5/9/23, 5:48 PM 2005 Y L R 1925

2005 Y L R 1925

[Karachi]

Before Muhammad Afzal Soomro, J

NAZAR MUHAMMAD and others---Petitioners

Versus

PREM KUMAR and others ---Respondents

C.Ps. Nos.S-309 to 320 of 2003, decided on 7th February, 2005.

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

----Ss.2, 15(2)(ii), (iii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional

petition---Default in payment of rent---Subletting---Addition and alteration in
structure---First appeal filed by landlord was disposed of by Appellate Authority in
terms that Rent Controller should frame point regarding addition and alteration in
structure---Such judgment did not touch any of the point already decided by Rent
Controller---Rent Controller, while delivering fresh order, took the points already
decided by him and in that respect he gave his finding on the point of default in
payment of rent in favour of landlord, whereas points with regard to addition or
alteration as well as subletting were again decided in favour of the tenant---Re-opening
of issue of default by Rent Controller on his own, without plausible reason and without
recording evidence afresh of the parties and deciding same in favour of landlord by
discarding his own finding delivered in his earlier order and so also upholding same by
Appellate Authority, without any lawful reason and that too without following
directions of Appellate Authority with regard to only framing of issue of alteration and
addition, called interference of High Court while exercising its Constitutional
jurisdiction inasmuch as the issue of default had already attained finality and could not
be reopened.

Muhammad Younus and another v. Mst. Hajira Bi 1989 SCMR 1670; Mst. Saeeda
Khatoon v. Muhammad Ahmed Latifi PLD 1990 SC 389; Syed Amjad Hussain v.
Qaiser Siddique and others 1991 CLC 1924; Sher Afgan v. Shaikh Anjum Iqbal
1997 MLD 98; Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5
others 1986 CLC 1680; Haji Mohibullah & Co. and others v. Khawaja Bahauddin
1990 SCMR 1070 ref.

Zayyad Khan Abbasi for Petitioner.

Suleman Junejo for Respondent No.1.

Ahmed Pirzada Addl. A.-G. for Respondents Nos.2 to 4.

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Date of hearing; 24th January, 2005.

ORDER

By this common order I intend to dispose of these Constitutional Petitions bearing

Nos.S-309 to 320 of 2003 through which Constitutional jurisdiction of this Court
has been invoked by the petitioners challenging the legality and propriety of the
orders passed by respondent No.3 dated 28-2-2003, whereby he dismissed the
appeal of the petitioners filed against an order dated 31-10-2002 passed by the
learned Senior Civil Judge, Malir at Karachi, allowing ejectment application of
respondent No.1.

The brief facts leading to the filing of the present Constitutional petition are that
respondent No.1, being landlord, filed Rent Application under section 15 of Sindh
Rented Premises Ordinance, 1979 (hereinafter referred to as `the Ordinance) before
the learned Senior Civil Judge/Rent Controller, Malir at Karachi seeking directions
to the petitioner for vacating premises i.e. Shops (bearing No.F-29/A, F-39/A, G-
44/A, G-28/B, F-35/B, F-39/B, G-28/A, G-30/B, G-32/B, G-34/B, G-38/B, G-40/B,
respectively) Al-Asif Square, Zero Point, Super Highway, Karachi (hereinafter
referred to as `the said shops') occupied by the petitioners as tenants on the ground
that since the Tenancy Agreements dated 1-12-1996, 25-10-1997, 30-10-1997 and
1-8-1998, respectively, by virtue of which the said shops were rented out to the
petitioners (sic). However, since respondent No.1 had no intention to extend the
tenancy period beyond 30-6-1999, the petitioners were served with notice to vacate
the said shops upon completion of said agreed period. Further more, it was also
alleged that the petitioners failed to pay the rent from 1-6-2000 and started
depositing the same in Court after the default of about four months. It was further
alleged that not only some of the petitioners also installed a cabin in front portion
of the shops and had sublet the same and collecting the rent from sub-lessee, hence
terms of tenancy had also been violated but the petitioners were also defaulters in
payment of utility bills so also made additions and alteration in the structure of the
shops by extending the roof three feet.

In their written statements, the petitioners besides denying the allegations averred
in rebuttal that prior to the commencement of Tenancy Agreement on the above-
noted dates, neither there was any Rent Agreement nor after so-called expiry date
i.e. 30-6-1999, hence the petitioners are statutory tenants. It is also averred that the
petitioners had paid rent up to May, 2000. In June, respondent No.1 did not receive
the rent. After May, 2000 when the landlady did not turn to receive the rent, the
petitioners smelled some foul-play and offered her rent but she refused to take it
and therefore, rent for June and July, 2000 was sent through Money Order to the
landlady which is being deposited regularly in Miscellaneous Rent Cases. It was
specifically denied that neither any of the petitioners, sublet the front portion of the
said shops nor they are defaulters in respect of utility bills.

(1) In view of the above pleadings, learned Rent Controller set up the
following points to be decided:--

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(2) Whether the opponent has committed willful default in payment of rent?

(3) Whether the opponent has created public nuisance?

(4) Whether the opponent sublet the portion/corner of premises?

(5) What should the order be?

The learned Rent Controller while delivering its order dated 28-2-2002 decided all
the points in favour of the petitioners and dismissed the ejectment applications of
respondent No. 1.

Respondent No.1 against that order filed an appeal before the learned District,
Judge, Malir at Karachi who vide his order dated 24th September, 2002 remanded
the case to the learned Rent Controller holding that though there was allegation
with regard to addition and alteration in the structure which was rebutted by the
other side and iii this respect both the parties adduced their evidence but such point
was not set up by the learned Rent Controller.

However, the learned Rent Controller delivered a fresh order dated 31-10-2002,
surprisingly taking the points, already decided by him, and in this respect he gave
his findings on the point of default in payment of rent in favour of respondent No.1
whereas points with regard to addition or alteration as well as subletting were,
again, decided in favour of the petitioner. However, the ejectment application was
allowed and the petitioners were directed to vacate the premises. The petitioners
approached the Appellate Court i.e. Ist Additional District Judge, Malir at Karachi
by filing First Rent Appeal which was dismissed vide order dated 28-2-2003.

Now, the petitioners have approached this Court challenging legality and propriety
of both the orders passed by the Courts below.

I have heard the arguments of both the learned counsel appearing on behalf of the
petitioners as well as respondent No.1.

It has been contended by the learned counsel that the impugned orders passed by
the respondents Nos.2 and 3 are bad in law, wrong on facts and otherwise erroneous
inasmuch as are based on non-reading, non-appreciating and misreading of
evidence available on record in its true perspective.

It has, further, been contended by the learned counsel that re-opening of issue of
default by respondent No.4 at his own without plausible/lawful reason or without
recording evidence afresh of the parties and deciding the same in favour of
respondent No.1 by discarding his own finding, delivered in his earlier order dated
28-2-2002 and so also upholding, the same by respondent No.3 without any lawful
reason and that too without following the directions of respondent No.2 with regard
to only framing of issue of alteration and addition do call interference of this Court
exercising its Constitutional jurisdiction. It has, further, been contended by the

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learned counsel that although the issue of default attained finality in F.R.A. No.6 of
2002. He has relied upon the cases of Muhammad Younus and another v. Mst.
Hajira Bi 1989 SCMR 1670; Mst. Saeeda Khatoon v. Muhammad Ahmed Latifi
PLD 1990 SC 389; Syed Amjad Hussain v. Qaiser Siddique and others 1991 CLC
1924; Sher Afgan v. Shaikh Anjum Iqbal 1997 MLD 98 in support of his
contentions.

On the other hand, learned counsel appearing for respondent No.1 has contended
that since respondent No.2 remanded the case setting aside the earlier order while
deciding the rent appeal, respondent No.4 was competent to consider all the issues
and grounds taken for ejectment. It has, also, been contended by the learned
counsel that since the orders passed by both the Courts below are very much legal,
well-worded, well-reasoned, this Court cannot exercise its Constitutional
jurisdiction.

I have considered the arguments of both the learned counsel appearing on behalf of
the petitioners as well as respondent No.1 and gone through the record as well as
the case-law cited at the bar.

Perusal of record reveals that the learned Rent Controller while delivering its order
dated 28-2-2002 decided all the points in favour of the petitioners and dismissed
the ejectment applications of respondent No.1. Respondent No.1 against that order
filed an appeal before the learned District Judge, Malir at Karachi who vide his
order dated 24th September, 2002 remanded the case to the learned Rent Controller
observing as under:--

"From the perusal of record, it appears that the appellant, besides other
grounds, for seeking ejectment of the respondent, in para. No.8 of his
application, he has also alleged, regarding the addition and alteration in the
structure and the same allegation was denied by the respondent, in his
written statement. So much so, even both the parties had adduced their
evidence on above point. Despite that no such point was framed by the
learned trial Court, while delivering the order, in this case, though the
evidence on that point had been brought by both parties on record. So in
such peculiar circumstances, of the case, the trial Court ought to have
framed such point, while passing an order, in the case. Non-framing of such
point, in respect of addition and alteration, apparently amounts to illegality
in the impugned order. I, therefore, set aside the impugned order and remand
the case to the trial Court with directions to frame the above point and
decide the above matter on merits according to law, within 30 days of
receipt of this judgment."

Perusal of above-quoted concluding paragraph of judgment passed by respondent

No.2 on 24-9-2002 clearly indicates that the First Rent Appeal filed by respondent
No.1 i.e. landlord was disposed in terms that the Rent Controller should frame
point regarding addition and alteration in the structure as the allegation was
levelled by the landlord that too was rebutted by the tenants adducing evidence on
their parts. Such judgment did not touch any of the points decided by respondent

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No.4 and restricted him only to framing of above-said point. However, the learned
Rent Controller while delivering fresh order dated 31-10-2002, surprisingly took
the points, already decided by him, and in this respect he gave his findings on the
point of. default in payment of rent in favour of respondent No.1 whereas points
with regard to addition or alteration as well as subletting were, again, decided in
favour of the petitioners. Re-opening of issue of default by respondent No.4 at his
own without plausible reason or without recording evidence afresh of the parties
and deciding the same in favour of respondent No.1 by discarding his own finding,
delivered in his earlier order dated 28-2-2002 and so also upholding the same by
respondent No.3 without any lawful reason and that too without following the
directions of respondent No.2 with regard to only framing of issue of alteration and
addition, in considered view, do call interference of this Court while exercising its
Constitutional jurisdiction inasmuch as the issue of default has already attained
finality in F.R.A. No.6 of 2002.

Accordingly, I am of the considered view that when all the issues were decided by
respondent No.4 in favour of the petitioners and that too were not re-opened by
respondent No.2 while disposing of First Rent Appeal in terms that the Rent
Controller should only frame point regarding addition and alteration in the structure
as the allegation was levelled by the landlord which was rebutted by the tenants
adducing evidence on their parts and when such judgment did not touch any of the
points decided by respondent No.4 restricting him only to framing of above-said
point the learned Rent Controller was not supposed to re-open the point of default
at his own especially in absence of further evidence in that regard while delivering
fresh order dated 31-10-2002. This act of respondent No.4 i.e. giving findings on
the point of default in payment of rent in favour of respondent No.1, whereas points
with regard to addition or alteration as well as subletting were, again, decided in
favour of the petitioner do call interference of this Court while exercising
Constitutional jurisdiction. Further more, I am afraid that this serious illegality was
not by the learned Appellate Court. The said illegality, in my considered view,
purely comes within the legal proposition and this Court can validly entertain the
above question and adjudicate the same in accordance with law irrespective of the
fact that concurrence exists between both the judgments passed by the two Courts
below. Reliance in this behalf is placed on the judgment in the case of Muhammad
Nawaz and 7 others v. Muhammad Ibrahim and 5 others 1986 CLC 1680:--

"To these, acts of misreading/non -reading of evidence, failure to notice and

an act in accordance with the binding precedents of superior Courts, as also
misapplication of Statute law may also be added as instances where
interference in Constitutional jurisdiction can be made available. It may be
noticed that the Courts invested with powers to administer justice,
indisputably a sacred trust, are obliged by compulsion of law both divine
and Statute to carefully examine, analyze the evidence present before them,
before they arrive at decisions. Every bit that has been placed before them
has to be taken note of and given due weight. Absence of right of second
appeal to this Court in rent matters has added further responsibility in this
behalf."

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Reliance can also be placed on the case Haji Mohibullah & Co. and others v.
Khawaja Bahauddin 1990 SCMR 1070:--

"In writ jurisdiction the High Court ordinarily does not interfere with
concurrent findings of fact recorded by the Courts below. However, where
there is misreading of the evidence, or omission to take into consideration
material evidence, or where any statute law or rule of law laid down by a
superior Court has not been applied by the Courts below, the High Court can
interfere. The main-question, therefore, that calls for determination is
whether there has been misreading of the evidence or failure to apply correct
principles of law on the part of the Rent Controller or the learned Additional
District Judge in the instant case."

Consequently, it is a fit case for exercise of Constitutional jurisdiction and the

judgments passed by the learned Additional District Judge (respondent No.3) and
learned Rent Controller (respondent No.4) are not to be sustained being opposed to
law and settled principles for administration of justice.

Accordingly, all these Constitutional petitions are allowed and orders dated 31-10-
2002 and 28-2-2003 passed by the learned District Judge, Malir at Karachi
(respondent No.3) in F.R.A. No.6 of 2003 and learned Rent Controller Malir at
Karachi Rent Case No.35 of 2001 are quashed.

C.Ps. Nos.S-309 to 320 of 2003 stand disposed of along with listed applications.

H.B.T./N-62/K Petitions allowed.

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