2006 S C M R 152
2006 S C M R 152
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ
ALLIES BOOK CORPORATION through L.Rs.---Petitioners
Versus
SULTAN AHMAD and others---Respondents
Civil Petition No.583-K of 2005, decided on 16th November, 2005.
(On appeal from the judgment of Sindh High Court, Karachi, dated 2-6-2005 passed in Constitutional Petition No.S-773 of 2002).
(a) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Constitution of Pakistan (1973), Arts.199 & 185(3)---Constitutional petition before High Court---Bona fide personal need of the landlord---Concurrent findings by forums below---Interference of High Court under its constitutional jurisdiction---Scope---Special forum or Tribunal proceeding with a case under Special Statute was legally bound to decide the case rightly and in accordance with law and it had no arbitrary or fanciful discretion to decide the case wrongly---Where the concurrent findings by forums below suffered from illegality, infirmity, misreading and non-reading of evidence on record, misconstruing the evidence or based on extraneous material, then the High Court would be justified in setting aside such concurrent findings---High Court was possessed of power in exercise of its constitutional jurisdiction to substitute the findings of the forums below with its own findings.
Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; `Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another PLD 1988 SC 633; and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Bona fide personal need of the landlord---Material facts in establishing the good faith and bona fides---Landlord though has the prerogative to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of landlord to give plausible and satisfactory ground/explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use---Where the landlord, instead of providing plausible, satisfactory and cogent grounds for not occupying the premises which had become available for occupation did not even disclose the factum of premises having become vacant, same completely negated his good faith and bona fides---Concealment by the landlord of, one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide of his personal need and good faith and would be detrimental to his case.
Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 ref.
(c) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court---Bona fide personal need of the landlord---Concurrent findings of the two Courts below having been arrived upon justly, fairly and legally, were not liable to be interfered with if the same were neither wrong or incorrect nor were based on arbitrary or fanciful discretion so as to be interfered with.
Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another PLD 1988 SC 633; and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 ref.
Neel Keshav, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record (absent) for Petitioners.
Mian Mushtaq Ahmad, Advocate Supreme Court and Raja Sher Muhammad, Advocate-on-Record (absent) for Respondents Nos.1 to 10.
Nemo. for Respondents Nos.11 and 12.
Date of hearing: 12th October, 2005.
ORDER
SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal has been filed against the judgment of the Sindh High Court, dated 2-6-2005 in Constitutional Petition No. S-773 of 2002.
2. Brief facts of the case necessary for disposal of this petition are that father of the present petitioners Samiullah, was the owner and landlord of the building on Plot No.RB-6/108, Arambagh Quarters, Arambagh Road, Karachi and respondent No.1 was his tenant in respect of Shop Nos.3 and 4, (hereinafter referred to as the demised shops) situated on ground floor of the said building on a monthly rent of Rs. 126 excluding electricity and other charges. On 23-5-1974, the said Samiullah died, leaving behind his widow Mst. Zohra Bi and the respondents as his legal heirs, and owners/landlords of the said premises. On 16-3-1981. Mst. Zohra Bi, widow of late Samiullah, and respondents filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "SRPO") against the respondents Nos.2 and 3 for their eviction from the said premises on the ground of subletting and personal bona fide need of the respondent No.3. This ejectment application was dismissed by the First Rent Controller, Karachi South vide order dated 1-4-1984 against which the respondents filed F.R.A. No.499 of 1984 which was allowed by the Sindh High Court vide judgment, dated 5-9-1986 remanding the case to the First Rent Controller, 'Karachi South for deciding it afresh after allowing opportunity to both the parties to lead further evidence. On remand, both the parties adduced fresh evidence by filing affidavits-in-evidence of their respective witnesses who were also cross-examined and after hearing the arguments of the counsel for the parties, the Rent Controller, Karachi South, vide order, dated 14-9-1989 was again pleased to dismiss the ejectment application of the petitioner. The petitioners being aggrieved by and dissatisfied with the said order filed F.R.A. No.677 of 1989 under section 21 of the SRPO in the High Court of Sindh which after amendment in the SRPO was transferred to District Judge, Karachi South, where it was registered as F.R.A. No.210 of 2001. Ultimately First Additional District Judge, Karachi South, on transfer of the appeal to his Court dismissed the same vide order dated 24-5-2002 which order was impugned before the Sindh High Court, who vide its judgment dated 2-6-2005 in C.P. No.S-73 of 2002 allowed the same, set aside the concurrent findings of the two Courts below and ordered ejectment of the petitioners from the demised shops.
3. During the course of hearing in the High Court respondents did not press the ground of subletting and had contested the constitutional petition only on the ground of their bona fide personal requirement for occupation and use of the demised shops.
4. We have heard the arguments of Mr. Neel Keshav, Advocate Supreme Court on behalf of petitioners and Mian Mushtaq Ahmed, Advocate Supreme Court on behalf of respondents Nos. 1 to 10.
5. Mr. Neel Keshav, learned Advocate Supreme Court for the petitioners vehemently assailed the judgment of the Sindh High Court on the ground that it was contrary to the well-settled and established principle that concurrent findings of the Courts/forums below could not be set aside by the High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. His further submission was that the judgment of the High Court could not be sustained as it was also in contravention of the long established practice that the High Court in the exercise of constitutional jurisdiction could only declare the judgment/order as illegal and ultra vires but would not substitute its own findings with the findings of the lower Courts/forums. He further submitted that the judgment of the Rent Controller and the Appellate Court did not suffer from any illegality, misreading, non-reading or misconstruing of evidence the existence of all or anyone of which, according to him was the necessary condition to be established before the concurrent findings of the Courts below could be interfered with and in the circumstances the High Court committed a serious and grave illegality in setting aside the concurrent findings which were based on proper appreciation and appraisal of evidence and correct application of law. He further submitted that when the Tribunal/forum is set up under ordinary law having jurisdiction to decide a particular matter, it has jurisdiction to decide it rightly or wrongly and the same could not be subjected to scrutiny in exercise of constitutional jurisdiction even if the Tribunal under a special law had come to a wrong conclusion but had acted within its jurisdiction. He submitted that the above concept was no longer holding the field as this Court in subsequent cases has not accepted the above principle and had pronounced that a Court or Tribunal proceeding with a case was required to decide it rightly and in accordance with law. In support of his above contentions he placed reliance on the (i) Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; (ii) Muhammad Sharif and others v. Muhammad Afzal Sohail and others PLD 1981 SC 264, (iii) Muhammad Younas Khan and others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture Peshawar and others 1993 SCMR 618, (iv) Rana Muhammad Arshad v. Additional Commissioner, Revenue Multan and others 1998 SCMR 1462 and (v) Secretary to the Government of the Punjab Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415.
6. On the other hand Mian Mushtaq Ahmad, Advocate Supreme Court appearing on behalf of the respondents supported the judgment of the High Court and submitted that the High Court was justified in setting aside the concurrent findings of the Rent Controller and the Appellate Court as they suffered from misreading and non-reading of evidence. He further submitted that it was not a case of change of view or opinion by the High Court or that in coming to a different conclusion from the one arrived at by the two Courts below on the basis of appraisal of evidence but it amounted to correction and rectification of an illegality, serious infirmities and irregularities committed by the two Courts below in arriving at a conclusion by misreading, non-reading of the evidence and relying on extraneous material on record and evidence not on record. With regard to the contention that the Rent Controller and the Appellate Court were exercising jurisdiction under a special law and could decide a particular matter in such exercise of jurisdiction either wrongly or rightly and the mere fact that decision was wrong or incorrect would not empower the High Court to set aside the same and to give its own findings. In support of his above contentions he placed reliance on the case of Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, wherein this Court pronounced that when a Court or Tribunal was vested with jurisdiction to decide a particular matter then it has to decide it rightly in accordance with law. Thus, doing away with the old concept that a Court/Tribunal exercising jurisdiction under a Special law was competent to decide a matter wrongly or rightly. He also referred to the cases of Muhammad Sadiq v. Punjab Labour Court No. 1, Lahore and another PLD 1988 SC 633; Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070 and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103, wherein this Court observed that the High Court would be justified to substitute its own findings in place of the concurrent findings of the Courts /Tribunals below where it was found suffering from some legal flaw or factual infirmity or was based on misreading, non-reading, misconstruing of evidence or basing the finding/judgment on some extraneous material or evidence.
7. We have considered the arguments of the learned counsel for the parties. We have also perused the material on record as well as the case-law referred to us by the learned counsel for the parties.
8. At the outset it may be pointed out that the issue of subletting was not pressed before the High Court and was dropped, as a result of which the High Court did not give any finding on this issue. Before us the only issue requiring determination is that of personal bona fide requirement of the respondents in respect of the demised shops.
9. The ejectment application filed by the respondents on the ground of subletting and personal requirement in respect of the demised shops was dismissed. However, the High Court while deciding the First Rent Appeal being F.R.A. No.499 of 1984 remanded the case to the Rent Controller with the direction to allow opportunity to both the parties to lead further evidence in the case on both the issues. The High Court in its aforesaid judgment specifically observed that the Rent Controller would re-determine the issues involved in the case in the light of such evidence as may be led before him by the parties. After remand of the case parties led further evidence as they filed fresh affidavits-inevidence. On behalf of the respondents fresh affidavits-in-evidence were filed by respondent No.1 Sultan Ahmed and respondent No.3 Mansoor Ahmed for whose personal requirement the demised shops were sought to be vacated. Their witness Muhammad Ilyas also filed fresh affidavitin-evidence and all of them were subjected to cross-examination. On behalf of the petitioners Abdul Sattar Siddiqui filed fresh affidavit-in-evidence and was duly cross-examined. The Rent Controller vide his judgment, dated 24-9-1989 dismissed the ejectment application as he decided both issues of subletting and personal requirement against the respondents. The order of the Rent Controller was assailed in appeal under section 21 of the S.R.P.O. The appeal was heard by First Additional District Judge, Karachi East. From perusal of the order/ judgment of the Rent Controller and the Appellate Court it transpired that ejectment application filed by the respondents was dismissed on the grounds; firstly that in the fresh affidavits-in-evidence filed by respondent Sultan Ahmed there was no mention of the bona fide personal requirement of respondent Mansoor Ahmed in respect of the demised shops; secondly, that during pendency of the ejectment proceedings a shop on the first floor had fallen vacant, which could have been occupied by respondent Mansoor Ahmed for establishing his business of Optician and which is still lying vacant clearly demonstrating mala fide on the part of respondents and suggesting that ejectment of the petitioners from the demised shops was sought not on the ground of bona fide personal requirement of occupation and use of the same; but merely to eject the petitioners and thirdly that Shop No.6 on ground floor had also fallen vacant during the ejectment proceedings but respondent Mansoor Ahmed instead of starting his business in that shop rented out the same.
10. From perusal of the orders of the Rent Controller and the Appellate Court it cannot be said that they committed illegality and/or irregularity in dismissing the ejectment application on the aforesaid three grounds. There is no doubt that in the fresh affidavit respondent Sultan Ahmed did not mention a single word about the bona fide personal requirement of respondent Mansoor Ahmed in respect of the demised shops and confined himself to solely to the ground of subletting. The issue of bona fide personal requirement was mentioned in the ejectment application as well as the original affidavit-in-evidence of respondent Sultan Ahmed but omission thereof in evidence would suggest that perhaps the requirement for personal use had ceased to exist. It may be pointed out that Mansoor Ahnied in his fresh affidavit-in-evidence reiterated that the demised premises was required by him for his personal bona fide use for establishing his business of optician but in view of omission on the part of Sultan Ahmed to mention so contradictory and/or conflicting.
11. The contention that a shop on the first floor is still in occupation of the respondents and that Shop No.6 on the ground floor had fallen vacant but instead of being occupied by respondent Mansoor Ahmed for establishing his business was rented out completely negated the bona fides of the respondent and demonstrated that the demised premises was not required by the respondents for bona fide personal requirement and use by respondent No.3 but the petitioners were sought to be evicted with some ulterior motive cannot be lightly discarded or ignored. Respondents Sultan Ahmed and Mansoor Ahmed neither in their original affidavits nor in the fresh affidavits-in-evidence stated that the shop on the first floor would not be suitable for establishing business of Optician notwithstanding the fact that some Opticians were doing their business in shops situated on first floor. With regard to Shop No.6 on the ground floor not a single word was mentioned of the same having fallen vacant and subsequently let out. The respondents thus, had made concealment of fact which was very material in establishing good faith and bona fides of the respondents in respect of the personal requirement of the demised shops.
12. With regard to the contention that the High Court in exercise of constitutional jurisdiction would not be competent to set aside the concurrent findings of the forums below and substitute the same with its own findings, Mian Mushtaq Ahmad submitted that the contention advanced by Mr. Neel Keshav was without any substance as it was not supported by the pronouncements of this Court in large number of cases wherein this Court categorically held that where the finding suffered from illegality, infirmity, misreading and non-reading of evidence on recoil, misconstruing the evidence or based on extraneous material then the High Court would be justified in setting aside such concurrent findings of the forums below and to substitute the same by its own findings. From the above discussion it can safely be deduced firstly, that a special forum or Tribunal proceeding with a case under a special statute is legally bound to decide the case rightly and in accordance with law and it has no arbitrary or fanciful discretion to decide the case wrongly in view of the pronouncement of this Court in case of Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others (supra); and secondly, that the High Court is possessed of power in exercise of its constitutional jurisdiction to substitute the findings of the forums below with its own findings as per the pronouncements made by this Court in the rases of Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another; Haji Mohibullah & A Co. and others v. Khawaja Bahauddin and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (supra). Mr. Neel Keshav failed to advance arguments or refer us to any authority of this Court in rebuttal of the settled principles so as to require us to deviate or take a different view relative to the pronouncements made in the above noted cases.
13. We are mindful of the settled law that it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory ground/ explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use. From perusal of the material on record it transpires that not a single word has come from the respondent as to why the shop on the first floor, which is in their occupation would not be sufficient and would not meet the demands of the business sought to be established by respondent Mansoor Ahmed. With regard to Shop No.6 on the ground floor the respondents even did not make a mention of the same having fallen vacant and let out during the litigation going on between the parties. The respondents instead of providing plausible, satisfactory and cogent grounds for not occupying the shops which had become available for occupation did not even disclose the factum of a shop on the ground floor having become vacant which completely negated their good faith and bona fides. This Court in the case of Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 categorically pronounced, that concealment by the landlord of one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide personal need and good faith of the landlord and would be detrimental to his case.
14. Mr. Neel Keshav in order to show that respondent had not acted with clean hands and had approached the Court with mala fide intention and ulterior motive to evict the petitioners from the demised shops submitted that a shop on the ground floor in possession of a tenant was lying closed for last several years but the respondents did not initiate ejectment proceedings against the tenant of the said shop for occupation and use thereof by respondent Mansoor Ahmed. To support his contention he drew our attention to the cross-examination of respondent Sultan Ahmed wherein he admitted that Shop No.2 was in the tenancy of Messrs Mughal Inayatullah but he did not know if the same was lying locked for the last 10/12 years. He also denied the suggestion that he and Mughal Inayatullah have entered into an agreement for letting out Shop No.2 on Pagri. It has also come in evidence through cross-examination of respondent Sultan Ahmed that two rooms on the first floor of the same size as the shops in possession of the petitioners were vacated by one Farooq Rumalwala about 10 years ago and the same were rented out to one Shafi. The period when the above rooms were vacated was suggested to be 4/5 years 'aack which would correspond to 1983/1984 i.e. after filing of the ejectment case but respondent Sultan Ahmed denied the period to be 4/5- years back and stated that it was 10 years ago. There is C also admission on the part of respondent Sultan Ahmad that he had let out two rooms to VIP Advertisers. However, all these facts had been brought on record through the cross-examination of the respondents whereas neither respondent Sultan Ahmed nor respondent Mansoor Ahmed disclosed the above facts either in the ejectment application or in their affidavits-in-evidence. These were very material facts in establishing the good faith and bona fides of the respondents for their bona fide personal requirement for occupation and use of the demised shops and by suppressing/concealing them they had completely demolished their case that the demised shops are required by them for , bona fide personal occupation and use.
15. It may be pointed out that Mian Mushtaq Ahmad has vehemently contended that the findings of the Rent Controller and the Appellate Court were arrived at in non-reading of the fresh evidence brought on record through the fresh affidavits of respondent Sultan Ahmed, respondent Mansoor Ahmad and witness Muhammad Ilyas. It was further submitted that had the two Courts below considered the evidence brought on record through fresh affidavits of the respondents they would not have decided the issue of bona fide personal requirement and need against the respondents as from a bare perusal of the contents of fresh affidavits-in evidence of respondents Sultan Ahmed and Mansoor Ahmed and their cross-examination, the only possible inference or conclusion which could be drawn was that the demised shops were required by respondent Mansoor Ahmed for his personal occupation and use in good faith which was the ground for seeking eviction of the petitioners. He supported the judgment of the High Court and submitted that the High Court was justified in setting aside the concurrent findings of two Courts below on the ground that the same suffered from non-reading of the evidence specially supplied through the fresh affidavits of the respondents and/or their witnesses.
16. The contentions advanced by Mr. Mushtaq Ahmad are without any substance. From perusal of the material on record it may be observed that non-reading and/or misreading of the fresh evidence by the Rent Controller and the Appellate Court did not in any manner adversely effect the case of the respondents resulting in causing them prejudice or legal injury. The case of the respondents would not have been advanced or improved on reading of fresh evidence in view of omission of the respondents to provide plausible, satisfactory, and sufficient explanation for not occupying Shop No.6, which had fallen vacant and rented out as well as some other shops which had also fallen vacant during pendency of the proceedings and rented out as per admission of respondent Sultan Ahmed in his cross-examination. The findings of the two Courts below even on this score did not suffer from any legal defect or infirmity.
17. In the presence of above facts and circumstances the Sindh High Court erred in holding that the findings of the two Courts below were not based no proper reading, appreciation and appraisal of evidence and suffered from illegality and infirmity which warranted interference. The concurrent findings of the two Courts below having been arrived upon justly, fairly and legally were not liable to be interfered with as the same E were neither wrong or incorrect nor were based on arbitrary or fanciful discretion so as to be interfered with as per the pronouncements made by this Court in the cases of Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others (supra) on the one hand and the cases of Muhammad Sadiq v. Punjab Labour Court No. 1, Lahore and another; Haji Mohibullah & Co. and others v. Khawaja Bahauddin and Messrs Olympia Spimiing and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (supra) on the other hand. In doing so the High Court committed grave and serious illegality.
18. For the foregoing facts, reasons, discussion this petition is converted into appeal and is allowed. The impugned judgment of the High Court is set aside and the concurrent findings of the Rent Controller and Appellate Court are restored. Parties are left to bear their own costs.
M.B.A./A-193/S Appeal allowed.
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ
ALLIES BOOK CORPORATION through L.Rs.---Petitioners
Versus
SULTAN AHMAD and others---Respondents
Civil Petition No.583-K of 2005, decided on 16th November, 2005.
(On appeal from the judgment of Sindh High Court, Karachi, dated 2-6-2005 passed in Constitutional Petition No.S-773 of 2002).
(a) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Constitution of Pakistan (1973), Arts.199 & 185(3)---Constitutional petition before High Court---Bona fide personal need of the landlord---Concurrent findings by forums below---Interference of High Court under its constitutional jurisdiction---Scope---Special forum or Tribunal proceeding with a case under Special Statute was legally bound to decide the case rightly and in accordance with law and it had no arbitrary or fanciful discretion to decide the case wrongly---Where the concurrent findings by forums below suffered from illegality, infirmity, misreading and non-reading of evidence on record, misconstruing the evidence or based on extraneous material, then the High Court would be justified in setting aside such concurrent findings---High Court was possessed of power in exercise of its constitutional jurisdiction to substitute the findings of the forums below with its own findings.
Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; `Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another PLD 1988 SC 633; and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Bona fide personal need of the landlord---Material facts in establishing the good faith and bona fides---Landlord though has the prerogative to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of landlord to give plausible and satisfactory ground/explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use---Where the landlord, instead of providing plausible, satisfactory and cogent grounds for not occupying the premises which had become available for occupation did not even disclose the factum of premises having become vacant, same completely negated his good faith and bona fides---Concealment by the landlord of, one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide of his personal need and good faith and would be detrimental to his case.
Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 ref.
(c) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court---Bona fide personal need of the landlord---Concurrent findings of the two Courts below having been arrived upon justly, fairly and legally, were not liable to be interfered with if the same were neither wrong or incorrect nor were based on arbitrary or fanciful discretion so as to be interfered with.
Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another PLD 1988 SC 633; and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 ref.
Neel Keshav, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record (absent) for Petitioners.
Mian Mushtaq Ahmad, Advocate Supreme Court and Raja Sher Muhammad, Advocate-on-Record (absent) for Respondents Nos.1 to 10.
Nemo. for Respondents Nos.11 and 12.
Date of hearing: 12th October, 2005.
ORDER
SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal has been filed against the judgment of the Sindh High Court, dated 2-6-2005 in Constitutional Petition No. S-773 of 2002.
2. Brief facts of the case necessary for disposal of this petition are that father of the present petitioners Samiullah, was the owner and landlord of the building on Plot No.RB-6/108, Arambagh Quarters, Arambagh Road, Karachi and respondent No.1 was his tenant in respect of Shop Nos.3 and 4, (hereinafter referred to as the demised shops) situated on ground floor of the said building on a monthly rent of Rs. 126 excluding electricity and other charges. On 23-5-1974, the said Samiullah died, leaving behind his widow Mst. Zohra Bi and the respondents as his legal heirs, and owners/landlords of the said premises. On 16-3-1981. Mst. Zohra Bi, widow of late Samiullah, and respondents filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "SRPO") against the respondents Nos.2 and 3 for their eviction from the said premises on the ground of subletting and personal bona fide need of the respondent No.3. This ejectment application was dismissed by the First Rent Controller, Karachi South vide order dated 1-4-1984 against which the respondents filed F.R.A. No.499 of 1984 which was allowed by the Sindh High Court vide judgment, dated 5-9-1986 remanding the case to the First Rent Controller, 'Karachi South for deciding it afresh after allowing opportunity to both the parties to lead further evidence. On remand, both the parties adduced fresh evidence by filing affidavits-in-evidence of their respective witnesses who were also cross-examined and after hearing the arguments of the counsel for the parties, the Rent Controller, Karachi South, vide order, dated 14-9-1989 was again pleased to dismiss the ejectment application of the petitioner. The petitioners being aggrieved by and dissatisfied with the said order filed F.R.A. No.677 of 1989 under section 21 of the SRPO in the High Court of Sindh which after amendment in the SRPO was transferred to District Judge, Karachi South, where it was registered as F.R.A. No.210 of 2001. Ultimately First Additional District Judge, Karachi South, on transfer of the appeal to his Court dismissed the same vide order dated 24-5-2002 which order was impugned before the Sindh High Court, who vide its judgment dated 2-6-2005 in C.P. No.S-73 of 2002 allowed the same, set aside the concurrent findings of the two Courts below and ordered ejectment of the petitioners from the demised shops.
3. During the course of hearing in the High Court respondents did not press the ground of subletting and had contested the constitutional petition only on the ground of their bona fide personal requirement for occupation and use of the demised shops.
4. We have heard the arguments of Mr. Neel Keshav, Advocate Supreme Court on behalf of petitioners and Mian Mushtaq Ahmed, Advocate Supreme Court on behalf of respondents Nos. 1 to 10.
5. Mr. Neel Keshav, learned Advocate Supreme Court for the petitioners vehemently assailed the judgment of the Sindh High Court on the ground that it was contrary to the well-settled and established principle that concurrent findings of the Courts/forums below could not be set aside by the High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. His further submission was that the judgment of the High Court could not be sustained as it was also in contravention of the long established practice that the High Court in the exercise of constitutional jurisdiction could only declare the judgment/order as illegal and ultra vires but would not substitute its own findings with the findings of the lower Courts/forums. He further submitted that the judgment of the Rent Controller and the Appellate Court did not suffer from any illegality, misreading, non-reading or misconstruing of evidence the existence of all or anyone of which, according to him was the necessary condition to be established before the concurrent findings of the Courts below could be interfered with and in the circumstances the High Court committed a serious and grave illegality in setting aside the concurrent findings which were based on proper appreciation and appraisal of evidence and correct application of law. He further submitted that when the Tribunal/forum is set up under ordinary law having jurisdiction to decide a particular matter, it has jurisdiction to decide it rightly or wrongly and the same could not be subjected to scrutiny in exercise of constitutional jurisdiction even if the Tribunal under a special law had come to a wrong conclusion but had acted within its jurisdiction. He submitted that the above concept was no longer holding the field as this Court in subsequent cases has not accepted the above principle and had pronounced that a Court or Tribunal proceeding with a case was required to decide it rightly and in accordance with law. In support of his above contentions he placed reliance on the (i) Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; (ii) Muhammad Sharif and others v. Muhammad Afzal Sohail and others PLD 1981 SC 264, (iii) Muhammad Younas Khan and others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture Peshawar and others 1993 SCMR 618, (iv) Rana Muhammad Arshad v. Additional Commissioner, Revenue Multan and others 1998 SCMR 1462 and (v) Secretary to the Government of the Punjab Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415.
6. On the other hand Mian Mushtaq Ahmad, Advocate Supreme Court appearing on behalf of the respondents supported the judgment of the High Court and submitted that the High Court was justified in setting aside the concurrent findings of the Rent Controller and the Appellate Court as they suffered from misreading and non-reading of evidence. He further submitted that it was not a case of change of view or opinion by the High Court or that in coming to a different conclusion from the one arrived at by the two Courts below on the basis of appraisal of evidence but it amounted to correction and rectification of an illegality, serious infirmities and irregularities committed by the two Courts below in arriving at a conclusion by misreading, non-reading of the evidence and relying on extraneous material on record and evidence not on record. With regard to the contention that the Rent Controller and the Appellate Court were exercising jurisdiction under a special law and could decide a particular matter in such exercise of jurisdiction either wrongly or rightly and the mere fact that decision was wrong or incorrect would not empower the High Court to set aside the same and to give its own findings. In support of his above contentions he placed reliance on the case of Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, wherein this Court pronounced that when a Court or Tribunal was vested with jurisdiction to decide a particular matter then it has to decide it rightly in accordance with law. Thus, doing away with the old concept that a Court/Tribunal exercising jurisdiction under a Special law was competent to decide a matter wrongly or rightly. He also referred to the cases of Muhammad Sadiq v. Punjab Labour Court No. 1, Lahore and another PLD 1988 SC 633; Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070 and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103, wherein this Court observed that the High Court would be justified to substitute its own findings in place of the concurrent findings of the Courts /Tribunals below where it was found suffering from some legal flaw or factual infirmity or was based on misreading, non-reading, misconstruing of evidence or basing the finding/judgment on some extraneous material or evidence.
7. We have considered the arguments of the learned counsel for the parties. We have also perused the material on record as well as the case-law referred to us by the learned counsel for the parties.
8. At the outset it may be pointed out that the issue of subletting was not pressed before the High Court and was dropped, as a result of which the High Court did not give any finding on this issue. Before us the only issue requiring determination is that of personal bona fide requirement of the respondents in respect of the demised shops.
9. The ejectment application filed by the respondents on the ground of subletting and personal requirement in respect of the demised shops was dismissed. However, the High Court while deciding the First Rent Appeal being F.R.A. No.499 of 1984 remanded the case to the Rent Controller with the direction to allow opportunity to both the parties to lead further evidence in the case on both the issues. The High Court in its aforesaid judgment specifically observed that the Rent Controller would re-determine the issues involved in the case in the light of such evidence as may be led before him by the parties. After remand of the case parties led further evidence as they filed fresh affidavits-inevidence. On behalf of the respondents fresh affidavits-in-evidence were filed by respondent No.1 Sultan Ahmed and respondent No.3 Mansoor Ahmed for whose personal requirement the demised shops were sought to be vacated. Their witness Muhammad Ilyas also filed fresh affidavitin-evidence and all of them were subjected to cross-examination. On behalf of the petitioners Abdul Sattar Siddiqui filed fresh affidavit-in-evidence and was duly cross-examined. The Rent Controller vide his judgment, dated 24-9-1989 dismissed the ejectment application as he decided both issues of subletting and personal requirement against the respondents. The order of the Rent Controller was assailed in appeal under section 21 of the S.R.P.O. The appeal was heard by First Additional District Judge, Karachi East. From perusal of the order/ judgment of the Rent Controller and the Appellate Court it transpired that ejectment application filed by the respondents was dismissed on the grounds; firstly that in the fresh affidavits-in-evidence filed by respondent Sultan Ahmed there was no mention of the bona fide personal requirement of respondent Mansoor Ahmed in respect of the demised shops; secondly, that during pendency of the ejectment proceedings a shop on the first floor had fallen vacant, which could have been occupied by respondent Mansoor Ahmed for establishing his business of Optician and which is still lying vacant clearly demonstrating mala fide on the part of respondents and suggesting that ejectment of the petitioners from the demised shops was sought not on the ground of bona fide personal requirement of occupation and use of the same; but merely to eject the petitioners and thirdly that Shop No.6 on ground floor had also fallen vacant during the ejectment proceedings but respondent Mansoor Ahmed instead of starting his business in that shop rented out the same.
10. From perusal of the orders of the Rent Controller and the Appellate Court it cannot be said that they committed illegality and/or irregularity in dismissing the ejectment application on the aforesaid three grounds. There is no doubt that in the fresh affidavit respondent Sultan Ahmed did not mention a single word about the bona fide personal requirement of respondent Mansoor Ahmed in respect of the demised shops and confined himself to solely to the ground of subletting. The issue of bona fide personal requirement was mentioned in the ejectment application as well as the original affidavit-in-evidence of respondent Sultan Ahmed but omission thereof in evidence would suggest that perhaps the requirement for personal use had ceased to exist. It may be pointed out that Mansoor Ahnied in his fresh affidavit-in-evidence reiterated that the demised premises was required by him for his personal bona fide use for establishing his business of optician but in view of omission on the part of Sultan Ahmed to mention so contradictory and/or conflicting.
11. The contention that a shop on the first floor is still in occupation of the respondents and that Shop No.6 on the ground floor had fallen vacant but instead of being occupied by respondent Mansoor Ahmed for establishing his business was rented out completely negated the bona fides of the respondent and demonstrated that the demised premises was not required by the respondents for bona fide personal requirement and use by respondent No.3 but the petitioners were sought to be evicted with some ulterior motive cannot be lightly discarded or ignored. Respondents Sultan Ahmed and Mansoor Ahmed neither in their original affidavits nor in the fresh affidavits-in-evidence stated that the shop on the first floor would not be suitable for establishing business of Optician notwithstanding the fact that some Opticians were doing their business in shops situated on first floor. With regard to Shop No.6 on the ground floor not a single word was mentioned of the same having fallen vacant and subsequently let out. The respondents thus, had made concealment of fact which was very material in establishing good faith and bona fides of the respondents in respect of the personal requirement of the demised shops.
12. With regard to the contention that the High Court in exercise of constitutional jurisdiction would not be competent to set aside the concurrent findings of the forums below and substitute the same with its own findings, Mian Mushtaq Ahmad submitted that the contention advanced by Mr. Neel Keshav was without any substance as it was not supported by the pronouncements of this Court in large number of cases wherein this Court categorically held that where the finding suffered from illegality, infirmity, misreading and non-reading of evidence on recoil, misconstruing the evidence or based on extraneous material then the High Court would be justified in setting aside such concurrent findings of the forums below and to substitute the same by its own findings. From the above discussion it can safely be deduced firstly, that a special forum or Tribunal proceeding with a case under a special statute is legally bound to decide the case rightly and in accordance with law and it has no arbitrary or fanciful discretion to decide the case wrongly in view of the pronouncement of this Court in case of Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others (supra); and secondly, that the High Court is possessed of power in exercise of its constitutional jurisdiction to substitute the findings of the forums below with its own findings as per the pronouncements made by this Court in the rases of Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another; Haji Mohibullah & A Co. and others v. Khawaja Bahauddin and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (supra). Mr. Neel Keshav failed to advance arguments or refer us to any authority of this Court in rebuttal of the settled principles so as to require us to deviate or take a different view relative to the pronouncements made in the above noted cases.
13. We are mindful of the settled law that it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory ground/ explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use. From perusal of the material on record it transpires that not a single word has come from the respondent as to why the shop on the first floor, which is in their occupation would not be sufficient and would not meet the demands of the business sought to be established by respondent Mansoor Ahmed. With regard to Shop No.6 on the ground floor the respondents even did not make a mention of the same having fallen vacant and let out during the litigation going on between the parties. The respondents instead of providing plausible, satisfactory and cogent grounds for not occupying the shops which had become available for occupation did not even disclose the factum of a shop on the ground floor having become vacant which completely negated their good faith and bona fides. This Court in the case of Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 categorically pronounced, that concealment by the landlord of one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide personal need and good faith of the landlord and would be detrimental to his case.
14. Mr. Neel Keshav in order to show that respondent had not acted with clean hands and had approached the Court with mala fide intention and ulterior motive to evict the petitioners from the demised shops submitted that a shop on the ground floor in possession of a tenant was lying closed for last several years but the respondents did not initiate ejectment proceedings against the tenant of the said shop for occupation and use thereof by respondent Mansoor Ahmed. To support his contention he drew our attention to the cross-examination of respondent Sultan Ahmed wherein he admitted that Shop No.2 was in the tenancy of Messrs Mughal Inayatullah but he did not know if the same was lying locked for the last 10/12 years. He also denied the suggestion that he and Mughal Inayatullah have entered into an agreement for letting out Shop No.2 on Pagri. It has also come in evidence through cross-examination of respondent Sultan Ahmed that two rooms on the first floor of the same size as the shops in possession of the petitioners were vacated by one Farooq Rumalwala about 10 years ago and the same were rented out to one Shafi. The period when the above rooms were vacated was suggested to be 4/5 years 'aack which would correspond to 1983/1984 i.e. after filing of the ejectment case but respondent Sultan Ahmed denied the period to be 4/5- years back and stated that it was 10 years ago. There is C also admission on the part of respondent Sultan Ahmad that he had let out two rooms to VIP Advertisers. However, all these facts had been brought on record through the cross-examination of the respondents whereas neither respondent Sultan Ahmed nor respondent Mansoor Ahmed disclosed the above facts either in the ejectment application or in their affidavits-in-evidence. These were very material facts in establishing the good faith and bona fides of the respondents for their bona fide personal requirement for occupation and use of the demised shops and by suppressing/concealing them they had completely demolished their case that the demised shops are required by them for , bona fide personal occupation and use.
15. It may be pointed out that Mian Mushtaq Ahmad has vehemently contended that the findings of the Rent Controller and the Appellate Court were arrived at in non-reading of the fresh evidence brought on record through the fresh affidavits of respondent Sultan Ahmed, respondent Mansoor Ahmad and witness Muhammad Ilyas. It was further submitted that had the two Courts below considered the evidence brought on record through fresh affidavits of the respondents they would not have decided the issue of bona fide personal requirement and need against the respondents as from a bare perusal of the contents of fresh affidavits-in evidence of respondents Sultan Ahmed and Mansoor Ahmed and their cross-examination, the only possible inference or conclusion which could be drawn was that the demised shops were required by respondent Mansoor Ahmed for his personal occupation and use in good faith which was the ground for seeking eviction of the petitioners. He supported the judgment of the High Court and submitted that the High Court was justified in setting aside the concurrent findings of two Courts below on the ground that the same suffered from non-reading of the evidence specially supplied through the fresh affidavits of the respondents and/or their witnesses.
16. The contentions advanced by Mr. Mushtaq Ahmad are without any substance. From perusal of the material on record it may be observed that non-reading and/or misreading of the fresh evidence by the Rent Controller and the Appellate Court did not in any manner adversely effect the case of the respondents resulting in causing them prejudice or legal injury. The case of the respondents would not have been advanced or improved on reading of fresh evidence in view of omission of the respondents to provide plausible, satisfactory, and sufficient explanation for not occupying Shop No.6, which had fallen vacant and rented out as well as some other shops which had also fallen vacant during pendency of the proceedings and rented out as per admission of respondent Sultan Ahmed in his cross-examination. The findings of the two Courts below even on this score did not suffer from any legal defect or infirmity.
17. In the presence of above facts and circumstances the Sindh High Court erred in holding that the findings of the two Courts below were not based no proper reading, appreciation and appraisal of evidence and suffered from illegality and infirmity which warranted interference. The concurrent findings of the two Courts below having been arrived upon justly, fairly and legally were not liable to be interfered with as the same E were neither wrong or incorrect nor were based on arbitrary or fanciful discretion so as to be interfered with as per the pronouncements made by this Court in the cases of Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others (supra) on the one hand and the cases of Muhammad Sadiq v. Punjab Labour Court No. 1, Lahore and another; Haji Mohibullah & Co. and others v. Khawaja Bahauddin and Messrs Olympia Spimiing and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (supra) on the other hand. In doing so the High Court committed grave and serious illegality.
18. For the foregoing facts, reasons, discussion this petition is converted into appeal and is allowed. The impugned judgment of the High Court is set aside and the concurrent findings of the Rent Controller and Appellate Court are restored. Parties are left to bear their own costs.
M.B.A./A-193/S Appeal allowed.
Comments
Post a Comment