Tuesday, 15 March 2016

Constitutional Ejectment Petition


PLJ 2013 Karachi 138
[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, 1973--
----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. The petitioner/opponent is very old occupant of Municipal Land, he executed rent agreement with Municipal Corporation, Sukkur vide order dated 19.05.2009 and tenancy agreement dated 19.05.2009. prior to that rent application respondent filed F.C. Suit No. 160 of 2009 (Re-Muhammad Rafi vs. P.O Sindh & others) in which opponent was made party as Defendant No. 5 in which he admitted that opponent is tenant of Municipal Corporation, Sukkur and pray for cancellation of rent agreement.
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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