11/7/2020 P L D 2014 Sindh 194

P L D 2014 Sindh 194

Before Syed Muhammad Farooq Shah, J

MOINUDDIN GHORI and another---Petitioners

Versus

ADMINISTRATOR OF M/S SAINT FRANCIS CHURCH (TRUST) through

Attorney and 2 others---Respondents

C.P. No.S-670 of 2011, decided on 29th November, 2013.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S.15---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court-

--Scope---High Court, in its constitutional jurisdiction may not act as court of appeal
on the question of fact and the findings recorded by lower Appellate Court appearing
to be in consonance with evidence available on the record did not call for interference--
-Jurisdiction under Art.199 of the Constitution, could not be invoked as substitute of
another appeal against the order of the Appellate Court---Mere fact that upon perusal
of evidence, High Court came to another conclusion would not furnish a valid ground
for interference in the order of the Appellate Court, which was final authority in the
hierarchy of law relating to rented premises---Constitutional petition was dismissed.

2010 CLC 925 and Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925 rel.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of

tenant---First ejectment application filed by landlord was dismissed---Second
ejectment application filed by landlord against the same tenant was allowed---
Contention of the petitioner/tenant was that second ejectment application was hit by
principle of res judicata---Validity---Second ejectment application filed by landlord on
changed circumstances was maintainable---Plea of subletting had not been taken by the
landlord in the earlier ejectment application, therefore, that was a fresh ground which
had been accepted by the Rent Controller and upheld in appeal---Order of eviction on
the said ground notwithstanding the dismissal of landlord's earlier application was
maintained---Constitutional petition was dismissed.

Dost Muhammad and another v. Muhammad Shabbir Hussain and another 1981 SCMR
528; Bashiruddin and others v. The Additional District Judge and others PLD 1985 SC
220 and Muhammad Ajmal Khan and others v. Rashid Shafique and others 2012
SCMR 854 rel.

(c) Sindh Rented Premises Ordinance (XVII of 1979)---

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----S. 15---Bona fide personal need of landlord and reconstruction of premises---Even

in case of non-construction of building the same could have been got evicted on the
ground of personal bona fide use by the landlord---Selection of area and nature of
business was a choice of landlord and the same could not be interfered with.

Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 rel.

2001 CLC 1778 and 2005 CLC 3 distinguished.

(d) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Bona fide personal need of landlord---Proof---Order of eviction would

require satisfaction of Rent Controller that reasonable requirement of landlord would
be met by occupation of premises---Eviction order could not be granted on vague
allegations in eviction application---Plea of requirement would have to be supported by
valid reason as to how such requirement was genuine.

Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 rel.

(e) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Ejectment petition---Bona fide personal need of landlord---Proof---

Principles---For seeking eviction of a tenant from the rented shop, the only
requirement of law is the proof of bona fide need by the landlord, which stands
discharged the moment he appears in the witness box and makes such statement on
oath or in the form of an affidavit in evidence as prescribed by law, if it remains
unshattered in the evidence adduced by the opposite party---Law does not require that
the landlord, in order to prove bona fides of his personal need, shall keep himself away
from all sorts of income generating ventures or to keep himself idle as long as the fate
of his ejectment case, is finally decided by the Court.

Muhammad Ajmal Khan and others v. Rashid Shafique and others 2012 SCMR 854;
Saira Bai v. Syed Anees-ur-Rehman 1989 SCMR 1366; 2004 MLD 587; Muhammad
Anwar Azim and another v. R.I.G. Education Board PLD 2003 Kar. 34; PLD 1986 Kar.
84 and Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925 rel.

HBL v. Zelins Limited and another 2000 SCMR 472; 2006 SCMR 437; PLD 1999
Lah. 450; 2009 CLC 291;1998 CLC 410; Naeem Ahmed v. Mrs. Marim 2000 MLD
442; 1993 MLD 219 and 1993 SCMR 1163 distinguished.

Bashir Ahmed for Petitioners.

Shehbaz Sahotra for Respondent No.1.

Date of hearing: 2nd October, 2013.

JUDGMENT

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SYED MUHAMMAD FAROOQ SHAH, J.---The petitioners by invoking the

extraordinary Constitutional jurisdiction of this Court under Article 199 of the
Constitution of Pakistan, 1973, assailed the concurrent findings of both Courts below,
relating to their ejectment and have prayed for the following reliefs:--

"(i) That this Hon'ble Court may graciously be pleased to allow the above petition in
favour of the petitioners above named and against the respondents, to struck down/set
aside the Impugned orders dated 8-3-2010, passed by Hon'ble Court of IXth Senior
Civil Judge/Rent Controller Karachi South, in Rent case No.117 of 2005, which is
upheld by the learned Additional District Judge Karachi South vide its order dated 23-
4-2011, both the aforementioned impugned orders, being illegal and having no legal
effect or consequences. Resultantly, the ejectment application filed by the respondent
No.01, bearing Rent Case No.117 of 2005, against the petitioners above named may be
dismissed with special costs.

(ii) That the ejectment order dated 8-3-2010, passed by the Hon'ble Court of IXth
Senior Civil Judge/Rent Controller Karachi South and upheld/confirmed by the Vth
Additional District Judge, Karachi (South) in ERA No. 192 of 2010 may be suspended
till final disposal of the above petition.

(iii) Any other/further/better relief which this Hon'ble Court may deem just and proper
may be awarded to the petitioner No. 1 above named".

2. Precisely, the relevant facts are that the rent Case No. 117 of 2005, filed by the
administrator of Saint Francis Church, through its attorney Fr. Samson Shukardin, on
many grounds of eviction including that petitioner No. 1 being tenant changed the
nature of business from Barber shop to restaurant and then assumed the business of
wood/biddings in the shop premises. It is asserted that he had also sub-letted the
demised premises to petitioner No.2 @ Rs. 8000 per month, who started wood works
in it, causing nuisance to the school children. Personal requirement of the demised
premises has also been urged by the respondent No.1/landlord to extend the school
building as per building construction plan and averred that the construction plan of the
building has been approved by KBCA and in spite of request, the petitioner did not
vacate the shop in question. It was also asserted that the case premises belongs to
Roman Catholic and it is not ever used for business purpose. The said premises was let
out only on the basis that whenever the school building will need to be extended, the
tenant will vacate the same. Pleadings of the parties shows that petitioner has also filed
a Civil Suit No.912 of 2003 against the respondent No.1 for permanent injunction with
the prayer that he may not be dispossessed from the case premises without due course
of law. Record reveals that the respondent No.1 has earlier filed a rent case No.876 of
2003 for eviction of the petitioner No.1/opponent No.1 but the same case was
withdrawn by the respondent No.1. On conclusion of rent proceedings of instant case,
the Rent Controller has allowed the ejectment application bearing No.117 of 2005, on
the ground of sub-letting, personal bona fide requirement and creation of nuisance. The
rent order was assailed by the tenant/petitioner in First Rent Appeal No. 192 of 2010.
By judgment dated 23-4-2011, the learned Vth Additional and District Judge, Karachi
(South) after dilating upon each issue, maintained the findings of original court of rent
controller and consequently, dismissed the Appeal.

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3. Arguments advanced by both sides' advocates at length have been considered, in

light of the case-law, cited by them. Record has also been perused.

4. Learned counsel for the petitioner at the very outset submitted that the ejectment
proceedings were not maintainable under the law as the same were filed by an
incompetent person and since the earlier rent case No. 876 of 2003 was withdrawn,
therefore, a fresh rent case invoked the principle of res judicata. It is contended that the
trial Court did not consider the evidence adduced by the petitioner and the case-law
relied upon by their counsel.

5. On the other hand, learned counsel for the respondent/landlord has shown an
authority letter with the signature and seal of the Bishop Everest Pinto, issued on the
special resolution of Council Member of Church and the letter dated 18-3-2003, issued
by KBCA to Bishop Everest Pinto, showing him owner/administrator of the property;
KBCA has also issued a letter of approval for construction of building plan, dated, 22-
1-2004, in respect of the case premises, in the name of said Bishop. Keeping in mind
such facts both learned lower Courts answered the issue of maintainability of rent
proceedings in affirmative. So far as the ground to file a fresh rent case is concerned,
undoubtedly, the ejectment proceedings may be initiated on fresh grounds and since
there were fresh grounds of ejectment of the petitioners, therefore, learned Rent
Controller while placing reliance on PLD 1985 PLD SC 20(2) and 1981 SCMR 528
held that afresh rent case is maintainable. With regard to remaining three grounds of
eviction settled by the Rent Controller and duly discussed in First Rent Appeal No.192
of 2010, learned counsel for landlord submitted that the tenant/petitioner No.1 sub-
letted the demised property to the petitioner No.2 illegally and unauthorizedly, created
the sub-tenancy and is receiving the rent @ Rs.8,000 per month from him, in respect of
the case premises and the petitioner No.2 started business of wood and bidding in the
demised premises. Evidence brought on the record by landlord shows that the
petitioner No.2 Muhammad Aziz Memon is doing the business in it, who has clarified
in his evidence, to be the salesman of the tenant/petitioner No.1.

6. While taking into consideration, the ground of personal need in good faith and to
discard the claim of the landlord, the tenant is required to show some concrete
evidence of mala fide on the part of the landlord. In instant case the landlord
specifically stated in his affidavit-in-evidence (annexure P/5), the ground of sub-letting
of the said premises to the petitioner No.2, at the rent of Rs.8,000 per month and that
the said wood work business is causing nuisance and constant disturbance to the school
children as well as during prayer time. In para-4 of his affidavit in evidence, the
landlord stated that the property of Roman Catholic Church has never been used for
business purposes but the demised premises consisting on said one room, erected on
the said plot was only let out to one Haji Moinuddin, being a very poor and deserving
person, who undertook that it shall be vacated, whenever it will be needed to the
administrator for extension purpose of school building. It is further stated that now
administrator wants to extend the school building, as the number of students have been
increased and such building plan for construction has been approved by the KBCA,
which he has produced along with affidavit-in-evidence. He has further deposed that
when the petitioner No.1 was requested to vacate the premises, he filed a Suit No.912

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of 2010 for injunction. Having no other remedy, the landlord has filed the rent case on
fresh grounds as the tenant/petitioner No.1 let out the premises to the petitioner No.2
on monthly rent of Rs.8,000 and thus created sub-tenancy. Moreover, KBCA has
already approved building plan which includes the demised tenament. To clarify his
position on personal bona fide need, landlord stated in his evidence that the demised
premises belongs to Roman Catholic Church, where innumerable students are getting
their education, hence they require this room/demised premises in the possession of the
petitioner, for extension of school building. He was subjected to lengthy cross-
examination but no material contradiction has brought on the record.

6. On the other side, tenant/petitioner No.1 has filed the lengthy affidavit in evidence
before rent controller spreading on 10 pages and also an affidavit in evidence of
petitioner No. 2. Petitioner No.2 submitted that he is putting up in the premises as an
employee of petitioner No.1 on salary of Rs.6,000 per month. In cross-examination,
the tenant/petitioner No.1 admitted that his father was hair dresser and 3 and 4 persons
were his employees. He has also admitted that the relation in between the administrator
and his father were very cordial and after the death of his father, tenancy devolved in
his name and he continued the business of his father. Later on, in the year, 2001, he
converted the business into restaurant in the demised premises, without obtaining
permission of administrator, again said that the permission was granted by the
administrator orally, however admitted that on objection raised by the
landlord/respondent No. 1, he stopped running the restaurant. He has also admitted that
the business of wood and bidding was started after the restaurant. He has also admitted
that at the time of filing of ejectment application, the building was in dilapidated
condition. He has further admitted that he has issued the notice to the KESC, wherein
he asked them to stop the work and to cut the power as the case is pending before Rent
Controller with regard to payment of 'Pagri' by his father. petitioner No. 1 stated in
cross that he did not produce any documentary proof of the payment of 'Pagri'. He has,
however, admitted that at present besides himself one other person is working with
him. Petitioner No.2 (alleged sub-lette) stated in cross-examination that he does not
know the name of the landlord of the case premises and that neither he visited his
house nor seen him personally. He has further admitted that he himself maintain and
look after the shop in question alone and use to open it at 9:30 am and close it after
Maghrib prayer and that he sits in the shop in question, full time, but he does not know
the exact income of the said shop; he has shown his unawareness regarding hairdresser
shop. However, he has denied sub-letting of demised shop to him by the petitioner No.
1.

8. Case-laws relied upon by the learned counsel for the petitioners are perused. In the
case of HBL v. Zelins Limited and another (2000 SCMR 472), Hon'ble Court held that
if objection was raised about the competence of the Officer of the bank, burden fell
upon the bank to establish that the person instituting the ejectment proceedings was
authorized by the Bank in that behalf, where such burden was not discharged by the
Officers of the Bank, at any stage, of the proceedings, view taken by High Court and
the Rent Controller that the application of ejectment in circumstances is not
maintainable is an exceptionable. However facts and circumstances of the instant case
reveals that the attorney of respondent was having authority to file the ejectment
proceedings against the petitioner/tenant, therefore, this citation is not attracting in the

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circumstances of the present case. Case-law reported in 2006 SCMR 437 relating to
authorization to file the ejectment proceedings is also not attracting. The identical case-
law reported in PLD 1999 Lahore 450 relating to filing the application by authorized
persons is equally not attracting. Citation reported as 2009 CLC 291 is also
distinguishable, in the circumstances and facts of the present case. The citation
reported as 1998 CLC 410 is also not attracting. In the case of Naeem Ahmed v. Mrs.
Marim reported as 2000 MLD 442 relied upon by learned counsel for the petitioner, it
was held that tenant could be evicted, if his act impaired the material value and utility
of the premises. In another ruling reported as 2001 CLC 1778, it was held that the
landlord having neither produced nor exhibited in evidence approved building plan,
therefore, Rent Controller was not justified to order ejectment of tenant, on the ground
of reconstruction of the premises, but in the present case, the applicant has produced
the approved plan of construction issued by KBCA, therefore, this authority also goes
against the petitioners. In 2005 CLC 3, it was held that without express and clear plea,
showing the purpose for which demised premises was required by landlord, Court
could not consider or decide the question of requirement and its reasonableness. This
citation also distinguishable as the respondent has categorically stated that demised
premises is required by them for extension of school building, after when they obtained
approval of reconstruction plan from the concerned authority i.e. KBCA.

9. With regard to impairing the material value and utility of the premises and sub-
tenancy, the reliance is being placed on 1993 MLD 219, wherein it is held that
incumbent landlord was bound to show that tenant had divested himself of possession
of premises in dispute and some one else had been inducted therein, who was enjoying
benefits of premises, which in the instant case has been established by respondent No.1
by placing sufficient material evidence on record, therefore, the citation relied upon by
the learned counsel for the petitioner does not favour him and goes against his
contention. In 1993 SCMR 1163, the Hon'ble Supreme Court held that evidence on the
record showed that the tenant himself was in possession and he had not parted with
possession of any part of premises for subletting. However, in the instant case, the
petitioner No. 2 has admitted that he is running the business of petitioner No.1 in the
premises but he has cleverly shown him an employee of petitioner No. 1 instead of
sub-lettee.

10. It is settled law that in its constitutional jurisdiction under Article 199 of the
Constitution, the High Court may not act as Court of appeal on the question of fact and
the findings recorded by lower Appellate Court appears to be in consonance with
evidence available on the record and the same did not call for any interference by this
Court, resultantly, petition was dismissed in circumstances as held in cited case
reported case as 2010 CLC 925. Suffice is to say that the citations relied upon by the
learned counsel for the petitioner are not attracting in the facts and circumstances of
the present case as there is concurrent finding of both learned lower Courts on the issue
of subletting, personal bona fide requirements, nuisance and reconstruction of the
premises.

11. Conversely, Mr. Shahbaz Sahotra, learned advocate for landlord/respondent No. 1
argued that admittedly the premises in question belongs to Roman Catholic Church and
Bishop Everest Pinto being head/owner/landlord of the Christian Institutions, churches

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schools, hospitals, colleges etc: being Arch Bishop of Karachi, is an authority in this
respect and this fact also narrated by the applicant in his cross-examination that bishop
is the authority to authorize any person to look after all the relevant matters relating to
the church. It is submitted that the authority letter issued with the signature and seal of
bishop Everest Pinto on the special resolution of council members of church was
placed on the record and another letter dated 18-3-2003 issued by KBCA to the bishop
Everest Pinto being owner/administrator of the property was also placed on the record
of the trial Court, therefore, he has the authority to appoint/authorize any person to the
matter relating to the premises and the said position has been admitted by the tenant to
be true and correct. Learned counsel emphatically submitted that there appears no
substance in the contention of the learned counsel for the petitioners that the rent
application was filed by an incompetent person. It is further submitted that material
available on record shows that earlier rent case bearing No.976 of 2003, filed by the
respondent was withdrawn and subsequent present rent case was filed by the
respondent on new issues, therefore, principle of res judicata does not attract.

12. Mr. Sahotra, learned Counsel for the respondent/landlord contended that the
petitioner No. 2 Muhammad Aziz Memon is putting up in the demised premises not
being an employee of the petitioner No.1 but as a sub-lettee. It is submitted that
sufficient evidence has adduced by the respondent No.1 to establish the ground of
personal need of demised premises for extension of school's building but the tenant
despite making promises, failed to vacate the same and the evidence of respondent No.
1 was gone unshaken. Dilating upon the issue of subletting, learned Counsel reiterated
that the petitioner No.1 himself admitted in evidence that his father had acquired the
premises in question for running the shop of hairdresser and on his death, the petitioner
No. 1 continued business of his father but later on converted the business into a
restaurant in the year 2001, without obtaining any written permission from the
administrator of church for changing business of hairdresser to restaurant and
thereafter for the business of wood and biddings, as machines installed for cutting the
wood, causes nuisance during school time as well as at the prayer time. In support of
his contention, learned counsel placed his reliance on the citations of Superior Courts.
In the case of Dost Muhammad and another v. Muhammad Shabbir Hussain and
another reported as 1981 SCMR 528, the apex Court in second ejectment application,
filed by the respondent on changed circumstances of personal need, held, maintainable.
In the case of Bashiruddin and others v. The Additional District Judge and others PLD
1985 Supreme Court 220) is also attracting in the circumstances of present case, on the
issue of maintainability as plea of subletting had not been taken by the landlord in the
earlier ejectment application, therefore, this was a fresh ground which has been
accepted by the Rent Controller and upheld in appeal, therefore, order of eviction on
that ground to the effect notwithstanding the dismissal of landlord's earlier application,
which was based only on the ground of personal need and on the issue of
reconstruction of the demised premises, approved by the competent authority/KBCA.
Reliance is being also placed on Muhammad Ajmal Khan and others v. Rashid
Shafique and others reported as (2012 SCMR 854). While referring the case of Saira
Bai v. Syed Anees-ur-Rehman reported as 1989 SCMR 1366, learned counsel
submitted that it is held by the Supreme Court that mere statement of landlord to the
effect that he needed the premises in question for his personal need would be sufficient
proof of personal need of landlord. He has also cited the reported case as (2004 MLD

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587 Karachi) and (PLD 2003 Karachi 34) Muhammad Anwar Azim and another v.
R.I.G Education Board.

12.(sic) The Apex Court in the case of Iqbal Book Depot and others v. Khatib Ahmed
and 6 others (2001 SCMR 1197) held that even in case of non-construction of building,
the same could have been got evicted on the ground of bona fide use, selection of area
and nature of business is a choice of landlord and the same cannot be interfered with.
In paragraph-11, Placitum-I, it is held that "order for eviction would require
satisfaction of Rent Controller that reasonable requirement of landlord would be met
by occupation of premises. Eviction order could not be granted on vague allegations in
eviction application. Plea of requirement would have to be supported by valid reasons
as to how such requirement is genuine". In PLD 1986 Karachi 84, it is held that the
ejectment application and the evidence led by the landlord proves that demised
premises is required to establish the restaurant/hotel. In the case of Shakeel Ahmed v.
Muhammad Tariq Farogh (2010 SCMR 1925), relevant page-1929 placitum f & g, the
principle for seeking eviction of a tenant from the rented shop, on requirement of
personal bona fide by the landlord, held, stands discharged the moment he appears in
the witness box and makes such statement on oath or in the form of an affidavit in
evidence as prescribed by law, if it remains unshattered in the evidence adduced by the
opposite party. It is further held that it is not the requirement of law that the landlord,
in order to prove bona fides of his personal need, shall keep himself away from all
sorts of income generating ventures or to keep himself idle as long as the fate of his
ejectment case, which may consume year and years together, is finally decided by the
Court". It has further been held (at) relevant page 1930) "that jurisdiction under Article
199 of the Constitution cannot be invoked as substitute of another appeal against the
order of the appellate Court, therefore, mere fact that upon perusal of evidence, High
Court came to another conclusion would not furnish a valid ground for interference in
the order of the appellate Court, which is final authority in the hierarchy of rent laws
i.e. Sindh Rented Premises Ordinance, 1979."

13. For the forgoing reasons, I reached at the irresistible conclusion that the order of
ejectment passed by the Rent Controller, maintained in the appeal is founded upon
sound reasons, does not suffer from mis-reading, non-reading of evidence and also
from the jurisdictional defect and there is no justification for interference in the
concurrent findings, through the Constitutional jurisdiction of this Court, more
particularly, sufficient unshattered evidence on the ground of subletting, personal bona
fide need and reconstruction have been established. Resultantly, the petition fails and
dismissed but with no order as to costs. The petitioners are however, allowed two
months' time to vacate the premises, provided they continue to pay the monthly rent
before the 15th of each calendar month.

The petition is disposed of in the manner indicated above.

JJK/M-184/Sindh Petition dismisse

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