2016 PLP 82 (YLRN)

S. 15

Ejectment of tenant

Personal bona fide need of landlord

Scope

Contention of tenant was that landlord had more shops in the premises and requirement for personal use was based on mala fide

Eviction petition was accepted concurrently

Validity

Existence of relationship of landlord and tenant was on record

Landlord required the premises for his personal use

Landlord was not required to disclose the nature of business he wanted to run

Satisfaction of Rent Controller with regard to bona fide requirement of landlord was sufficient to order for ejectment

Only requirement for seeking eviction of tenant from the premises was the proof of bona fide need of landlord

Such requirement would be discharged the moment landlord appeared in witness box and made such statement on oath which remained un-shattered

Landlord had succeeded to prove his bona fide need of the demised premises

Demand of high rent from the tenant would not per se cast any doubt about personal bona fide requirement of landlord

No illegality, irregularity or error of jurisdiction had been pointed out in the impugned orders passed by the courts below

Tenant was directed to vacate the demised premises within a period of two months

Constitutional petition was dismissed in circumstances. [Paras. 12 and 13 of the judgment] Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Abdul Haneef Khan v. Vth Additional District and Sessions Judge, Karachi Central and 2 others 2008 CLC 1271; Shahzad v. Mst. Kulsoom and 3 others 2009 YLR 2166; Sher Muhammad Khan v. Ali Jan Khan 1983 CLC 2222; Sheikh Abdus Sattar v. Malik Muhammad Afzal and others PLD 1985 SC 148 and Mrs. Abdul Hamid Khan v. Shamsul Hassan 1988 CLC 2294 ref. Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 rel.

Art. 199

Constitutional jurisdiction of High Court

Scope

Constitutional jurisdiction could not be invoked merely on the ground that upon perusal of evidence another conclusion might be drawn. [Para. 12 of the judgment] Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 rel. JUDGMENT NAIMATULLAH PHULPOTO, J.

Rent case No. 1054 of 2011 was filed by Respondent No.1/ Applicant Mohammad Mustafa Khan before learned VII-Rent Controller, Karachi South, seeking eviction of the Petitioner/Opponent Waqar Ahmed from the rented shops Nos. 4 and 5 Plot No. B-163, Block-5, Administrative Employees Cooperative Housing Society, Karachi on the sole ground of personal bona fide need of Respondent No.1/Applicant Muhammad Mustafa Khan. After contest between the Petitioner/ Opponent and Respondent No.1/Applicant, learned Rent Controller vide his order dated 11.08.2012, allowed the Rent Application and directed the Petitioner/Opponent to vacate the shops in question within a period of 60 days from the date of passing of order and to handover vacant possession to Respondent No.1/Applicant Muhammad Mustafa Khan.

2. F.R.A. No.221/2012 was filed before the learned District Judge Karachi South against the eviction order passed by learned Rent Controller referred to above, Appeal was dismissed and order was maintained. Thereafter the instant Constitution Petition is filed.

3. Brief facts of the case are that Respondent No.1/Applicant Muhammad Mustafa Khan claiming to be owner of the shops Nos. 4 and 5 Plot.No. B-163, Block-5, Administrative Employees Cooperative Housing Society, Karachi stated that mother of Respondent No.1 had rented out the shops to Petitioner/Opponent Waqar Ahmed at the monthly rent of Rs.7000/- in the year 2002 for five years. Copy of the Rent Agreement has been annexed. It is further stated in the said Rent Application that Petitioner/Opponent Waqar Ahmed paid an amount of Rs.7700/- to the Respondent No.1/Applicant Muhammad Mustafa Khan on account of monthly rent, but as per promise Petitioner/Opponent failed to vacate the shops in the year 2007 despite several approaches of the Respondent No.1/Applicant Muhammad Mustafa Khan. It is further stated by Respondent No.1/Applicant Muhammad Mustafa Khan that Petitioner/Opponent Wagar Ahmed is running a business in the name and style of Mini Mart of Grocery Store in the said premises and without permission from the landlord, Petitioner/Opponent has changed name and style of business as Computer Care Center. It is further stated that Petitioner/Opponent Waqar Ahmed has paid rent for the month of November 2011 through money order to the Respondent No.1/Applicant while receiving the same, he mentioned "to vacate the premises in question" inspite of that Petitioner/ Opponent failed to vacate the premises. Legal notice was served upon him and finding no other way, ejectment application was filed.

4. Cause of action accrued to the Respondent No.1/Applicant when his mother had let out the rented premises to the Petitioner/Opponent on rent with promise that in the year 2007, Petitioner/ Opponent would vacate the shops; secondly when the mother of the Respondent No.1/Applicant expired and thirdly when as per promise Petitioner/ Opponent refused to hand over the vacant possession of the shops in question to the landlord. Thereafter, ejectment application was filed.

5. On being served, Petitioner/ Opponent filed written statement wherein he denied the claim of Respondent No.1/Applicant. He has asserted that he had paid rent to the Respondent No.1/Applicant upto the month of December 2011 in advance through money order of Rs.77,000/-. According to Petitioner/Opponent, Respondent No.1/ Applicant wanted to create a ground of default in payment of rent, he refused to accept the rent of the Petitioner/Opponent without any reason. Thereafter, the Petitioner/Opponent tendered rent through money order. It is also mentioned that Petitioner/Opponent had never made promise with the mother of the Respondent No.1/Applicant that he would vacate the premises in the year 2007. It has also been denied that Respondent No.1/Applicant wants to run a business in the shops in question. It is further stated that plea of Respondent No.1/ Applicant is false and prayed for dismissal of the Rent Application.

6. In order to prove his case, Respondent No.1/Applicant filed his affidavit -in-evidence as Ex. A/1 and produced documents at Ex.A/15 to A/17. In rebuttal Petitioner/Opponent Waqar Ahmed filed affidavit-in-evidence at Ex.O/1. Thereafter, learned Advocate for the Petitioner/Opponent closed the side vide his statement dated 16.02.2012.

7. The learned Rent Controller after hearing the learned counsel for the parties and assessment of evidence, allowed the Rent Application vide order dated 11.08.2012, mainly on the following reasons: "Since the applicant has taken the plea of personal bona fide need in respect of case shops in order to start his own business and the opponent in his evidence has deposed that he did not know whether the applicant has any other property except the case shops and failed to prove that some other shops vacated recently in the same building were either vacated on the ground of personal need or the same are owned by the applicant and not his sister, therefore the plea of applicant on oath is consistent with the application of ejectmnent and not shaken in cross-examination or disproved in rebuttal. It is further strengthened with the admission of the fact by the opponent that after expiry of period of five years as mentioned in rent agreement, the applicant is requiring the case shops from the opponent through writing such demand on the rent receipts and money orders. As such, this point is answered in affirmative."

8. The Petitioner/Opponent preferred F.R.A against the said order, which was also dismissed by the learned District Judge, Karachi South vide judgment dated 16.02.2013. Being aggrieved, the Petitioner/Opponent has filed the instant Constitution Petition.

9. I have carefully heard the learned counsel for the parties and perused the evidence minutely.

10. Learned counsel for the Petitioner/Opponent has mainly contended that learned Courts below have failed to consider that landlord had more shops in the said premises and requirement of the landlord for personal use was based on mala fides. He has submitted that landlord in his ejectment application nowhere has mentioned that had handed over three shops to his sister but admitted this fact during proceeding before the learned Rent Controller. It is contended that in fact respondent/landlord demanded higher rent which was refused by the petitioner. It is further argued that learned Courts below did not appreciate the evidence according to settled principles of law. In support of the contentions, he has relied upon the cases reported as Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi (1987 SCMR 2051), Abdul Haneef Khan v. Vth Additional District and Sessions Judge, Karachi Central and 2 others (2008 CLC 1271) and Shahzad v. Mst. Kulsoom and 3 others (2009 YLR 2166).

12. It is the matter of record that there are concurrent findings of the Courts below on the point of existence of relationship of landlord and tenant between the parties and it is proved that landlord requires the shops for his personal use. Learned Rent Controller in the order dated 11.08.2012 has clearly mentioned that Respondent No.1/Applicant has raised plea of personal bona fide need in respect of shops in order to start his business and Petitioner/Opponent in his evidence has deposed that he did not know whether Respondent No.1/ Applicant has any other property except these shops. Learned Advocate for the landlord has also referred to Annexure A/17, which shows that it is a joint property of the landlord and his sister. It has also come on record that landlord/respondent is postgraduate but he is jobless. He needs the shops to run business. Even otherwise he is not required to disclose the nature of business he wanted to run. Satisfaction of Rent Controller, as to bona fide requirement of landlord was sufficient to sufficient to order ejectment. Plea of the landlord could not be shattered in the cross-examination. It is settled principle of law that for seeking eviction of the tenant from the rented shops only requirement of law is the proof of bona fide need of 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. It is not requirement of law that landlord in order to prove bona fide 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 Rent Controller. In this case landlord has succeeded to prove his bona fide need of the shops by bringing on record that he is jobless and postgraduate and requires shops. The evidence by Respondent No.1/Applicant Muhammad Mustafa Khan is not voluminous but it seems straightforward and reliable as far it goes. His evidence that he requires shops for his business was not seriously challenged in cross-examination by the Petitioner/Opponent and thus it is deemed to have been accepted by him. It is established that premises in question is required by the Respondent No.1/Landlord in good faith, learned Rent Controller in the view of the above was left with no option in this case but to order eviction of tenant. Landlord has proved that he required premises honestly and nothing beyond that. It is also contended by learned counsel for the petitioner that higher rent was demanded by the landlord from the tentant but demand of the high rent by the landlord from the tenant would not per se cast any doubt about personal bona fide requirement of the landlord in respect of the premises in dispute. So far scope of filing of the constitution petition is concerned, the constitutional jurisdiction cannot be invoked as substitute to another appeal against such order mere fact that upon perusal of the evidence this Court may come to another conclusion would not furnish a valid ground for interference in such order as held by the Honourable Supreme Court of Pakistan in the case reported as Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCMR 1925). The Honourable Supreme Court has held as under: "

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), where in 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."

13. Upon careful and anxious consideration of the evidence on record, my conclusion is that Respondent No.1 has made out the case under clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979 and the issue of personal requirement was rightly decided in his favour by the Courts below. No illegality, irregularity or error of jurisdiction in the impugned orders passed by the Courts below has been pointed out, requiring interference by this Court in exercise of constitutional jurisdiction. Consequently, the instant constitution petition is without merit and same is dismissed. Petitioner/opponent Waqar Ahmed is directed to vacate the demised premises/shops within a period of two months. ZC/W-6/Sindh Petition dismissed.