MUHAMMAD HAFEEZ and another vs DISTRICT JUDGE, KARACHI EAST and another

ORDER

' RANA BHAGWANDAS, J.--- Petitioners seek leave to appeal against the judgment, dated 19-5-2003 passed by the Sindh High Court dismissing constitutional petition against the appellate authority's judgment dismissing eviction application of the petitioners against the respondent/tenant.

2. Petitioners sought ejectment of the respondent/tenant claiming to be joint owners of the building described as Memon Terrace on the grounds of default in payment of rent and bona fide personal requirement in good faith. They averred that after the purchase of the property they had issued notice under section 18 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance") to the respondents intimating the change of ownership and calling upon the respondent to attorn to them.

3. Eviction application was seriously resisted on both counts. Both the parties adduced evidence.

Upon assessm ent of evidence of the parties learned Rent Controller by his order, dated 30-4-2001 non-suited the petitioners on the ground of default in payment of rent by ordering eviction of the respondent on the ground of personal bona fide requirement in good faith.

4. Respondent assailed the correctness of the order before the Appellate forum i.e, learned District Judge, Karachi East who by his judgement, dated 5-12-2001 on reappraisal of evidence concluded that the petitioners did not require the building in question in good faith for their personal occupation. Resultantly he allowed the appeal and set aside the ejectment order. Surprisingly petitioner did not challenge the finding of fact on the ground of default.

5. Being dissatisfied, petitioner invoked constitutional jurisdiction of the High Court seeking redress of their grievance but without any success. It is as against judgment, dated 19-5-2003 that they claim leave to appeal.

6. We have heard Mr. Imran Ahmed, learned Advocate Supreme Court for petitioners at great length and with his assistance gone through the impugned judgment as well as evidence on record. Petitioners were non-suited in appeal on the ground that petitioner Ghulam Rasool had claimed to be residing in a flat with his family consisting of wife and four sons. With regard to accommodation he disclosed that he had three rooms in his possession. It may be pertinent to observe that dispute with regard to the property purchased by petitioner Muhammad Hafeez was settled out of Court and thus, the requirement was confined to the family of petitioner Ghulam Rasool.

7. It is well-settled that in the event of conflict of judgments finding of Appellate Court are to be preferred and respected unless it is shown from the record that such findings are not supported by evidence; that the conclusions drawn are against the material on record; that the judgment of the Appellate Court suffers from misreading or non-reading of evidence or that the reasons recorded for reversal of judgment are arbitrary, fanciful and perverse. In the present case appellate forum upon careful, conscience and lawful appreciation of evidence of petitioners in juxtaposition to the case set up by the respondent allowed the appeal and rightly concluded that the petitioner did not require the premises in good faith for personal use and occupation. It was noticed by the Appellate Court that instead of three rooms there were seven rooms in the building in dispute as admitted by petitioner Ghulam Rasool. He, however, attempted to explain that widows of his brothers were residing on the 2nd 3rd and top floors of the building. It may be observed that this factual aspect of the case was neither disclosed in the eviction application nor in the affidavit-in-evidence of the witness. This piece of evidence would therefore, be considered to be inconsistent with the case set up in the pleadings. Learned counsel attempted to persuade us to accept this piece of evidence on the premise that it was not necessary and incumbent upon the landlord to plead this fact but we are not inclined to subscribe to this submission of the learned counsel.

8. It is true that the statement of the landlord consistent with the pleadings must be given due weight in a case of ejectment on the ground of bona fide personal requirement in good .Faith, the fact remains that in order to demonstrate good faith and bona fides on the part of the landlord broad facts must be disclosed with a view to provide an opportunity to the opposite party to controvert the same and to satisfy the conscience of the Controller called upon to exercise his discretion in favour of the landlord while uprooting an old tenant. Absence of material facts from the pleadings would appear to be fatal to the cause of a landlord who cannot be allowed to obtain the premises on the ground that the widows of his brothers were residing on the upper floors of the multi-storeyed building.

9. There is yet another aspect of the case. In the statutory notice under section 18 of the Ordinance sent on 18-7-2000 the petitioners while disclosing the factum of acquisition of proprietary rights calling upon the respondent to pay the rent to them did not disclose their desire for their ejectment default on his part. Strictly speaking this may not be requirement of law but in order to demonstrate good faith, and bona fide it would be appreciated if the landlord comes out will, his true intention while calling upon the tenant to attorney to him. Furthermore, earlier eviction Application No,600 of 2000 moved on the ground of default against the tenant was dismissed as it was filed against a dead person.

10. On careful scrutiny of the record we are of the considered view that the impugned judgment does not suffer from any legal infirmity or jurisdictional error warranting interference by this Court.

Resultantly the petition fails and is accordingly dismissed.