2017 PLP 1511 (YLR)

MUHAMMAD IQBAL KALHORO, J.

Petitioner is aggrieved by the concurrent findings recorded in rent case No.768/1994 filed by the respondents Nos.1 to 4 against him for ejectment on the grounds of personal bona fide need and default. The petitioner resisted the above rent case by putting up the defence that neither he had committed any default nor the personal bona fide need agitated by the respondents was on account of good faith. However the rent case was allowed against him, against which he preferred FRA No.74/2003, that too was dismissed vide impugned Judgment dated 05.04.2007 passed by learned V-Additional District Judge, Karachi South prompting him to file instant petition.

2. Case of the petitioner, which his counsel has vehemently argued, is that both the courts below have not properly appreciated the evidence and have ignored the admissions made by the attorney of the respondents to the effect that other shops in the same premises were lying vacant which were also suitable to the need of the respondents; that in the rent application, no specific period of default has been mentioned and in such circumstances the ejectment application could not be allowed on this ground. In support of his arguments, learned counsel for the petitioner has relied upon 1995 SCMR 146, 1989 MLD 581, 2006 SCMR 152, 117, 1984 CLC 2837.

3. On the other hand, learned counsel for the respondents has argued that the default on the part of the petitioner is an admitted fact, which is evident from his cross-examination. On the personal bona fide need, his argument is that the only requirement in law in this behalf is the appearance of landlord in the witness box to make statement of his need, thereafter, his burden stands discharged. In support of his arguments, he has relied upon 1994 SCMR 1012, 1989 SCMR 538, 1997 SCMR 1062, 1998 SCMR 2119, 2002 SCMR 241 and 2010 SCMR 1925.

4. I have considered the submissions of the parties and have perused the material available on record including citations relied upon at bar. The rent case was filed on two grounds i.e. personal bona fide need and default. Evidence of the petitioner shows his admission to the effect that in the year 1972 he had received a letter from the owner, the mother of the respondents, insisting on him to pay rent to her as she had become owner of the premises. His evidence also shows his admission that since 1972 till 1984, he did not pay rent to any one including the previous owner of the premises. Contention of learned counsel for the petitioner is that as the dispute over the ownership of the property between mother of the respondents and previous owner was going on in the courts, therefore, the petitioner did not pay rent to anyone. He has further stressed that during that period, the petitioner was paying property tax of the premises which he had adjusted towards the rent amount. Obviously, the contention of the petitioner's counsel is not sustainable in law. The petitioner was admittedly the tenant of the premises and was required to pay its rent. If he had any doubt over the ownership of the premises under his tenancy, he could have deposited the rent in the court. Petitioner's non-depositing the rent from 1972 to 1984 is without any justifiable excuse and sufficient to hold that he has committed default in payment of rent. His contention that he had adjusted the amount paid in property tax to the rent due is equally untenable as without any consent or agreement of the owner, he was not permitted to act on his own and deprive the landlord from the benefit of rent. His evidence also shows that in 1984, the petitioner on his own started depositing the rent but surprisingly he had paid the rent of only three years i.e. from 1981 to 1984 by assuming that previous rent i.e. from 1972 to 1981 was time barred. This approach of the petitioner to make good of the default on his own terms and choice is repellable and cannot be approved and it does not absolve him of the outstanding rent amount from 1972 to 1981.

5. In regards to the personal bona fide need, it may be observed that it is always option of the landlord to choose any of the premises to carry on his business and in this respect the tenant cannot raise any objection that since already other shops are in possession of the landlord, he cannot ask for the premises in question. Mr. Yaseen Azad explaining the admission of the attorney of the respondents in his evidence to the effect that four shops in the same building were got vacated by the respondents, has stated that since Mst. Zahoor Fatima, the owner of the premises has left behind nine legal heirs, who have a number of children, the four shops that were got vacated were for the use of kids of other legal heirs, and the present case was filed by the four legal heirs and the shops in question are needed for their use. Admission of the attorney of the respondents to the effect that four shops were got vacated would not ipso facto be read that that the premises in question are not required for the personal use of the respondents. Moreover, it is relevant to observe that in constitutional petition, the concurrent findings of the facts determined by the two courts below cannot be upset or disturbed unless it is shown that those findings are the outcome of mis-appreciation of evidence or are based on the circumstances extraneous to the pleadings of the parties. The petitioner's counsel has mainly argued on the factual aspects of the case and although has referred to the various case laws as stated above but has not been able to show that what error of law has been committed by the two courts below which may warrant interference by this court in constitutional jurisdiction. The petition merits no consideration and is dismissed along with listed application. JK/M-147/Sindh Petition dismissed.