Sayed MUHAMMAD ALI Versus SHAHZAD ABDUL RASHEED

ORDER

ZULFIQAR AHMAD KHAN, J.--- This petition assails the concurrent findings of the learned trial Court dated 12.09.2023 as well as first Appellate Court dated 24.10.2023.

2. Precise facts are that the respondent being owner/landlord of Flat No. 14, Gandhi Building, Ghulam Hussain Quarter, Kharadar, Karachi ("tenement") filed an ejectment Application No. 1139/2020, under Section 15 of Sindh Rented Premises Ordiance, 1979 ("SRPO") on the ground of default which was allowed by the learned Rent Controller/Trial Court vide order dated 06.07.2021, and the Mst. Salma was directed to vacate the tenement within 30 days. The petitioner filed an application under Section 12(2), C.P.C. arguing that ejectment order was obtained through fraud and misrepresentation of fact which application was dismissed by the learned Rent Controller vide order dated 12.09.2023. the Petitioner impugned the said order of the learned Trial Court before the Appellate Court by filing FRA No. 258 of 2023 which was dismissed vide order dated 24.10.2023, hence the petitioner before this Court against the concurrent edicts of the learned lower fora.

3. Learned counsel was confronted with the maintainability hereof, however, the counsel remained unable to demonstrate the existence of any jurisdictional defect meriting recourse to writ jurisdiction. The crux of the argument articulated was that the evidence was not appreciated by the respective forums in its proper perspective, hence, the exercise be conducted afresh in writ jurisdiction since no further provision of appeal was provided in the statute. He further contended that petitioner was not party to the ejectment proceedings and that the ejectment order was obtained through fraud and misrepresentation.

4. Learned counsel for the respondent No.1 supported the impugned concurrent findings and argued that this Court lacks jurisdiction to adjudicate the contentions of the petitioner for which the learned lower fora was the ultimate remedy which has already been availed and this Court is confine to see whether any misreading and non-reading of evidence has been committed by the courts below. He concluded his submissions arguing that the concurrent findings of the courts below cannot be disturbed, therefore, the petition in hand be dismissed.

5. Heard and perused the record. At the outset, it can safely be recorded that jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of the appellate Court. Therefore, mere fact that upon perusal of evidence there exists possibility of a different view would never be sufficient to seek concurrent findings disturbed by invoking constitutional jurisdiction of this Court. Reference may well be made to the case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCMR 1925).

6. While pressing constitutional jurisdiction in such like matter, the petitioner must establish that the findings of two Courts below, particularly of appellate Court, are prima facie not in accordance with law and available material. There is no denial to existence of relationship of landlord and tenant between the parties and in such like matter the claim is to be accepted once landlord states on Oath and same goes un-shattered in cross-examination. Reference is made to case of Pakistan Institute of International Affairs v. Naveed Merchant and others (2012 SCMR 1498) wherein it is held as:-

"10. The claim of appellant as regard their personal need, when examined on the basis of their word to word pleadings in paragraphs Nos.4 and 5 of the rent application and the affidavit in evidence of their witness leaves no room for doubt open for discussion on the subject of their choice and preference which has already come on record and remained un-shattered and un-rebutted from the side of respondents Nos.1 and 2 in these circumstances, subsequent developments which might have been relevant in some other cases are of no help to improve the case of respondents Nos.1 and 2 before the High Court in exercise of its jurisdiction under Article 199 of the Constitution. It will be nothing, but reiteration of settled legation position that the statement on oath of the landlord as regards claim of their /his personal need un-shattered in cross-examination and un-rebutted in defence evidence is to be accepted by the Court as bona fide. Moreover, the choice lies with the landlord to select any of the tenement for his personal need and for this purpose the tenant or the Court have no locus standi to give their advice for alternate accommodation."

7. It is settled law that the ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further appeal is provided 1 , and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. It is trite law 2 that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law. The impugned judgments appear to be well-reasoned and no manifest infirmity is discernable therein or that they could not have been rested upon the rationale relied upon.

8. In so far as the plea for de novo appreciation of evidence is concerned, it would suffice to observe that writ jurisdiction is not an amenable forum in such regard 3 .

9. In view of the rationale and deliberation delineated above, the petition at hand is dismissed along with pending application.

MQ/M-47/Sindh Petition dismissed.

1 Per Ijaz ul Ahsan J in Gul Taiz Khan Marwat v. Registrar Peshawar High Court reported as PLD 2021 Supreme Court 391.

2 Per Faqir Muhammad Khokhar J. In Naheed Nusrat Hashmi v. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124 and Naseer Ahmed Siddiqui v. Aftab Alam reported as PLD 2013 Supreme Court 323.

3 2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 Supreme Court 415.