2010 PLP 1925 (SCMR)

ANWAR ZAHEER JAIMIALI, J.

Rent Case No.924 of 2000 filed by appellants before the Court of 4th Senior Civil Judge/Rent Controller Karachi (Central) on 10-11-2000, seeking eviction of respondent No.1 from rented Shop No.1, over Plot No. WSA-19, Block-16, Federal B, Area, Karachi (Central) (in short rented shop) on the sole ground of personal bona fide need of petitioner No.1 Shakeel Ahmed, after due contest between the appellants and respondent No.1, was dismissed by the Rent Controller vide his order dated 1-8-2005 with the observations that in view of certain developments, which had taken place during the pendency of the rent case, as detailed in the said order, the petition No. l was not entitled to seek the eviction of respondent No. 1 from the rented shop, having failed to prove the bona fide of his personal need.

2. In F.R.A. 196 of 2005, filed by the appellants on 23-8-2005 before the Court of First Additional District Judge, Karachi (Central) against the impugned order of Rent Controller referred to above, such order was set aside by the appellate Court vide its order dated 11-8-2006 with the observations that the findings of the Rent Controller on the point of personal need of appellant No. l were based on misreading of evidence and contrary to the law laid down by the Supreme Court of Pakistan in the regard. Accordingly, the appeal was allowed and the rent case, filed by the appellants, was decided in their favour, thereby directing the respondent No.1 to vacate the rented shop within 60 days from the date of such order and hand over its peaceful possession to appellant No.1.

3. Respondent No.1, being dissatisfied from the judgment of eviction against him passed by the appellate Court, challenged it before the High Court of Sindh at Karachi by filing C.P. No.S-446 of 2006 on 30-9-2006, thereby invoking its jurisdiction under Article-199 of the Constitution, to seek requisite relief against the eviction order of the appellate Court. This appeal was heard by a learned Single Judge in the High Court of Sindh on 25-1-2010 and allowed as prayed vide judgment dated 8-2-2010, which is subject-matter of this civil appeal before us.

4. Khawaja Naveed Ahmed, Advocate Supreme Court for the appellants in his brief submissions made reference to the contents of eviction application filed by the appellants, its reply submitted on behalf of respondent No.1 before the Rent Controller and evidence adduced by the parties, to show that the case of appellant No.1, seeking eviction of respondent No,1 from the rented shop was fully proved in accordance with law, duly supported by the view taken by this Court in several judgments, amplifying the scope of personal need of the landlord in respect of commercial premises, but ignoring these important aspects of the case and also least realizing the limited scope of exercise of its jurisdiction under Article 199 of the Constitution in such cases, the findings of the appellate Court in favour of appellants were set aside by the High Court. He particularly stressed on the point that the judgment of the High Court impugned herein is outcome of patent misreading and non-reading of evidence as the law does not prohibit a landlord from claiming possession of one of his rented shops on the ground of personal need, to keep himself engaged in more than one profitable ventures to earn his livelihood, if the circumstances so permit.

5. Conversely, Mr. ICA. Wahab, Advocate Supreme Court for respondent No.1 strongly supported the view taken by the learned Single Judge in chambers of High Court of Sindh in its impugned judgment, thereby disallowing the claim of personal need of appellant No.1 in respect of rented shop, being not bona fide. For this purpose, he made specific reference to the deposition of one of the witnesses examined by the appellants before the Rent Controller, who in his deposition had stated that presently the appellant was dealing in clearing and forwarding business at. his office, 19-B, Pak Chamber. We are not impressed by such arguments advanced by the learned counsel for respondent No.1 to dislodge the claim of personal need of appellant No.1 in respect of rented shop for the reason that in the same breath the said witness Syed Muhammad Khalil Ahmed has also denied the suggestion of the counsel for respondent No.1 that the rented shop was not needed for the personal use of appellant No.

1. It is well-settled principle o. law regarding appreciation of evidence that the evidence adduced by the parties is to be read, evaluated and assessed as a whole, and the impact of the evidence of an individual witness is also to be gauged in the same manner. In the instant case, there is categorical statement on behalf of appellant No.1 Shakeel Ahmed about his personal need of the rented shop, which has remained unshattered in his cross-examination and unrebutted in the evidence of opposite party. As a matter of fact, during the course of his cross-examination, appellant No.1 has unfolded further details about the genuiness of his claim of personal need of the rented shop, and also about the events which had taken place during the pendency of the rent proceedings. There is no denial of the fact that at the time of commencement of ejectment proceedings before the Court of Rent Controller on 10-11-2000, the clearing and forwarding license of the appellants was under suspension and they have moved the concerned authority for its restoration. In case the appellant No.1 has decided to change his business from clearing and forwarding' to hardware business and he needs the possession of rented shop from respondent No.1 for this purpose, mere fact that during the pendency of rent case his license for clearing and forwarding was restored, will not come in way from. pressing his claim of personal need as bona fide. Here it may also be observed that the selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one, and therefore no restriction can be imposed upon the landlord/ appellant No.1 on the pretext of restoration of his clearing and forwarding license during the pendency of rent case.

6. For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of his bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on oath or in the form of an affidavit-in-evidence as prescribed by law, if it remains unshattered in cross-examination and un-rebutted in the evidence adduced by the opposite party. If any case law is needed to fortify this view, reference can be made to the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCMR 593), wherein the opinion of I. Mahmood, J. (as he then was) in the case of Hassan Khan v. Munawar Begum (PLD 1976 Karachi 832) to the same effect, was approved.

7. We may further clarify here that it is not the requirement of law that the landlord, in order to prove bona fides of his, personal need, shall keep himself away from all sorts of income generating ventures or to keep himself idle as long as the fate of his ejectment case, which may consume year and years together, is finally decided by the Court. This view of the matter gains support from the case of Fazal Azim v. Tariq Mahmood (PLD 1982 SC 218), which, inter alia, lays down as under:-- "??.The admitted fact that respondent No.1 went abroad cannot by itself be considered' as showing lack of bona fides. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time during the pendency of eviction proceedings. If during such a period he employs himself in a gainful occupation, that as a general proposition, would not negate the assertion of bona fide on his part. In this case, the learned Courts below it seems misinterpreted the law, when raising a presumption in this behalf, against the landlord." Thus, even if the appellant No.1 re-engaged himself in clearing and forwarding business, during the pendency of his rent case, it will not militate his bona fides.

8. We have carefully perused the impugned judgment passed by the learned Single Judge in chambers of High Court of Sindh and seen that not only the said judgment is outcome of misreading and non-reading of evidence, but also the learned single Judge in chambers failed to appreciate, 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, High Court came to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws i.e. Sindh Rented Premises Ordinance, 1979.

9. In view of what has been discussed above, we have come to an irresistible conclusion that the impugned judgment of the High Court not only suffers from misreading and non-reading of evidence, but also from jurisdictional defect, inasmuch as powers under Article 199 of the Constitution available to the High Court were not attracted in the facts and circumstances of the case, but wrongly exercised.

10. Foregoing are the reasons for our short order dated 9-9-2010, whereby, this appeal was allowed in the terms stated therein. S.A.K./S-35/SC????????????????????????????????????????????????????????????????????????????????? Appeal accepted.