Present
Mr. Justice Aqeel Ahmed Abbasi.
1. For Katcha Peshi.
2. For hearing of CMA No.1366/10
Date of hearing : 21.03.2013
Date of order : 15.04.2013
Petitioner : Syed Ayaz Haider, through
Mr. M. Saeed Chandio, Advocate
Versus
Respondents M/s Noble House (Pvt) Ltd. & others
through Mr. Habib-ur-Rehman, Advocate along with Mr. Ghulam Mujtaba, Advocate.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied with the impugned judgment dated 05.03.2010 passed in First Rent Appeal No.210/2009 by the Ist Additional District Judge, Karachi East, whereby the order of ejectment dated 11.08.2009 passed by the learned 2nd Rent Controller, Karachi East, in rent case No.528/2003, was maintained and the appeal filed by the petitioner was dismissed with the direction to handover vacant peaceful possession of the property in question within 30 days to the respondent, the petitioner has filed instant constitution petition with the following prayer:-
“It is, therefore, prayed that this Honourable Court may kindly be pleased to set aside the judgment of learned Rent Controller No.VII, Karachi East, in FRA No.210 of 2009 dated 11.08.2009 and 05.08.2009 and further be pleased to dismiss the rent case No.528 of 2003 filed by the respondent No.1 against the petitioner.”
2. Brief facts as recorded by the learned Appellate Court are that the respondent sought eviction of the petitioner by filing an application under Section 15 of Sindh Rented Premises Ordinance, 1979, stating therein that the respondent, by virtue of written tenancy agreement dated 06.02.2002, is a rent collector and entitled to receive the rent at the rate of Rs.18,000/- per month in respect of House No.A-130, Block-3, situated at KDA Scheme No.24, Gulshan-e-Iqbal. It was the case of the respondent that petitioner has not paid the rent from 05.08.2003 to 05.12.2003 as such an amount of Rs.72,000/- has become due against the appellant, who has failed to pay the same inspite of repeated demands, whereas a Notice was also served upon the petitioner on 10.11.2008 through TCS, however, the petitioner did not pay the rent, as such he is a willful defaulter in payment of rent. It was the case of the respondent that the petitioner has also made alteration and addition in the premises in question, without prior permission of respondent, and has converted main hall into three rooms during the tenancy period and thereby have impaired the material value of the said premises, even have made several bifurcation/partition of permanent nature, which also has damaged structural strength and stability of the premises. Apart from the above the petitioner admitted young students and filled living rooms duly converted by class room, by creating nuisance and hazard, which also has endangered the life of the school children, whereas breach of terms and conditions of the tenancy agreement has also been made. It was the further claim of the respondent that the premises in question is required for personal need.
3. The petitioner filed written-statement, wherein he denied the averments of the ejectment application as well as allegations leveled therein and submitted that respondent is not the competent person to file ejectment application without Board’s resolution of the company, whereas Mst. Syeda Zehra Firdous daughter of Saiyid Ijteba Hussain Rizvi has got published a notice in daily Aman dated 03.12.2003, claiming to be the owner of the subject tenement i.e. House No.A-130, Block No.3 and has further stated that the property neither can be sold nor can be let out by any person without consent of Syeda Zehra Firdous. The petitioner specifically denied the allegation of having committed default in payment of rent for the alleged period and stated that he has paid the rent whereas no proper receipt was issued, on the contrary, rent for the month of August, 2003 had been acknowledged on a chit (slip) of paper and thereafter, respondents refused to accept the rent offered in cash. Subsequently, as per contention of petitioner, the petitioner remitted rent through money order, but the same was returned with the endorsement of the postman in Urdu language “the payee is out of country” as the office staff refused to accept the money order, thus there was no alternate with the petitioner to deposit the rent in Court i.e. M.R.C. No.196 of 2003 in which as per Petitioner, rent is being deposited regularly. It was stated that respondent was infact demanding advance rent for six months, which was in violation of terms of the agreement, hence such demand was declined by the petitioner, whereafter, the respondent adopted the pressure tactics and filed ejectment application on false grounds of default, whereas, an amount of Rs.2,00,000/- is already available with the respondent towards security deposit paid by the petitioner. The allegation of having made alteration and addition in the subject premises has also been denied by the petitioner and it has been stated that the premises was let out to petitioner for Educational purposes cum-commercial, as such the hall was partitioned by wooden penals and such fact was well in the knowledge of the respondent, hence no addition and alteration of permanent nature has been carried out nor the value and utility of subject tenement has been impaired. It was further stated that since respondent is not an owner in terms of Sindh Rented Premises Ordinance, 1979, as such, there is no question of his personal requirement.
4. From the above stated facts and circumstances, the learned Rent Controller formulated the following points for determination:-
1) Whether the ejectment application is not maintainable having not filed by competent person?
2) Whether the opponent has committed default in payment of rent from 05.08.2003 to 05.12.2003 being accumulated rent amounting to Rs.72,000/-?
3) Whether the applicant has made alteration and addition in the premises thereby impairing utility of the premises and having changed the use of the premises in contraversion of the terms and condition of the tenancy agreement?
4) Whether the applicant requires premises bearing House No.A-130, Block-3 for personal bonafide need?
5) What should the order be?
5. The learned Rent Controller after hearing both the parties and on perusal of the evidence adduced by them, allowed the ejectment application filed by the respondent. The order of the learned Rent Controller, was assailed by the petitioner by filing First Rent Appeal before the learned Ist Additional District Judge, Karachi East, who after hearing both the parties maintained the order of the learned Rent Controller with the direction to the petitioner to handover vacant and peaceful possession of the property in question within 30 days from the passing of the impugned judgment.
6. The above concurrent finding recorded by the Courts below has been assailed by the petitioner through instant constitution petition. It has been contended by the learned counsel for petitioner that both the Courts below have erred in law and facts by allowing the ejectment of the Petitioner from subject tenement without appreciating the fact that the ejectment application was filed by a person who was not authorized to do so. It has been further contended that both the Courts below failed to appreciate that there was no willful default on the part of the petitioner, whereas the rent was deposited through money order on 02.10.2003, which was refused on 26.10.2003 and thereafter immediately the petitioner deposited the rent in MRC No.169/2003 in the Court of Rent Controller, Karachi East. It has been argued that no alteration or addition of permanent nature was made by the petitioner in the subject tenement, whereas the said changes were within the knowledge of the Respondent and the same are temporary in nature. However, per learned counsel such aspect of the matter has not been properly appreciated by the Courts below. Per learned counsel, the plea of the Respondent, seeking ejectment on the ground of personal need has already been turned down, whereas ejectment application was required to be dismissed on the ground of default and alteration in the tenement as well. In support of his contention learned counsel has placed reliance on the following judgments:-
1) Cargil Incorporated and another v. Messrs Trading Corporation of Pakistan and another 2010 CLC 420.
2) Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd. PLD 1971 SC 550.
7. Conversely, learned counsel for the respondent has vehemently opposed the maintainability of the instant petition. It has been contended by the learned counsel for respondent that in view of concurrent finding recorded by the two Court below, the petitioner has no locus standi to assail such finding by invoking the extra ordinary constitutional jurisdiction of this Court under Article 199 of the Constitution. Per learned counsel, the constitutional jurisdiction of this Court cannot be equated with the appellate jurisdiction, which infact, in the rent matters has not been provided by the legislature to the High Court. Per learned counsel, the appellate proceedings before the District Court in First Rent Appeal are conclusive in nature and in exceptional cases, when the impugned finding is patently illegal or suffers from jurisdictional error, the same can be assailed by invoking the provisions of Article 199 of the Constitution. It has been further contended by the learned counsel that the petitioner in the instant case has miserably failed to point out any jurisdictional error or any illegality in the impugned judgment passed by both the Courts below, which may require any interference by this Court while exercising its Constitutional jurisdiction. Per learned counsel, the ejectment application on the grounds of default in payment of rent as well as unauthorized alteration and addition in the structure of the subject tenement has been allowed by the learned Rent Controller after examining the entire evidence produced by the parties, whereafter such finding of fact has duly been approved by the learned Appellate Court, hence the same does not require any interference by this Court at this stage. Per learned counsel, it has come on record through evidence that the ejectment proceedings were filed by the authorized person i.e. one of the Director of the Company who signed the rent agreement and has been acknowledged as rent collector, hence such plea at this stage cannot be allowed to be raised by the petitioner. It has been further contended by the learned counsel for respondent that the petitioner has miserably failed to show from evidence that no default in payment of rent was committed by the petitioner. On the contrary, the evidence produced by the parties reflects that there is willful default on the part of petitioner towards payment of monthly rent. Per learned counsel for Respondent it has also come on record that the petitioner has unauthorizedly made alteration and addition in the subject tenement, which has impaired value of the subject premises. It has been further argued that the Petitioner has failed to point out any jurisdictional error or any perversity in the finding recorded by both the courts hence, could not make out a case requiring any interference by this Court in its Constitutional jurisdiction, therefore, instant petition liable to be dismissed in limine.
In support of his contention learned counsel has placed reliance in the following case law:-
(1) Dilawarjan v. Gul Rehman and 5 others PLD 2001 SC 149
(2) Secretary to the Government of Punjab, Forest Department, Punjab, Lahore, through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415
(3) Muhammad Sharif and another v. Muhammad Afzal Sohail, Etc. PLD 1981 SC 246
(4) Ittehad Chemicals Ltd. v. VIIth Additional District and Sessions Judge and others. 2010 CLC 599
8. I have heard both the learned counsel and perused the record which shows that ejectment proceedings were filed by M/s. Noble House (Pvt) Ltd. through their Chief Executive i.e. Mr. Obaid-ur-Rehman, on the ground of default in payment of monthly rent from 05.08.2003 to 05.10.2003, unauthorized alteration and changes in the subject tenement by impairing the material value and utility of the subject premises, and finally on the ground of personal bonafide need. Written statement was filed, parties also filed their respective affidavit-in-evidence alongwith documentary evidence, whereafter they were cross-examined by their respective advocates. After hearing both the parties and having examined the evidence produced by them, the learned Rent Controller vide impugned judgment dated 11.08.2009 has answered points No.1, 2 and 3 in affirmative, in favour of the respondent, however, point No.4 has been answered in negative, whereas, in view of finding as recorded on points No.1, 2 and 3, the point No.5 has been answered by allowing ejectment application, whereby 90 days time was granted to the petitioner to vacate the subject tenement i.e. House No.A-130, Block 3, situated at K.D.A. Scheme 24, Gulshan-e-Iqbal, Karachi, subject to payment of rent and adjustment of security deposit amounting to Rs.200,000/-.
9. While responding to point No.1 i.e. competency of the respondent to file ejectment proceedings, the learned Rent Controller has recorded his finding in the following terms:-
“In my humble view, the aforesaid evidence of the applicant is sufficient to prove competency to file ejectment application and similarly the perusal of written tenancy agreement, which is an admitted document and has not been disputed reveals that the same has been executed between Noble House (Pvt) Ltd, through its Chief Obaid-ur-Rehman and the opponent, thus the Sindh Rented Premises Ordinance 1979, it self gives a cause of action to the applicant to file ejectment application being as a rent collector having signed tenancy agreement, thus under the Sindh Rented Premises Ordinance 1979, being the signatory of the written tenancy agreement between the applicant and opponent, the applicants/signatory is competent persons to seek an ejectment under the relevant provision of law, even as a rent collector.
Where as initially the burden to prove this point lies upon the opponent having being framed from the pleadings/written statement of the opponent, but no such provision of any law has been produced to establish the aforesaid point, on the contrary as discussed above applicants has discharged burden to prove to file ejectment application being as a competent person, and having a cause of action against the opponent as much as having paid a rent to applicants as per admission of the opponent in written statement and evidence.”
10. Similarly, while responding to point No.2 i.e. default in payment of rent, the learned Rent Controller has recorded his findings as follows:-
“Although opponent has annexed Exh-O/3 & O/4 a photo state copy of money order coupons as well as rent receipt having deposited rent in MRC, but opponent has not mentioned a single date having send a money order after having refused to receive a rent and so also first date of having deposited rent in MRC, in my humble view, it was obligatory duty of the opponent to mention date of his tender of rent to applicant at the first occurrence so also date of having sent money order, and subsequently having deposited a rent in MRC, but he has suppressed all the above dates. In my humble view, opponent purposely has not mentioned, such dates either in written statement or affidavit in evidence. Whereas there is no doubt that the parties as per terms and condition of written tenancy agreement are bound whereby opponent is under obligatory duty viz clause 8, monthly rent shall be paid on every 6th Calendar month without fail, whereas in the instant matter, opponent has not filed any documentary evidence to establish that he has tendered rent within prescribed time and date to the applicant in person and on which date it was refused and thereafter on which date opponent stating depositing rent in M.R.C. No doubt opponent initially was depositing rent in MRC and subsequently in this rent case, but his said deposit of rent did not absolve to him, from the default already committed and he has started depositing rent involution of the terms and condition of written and admitted tenancy agreement, thus point replied in affirmative.”
11. While responding to point No.3, learned Rent Controller has given his decision in the following terms:-
“The applicant’s witness has produced a photo state copy of site inspection report in civil suit No.146 of 2004 pending before Hon’ble High Court and for sake of convenience concluding para of such report is reproduced hereunder:-
‘Per the order of the court I was only concerned about top floor, where on roof construction has to be seen. There were two old rooms having Asbestos sheet roof two iron doors were found with the locks of plaintiff, where inside certain articles were lying of plaintiff. The said room constructed on area about 1/3rd of the top roof. On the remaining area of the roof five rooms of hard board sheet were found built, which were use of defendant No.3 as classroom of schools.’
The said report itself is sufficient prove having made alteration and addition in the premise in question whereas no permission has been produced from the owner or the landlord of such alteration and addition and there is no doubt that such alteration and addition has impaired the utility of the premises, similarly the premises in question has been let out for educational purpose, come commercial in parting computer course, but the same is being use for school purposes where huge students are standing involution of the terms and condition of the written tenancy agreement of clause 5 and 6, even opponent in his cross-examined has admitted having made alteration and addition so also having establish a school instead of computer course, thus this court is of the view that opponent has violated the terms and condition of the tenancy agreement as discussed above.”
12. The aforesaid finding recorded by the learned Rent Controller on the above legal points was also examined by the learned Appellate Court in detail, who vide impugned judgment and decree has also concurred on all the points and has maintained the decision of the Rent Controller, whereby the ejectment application filed by the respondent was allowed on the ground of default in payment of rent as well as on the ground of impairing the utility of the subject tenement by making alteration and edition in the premises without permission of the landlord. The Appellate Court has also held that the ejectment proceedings were filed by the competent person i.e. Chief Executive of M/s Noble House (Pvt) Ltd. namely Obaidur Rehman, who executed the tenancy agreement in the capacity of landlord authorized to collect rent. Record shows that such position has not been disputed by the Petitioner before any Court including this Court. The emphasis of the argument of the learned counsel for the petitioner before this Court was on the point of competency of the respondent to file ejectment proceedings against the petitioner. It has been argued that since no board’s resolution was filed by the respondent at the time of filing the ejectment proceedings, therefore, the entire proceedings were illegal, hence, the orders passed by the learned Rent Controller and the Appellate Court in the instant case are without jurisdiction. From perusal of the tenancy agreement executed between the parties, it is seen that the tenancy was created between M/s. Noble House (Pvt) Ltd. through its Chief Executive namely Obaidur Rehman being authorized agent of the aforesaid company to create tenancy by agreement on behalf of Syed Nayyer Sohail Rizvi of Zoraish Textile, as landlord. It has also come on record that Obaidur Rehman, admittedly, was the landlord/rent collector, in respect of subject tenement who issued the receipt of fixed deposit as well as of rent on behalf of the respondent company. It may beseen that as per definition of the term “landlord” as provided in Section 2(f) of the Sindh Rented Premises Ordinance, 1979, a 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. Since the tenancy agreement is an admitted document in which it has been stated that respondent namely Obaidur Rehman is the authorized person and the rent collector of the owners of the subject tenement, therefore, any objection with regard to competency of the respondent to file ejectment proceeding in his capacity as rent collector/landlord, particularly on the grounds, other than personal need, appears to be misconceived in fact and in law. The petitioner has never disputed the relationship of landlord and tenant nor the status of Obaidur Rehman as rent collector/landlord has been challenged, therefore, raising an objection regarding board’s resolution in favour of the respondent landlord is not sustainable. Moreover, both the Courts below, after examining the entire evidence produced by the parties and, keeping in view the terms of tenancy agreement and the provision of section 2(f) of the SRPO, 1979 have already recorded finding of fact to the effect that being the Chief Executive of the respondent company, Obaidur Rehman was the competent person to file ejectment proceedings in his capacity as rent collector/landlord. Counsel for the petitioner has not been able to show any error and/or legal infirmity in the concurrent finding recorded by the Courts below on the aforesaid legal point nor has been able to demonstrate as to what prejudice has been caused to the petitioner by non-production of his separate board’s resolution, which otherwise, was not required under the facts and circumstances of this case. Accordingly, the concurrent finding by the two Courts below in this regard does not require any interference by this Court particularly in its Constitutional jurisdiction.
13. As regards the concurrent finding of the two Courts below on the point of default in payment of rent and impairing the utility of the subject tenement by making alteration and editions in the premises without permission of the landlord, though the counsel for the petitioner has not advanced any substantial legal arguments nor has been able to point out any error in the finding of the Courts below, however, it will not be out of place to observe that both the Courts below after having examined the documentary evidence produced by the parties as well as the statements of the parties and their witnesses have categorically held that there was willful default in payment of monthly rent by the petitioner, whereas, the utility of subject tenement has also been impaired by the petitioner by making unauthorized alterations and additions in the subject premises. This Court is cognizant of the legal position that the concurrent finding recorded by the Courts below, unless proved to be perverse, without jurisdiction and patently illegal, cannot be disturbed while exercising constitutional jurisdiction. It is also settled legal position that the disputed questions of fact cannot be resolved by filing constitutional petition nor scrutiny and re-appraisal of the evidence, upon which concurrent finding has been recorded by the Court below, particularly in rent matters is not permissible in constitutional jurisdiction under Article 199 of the Constitution of Pakistan. Reference in this regard can be made to the decision of the Hon’ble Supreme Court in the case of Dilawar Jan vs. Gul Rehman and 5 others PLD 2001 SC 149, Secretary to Govt. of Punjab, Forest Department, Punjab, Lahore vs. Ghulam Nabi and others PLD 2001 SC 415 and Muhammad Sharif and another vs. Muhammad Afzal Sohail etc. PLD 1981 SC 246.
14. In view of hereinabove facts and circumstances and the legal position as emerged herein above through aforesaid judgments of Honourable Supreme Court the impugned judgment and decree does not suffer from any illegality or jurisdictional error, hence does not require any interference by this Court in its constitutional jurisdiction. Accordingly, instant petition being devoid of any merits is dismissed along with listed application, however, with no orders as to costs.
JUDGE
Arif.