj (Pvt.) Ltd., v. Miss Laima Saeed and others (2003 MLD 1033) 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 same proposition was earlier adopted in the case of Saifullah Vs. Muhammad Bux and 2 others (2003 MLD 480). In the above case it has also been held that stricto senseo compliance of the service of notice by registered post A.D U/s 18 of the Sindh Rented Premises Ordinance is not required if the tenant has been made sufficiently aware of the transfer of the property. In the instant case the property was transferred in the name of respondent in the year 1972 and there appears to be no other claimant of such property. Under the circumstances, it is not conceivable that tenant was not aware of such transfer, moreover when he has himself admitted tendering of rent to the landlord/respondent. In view of hereinabove the case law relied upon by the counsel for the respondent appears to be applicable in the facts of this case whereas the case law relied upon by counsel for the petitioner is not attracted in the facts and circumstances of this case hence reliance in this regard is misplaced.
In view of hereinabove, I am of the view that concurrent findings of two Courts below does not suffer from any illegality hence require no interference by this Court in its constitutional jurisdiction. Accordingly, the instant petition having no merits is dismissed in limine alongwith listed application.
JUDGE
Tufail