PLJ 2013 Karachi
[Bench at Sukkur]
[Bench at Sukkur]
Present: Salahuddin Panhwar, J.
MUHAMMAD
ASLAM--Petitioner
versus
MUHAMMAD RAFI
and 2 others--Respondents
Const.
P. No.
S-2459 of 2011, decided on 17.12.2012.
Constitution of Pakistan
----Art.
199--Constitutional ejectment petition--Domain of
competent Civil Court--Terms and conditions of rent agreement--Personal bona
fide use--Denied existence of relationship of landlord and tenant--So called
rent agreement--Jurisdiction to determine issues relating to or arising out of
relationship of landlord and tenant and never decides title and legal
character--Validity--Question pertaining to appreciation of facts cannot be
resorted to, in exercise of constitutional jurisdiction by High Court--In doing
so petition shall stand converted into revision or second appeal and very
purpose of abolishing second appeal and restricting finality pertaining to rent
matters to first appeal shall stand frustrated--A writ petition is not
substitute either for revision or second appeal and petition would be
entertained if a case is made out to effect that Rent Controller and First
Appellate authority had made an order pulpably
without jurisdiction or there is case of lack of jurisdiction or finding is so
perverse, that it is not substainable on established
principles of appreciation of evidence or any specific provisions of law had
been violated--To make a constitutional petition maintainable in rent matters
or in all such cases in which no second appeal or revision is provided in law
petitioner would have to show that there is jurisdictional error, committed by
Courts below. [P. 141] A
Judgment--
----Altered
judgment of Rent Controller by appellate Court was not challenged--Validity--It
can safely be legally presumed that applicant had accepted modified altered
order passed by appellate Court as such grievance of petitioner allotted to him
by municipal authority stood properly redressed by Appellate Court--Judgment of
appellate Court was not required to be interfered. [P. 142] B
Mr. Ishrat Qayoom Hanif,
Advocate for Petitioner.
Mr. Shafqat Rahim Rajput,
Advocate for Respondents.
Date of hearing:
3.12.2012.
Order
Through this
Constitutional Petition, Petitioner Muhammad Aslam
has assailed the impugned order dated 31.5.2011 passed by learned 3rd
Additional District Judge Sukkur in Rent Appeal No.
07 of 2011 (Re-Muhammad Aslam vs. Muhammad Rafi & others), whereby the order dated 10.3.2011
passed by 1st. Rent Controller, Sukkur in Rent
Application No. 10 of 2010 has been upheld.
2. Briefly,
facts of the case as set out in the Rent Application are that applicant/Respondent
No. 1 is co-owner/landlord of property bearing C.S. No. D-213/216 situated in Muhalla Gurmukhdas, Shikarpur Road Sukkur, which
consists upon two shops on ground floor and multiple story on it's upper portion in which one Shop No. 2 (Privately
partitioned was rented out to the petitioner/opponent by the
Applicant/Respondent No. 1 in the aforesaid property (hereinafter called as
aforesaid shop). It is further stated that another shop of equal meausring was also given on rent to an other tenant. In the year 2003, the aforesaid shop
was rented out to the petitioner/opponent by the Applicant/Respondent No. 1 on
monthly rent by oral rent agreement, but at the personal request of the
opponent on 01.4.2008 a rent agreement was executed between petitioner/opponent
and applicant/ Respondent No. 1. Whereby, petitioner/opponent paid Rs. 2,75,000/- as security deposit refundable to the
petitioner/opponent by the Applicant/ Respondent No. 1 according to the terms
and conditions of rent agreement. Petitioner/opponent had paid rent up to the
month of November, 2008, such receipts were issued. The aforesaid shop was
claimed to be required for personal bonafide use of
applicant/ Respondent No. 1, where he wanted to establish his business in the
name and style of "RAFI MARBLE" for which he claimed to be having
requisite experience and sufficient funds.
3. That the
Petitioner/opponent filed written statement and affidavit in evidence, stating
therein, that applicant is running his business in a shop, admeasuring 12 x 26
= 312 square feet which was constructed by the petitioner/opponent himself in
the name of "Royal Aluminum Glass House" since more than 15 years. He
is tenant of Municipal Corporation, Sukkur; he denied
existence of relationship of landlord and tenant between the
Applicant/Respondent No. 1 and petitioner/opponent and. He further maintained
that the so-called rent agreement produced by the Respondent No. 1/applicant is
false, fabricated, self-managed document in question shop is situated on
Municipal waste land as per old occupancy right for which he applied to the
Municipal Corporation for allotment of the land on lease. It is pertinent to
mention here that Applicant/Respondent No. 1 has illegally occupied some Municipal Land
in which he has illegally raised construction and rented out a shop known as
"GHOUSIA GLASS HOUSE", therefore, he is encroacher and trespasser of Municipal Land Municipal
Land
4. Learned
counsel for the petitioner/opponent mainly argued that the findings given by
the learned trial Court on Point No. 1 in respect of relationship of landlord
and tenant is based upon misreading and non-reading of the documentary
evidence; petitioner/opponent is tenant of Municipal Corporation, Sukkur and paying the rent to Taluka
Municipal Administration, Sukkur; both inferior
Courts have not considered the documents exhibited in evidence. In support of
his contention, he has relied upon the case of case of Nazir
Ahmed and another vs. M. Muzzaffar Hussain Reported in 2008 SCMR 1639; case of Muhammad Yakoob through L.Rs vs. Feroze
Khan and others Reported in 2003 SCMR 41 and case of Muhammad Gulshan Khan vs. Secretary Establishment Division,
Islamabad and others Reported in PLD 2003 SC 102.
5. On the other
hand, learned counsel for the Respondent No. 1/ applicant has contended that
learned trial Court has been justified in allowing the eviction application;
the petitioner/opponent is tenant of the Respondent No. 1/applicant and is
defaulter in payment of monthly rent, in support of his contentions has relied
upon the case of Syed Yousuf
Ali through L.Rs. vs. Muhammad Hasham through L.Rs
and others Reported in (2006 SCMR 830), case of Abdul Rashid vs. Baboo through L.Rs Reported in 2002 SCMR 168, case of
Muhammad Shabbir and another vs. Mst.
Hamida Begum Reported in 1992 MLD 323 and case of Saifullah & another vs. Ghulam
Ghous Reported in 2000 CLC 1841.
6. Before
proceeding the merits of the case, we would endorse here the jurisdiction under
the Sindh Rented Premises Ordinance is very limited
and it can only determines the issues relating to or arising out of relationship of the landlord and
tenant and never decides the title and legal character, in rent matter, which
being the purely domain of the competent civil Court. We are also conscious of
the legal position that question pertaining to appreciation of facts cannot be
resorted to, in exercise of Constitutional jurisdiction by this Court, for the
simple reason that in doing so the petition shall stand converted into a
revision or second appeal and the very purpose of abolishing the second appeal
and restricting the finality pertaining to the rent matters and to first appeal
shall stand frustrated. A writ petition is not substitute either for revision
or the second appeal and the petition shall be entertained if a case is made
out to the effect that the Rent Controller and First Appellate Authority have
made an order palpably without jurisdiction or there is case of lack of
jurisdiction or the finding is so perverse, that it is not sustainable on the
established principles of the appreciation of evidence, or any specific
provisions of law has been violated. Hence it is quite safe to say that to make
a Constitutional petition maintainable in rent matters or in all such cases in
which no second appeal or revision is provided in law, the petitioner shall
have to show that there is a jurisdictional error, committed by the Courts
below. Here the term "jurisdictional error" needs to be understood
which is the exercise of jurisdiction by the Court, vested in it, in a perverse
or arbitrary manner ignoring the material available on record or violation of
any provision of law or substantive procedure causing miscarriage of justice or
where there is a violation of established principles of administration of
justice."
7. Having made
the limitations of the writ of certiorari in particular in rent matters or
where the provision of second appeal and revision has purposely been abolished
by the law itself, we, on meticulous examination of both judgments passed by
inferior Courts and pleadings of the parties, find that Respondent No.
1/applicant led evidence and produced documents including the reply of legal
notice by the petitioner/opponent to prove relationship of landlord and tenant
between parties while petitioner/opponent led his evidence denying claim of
Respondent No. 1/applicant and produced the record establishing his possession
and claim in respect of the area 12 x 26, claimed to be allotted/leased out to
him by Municipal Authority but never denied the status of the Respondent No.
1/applicant as co-owner of the property C.S.D. 213 and even not attempted to
examine/calling advocate through whom the reply to legal notice by
Petitioner/Opponent No. 1 was claimed by Respondent No. 1/applicant. Further,
record spells out that petitioner himself in Para No. 04 of his affidavit in
evidence has disclosed that "he is running business in his shop having
area of 12 x 26 = 312 square feet," therefore, it is quite obvious to say
that petitioner/opponent himself confined its claim to such an area only which,
the Respondent No. 1/applicant not claiming, therefore, it cannot be said that
Courts below committed any illegality or jurisdiction error while responding to
this issue.
8. The
petitioner/opponent has put much stressed on the contention that prior to
filing of ejectment application by
respondents/applicant, he filed F.C. Suit No. 160 of 2009, wherein it was pleaded that petitioner is tenant of Municipality. It would
suffice to say that it revolves round the contention/plea of the Respondent No.
1/opponent regarding Mohag right in respect of area,
claimed to be allotted to Petitioner/Opponent No. 1 by Municipal authorities,
hence rejection of such plaint of the Respondent No. 1/applicant would not be
of any help for the petitioner/opponent. Moreover, the impugned order passed by
3rd. Additional District Judge, Sukkur in rent appeal
has made things clear by modifying the order of Rent Controller while confining
it to shop in question.
9. Regarding the
case law relied upon by counsel for petitioner, it is germane to say that these
citations do not pertain with the rent matters and same relates to the civil
revisions; in case of Muhammad Gulshan Khan (supra),
issue was promotion of a Civil Servant and in case of Nazir
Ahmed (supra) the issue was related to the Specific Performance of Contract Act
and in case of Muhammad Yakoob through L.Rs vs. Feroze Khan and others, the matter relates to Gift and
Essential Ingredients to Constitute a valid gift but instant petition pertains
to rent matter, therefore, parameters of appreciation in civil revisions and
constitutional petitions regarding civil matters and rent matters are entirely
different, thus, these authorities are not helpful for the petitioner.
10. Since the
appellate Court has altered the Judgment of Rent Controller and such
modification/alteration, since not challenged by the Respondent No.
1/applicant, therefore, it can safely be legally presumed that Respondent No.
1/applicant has accepted the modified/altered order passed by the appellate
Court as such grievance of the petitioner/ opponent in respect of area,
allotted to him by Municipal authority, stood properly redressed by the
appellate Court, therefore, the impugned judgment of appellate Court is not
required to be interfered. Accordingly, the instant petition is dismissed;
however, Parties are left to bear their own costs.
(R.A.) Petition allowed.
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