2017 PLP 75 (CLCN)

MUHAMMAD IQBAL KALHORO, J.

Petitioner is the tenant in Shop No.1 at ground floor in Farah Center situated near Sanaullah/Mossaje Cloth Store, Zaib-Un-Nisa Street, Sadder, Karachi. Respondent No.1 Muhammad Ayaz Khan is its owner, who filed a rent case No.128 of 2012 against the petitioner for ejectment on the grounds of default and personal bona fide need. Petitioner resisted the said case, however, vide judgment dated 9.09.2013 learned Rent Controller allowed the rent case on the ground of only personal need and ordered eviction of the petitioner. Regarding default he observed that the respondent had failed to establish it. The parties being dissatisfied with such findings filed separate appeals respectively. Respondent's appeal essentially was based on his discontentment with the eviction order passed solely on the ground of personal need. Both the appeals have been dismissed vide impugned judgment and the findings of the learned Rent Controller upheld. This time only the petitioner has challenged the same through this constitutional petition. Now insofar as the case of the respondent on personal bona fide need is concerned, there are concurrent findings in his favour.

2. Case of the petitioner here is founded primarily on the facts and grounds that both the courts below have failed to appreciate the evidence properly, which has resulted into miscarriage of justice; that the other owners of the building have not filed the ejectment application(s) against the petitioner nor they were joined as party in the subject rent case; that the courts below have not considered the fact that the respondent is in possession of several other shops in the same building that not only provide for sufficient space but are also best suited for his business; that requirement of the respondent is not genuine and it is not based on good faith; that after filing of the rent case, another shop in the same building by the name and style of Shafiq Jewllers was got vacated by the respondent in September 2012 but he malafidely in his deposition, which was recorded later on, did not disclose this fact; that the respondent is already running a hotel by name 'Falcon Hotel' and is not in need of the suit premises for his business. Petitioner's counsel Mr. Mustfa Lakhani in his arguments emphasized on the above facts and grounds and relied upon the following case laws to support his case 1987 SCMR 2051, 1992 SCMR 1303, 2000 SCMR 531, 2001 SCMR 338 and 2006 SCMR 152.

3. Mr. Muhammad Ikram Sidiqui learned counsel for respondent on the other hand stressed in his arguments that the respondent was able to establish requirement of the suit premises for personal need and his evidence on this fact was not shaken; that there were concurrent findings against the petitioner which could not be disturbed in the constitutional jurisdiction unless the same were shown to be irrelevant, perverse and/or based on mis-appreciation or non-appreciation of evidence; that the petitioner had failed to indicate how the impugned findings were illegal or against the material available on record. He relied upon the citations reported in 2010 SCMR 1925, 2013 CLC 562, 2007 SCMR 621, 2012 CLC 1195 and PLD 2014 Sindh 194.

4. I have considered the submissions of the parties and perused the record including the case laws cited at the bar. The honorable Supreme Court in the case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCMR 1925) has held that burden of the landlord seeking eviction of a tenant on the ground of personal bona fide need 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, if it remains un-shattered in cross-examination and un-rebutted in the evidence of opposite party. In the case in hand, the respondent's claim is that he has retired from his government job and is in need of suit premises to start a business of 'Fast Food'. The fact of respondent's retirement is not disputed, and a perusal of his cross-examination would show that his assertion of starting the business of 'Fast Food' has not been shattered either; so much so, even no suggestion in denial of this fact has been put to him in his entire cross-examination. Regarding petitioner's contention, that case of the respondent on personal need has weakened due to his failure to disclose in his affidavit-in- evidence the factum of getting the shop of Shafiq Jeweller vacated during pendency of the rent application, it may be observed that mere non-revelation of this fact in deposition would not disqualify the respondent to seek eviction of the petitioner on the ground of personal need. Because, on the one hand such occurrence took place after the pleadings in the rent case were filed by the respondent, and therefore in normal course he was not required to depose the facts not pleaded by him, and on the other hand it is always prerogative of the landlord to choose any of the premises, if there are many, for his personal use. The petitioner cannot dictate terms in this regard, and as such his contention that since some other premises belonging to the respondent is lying vacant in the same building, he is not entitled to seek suit premises for his personal use is wholly unsustainable in law. And additionally, it may be noted here that although in the cross-examination the fact that the abovementioned shop was got vacated during pendency of the rent case has been asked from the respondent, which he has not denied, but then no suggestion to the effect that whether the said shop is sufficient and suitable for his business of fast food has been put to him. No proof either of any other business being run by the respondent has been placed on record by the petitioner. Therefore, virtually the case of the respondent on the ground of personal need is un-shattered and un-rebutted: In reply to the contention of the petitioner's counsel that all the owners of the building have not filed the rent case against him, it may be observed that it is not the absolute requirement in law; the rent application filed by any of the owners would be equally competent.

5. In view of the foregoing discussion. I am of the considered view that the petitioner has no case warranting interference in the concurrent findings recorded in favour of the respondent on the ground of personal bona fide need by the two courts below. Consequently this constitution petition is dismissed with no order to costs. ZC/Z-12/Sindh Petition dismissed.