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Constitutional Petitions Nos. S-7 and S-8 of 1986, decided on 26th April, 1987.

---Art. 199--Constitutional jurisdiction, against finding of fact--Finding of fact recorded by competent forum, held, could not be interfered with by High Court in exercise of constitutional jurisdiction, merely or, ground that High Court might have taken a different view on appraisal of same evidence.

Badruddin Hasan Farooqi v. Manghi Industrial Home P L D 1976 Kar. 620; Peerzada Rafiq Ahmad v. Chaudhry Abdul Rehman 1980 S C M R 772; Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. 1985 S C M R 1996; Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 and Taj Muhammad and others v. Muhammad Iqbal and others 1986 S C M R 276(2)-ref.

J. H . Rahimtoola for Petitioner.

Hassan Asghar Rizvi for Respondents.

Date of hearing: 26th April, 1987.

These are two connected writ petitions and, therefore, I intend to dispose of the same by this common judgment. The brief facts leading to the filing of the above petitions are as follows:-

Constitution Petition No. S-7 of 1986.

The petitioner is the owner of shop No. 5-C (1), situated in Market A, Central Commercial Area, Defence Housing Authority, whereas the respondent No. 1 is the tenant. He was paying rent at the rate of Rs. 250 in 1975, when the above shop and the shop in the connected petition were purchased alongwith the flat by the petitioner. The petitioner demanded enhancement of rent, which was increased from Rs. 250 to Rs. 300. The petitioner's husband expired in 1973. It is the case of the petitioner that she approached the respondent No. 1 with the request either to vacate the shop or to increase the rent, on the expiry of her husband but the above request was not acceded to by the respondent. The petitioner, therefore approached the Martial Law Administrator by her application dated 31-5-1982 for vacation of the shop on the ground of personal requirement. It appears that the officer concerned in the Martial Law Headquarters, by his order dated 16-9-1982 increased the rent from Rs. 300 to Rs. 450 and declined the request of ejectment. It further seems that the petitioner approached Martial Law Administrator by her second application dated 6-10-1982 stating therein, that she wanted either the vacation of the shop or substantial increase in the rent. No order on the above application was passed. Thereafter, she filed Rent Case No. 16 of 1983 in the Court of Rent Controller Clifton Cantonment, Karachi. The above application was resisted by respondent No. 1. The petitioner in support of the application examined herself and respondent No-1 examined himself. The learned Rent Controller by order dated 8-11-1983 allowed the rent application. Respondent No. 1 filed Rent Appeal No-127 of 1983, which was allowed by District Judge South, Karachi by judgment dated 14-11-1985, acting as the Appellate Authority and set aside the order of the Rent Controller and dismissed the rent application. The petitioner being aggrieved by the judgment has filed the present petition.

Constitution Petition No. S-8 of 1986.

The petitioner is the landlady of Shop No. 5-C(II), situated in Market A, Central Commercial Area, Defence Housing Society, which she had purchased in 1975 alongwith the shop which is subject-matter in the above connected petition and a flat thereon. In this case also the petitioner after purchase approached the respondent No. 1 for the enhancement of rent but the said respondent, did not accede to the above request. It is the case of the petition chat on the expiry of her husband in 1978 she approached the respondent No. 1 with the request either to enhance the rent substantially or to vacate the shop on the ground of personal requirement. Since the above request was not accepted, the petitioner filed an application before the Martial Law Administrator on 31-5-1982 for ejectment on the ground of personal requirement. The above application was disposed of by order dated 16-9-1982, whereby the rent was enhanced from Rs. 250 to Rs. 450. However, the petitioner filed second application dated 6-10-1982 before the Martial Law Authorities stating therein, that she wanted the vacation of the shop on the ground of personal requirement or substantial increase in the rent which was not done. It seems that no order was passed on the above application by the Martial Law Authorities. After that she filed Rent Application No. 17 of 1983 for ejectment against Respondent No. 1 on the ground of personal requirement. The above application was resisted. The petitioner examined herself, whereas the respondent examined himself. The learned Rent Controller by order dated 8-11-1983 allowed the above rent application. Respondent No. 1 being aggrieved by the above order filed Rent Appeal No. 128 of 1983 in the Court of District Judge South, Karachi which was allowed by a common judgment dated 14-11-1985. The petitioner being aggrieved by the above judgment has filed the above writ petition.

In support of the above petitions Mr. J. H. Rahimtoola has vehemently urged that the learned Appellate Court has acted illegally and without jurisdiction by non suiting the petitioner merely on the ground that she got the rent increased or she demanded the enhancement of rent and, therefore, this petition is competent.

3. On the other hand Mr. Hassan Asghar Rizvi learned counsel for the private respondents has submitted that the Appellate Court being a Court of competent jurisdiction on facts and law has recorded a finding of fact supported by evidence on record and, therefore, the same cannot be interfered with by this Court in the exercise of constitutional jurisdiction.

Mr. J. H. Rahimtoola in furtherance of his above submission has referred to the following cases:

1. Badruddin Hasan Farooqi v. Manghi Industrial Home, reported in P L D 1976 Karachi 620, in which a learned Single Judge has allowed the second appeal against an appellate order and restored the order of ejectment of the Rent Controller on the ground of personal requirement. The fact that the landlord was living in two rooms with a large family and a crippled brother was proved. The only mala fide alleged by the tenant was that in 1963 landlord demanded enhancement of rent from Rs. 350 to Rs. 400 though the rent application was filed in 1966.

2. Peerzada Rafiq Ahmad v. Chaudhry Abdul Rehman, reported in 1980 S C M R 772. In above case petition for leave was dismissed and it was held that simpliciter demand of higher rent by the landlord does not by itself cast any doubt about personal bona fide requirement of the premises. The above-cited judgment of Karachi mentioned at serial No. 1 was quoted with approval.

3. Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. reported in 1985 S IQ M R 1986, in which the Hon'ble Supreme Court was pleased to allow the appeal against the judgment of Baluchistan High Court which had set aside the order of ejectment passed by the Rent Controller on the ground of personal requirement on the ground that he had demanded the enhancement of rent. It was proved that the demised premises were situated adjacent to the landlord's premises and in fact the landlord needed the premises. It was held that the demand of increased rent itself was not sufficient to non-suit the landlord.

On the other hand Mr. Hassan Asghar Rizvi learned counsel for the respondents has referred to the following cases:-

1. Muhammad Hussain Munir and others v. Sikandar and others, reported in P L D 1974 Supreme Court 139, in which the Hon'ble Supreme Court was pleased to hold "it is well settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an to erroneous decision on a question of fact or even fact of law."

2. Taj Muhammad and others v. Muhammad Iqbal and other reported in 1986 S C M R 276(2). In the above case petition for leave was declined on the ground that the High Court had rightly declined writ petition against the judgments of the Rent Controller and the District Judge in ejectment proceedings. It was held that the question raised before the High Court that the two courts had not properly appreciated the evidence was a question of fact which could not have been the subject-matter of the constitution petition.

4. It is true that simpliciter enhancement of rent may not be a ground for declining request for ejectment on the ground of personal requirement of a landlord, but the question before me is, as to whether in a constitutional petition I can set aside the finding of fact recorded by a competent forum provided under the Rent Ordi nance. The Rent Controller took the view that the petitioner was able to prove her personal requirement, whereas the learned Appellate Court has taken a different view on the basis of same evidence. The view found favour with the learned appellate Court cannot be said to be a perverse view as admittedly the petitioner filed an application for ejectment before the Martial Law Authorities though according to Mr. J. H. Rahimtoola it was not competent but the fact remains that an application for ejectment was filed on the ground of personal requirement. In the above application the rent was enhanced. After that she filed another application on 6-10-1982 stating therein, that either she should have been granted the ejectment on the ground of personal requirement or the rent should have been substantially increased. The present rent application was filed in 1983 immediately after the filing of the aforesaid second application. Keeping in view the above facts and also the admitted position that after the death of her husband the petitioner approached the private respondents with the request either to increase the rent or to vacate the premises, the learned Appellate Court could have taken the view which found favour with it. The mere fact that this court might have taken different view on the appraisal of the same evidence, is no ground for interference with the finding of fact recorded by a competence forum, in exercise of constitutional jurisdiction. The judgments relied upon by the learned counsel for the private respondents supports the conclusion, which I am inclined to take.

5. I am, therefore, not inclined to interfere with the order of the learned Appellate Court. However, the learned counsel for the private respondents has agreed to enhance rent from Rs. 450 to Rs. 1000 with effect from 1-5-1987 after consulting the said respondents. With the above undertaking the above petitions are dismissed but there will be no order as to costs.

H.B.T./Z--34/K Petitions dismissed.

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