2017 PLP 247 (YLRN)

SHAHNAWAZ TARIQ, J.

Through the captioned Constitution petition, petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of Constitution of Pakistan and agitated the judgment dated 19.05.2010, passed by the Court of learned VI-Additional District Judge, Karachi South, whereby F.R.A. No.208 of 2008, filed by petitioner was dismissed and order dated 27.09.2008, passed by III Rent Controller, Karachi: South, in Rent Case No.1370 of 2006, was maintained.

2. The necessary facts spelt out from the instant petition are that respondent No.1, Aslam Pervez is owner of Shops Nos.1 and 2 situated in Soha Mantion, Plot No.G-K 2/2, Haris Road, Kharadar, Karachi, and petitioner is tenant in respect of said shops at the agreed monthly rent of Rs.2600/- payable before 10th of each calendar month. Respondent No.1 was running a business of clothes, but for about two or three years back, he wound up his business and went to Dubai where he started the business of mobile phones but unfortunately could not succeed and returned to Pakistan. At presently he is not doing any business for want of premises. It is further averred that the demised shops are situated in a suitable location for the business. Respondent No.1 finally requested the petitioner in the month of August, 2006 to vacate and handover the peaceful possession of demised shops but he refused to vacate the same on one pretext or another. The demised premises are required by respondent No.1 for his personal bona fide use to start his business independently and his requirements are just and genuine.

3. Petitioner filed written statement and admitted the relationship of landlord and tenant between the parties and the current monthly rent. It is further averred that petitioner is tenant for the last 12 years and had taken the demised shops through change of receipt of Pagri and paid Rs.975,000/- to respondent No.1, who filed rent application with mala fide intention and to save himself from payment of Rs.40,00,000/- as Pagri amount, which is present market value of the tenement in question. It is also stated that respondent No.1 never supplied residential address to the petitioner and stopped receiving rent in the year 2001 and served legal notice, whereupon monthly rent was increased from Rs.440/- to Rs.2,000/-, which was again enhanced in the month of May 2005 to Rs.2,600/-. Petitioner has been tendering monthly rent through money order in the year 2006, and ultimately started depositing rent in MRC No.497/2006. It is further stated that respondent No.1 has not produced documentary evidence regarding his business in Dubai and suffered loss. It is also asserted that respondent No.1 has concealed actual facts as he is running his business of clothes at Gul Cut Piece, Shop No.88, Cochinwala Market, Near Memon Masjid, Karachi. It is further stated that respondent No.1 with mala fide intention has stated that tenement in question are situated in suitable business area, and respondent No.1 never even asked the petitioner to vacate demised shops but in fact he kept the petitioner in false hope to purchase the same. It is further averred that respondent No.1 is not the owner of demised shops and there are other co-sharers, therefore, he may produce title documents of the demised premises and rent application filed with mala fide intention, is liable to be dismissed.

4. To substantiate his claim, respondent No.1 filed his affidavit in evidence and was cross-examined by learned counsel for the petitioner. In rebuttal, petitioner filed his affidavit in evidence and produced documents vide Ex: O-1 to O-31 respectively. Petitioner also filed affidavits in evidence of Ibrahim Yousuf, Hafiz Abdul Karim and Abbas Ali Sadaruddin and they were cross-examined by learned counsel for respondent No. 1.

5. Learned Rent Controller while passing order dated 27.09.2008, framed the following points for determination:- "(i) Whether the present ejectment application is not maintainable under the law? (ii) Whether the applicant/ respondent No. 1 requires the shops in question reasonably and in good faith for his personal bona fide need? (iii) What should the order be?"

6. Learned Rent Controller after evaluating the evidence adduced by the parties and considering their arguments, allowed rent application on the ground of personal bona fide need as emphasized by respondent No.1. Petitioner impugned the dismissal order and preferred first rent appeal which was also dismissed by learned VI-Additional District Judge, Karachi South, on the ground of personal bona fide need and directed petitioner to handover the vacant peaceful possession of demised shops to respondent No.1 within 60 days.

7. Learned Counsel for petitioner contended that respondent No.1 has malafidely filed ejectment proceedings against the petitioner and has failed to establish his need in good faith. He further contended that respondent No.1 is already doing business of clothes in Gul Cut Piece shop, Cochinwala Market, therefore, he is not in need of the demised shops. He further contended that respondent No.1 has failed to produce any document regarding his business in Dubai or any permanent visa and the loss sustained by him. He further contended that business in Cochinwala Market has been flourishing, therefore, nobody will leave such a business and go to Dubai for uncertain business which shows the bad faith on the part of respondent No.1. He further contended that respondent No.1 had also filed rent Case No.2464 of 2000 against Al-Mustafa Welfare Society who was tenant of shop No.4, on the ground of default, which was allowed and he received possession of said shop, but has not yet started his own business, therefore, concurrent findings passed by the Courts below are liable to be set-aside and ejectment application may be dismissed.

8. Learned Counsel for respondent No.1, vehemently contended that shop No.4 is situated in the behind lane which is not suitable for the business of clothes, therefore, he could not start his business in said shop and same was let out to another tenant. He further contended that respondent No.1 has a good experience in the business of clothes as previously he was running the very same business but thereafter, he went to Dubai and started his business there but unfortunately suffered loss, and returned to Pakistan. He further contended that respondent No.1 has no suitable shop to run his own business as such in good faith, rent application was filed and considering his personal bona fide need both the Courts below have passed their findings in his favour. He further contended that it is prerogative of the landlord to choose any shop to establish his own business and tenant has no legal authority to dictate the landlord.

9. From perusal of the material available on record and consideration of arguments emanate that respondent No.1 is the owner of demised shops which were let out to the petitioner. Respondent No.1 has filed the rent application demonstrating his requirement of the demised premises in good faith to restart his own business of clothes, as he was already doing said business and said factum has been admitted by the petitioner.

10. Indeed, the averments of rent application have been verified by respondent No.1 in his affidavit in evidence and maintained that the demised shops are required for his personal bona fide need, and in his cross-examination his statement on oath remained quite consistent with the averments of ejectment application, and neither his statement was shaken nor any thing adverse was brought in evidence to contradict his statement. No proof has been filed by the petitioner that respondent No.1 has been carrying his business in Gul Cut Piece shop, in Cochinwala Market.

11. It is well settled that sole testimony of the landlord is sufficient to establish his personal bona fide need of premises, where the statement of landlord on oath was quite consistent with the averments made in ejectment application and neither his statement was shaken nor anything was brought in evidence to contradict his statement that would be considered sufficient for acceptance of the ejectment application. In this regard I am fortified by the dicta laid down in the case of Iqbal Book Depot and others v. Khatib Ahmed and 6 others (2001 SCMR 1197), wherein the honourable Supreme Court has observed that where the statement of landlord on oath was quite consistent with his averments made in the ejectment application and same had neither been shaken nor anything had been brought in evidence to contradict the statement, such Statement on oath would be considered sufficient for the acceptance of the ejectment application.

12. It is worthwhile to mention that the honourable Supreme Court in plethora of cases has observed that while demonstrating the personal bona fide need, the landlord has a right to choose any specific premises owned by him out of several premises and no restriction can be imposed upon such requirement and tenant could not be permitted to object such a right of the landlord, and any dictation by the tenant in this regard would be utter violation of guaranteed rights of the landlord. In this context, I would refer the dicta laid down in case of S.M. Noorddin and 9 others v. Saga Printers (1998 SCMR 2119), wherein the honourable Supreme Court has observed that landlord has a complete option to choose from one of several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in rare cases of bad faith. Likewise, in case of Jahangir Rustam Kakalia through legal heirs v. Messrs Hashwani Sales and Services (Pvt.) Ltd. (2002 SCMR 241), the honourable Supreme Court has observed that respondents being owners and landlords of the demised premises could not be deprived of their right and interest to use their property in a manner more suited to their requirements. No unreasonable restrictions can be placed on the exercise of right by landlord which would offend the fundamental rights guaranteed under Article 23 of the Constitution.

13. As the sequel of discussion of the facts, circumstances and case law referred supra, I have no hesitation to conclude that respondent No.1 has succeeded to prove his bona fide requirement for personal use in good faith. Petitioner has failed to point out any illegality or infirmity or dis-appreciation of evidence adduced by the parties. Consequently, the impugned concurrent findings passed by both the Courts below do not call for any interference, hence maintained and instant Constitutional petition stands dismissed. However, petitioner is allowed 60 days' time to vacant and handover the peaceful possession of the demised shops to respondent No.1, failing which learned trial Court shall issue writ of possession with police aid without any notice to the petitioner/tenant, as the matter is pertaining to the year 2006. ZC/M-63/Sindh Petition dismissed.