GHULAM NABI KHAN Versus QADEEMULLAH

1. The petitioner has assailed the judgment passed by the learned District Judge, Karachi, dated 14‑3‑1984, whereby an appeal filed by the respondent No.l against the order of the learned Rent Controller Cantonments was allowed and the order was set aside.

2. The facts of the case, briefly stated, are that the petitioner became owner of Quarter No. 2, Block 22, Cantonment Bazar, Drigh Road, Karachi through a gift made by his brother Ghulam Mohammad. After transfer of the property the petitioner sent notice to the respondent through his Advocate, informing him about the gift and asked him to vacate the quarter. As the respondent failed to vacate the quarter, the petitioner filed an eviction application before the learned Controller, Cantonments, against the respondent on the grounds of default and personal bona fide use. In the written statement, the respondent questioned the maintainability of the eviction application for want of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the application was also resisted on merits as according to the respondent, neither any default had been committed by him in payment of rent nor the need of the petitioner was bona fide. However, after framing issues and recording evidence, the learned Controller decided the application in favour of the petitioner and ordered the respondent No.l to vacate the quarter within forty‑five days from the date of the order. Being aggrieved by such order, the respondent, filed appeal before the learned District Judge, Karachi who accepted the same and set aside the order passed by the learned Controller and hence this petition.

3. The main ground urged by Mr. Shamdas Chhangani, learned counsel for the respondent No.l , is that the learned District Judge has failed to appreciate evidence properly. The petition has been resisted by Mr. Tariq Hussain, learned counsel for the respondent No.l, who besides fully supporting the impugned judgment on merits, has further questioned the maintainability of this petition on the ground of mis-appreciation of the evidence by the learned District Judge.

4. Needless to say, that this petition has been filed under Article 199(1)(a)(ii) of the Constitution of Pakistan and the impugned judgment can only be set aside, if this Court comes to a conclusion that the same has been passed without lawful authority. In Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 SC 139, Muhammad Gul, J. (as he then was) has said as follows:‑

5. "The High Court's supervisory jurisdiction under Article 98(2) WOO of the 1962 Constitution (or for that matter under Article 199(1)(a)(ii) of the present Constitution) having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects: first; for former jurisdiction being a creation of the Constitution stands in a higher pedestan than that under section 115, C.P.C. second: the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal or inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full‑fledged appeal, which plainly is not the intention of the Constitution‑makers."

6. Similar views were expressed in Noor Muhammad v . Sarwar Khan and 2 others P L D 1985 SC 131. The dictum laid down by the Supreme Court had been followed in many judgments of this Court. No doubt, this rule, in certain cases, has been held to be subject to certain exceptions, for instance, in case of misreading or gross mis-appreciation of evidence, but that does not appear to be the case here. See Abid Hussian v . Government of Sind P L D 1984 Kar. 269, Miss Nasreen Fatima Awan v. Principal, Bolan Medical College P L D 1978 Quetta 17 and Employees' Welfare Union v. R.B. Industries P L D 1976 Kar. 297.

7. In the present case, as already pointed out, the ejectment of the respondent was sought firstly on the ground that after the gift of the property in the name of the petitioner on 5‑12‑1977 the former had failed to pay rent for the premises to the petitioner. The second ground was that the premises were required by the petitioner for his personal bona fide use. On the first point, the evidence recorded before the Rent Controller was that rent for the premises was being deposited by the respondent in the Court as the previous landlord, Ghulam Mohammad, had refused to accept the same from him and as the petitioner after he became the new landlord of the premises had failed to give his address to the respondent he could not send the rent directly to the petitioner. Moreover, the evidence further showed that rent was also tendered by the respondent by money order but the petitioner refused to accept the same. On the basis of this evidence the learned District Judge concluded that the tenant had all along been making efforts to pay the rent and consequently, the default, if any committed by the respondent, was not wilful which led to a finding against the petitioner. Similarly, on the point of personal use it was held by the learned District Judge as follows:‑----

8. "Respondent did not examine his landlord to support him, on his having been asked to quit the rented house. Mere living in rented house does not mean that the respondent requires the house in litigation. In 1977 C L C 367 it was held that if the landlord is living in a rented house that fact by itself does not justify a conclusion that his need is bona fide. Respondent also examined Muhammad Arshad who said that respondent had 4/5 children and he was living in a rented house and that he was asked by the landlord to vacate. In his cross Arshad stated that respondent was married 6/7 years back and he was living in rented house for 4/5 years. He admitted that respondent was not given any notice by his landlord to vacate the rented house. This shows that a story has been made about the respondent having been asked by his landlord to leave the rented house. The circumstances of the case show that need of the respondent was not bona fide. It appears that it is Ghulam Muhammad who wants vacant possession of the house, but he has chosen to bring respondent Ghulam Nabi in the picture, because he himself is at Islamabad. Although penal provisions contained by subsection (6) of section 17 of Cantonments Rent Restriction Act, 1963 are attached to the landlord who seeks ejectment of his tenant on the ground of personal use; but they do not relieve the landlord to prove bona fide as held in 1972 S C M R 437."

9. Mr. Shamdas Chhangani has, however, referred to section 17(4)(a) of the Cantonments Rent Restriction Act, 1963 which provides as follows:‑

10. "(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession;

(a) in the case of a residential building, if‑‑

(i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and

(ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in any local area in the vicinity thereof; and

(iii) he or the said member has not vacated such building in the said area or vicinity without sufficient cause after the commencement of this Act;"

11. It has consequently been contended by the learned counsel that the' petitioner had led evidence before the learned Controller that he was not occupying any other residential building suitable for his needs at the time of filing the ejectment application as referred to in section 17 above. Such building, according to the Counsel does not include a rented house, consequently, the learned District Judge committed a serious error in holding that the petitioner's need was not bona fide. According to learned counsel the mere fact that the petitioner was living in a rented house ipso facto gave him right to eject his tenant, on the ground of personal requirement. This argument on the face of it appears to be fallacious as clause (i) of subsection (4)(a) of section 17 clearly places onus on the landlord to establish good faith in respect of his personal need. It may be pointed out that all the paragraphs of section 17(4)(a) that is to say, number (i) to (iii) are conjunctive and before the landlord is allowed to succeed in ejecting his tenant from the demised premises, all the requirements laid down in paragraphs (i) to (iii) must first be fulfilled by him. Since the' learned District Judge has already dealt with this aspect of the matter in the impugned judgment and his findings on the point are neither absurd nor perverse, interference with the same is not called for.

12. Mr. Shamdas Chhangani has also taken exception to the fact that one of the grounds on which the order of the learned Rent Controller has been reversed by the learned District Judge is that notice under section 30 of the Displaced Persons (Rehabilitation and Compensation) Act, 1958 was not served by the petitioner on the respondent which is an obvious error committed by him as such requirements have now been dispensed with after repeal of the evacuee property laws by Ordinance XIV of 1974. Another contention was that the learned District Judge has erroneously held the transaction in respect of the property in question to be Benami and made with ulterior motive to eject the respondent from the premises without there being any such evidence on record. However, the impugned judgment cannot be set aside on such grounds as it is clearly manifest that the same did not turn on such findings. Consequently, the contentions of Mr. Shamdas have no merit.

13. As a result, I find no reason to interfere with the judgment of the learned District Judge and for such reasons this petition was dismissed by short order, dated 13‑8‑1987. The parties are however, left to bear their own costs.

14. S.Q./G‑41/K Petition dismissed.