2007 PLD 50 KARACHI-HIGH-COURT-SINDH

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Mrs. TAHIRA DILAWAR ALI KHAN through Attorney VS Mst. SYEDA KANEEZ SUGHRA 1980 SCMR 593, 1986 CLC 448, 1987 CLC 686, 1987 SCMR 2051, 1989 CLC 287, 1993 SCMR 356, 1995 CLC 1353, 1997 SCMR 1789, 1999 SCMR 1796, 2006 SCMR 1483, 2006 SCMR 152, Constitution of Pakistan 1973--199 , Registration Act 1908--49 , Sindh Rented Premises Ordinance 1979--15-A , Sindh Rented Premises Ordinance 1979--15 , Transfer of Property Act 1882--107 , Transfer of Property Act 1882--17 , ---Ss. 15-A & 15(vii)---Constitution of Pakistan (1973), Art.199---Transfer of Property Act (IV of 1882), Ss.107 & 17---Registration Act (XVI of 1908), S.49---Constitutional jurisdiction of High Court--Scope---Bona fide personal need of landlady---Choice of landlady---Scope---Pagri---Lease in perpetuity---Applicability of Ss. 107 & 17 Transfer of Property Art, 1882 read with S. 49 Registration Act, 1908---Scope---Laches, principles of---Landlady filed ejectment petition regarding rented shop against tenant/ petitioner on ground of personal need of her son---Rent Controller ordered eviction of tenant on ground of personal need, which finding was maintained by lower Appellate Court---Tenant contended that he had paid `Pagri' amount to predecessor of landlady in the year 1968; that landlady was actually planning to dispose of rented shop; that landlady owned several other properties in the area and that vide tenancy agreement, a lease in perpetuity had been created in favour of tenant---Validity---Held, owner of property had absolute right to deal with her property in the manner she liked and no clog, disqualification or adverse inference was to be drawn in the context of denied suggestion that landlady was planning to sell the rented shop nor it was to be made a ground for refusal of ejectment on plea of personal need, for S.15-A of Sindh Rented Premises Ordinance, 1979 in such situation provided ample safeguard to interest of tenant in rented premises---No suggestions were made to landlady about vacation and availability of the other shops owned by her in adjacent area of rented shop---Even if landlady owned certain other shops at other locations, she was not required to decide the suitability of need of her son at the dictates of tenant or anybody else, as it was her absolute choice and prerogative---Payment of Pagri to predecessor of landlady was not a hindrance in or bar against seeking eviction of tenant under S.15(vii) of Sindh Rented Premises Ordinance, 1979---Claim of lease in perpetuity in respect of rented shop in favour of tenant was not to be accepted on the basis of tenancy agreement for reasons, firstly, tenancy agreement being unregistered had lost its legal validity for enforcement of rights after expiry of one year as per Ss.107 & 17 of Transfer of Property Act, 1882 read with S.49 of Registration Act, 1908, secondly, claim of personal need had an overriding effect on such alleged terms of lease provided in tenancy agreement, being against public policy and provisions of Sindh Rented Premises Ordinance, 1979---Engagement of landlady's son in some temporary service/business to earn livelihood or to have some monetary gains was also not a disqualification for landlady to seek eviction of tenant from rented shop---Party was to succeed on the basis of his own evidence and not on the basis of weakness of evidence of other side---Tenant had approached High Court more than seven months after passing of judgment by lower Appellate Court which fact suffered from laches---Constitutional petition thus was not maintainable---Power vested in High Court under Art. 199 of Constitution was discretionary in nature and was to be exercised fairly and equitably in favour of party who approached Court with clean hands---Tenant having not come to Court with clean hands, his constitutional petition was dismissed.