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Constitutional Petition No. D‑940 of 1980, decided on 20th February, 1983.

‑‑ Art. 199‑‑Cantonments Rent Restriction Act (XI of 1963) ‑. 17(4) (a) (b) ‑ Constitutional petition‑Second appeal‑Scope Orders and judgments in rent cases passed by lower Courts, held, can be attacked in constitutional petition on limited grounds unlike second appeal where such scope as wider.‑[Second Appeal].

‑‑ S: 17(4) (a) (1)‑Constitution of Pakistan (1973), Art.. 199‑‑Com mercial premises‑ Ejectment application‑Contention that original application not maintainable as premises in dispute being commercial premises and as such trial Court assumed jurisdiction not vested in it and orders passed in this behalf liable to be quashed‑Ejectment application clearly disclosing that it is in respect of commercial pre mises in occupation of tenant‑Findings of lower Courts that applica tion was maintainable, held, correct and contention that lower Courts assumed jurisdiction not vested in them, not tenable.

P L D 1977 Lah. 1094; P L D 1976 Kar. 1231 ; 1982 C L C 1965 and 1980 C L C 601 re):

‑‑ S. 17 (4) (a) (1) read with S. 17(4Xb)‑Constitution of Pakistan (1973), Art. 199‑Scope‑Scope of S. 17(4) (b) restricted for purposes of ejectment from commercial premises,‑Contention that need of wife also includes landlord's own need, held, misconceived.

1976 S C M. R 53 ref.

‑‑ S. 17‑Constitution of Pakistan (1973), Art. 199‑.Eviction pro ceedings‑Tenant before Rent Controller not challenging in cross examination of landlord that premises needed by landlord for joint use of landlord and his wife bonafidely‑Decision arrived at by Rent Controller about this fact, held, cannot be considered to be misreading of evidence or perverse and mala fide so as to warrant interference in constitutional jurisdiction‑Order of lower Court maintained, in circumstances.

P L D 1970 S C 39 ; 1976 S C M R 52 and 1979 C L C 190 ref..

Z. U. Ahmed for Appellant.

Munawar Malik for Respondent No. 3.

Date of hearing; 16^th February, 198,

Petitioner abovenamed, being aggrieved by order dated 5th July, 1978 of learned Additional Rent Controller, Karachi, Cantonment, in R. C. No. 52 of 1978, and by judgment dated 11th May, 1980 of the learned District Judge, Karachi passed in Rent Appeal No. 430/79, by which respondents No. 3's application for ejectment of the petitioner was allowed, has filed the above petition, on the following facts and grounds :‑

The respondent submitted application for ejectment on the grounds, that he is going to be retired soon and that he requires the premises for his own use to start business, through his wife and to build a flat on the said shop and that the petitioner has got. his own shop.

Then petitioner Dr. Wahaj Mirza had stated in his written statement, that the application under section 17(4) (a) (f) was not maintainable and that the respondent is taking advantage of promulgation of Martial Law. He does not seem to believe, that the respondent wants the premises in good faith and further stated, that the residential building cannot be built in commercial area and he does not have any shop in Karachi.

Following issues were adopted

(a) Whether the application is maintainable under section 17 (4) (a) (i) of the Cantonment Rent Restriction Act If not what is its effect.

(b) Whether the applicant requires the premises. in question in good faith for his own occupation or for occupation of his wife

(c) What should the order be

The respondent and his elder brother, who appeared as witness had supported the application and clearly said that the premises are required for the bona fide use of the respondent in good faith. The petitioner in his statement had denied, that the premises are required for running a business by the wife of the respondent and that no residential house can be built in commercial area.

The learned Rent Controller taking into consideration the evidence adduced before it allowed Respondent No. 3's application, vide his order dated 5th July, 1979, against which petitioner filed Rent Appeal No: 430/79, which was also dismissed and the order dated 5th July, 1979 of the learned Rent Controller was confirmed and consequently petitioner has filed the above petition, on the grounds mentioned in the memo. of petition.

The main grounds on which both the impugned order and judgment are attacked by the learned Advocate for the petitioner in above petition are as follows :‑

(a) That ejectment application was filed by Respondent No. 3 under wrong provisions of the rent law in question, deliberately.

(b) That the ejectment application filed by the respondent No. 3 was not maintainable on the ground sought, as the said ground was not available in the case of commercial premises.

(c) That ejectment application was filed malafidely which is evident from the .fact, that respondent No, 3, although obtained vacant possession of the adjacent shop after filing of above petition, but he has not utilized the said shop for alleged business, without cogent reasons. so far.

(d) That respondent No. 3's application did not disclose the nature of the business which was to be opened in the premises in question and as such on this ground alone it was not maintainable.

In view of his above submissions the learned Advocate for the peti tioner submitted, that both the order and the judgment of the learned lower courts are without lawful authority and in complete violation of the provisions of rent laws applicable to the said premises and con sequently both order and impugned judgment are liable to be quashed by this Court, as both the learned lower courts assumed juris diction, which was not vested in them. In support of the above contentions the learned Advocate for the petitioner relied upon cases reported in P L D 1977 Lab. 1094, P L D 1976 Kar. 1231, 1982 C L C 1965 and 1980 CLC604.

The learned Advocate for the respondent No. 3 on the other hand sub mitted, that both the impugned order and the judgment of the learned lower courts are legal and the said both learned lower courts assumed jurisdic tion directly, in disposing off respondent No. 3's application on merits. The learned Advocate for the respondent further submitted, that as far as the first objection of the learned Advocate for the petitioner is concerned there was typographical error in the heading of the ejectment applidatldtl3 which was evident from the facts as narrated in the ejectment implicated and secondly both the learned lower courts were fully justified in treating the ejectment application in question under S. 17(4) (b) of the Cantonment Rent Restriction Act, which was applicable to the Commercial premises. As far as the second objection of the learned Advocate for the petitioner is concerned, the learned Advocate for the respondent No. 3 submitted, that it is clear from the legal notice as well as the ejectment application in question, that the respondent No. 3 sought ejectment of the petitioner on the ground of his own personal and bona fide need and till his retirement, he clarified that his wife would be running the business and as such the said ejectment application was maintained under the provisions of section 17(4) (b), even if the interpretation put on this section by the learned Advocate for petitioner is accepted to be correct. As far as non‑utilization of the adjacent shop for which also ejectment application on the same grounds was filed by the respondent No. 3, the learned Advocate for the respondent No. 3 submitted, that each shop is 20' x 10' only and as such unless the respondent No. 3 gets possession of the shop in the possession of the petitioner, it is not possible for him to start his business in one shop only, as he propose to start departmental store in the said premises. The learn ed Advocate for the respondent No. 3 drew my attention to the state ment of respondent No. 3 and other evidence brought on record before the learned Rent Controller and submitted, the entire reading of the statements of respondent No. 3 and the evidence brought on record, it clearly shows that the respondent No. 3 had sought ejectment of the petitioner on the ground of his own personal bona fide need to start business and the said application was not for need of his wife, as suggested by the learned Advocate for the petitioner.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of both the learned Rent Controller as well as the learned Appellate Court and with the con 5ent of the learned Advocates for both the parties, I have also perused the record and proceedings of the Rent Case No. 51/78, which was summoned at the joint request of both the learned Advocates. I have also gone through the cases cited by the learned Advocates before me as well as through impugned order and judgment, Admittedly this is a constitutional petition and not a second appeal and consequently order and impugned judgment of both the learned courts can only be attacked on limited grounds, unlike in second appeal where the scope of such attack is wider.

The first legal objection taken by the learned Advocate for the peti tioner before me was, that original ejectment application was not maintainable under section 17(4)(0)(1) of Karachi Cantonment Rent Act, as admit tedly premises in question are commercial premises and as such the learned trial Court assumed jurisdiction, which was not vested in it and consequently orders of both the learned lower courts on this ground alone are liable to be quashed. I have carefully considered this submission of the learned Advocate for the petitioner. Ejectment application discloses very clearly, that it is in respect of commercial premises in occupation of the petitioner. In view of this finding of the learned Rent Controller and the appellate Court, that said application was maintainable in my opinion is correct and I see no reason to disagree with the finding of learned a appellate Court, that there was typographical error in the heading of ejectment application in view of this conclusion, I find no reason to agree with the contention of the learned Advocate for petitioner, that both the lower courts assumed jurisdiction not vested in them.

The second contention of the learned Advocate for petitioner, that under provisions of section 17(4xb), respondent No. 3 could only seek ejectment of the petitioner on ground of his own personal and bona fide need and not on account of the need of his wife, in my opinion has great force. It is clear from the wordings of section 17(4)(b) read with section 17 (4) (Q) (1) of the said Act:, that Legislature deliberately restricted the' scope of section 17(4)(b) for purposes of ejectment from commercial premises. In view of this the conclusion of the learned Rent Controller that' need of wife, would include respondent's own need, on the basis of case reported in 1976 S C M R 53 is misconceived, as the said case relates to the interpretation of the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, which are different from Cantonment Rent Act. However I find that learned appellate Court also fail in this error of law. but I find from impugned judgment, that the learned appellate Court also considered the statement of the respondent No. 3 on record and arrived at conclusion of fact, that respondent No. 3 required the premises for his own use as well and not for exclusive use of his wife. This is finding of fact and if this finding can be sustained on the basis of the evidence adduced by respondent No. 3, then, of course it cannot be assailed by this petition in my opinion.

The learned Advocates before me took me through the R & P of the learned trial Court and interpreted the evidence adduced before the learned Rent Controller in their own ways. In view of this, I have very carefully gone through entire evidence adduced before the learned trial Court.

The basis of the ejectment application in question was legal notice dated 30th August, 1977, which was produced by respondent No 3 as Exh. B, before the learned trial Court and reply of petitioner as Exh. C. I would quote below portion of para. 3 of Exh. B legal notice sent by respon dent No. 3 to petitioner, which in my opinion is relevant for consideration of above question. This portion reads as under: ‑‑

"The premises in your occupation is required in good faith by my client because he is about to retire from Government service after some time and will soon face the problem of supplementing his income to meet the expenses of his family which comprises besides himself of his wife and four school‑going children. He has therefore to pre pare in advance and he has decided that his wife will run a business in the premises to augment the pensionery benefits, that he will obtain."

Petitioner denied in his reply that respondent No. 3 needed the pre mises bonafidely and genuinely.

Respondent No. 3 in his statement before the learned trial Court stated I filed the application for ejectment because I want the premises for personal use. Presently I want it for my wife, later on for joint use for premises."

In his cross respondent No. 3 stated as under : ‑

"It is incorrect to suggest, that the mixed premises is not required for my personal use, but for enhancing the rate of rent."

P. W. 2 Muhammad Aijaz Khan, brother of respondent No. 3 in his cross to the petitioner's counsel stated as under : ‑

"It is correct to suggest that applicant wants both the shops for his own use."

Petitioner had examined himself before the learned Rent Controller, in which he stated as under

"Aijaz Khan asked me to enhance the rent because the rents are risen in that vicinity. I replied him that I would increase the rate of rent, when it will be possible for me. Then on my refusal, applicant filed this case."

In his cross petitioner stated as under :‑

"It is correct to suggest that Aijaz Khan did not ask me to increase the rent in writing. He did not mention this fact in Exh. notice by his counsel. Even I have not mentioned this in my reply notice. I have not mentioned this fact in my written statement too."

It is clear from the above passages quoted from the evidence adduced before the learned Rent Controller, that petitioner did not challenge in cross examination of the respondent No. 3, assertions made by him in his state ment before the learned Rent Controller, that premises were needed by the respondent No. 3 for joint use of respondent No. 3 and his wife bonafidely. In view of this the conclusions arrived at by the learned appellate Court in its impugned judgment, about this fact cannot be considered to be mis reading of evidence on record and/or perverse and mala fide conclusions. so as to warrant interference in this constitutional jurisdiction, in my opinion, as the main ground of attack on respondents statement was, that he wanted enhanced rent for the premises. In view of this conclusion of mine, case reported in P L D 1970 S C 39 is not applicable to the facts of present case, as learned counsel for the petitioner was unable to point out any misreading of evidence or non‑consideration of material evidence or; erroneous facts, so as to warrant interference in writ jurisdiction in the; impugned judgment of the learned appellate Court. Cases reported in 1976 S C M R 52 and 1979 C L C 190 support the conclusions of the learned, appellate Court, in favour of Respondent No. 3.

The third contention of the learned Advocate for petitioner, that since respondent No. 3 has not utilized adjacent shop, vacant possession of which he obtained after filing of above petition, proves mala fides of respondent No. 3, in my opinion has no force, in view of the explanation given by respondent No. 3, through his Advocate in open Court and keeping in view the dimensions of the shop in question i.e. 20 x 10', which was not dis puted by the learned Advocate for the petitioner before me. The reliance placed by the learned Advocate for the appellant in connection with this contention of his on cases reported in 1980 C L C 1082 and 1982 C L C 1006, is misconceived, as in both these cases the facts were quite different. Furthermore in the present case respondent No. 3 had filed ejectment application in respect of both the shops in question on the same day, on the same grounds as according to respondent No. 3, he needed both the shops because of their small dimensions for his business of setting up departmental store and consequently obtaining of possession of the respondent No. 3 of one shop pending disposal of the above petition does not warrant, that the order of ejectment obtained by respondent No. 3, in respect of the shop in possession of the petitioner should automatically be set aside. It may further be noted that the cases cited by the learned Advocate for the petitioner are in respect of second rents appeals, under. the, provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 whereas above is constitutional petition and the considerations in this petition are quite different, than hearing such matters in appeal. Therefore in my opinion these two cases cited by the learned Advocate for the appel lant do not help the contention raised in the above petition for quashment of the impugned orders.

The last contention of the learned Advocate for the petitioner also has no force in my opinion. It is not necessary under law to disclose the nature of business in ejectment application. I further find no question on this account was even put to respondent No. 3 in his cross-examination. The learned advocate for the appellant in support of this last contention has relied upon case reported in P L D 1980 Kar. 223. In my opinion this case is based on completely different facts. In addition to this the above matter is before me in constitutional jurisdiction and not as a second appeal, the considerations in which would have been perhaps different. In the present case, as already stated by me, petitioner had not put any ques tion on this point to the respondent No. 3 and as such on the basis of this case, I cannot set aside finding of fact of the learned Appellate Court granted in favour of the respondent No. 3. '

Therefore I find no merits in the above petition which is consequently dismissed with no orders as to cost. However tallow six months time to petitioner to vacate the premises in his occupation and hand over vacant possession of the premises to Respondent No. 3, provided he continues to deposit rents in accordance with tentative rent order. This consent order shall not affect rights of petitioner to take any other appellate remedy avail able to him in law.

M. Y. M. Petition dismissed.

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