2009 PLP 2166 (YLR)

MRS. QAISER IQBAL, J.

Petitioner seeks redress under constitutional jurisdiction against the judgment dated 31-10-2008 passed by IInd Additional & Sessions Judge. Karachi South in F.R.A. No.178/2007 setting aside the judgment passed by learned Controller in Rent Case No. 328/2006, respondents sought ejectment of the tenant claiming to be joint owner of demised shop No. 2 situated on the ground floor of the Kulsoom Salman Manzil situated at G.K. 6/39 near Koela Godown Kharadar Karachi on the ground of default in payment of rent from January 2006 and bona fide personal requirement for the need of the son of the landlady/ respondent No.2. Petitioner in the written statement averred that the rent was paid for the month of December 2005 to the respondents on their refusal started depositing the same in MRC No. 251/2006. The plea of personal bona fide use of respondent No.2 is denied as the demised shop No.2 is required for establishment of general store by amalgamating the said shop with shops Nos. 4 & 6 which are already got vacated and are lying vacant. Eviction application was seriously resisted on both counts. Both the parties adduced evidence upon assessment of the evidence of the parties learned Controller dismissed the ejectment application which was assailed before the learned appellate Court it was concluded that the demised shop was required by the respondents for personal bona fide use. I have heard Mr. Muhammad Ali Mazhar learned counsel for petitioner and Mrs. Haw Amir Rehmani learned counsel for respondent, perused the record of the case. Learned counsel for petitioner has contended that after the rent was accepted by the respondents for the month of December 2005, rent of the month of January 2006 was delivered, receipt was not delivered to the tenant on the spot when tenant again revised to collect the receipt respondent No.1 had flatly refused the same. The petitioner sent the rent through money order amounting to Rs.902 towards the rent of the month of January & February 2006 which was refused. The petitioner has resorted to file MRC No.251/2006 and deposited the same thus successfully discharged his burden in accordance with the mode prescribed in section 10(3) of the Sindh Rented Premises Ordinance 1979. The relevant provision is reproduced herein below for ready reference:-- "Where he landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated." The above provision explicitly shows that where a landlord refuses or avoids to receive rent same may be tendered by money order alternatively be deposited with the learned Rent Controller in whose jurisdiction the demised shop is situated. It is well settled by the honourable Supreme Court that in case of Muhammad Hafeez v. District Judge Karachi East and another (2008 SCMR 398) that in the event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence, that the conclusions drawn are against the material on record. Learned counsel for petitioner has stressed that the respondents have refused to accept the money order the tender of rent by means of money order disproved by the tenant by producing a receipt. Learned counsel' for respondents has contended that the money order shows different address as that of the respondents mentioned in the memo. of the petition therefore the endorsement of Pakistan Post Office Karachi City GPO in connection with the "refusal" shall not be deemed to be valid tender. On a comparison that depicted in the ejectment application as well as in money order address is the same. In case of Fakhar Mehmood Gillani v. Abdul Ghafoor (1995 SCMR 96) considering the same proposition it was held that, "the rent remitted by money order to the landlord albeit on its correct address shall be deemed to be valid tender and has no nexus with the "refusal of the landlord to accept the rent. The responsibility of the tenant is only that he remits the rent through money order and does not expect him to follow the postman to its destination." The tenant therefore stands dissolved of his liability under the law when he tendered the rent due if it was not accepted by the landlord, the tenant shall not suffer. Both the Courts have rightly arrived at the just conclusion that the tenant has not committed default as he has proceeded to deposit the rent. This view finds support from the case of Hijibhai Behrana Dar-E-Meher through attorney v. Messrs Bombay Steel Works, partnership Firm, through partner (2001 SCMR 1888). Adverting to the next issue which pertains to personal bona 'fide need of the landlady's sons to use the demised premises by Toufeeq and Khalid both of them are jobless. Shops Nos. 4 and 6 in the same building were got vacated from the tenants shop No. 4 &

6. The respondent No.1 in the cross examination admitted that she has rented out shop No. 4 to one Adnan in August 2006 whereas shop No. 6 was rented out to Sarwar vacated in January 2007. The respondent No.2 in cross examination admitted that Shops Nos.4 and 6 were rented out to his friend for one month. He went on to say that the shop No.4 was rented out at a monthly rent of Rs.4200. The respondent No.2 is running a spare parts shop in Shop No.4. It seems that Shops Nos.2, 4 and 6 cannot be amalgamated into one shop as per photographs placed on record. The statement of the landlady does not appear to be consistent with the pleadings. The fact remains that in order to demonstrate good faith and benefits on the part of the landlord broad facts must be disclosed in the application with a view to provide an opportunity to the opposite party to controvert the same. Absence of material facts from the pleadings would appear to be fatal to the case of landlady who cannot be allowed to obtain the demised shop on the ground, to be amalgamated with two other shops, unfortunately one of the shops has been rented out to a tenant. Concealment of the facts of the landlady in respect of one or more shops during pendency of the ejectment proceedings would reflect adversely on the bona fide of personal need and good faith would be detrimental of landlady's case. I am mindful of the settled law that it is the prerogative of the landlord to choose a particular shop for his personal occupation. Once the landlord had more than one premises for exercise such prerogative it is the duty of the landlord to give plausible or satisfactory explanation for his insistence to occupy particular demise shop when other shops are available for occupation and use. From the perusal of the material on record it transpires that the respondents did not plead, that other shops were available in the building therefore Shop No.2 was required for amalgamation with Shop 4 and

6. In the absence of satisfactory explanation I am constrained to hold that the element of good faith is negated. This view find support from the case reported as Allies Book Corporation through L.Rs. v. Sultan Ahmed and others (2006 SCMR 152), Latif, Ahmed v. Mst. Farrukh Sultana .1996 SCMR 1233), Abdul Hanif Khan v. Vth Additional District & Sessions Judge (2008 CLC 1271), Muhammad Jaffer v. Syed Ziaul Islam 1996 MLD Karachi 976, it has been held in the last cited case that the landlord desires for restraining tenant his business was motivated by greed and mala fide as it had fully been provided that premises in dispute was situated in pugri fetching area and prayer of landlord for ejectment of tenant from that premises was motivated with the lust that after getting premises vacated same could be let out on higher rent and on, receipt of handsome amount of pugri as landlord also let out another shop vacated by another tenant just before filing ejectment application against tenant and it had also been proved that landlord had also another business premises in his possession where he was doing his business, but he had concealed that fact therefore landlord had approached with unclean hands as he was guilty of suppressing material facts and had failed to prove his personal bona fide need in respect of the premises. The contention of the landlord for return are without substance." From perusal of the material on record it may be observed that the appellate Court did not appreciate the evidence led by the parties and proceeded to decide the issue about the personal bona fide use in favour of the respondents when no plausible or satisfactory evidence was available in letting out the Shop No.4 suddenly the case of the respondent No.2 is that the demised shop is required to be amalgamated with Shops Nos. 4 and 6 for the purpose, of using the same as a big store. The findings of the rent controller on the point of the default are in favour of the tenant whereas findings of the appellate Court on the ground of personal bona fide use in favour of the respondents are based upon incorrect appreciation of the evidence, appears to be arbitrary and fanciful. For the foregoing discussion the impugned judgment thereby set aside and that of the learned Rent Controller is hereby restored. 'Petition stands allowed in above terms. Parties are left to bear their own costs. H.B.T./S-71/K???????????????????????????????????????????????????????????????????????? Petition allowed.