Relationship of Landlord and Tenant : Judgment of Iftikhar Chodhary

PLJ 2010 SC 1006 [Appellate Jurisdiction] Present: Iftikhar Muhammad Chaudhry , CJ. , Ch. Ijaz Ahmed & Ghulam Rabbani , JJ. JAVED MASIH and others--Appellants versus ADDITIONAL DISTRICT JUDGE, LAHORE and others--Respondents Civil Appeal No. 1517 of 2006, decided on 12.1.2010. (Against the judgment dated 24.4.2006 passed by Lahore High Court, Lahore , in W.P. No. 2981 of 2005). Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)-- ----S. 13(6)-- Ejectment petition--Rent was not deposited--Ground of default in payment of rent--Rent premises were jointly owned by three persons--Property in-question was sold--Rent Controller after recording the evidence of the parties dismissed the ejectment petition--No relationship of landlord and tenant existed between the parties--Right of defence was struck off--Appeal was dismissed--Being aggrieved the writ petition was filed before High Court, which was also dismissed--Challenge to--Held: In the first round of litigation before First Appellate Court the Court after re- evalution of the evidence on record had given finding of fact against the appellants that relationship of landlord and tenant had existed between the parties as is evident from the judgment--Appellant did not deposit rent in terms of order passed by Rent Controller--Court had given various opportunities to appellants to produce receipts qua depositing of rent in terms but appellants had failed to produce the same in proof of compliance of the order--Appeal was dismissed. [Pp. 1008 & 1009] A Agreement to Sell-- ----Appreciation of evidence--Agreement to sell does not contain any clause that the appellants had taken possession of the premises in terms of agreement to sell--All the Courts below had given concurrent findings of fact after proper appreciation of evidence on record against appellant--Supreme Court does not interfere in concurrent finding of fact arrived at by the Courts below while exercising power under Art. 185(3) of Constitution. [P. 1009] B Constitutional Jurisdiction-- ----Constitutional jurisdiction is a discretionary in nature--He who seeks equity must come with clean hands. [P. 1009] C Constitution of Pakistan , 1973-- ----Art. 185(3)--Leave to appeal--Concurrent finding--No jurisdiction to substitute its own findings--Supreme Court has no jurisdiction to substitute its own finding in place of finding of the Courts below while exercising power under Art. 185(3) of Constitution. [P. 1009] D PLD 1981 SC 246 and PLD 1981 SC 522 ref. Concurrent Findings-- ----Practice and rule of Court in civil appeals--Supreme Court would not normally go behind a concurrent finding of fact recorded by Court below, unless it can be shown that finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any mis -application of principle relating to appreciation of evidence, or finally, if finding could be demonstrated to be physically impossible--Held: Being the practice and rule of the Court in civil appeals, the burden lies heavily on the appellants to show that concurrent findings recorded by High Court are not sustainable on the record and should be interfered by Supreme Court. [Pp. 1009 & 1010] E Mr. A.H.Masood , A.O.R. for Appellants. Ex- parte for Respondents. Date of hearing: 12.1.2010. Judgment Ch. Ijaz Ahmed, J.--Necessary facts out of which the present appeal arises are that Respondent No. 3 filed ejectment petition under Section 13 of Rent Restriction Ordinance, 1959 against the appellants before the Rent Controller, Lahore, on the ground of default in payment of rent. Appellants/defendants filed written statements and denied the relationship of landlord and tenant and also stated in reply to the ejectement petition that the rented premises are jointly owned by three persons, namely, Taj Muhammad, Nazir Ahmad and Ali Jan. The property in question was sold by Taj Muhammad and Nazir Ahmad vide agreement to sell dated 18.6.1997 to Appellant No. 3 and on failure of the vendor to execute a registered sale deed a suit for specific performance was filed. Out of the pleadings of the parties the learned Rent Controller had framed issue qua existence of the landlord and tenant relationship inter se between the parties. The learned Rent Controller after recording the evidence of the parties dismissed the ejectment petition vide order dated 5-3-2003 by holding that no relationship of landlord and tenant existed between the parties. Respondent No. 3 being aggrieved filed an appeal before the learned Additional District Judge who vide order dated 12.12.2003 accepted the appeal and remanded the case to the Rent Controller by observing that relationship of landlord and tenant between the parties existed. The Rent Controller directed the appellants to deposit the rent vide order dated 26.10.2004. The appellants failed to deposit rent in terms of order dated 26.10.2004, the learned Rent Controller had struck off right of defence of the appellants and passed the ejectement order against the appellants vide order dated 3.1.2005. The appellants being aggrieved filed an appeal before the District Judge, Lahore , who dismissed the same vide order dated 18.2.2005. Thereafter the appellants being aggrieved field Writ Petition No. 2981/2005 before the Lahore High Court, Lahore , which was dismissed. Thereafter the appellants filed CP. No. 1036-L/2006 before this Court which was fixed for hearing on 6.9.2006 and leave was granted in the following terms : -- "After considering the arguments of the learned ASC for the petitioner and going through the record we are of the view that this case suffers from gross misapplication of mind, misconstruction of the documents, ignorance of the material documents and facts on record by all the three Courts who have proceeded to decide the case in a cursory and hasty manner. It was brought to the notice of the Rent Controller that the petitioners had filed a suit for a specific performance of agreement to sell dated 18.6.1997 prior to filing of the ejectment application but this fact does not find mention in the order/judgment of any of the three Courts, which is very material factor for deciding the above issue. Leave to appeal is granted to the petitioners to re-examine and re-appraise the evidence on record for determination of the relationship of landlord and tenant between the parties". Hence the present appeal. 2. Learned counsel for the appellants submits that all the Courts below had erred in law to decide the case against the appellants without adverting to the evidence on record. Relationship of landlord and tenant had not existed between the parties and this fact was not scrutinized by all the Courts below in its true perspective. 3. We have given our anxious consideration to the contentions of the learned counsel for the appellants and perused the record. It is an admitted fact that in the first round of litigation before the First Appellate Court the First Appellate Court after re-evaluation of the evidence on record had given finding of fact against the appellants that the relationship of landlord and tenant had existed between the parties as is evident from para 6 of the judgment of the Additional District Judge dated 12-12-2003. It is also an admitted fact that appellants did not deposit rent in terms of order dated 26.10.2004 passed by learned Rent Controller under Section 13(6) of the Punjab Urban Rent Restriction Ordinance. The learned Rent Controller had given various opportunities to the appellants to produce receipts qua depositing of rent in terms of order dated 26.10.2004 but the appellants had failed to produce the same in proof of compliance of the said order. Respondent No. 3 had taken a specific plea in Para 1 of the ejectment petition that predecessor-in-interest of the appellants had taken premises in question on rent from the predecessor-in-interest of Respondent No. 3 on 12.10.1991 and this fact was not denied by the appellants in reply to the ejectment petition as is evident from Para 1 of the reply. It is pertinent to mention here that agreement to sell does not contain any clause that the appellants had taken possession of the premises in question in terms of agreement to sell. All the Courts below have given concurrent findings of fact after proper appreciation of evidence on record against the appellants. This Court, normally, does not interfere in the concurrent findings of fact arrived at by the Courts below while exercising power under Article 185(3) of the Constitution. 4. It is a settled principle of law that constitutional jurisdiction is a discretionary in nature. He who seeks equity must come with clean hands. In view of the conduct of the appellants as mentioned above we are not inclined to exercise our power under Article 185(3) of the Constitution. It is also a settled principle of law that this Court has no jurisdiction to substitute its own finding in place of finding of the Courts below while exercising power under Article 185(3) of the Constitution. See Ata Ullah Malik's case (PLD 1964 SC 236). Learned High Court was justified to dismiss the writ petition which was filed by the appellants against the concurrent conclusions of the Courts below. The impugned judgment is in consonance with the law laid down by this Court in various pronouncements. See Muhammad Sharif's case (PLD 1981 SC 246) and Abdul Rehman Bajwa's case (PLD 1981 SC 522). The learned counsel for the appellant has failed to point out any piece of evidence which was misread or non-read by the Courts below. As mentioned above this Court would not normally go behind a concurrent finding of fact recorded by the Courts below, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any mis application of a principle relating to appreciation of evidence, or finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of the Court in civil appeals, the burden lies heavily on the appellants to show that concurrent findings recorded by the High Court are not sustainable on the record and should be interfered by us. The learned counsel of the appellants has failed to bring the case in the said parameters. Even otherwise the learned counsel for the appellants has failed to raise any substantial question of law of public importance. The appeal has no force and the same is dismissed with costs. (R.A.) Appeal dismissed.