Mst. PEERAN BI through L.Rs, vs ABDUL JABBAR and otherss
This petition for leave to appeal arises from a dispute over ejectment proceedings initiated by the legal representatives of a deceased landlady against a tenant and subsequent occupants. The landlady sought eviction on grounds of unauthorized sub-letting and misuse of the premises. The Rent Controller and the appellate court concurrently found in favor of the landlady, ordering eviction. However, the Sindh High Court, in the exercise of its writ jurisdiction, set aside these concurrent findings. The petitioners challenged this High Court judgment, arguing that the High Court erred by substituting its own findings of fact for those of the lower courts and by failing to properly consider that the respondents' claim of ownership via an alleged agreement of sale had not been pursued through a suit for specific performance for over two decades. The Supreme Court granted leave to appeal to determine whether the High Court was legally justified in interfering with concurrent findings of fact through its extraordinary writ jurisdiction and whether the High Court's judgment could be sustained upon a proper reappraisal of the record.
- Is the High Court legally entitled to interfere with concurrent findings of fact recorded by a Rent Controller and appellate court in the exercise of its extraordinary writ jurisdiction?
- Can a High Court substitute its own findings of fact for those of lower courts in a writ petition?
- Does the failure to file a suit for specific performance regarding an alleged agreement of sale affect the validity of a claim of ownership in ejectment proceedings?
ORDER
' RANA BHAGWANDAS, J.--- Petitioners being the legal representatives of deceased Mst. Peeran Bi landlady in the rent proceedings having been non-suited against respondents Nos.1 to 4 seek leave to appeal against Sindh High Court judgment, dated 8-5-2003 allowing writ petition of respondents Nos.1 to 3 calling into question concurrent findings of fact recorded by Rent Controller Karachi-South and the appellate Court.
2. Petitioners filed ejectment proceedings against respondents Nos.1 to 4 on the averments that respondent No,4 i,e, Muhammad Ishaque was the tenant in the demised premises transferred in favor of the landlady by the Settlement Authorities in satisfaction of her claim. It was further alleged that the said respondent had parted with possession of the premises in favor of respondents Nos.1 to 3 without the written, consent of the landlady. Moreover, the premises had been put to use for a purpose other than the one for which these were let out.
3. Eviction proceedings were resisted. Respondent No,4 agitated that he was in possession of the premises not as tenant of the petitioners but in occupation after getting Jhugi Nasheen persons evicted from the premises. He, however, conceded that he had handed over the possession of the premises to respondents Nos.1 to 3 in view of an agreement of sale executed by the landlady in favor of late Jan Muhammad, father of respondents Nos.1 to 3 as far back as 18-8-1981. In view of denial of relationship of landlady and tenant, an issue was struck by learned Rent Controller. Both the parties adduced evidence. On assessment of the record, learned Rent Controller answered the issue in favor of the petitioner-landlady and in view of the fact that rent had not been tendered by respondent-Muhammad Ishaque, who was found responsible for sub-letting the premises in favor of respondents Nos.1 to 3, ejectment was ordered vide judgment, dated 30-3-2000.
4. Respondents Nos.1 to 3 challenged the judgment of ejectment before the appellate Court but without any result. Later they filed a constitution petition before the High Court of Sindh, which has been allowed by a learned Judge of the Sindh High Court vide judgment, dated 8-5-2003 impugned in this petition.
5. In response to the notice issued to respondents Nos.1 to 4, Mr. K.A. Wahab, learned Advocate-on- Record has entered appearance on behalf of respondent No,3 He undertakes to enter appearance on behalf of respondents Nos.1 and 2 as well and requests for time but as the petition is more than two years old, we have proceeded to hear the same for the purpose of consideration of the question of grant of leave or otherwise.
6. It is, inter alia, contended that learned High Court committed grave error of law by up-setting concurrent findings of fact and substituting its own findings in the exercise of writ jurisdiction; that the High Court suffered from misreading and non-reading of the record in that though respondents Nos.1 to 3 claimed to be purchasers of the property through their father from the landlady, no suit for specific performance was ever filed by them during the last more than two decades. Furthermore, issue of sub-letting of the premises by respondent Muhammad Ishaq in favor of the contesting respondents has been wrongly decided.
7. After hearing learned counsel for the parties, we are inclined to grant leave to consider, inter alia, the questions of law whether the High Court was legally entitled to interfere with the concurrent findings of fact in exercise of extraordinary jurisdiction and whether on reappraisal of record, can the judgment of the High Court be sustained in law? Order accordingly.