Mst. MOBIN FATIMA vs MUHAMMAD YAMIN and 2 Others

' M. JAVED BUTTAR, J.---Petitioner/landlady, through this petition has assailed the judgment dated 27-4-2005 passed by a learned Single Judge of High Court of Sindh, Karachi whereby, in a rent matter, in the exercise of constitutional jurisdiction, the judgment dated 15-3-2004 passed by the Additional District Judge, Karachi South, recognizing the petitioner's bona fide personal need and ordering the respondents' ejectment from the shop in question, was set aside and the order dated 16-4-2002 passed by Rent Controller South was restored.

2. The relevant facts are, that the petitioner filed an ejectment petition under section 15(ii) and (vii) of the Sindh Rented Premises Ordinance No,XVII of 1979 staging that the respondent who was occupying her Shop No,2 as a tenant, was defaulter in the payment of monthly rent from November, 1999 and that she required the shop in question for bona tide use other grown-up son Sheikh Arshid Karim, who was jobless and no other shop was vacant and at the moment he was working with his brother at his shop and needed a separate shop where he could establish his own business. The petition was contested by respondent No,1 through a written statement. The allegations were denied. The Rent Controller settled the necessary issues. The parties adduced their respective evidence. The trial Judge decided both issue of default and bona fide personal need, against the petitioner and dismissed the ejectment petition. The appellate Court, however, allowed the petitioner's appeal, on the ground of bona fide personal need. Whereas the finding on the point of default was maintained. The respondent/tenant assailed the judgment of the appellate Court through the constitutional petition, which, as mentioned above, has been allowed and the judgment passed by the appellate Court has been set aside.

3. We have heard learned counsel for the parties and have also seen the available record.

4. It may straightaway be mentioned that the office reported that this petition was barred by limitation by 116 days. It was explained in the application for condo nation of delay and also argued by learned counsel for the petitioner, on 27-10-2005 as well as today, that hearing of the constitutional petition took place before the High Court on 27-4-2005 and the judgment was reserved without giving any date for its announcement. The copies of diary maintained by Reader of the Judge were produced to show that the constitutional petition was allowed on 2-5-2005. It was asserted that latter date was neither notified in the main cause list nor in the supplementary cause list issued for 2-5-2005 and that the petitioner came to know about announcement of judgment only on 24-8-2005. This Court, in order to resolve the controversy, called for a definite report from the Deputy Registrar (Judi.) of the Sindh High Court as to whether the announcement of judgment was ever notified to the parties or in the cause list. As per report dated 18-11-2005 of the above officer, available on the record, referring, to the diary of the Reader of the Court, the announcement of judgment was reserved on 27-4-2005, it was announced on 2-5-2005 and as per information supplied by the Reader of the Court, no intimation slip was sent by him to the Roster-I Branch for announcement of the judgment. It has further been reported that Incharge of the Rent Branch also intimated that matter was never notified, no notice was issued to the parties/counsel for announcement of the judgment, as the concerned Branch did not receive any intimation from the concerned Court for such an act. The reports of Assistant Registrar (Roster-1) and Incharge Rent Branch are also attached with this report. The application for condonation has been vehemently opposed by respondent No,1 through concise statement as well as through oral submissions made by his counsel today. After having heard learned counsel for the parties on this issue, we are convinced that there is sufficient material available on record to show that sufficient justifiable grounds exist for condonation of delay, which is hereby condoned.

5. As per merits viz. Petitioner's bona fide personal need, we have minutely gone through the available record as well as judgments passed by all the three forums below.

6. It has been submitted by learned counsel for the petitioner that the findings of fact given by the appellate Court were perfectly correct, they were based on available evidence with cogent reasons, they were not inconsistent with the case-law on the subject, finality is attached to such findings under section 21(3) of the above Ordinance, therefore, learned Judge of the High Court went beyond his jurisdiction in interfering in the final findings of fact in the exercise of his constitutional jurisdiction especially when such findings were recorded by the appellate Court after perusal of the record, after discussing the entire evidence, after considering the arguments advanced by the learned counsel of both the parties and the said judgment did not suffer from any misreading or non-reading of evidence, that the findings of appellate Court could not be interfered with by the High Court in the constitutional jurisdiction as it did not sit as a Court of appeal, it could not reappraise and re-assess the evidence merely on the ground that after reappraisal of the evidence it could reach a different conclusions and that in the absence of any shop available with the petitioner for the use of her son Sheikh Arshid Karim with his own independent possession, the petitioner had proved her bona fide personal need especially when it stood established that Sheikh Arshid Karim was working with his brother and this fact could not lead to a conclusion that he did not need a separate shop for conducting his own business. The learned counsel has also placed reliance on Secretary to the Government of the Punjab Forest Department, Punjab, Lahore v. Ghulam Nabi and 3 others PLD 2001 SC 415 and United Bank Limited v. Mrs. Alafia Hussain 1999 SCM R 1796.

7. On the other hand, the learned counsel for respondent No,1 while vehemently opposing the petition, has submitted that the appellate Court arbitrarily reversed the findings of the Rent Controller, appellate Court acted illegally, its findings were not based on evidence and were against the law and as such the High Court had the jurisdiction under the Constitution to correct such an error of law and that the High Court correctly concluded that son of the petitioner was not jobless as it was admitted that he was working with his brother. It has also been submitted that the ground of default taken by the petitioner has been concurrently disbelieved by all the three Courts which also casts shadow of doubt on the assertions of the petitioner and she has definitely not come to the Court with clean hands. In the end, it has been submitted that learned Judge of the High Court took pain in writing the impugned judgment, discussed the entire evidence available an record in detail and thereafter came to the conclusion that the petitioner had taken the plea of bona fide personal need falsely and such a conclusion is merely a correction of error in law committed by the appellate Court and warrants no interference by this Court.

8. The High Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusions are drawn by the Courts below which are not based on facts found because such an act would amount to an error of law which can always be corrected by the High Court. However, in the present case, the interference was made by the High Court merely because a different conclusion was possible from the facts found. This in our view would not amount to an error of law. The appellate Court had discussed the entire evidence. Its judgment did not suffer from any misreading or non-reading of evidence. The findings of the appellate Court were cogent and consistent with the evidence available on the record. Its conclusions were in accordance with the facts found. The finality was attached to its findings which could not be interfered with merely because a different conclusion was also possible. The High Court, in the present case, in our view, exceeded its jurisdiction and acted as a Court of appeal which is not permissible under the law.

Therefore, the High Court ought not to have undertaken the exercise of the reappraisal of the evidence. In Secretary to the Government of the Punjab's case (supra), it was held by this Court that the constitutional jurisdiction of High Court under Article 199 could not be converted into that of an appellate jurisdiction, disputed questions of fact could not be entered or allowed to be re- agitated under constitutional jurisdiction, the High Court in exercise of constitutional jurisdiction could not go into questions involving minute details and the finding of fact recorded by lower appellate Court on perusal of evidence could not be disturbed under constitutional jurisdiction, unless it was shown that such a finding was devoid of supporting record or perverse.

In view of the above-mentioned, the impugned judgment dated 27-4-2005 passed in C.P. No, S-241 of 2004 of the High Court of Sindh, Karachi is set aside and the judgment passed by the appellate Court is restored. The petition is converted into an appeal and is accordingly allowed with no orders as to costs.