2016 PLP 153 (CLCN)

ABDUL RASOOL MEMON, J.

This Constitutional Petition is against the concurring findings recorded under order dated 29.09.2012 passed by IVth Rent Controller, Karachi Central in Rent Case No.525 of 2011, thereby allowing the ejectment application, which was maintained by learned IIIrd Additional District Judge vide his order dated 20.5.2014 passed in F.R.A. No.232/2012.

2. This is second round of the litigation between the parties on same subject-matter. The petitioner is tenant in respect of shop No.2 Saifi Hospital Plot No.ST-1 Block-F, North Nazimabad, Karachi at the rate of Rs.3500.00 per month excluding the electricity charges. The respondent had filed ejectment Applications Nos.727 of 2002 and 372 of 2003 against the petitioner one on the ground of personal requirement and the other on the ground of default in payment of rent which were dismissed by the First Rent Controller Karachi Central vide consolidated order dated 11.11.2005 and appeal against the said order also met the same fate vide order dated 02.07.2009 passed in First Rent Appeals No.197 of 2005 and 198 of 2005.

3. The case of respondent in the instant rent application is that after the dismissal of the earlier rent appeals, the petitioner failed to pay the rent directly or through money order thus he has committed default in payment of monthly rent from 02.07.2009 and Rs.44,211/- are accumulated against him as arrears of electricity. The respondent further pleaded that the demised premises is required to him for establishment of a collection unit of laboratory for outdoor patients and demised premises would be suitable for the said purpose.

4. The petitioner tenant filed his written statement, wherein he admitted the relationship of landlord and tenant and monthly rent at Rs.3500.00. However, he mentioned that the respondent/ applicant had avoided to receive the rent as well as electricity charges of the demised premises, consequently he remitted postal money orders and on refusal of the respondent, started depositing the rent in MRC No.627 of 2002 with Vth Rent Controller and is depositing till date and paying the electricity charges directly to the respondent/applicant, thus committed no default. He also denied the plea of respondent for personal need of the demised premises for establishment of collection unit for laboratory therein. According to petitioner, applicant has plenty of space over the plot of land to set up the intended collection unit of laboratory.

5. To prove his case, respondent examined himself and produced the original copies of the Board of Trustees at Exhibit 10___, tenancy agreement and electricity bills at Ex.A-2 and A-3. He was cross-examined by the petitioner, then his side was closed. In rebuttal petitioner examined himself and produced the copies of CNIC, Rent Agreement dated 01.05.1999 and 07.02.2002 at Exhibit O-2 and O-3 and consolidated order in FRAs Nos.196 and 197 of 2008 at Exhibit O-4 and O-5 and receiving of electricity bills and receipts etc at exhibit O-6 to O-9. He was also cross-examined by the counsel for the respondent. After hearing the parties and considering the material available on record learned Rent Controller decided both the points framed in respect of default committed by petitioner in payment of rent and personal bona fide need of the demised premises by the landlord in favour of respondent and allowed the rent application directing the petitioner to vacate the demised premises within sixty days from the date of order. The said order of the Rent Controller was maintained in F.R.A. No.232 of 2012 by learned IIIrd Additional District Judge, Karachi South, hence this Constitutional Petition has been filed.

6. Heard learned counsel for the parties and perused the material available on record.

7. Learned counsel for the petitioner argued that the impugned orders are contrary to evidence available on the record; that both the courts below failed to consider the background of the litigation; that when respondent had refused to accept the rent, which fact compelled the petitioner to resort to other mode of payment of rent to avoid penal consequences of default, therefore, he deposited the rent in MRC and thus not committed default; that prior to this, two rent cases filed by the respondent for ejectment of the petitioner on the same grounds were dismissed. He further submitted that the demised premises is the only source of earning livelihood of petitioner and the respondent has not come with clean hands as he has plenty space over the subject premises, which would be suitable for such a big setup of public dealing. In support of his contentions he has placed reliance on the following case laws: (i) Deedar Ahmed and another v. Cooperative Engineers Limited (1992 MLD 1049); (ii) Noor Muhammad v. Zamir Ahmad Qidwai (1994 CLC 1751).

8. On the other hand, learned counsel for the respondent contended that the orders passed by the two Courts below are proper, legal and constitutional jurisdiction could not be invoked to substitute another appeal against such orders. He further contended that admittedly the petitioner directly deposited rent in the court of Rent Controller in MRC and neither rent had been delivered in person to the respondent nor remitted through postal money order, therefore, such deposit of rent would not absolve the tenant from being defaulter for the relevant period. He also urged that the respondent being owner of the demised premises could not be deprived of right of use of his property in the manner more suited to their circumstances; and that the statement of the authorized officer of the Respondent Trust, namely, Sheikh Nooruddin has not been shaken in cross-examination and is consistent with the plea taken in the rent application, therefore, respondent is entitled to possession of the demised premises and this constitutional petition is liable to be dismissed. In support of his contentions he has placed reliance on the case of Shakeel Ahmed v. Muhammad Tariq Farogh (2010 SCMR 1925).

9. I have given careful consideration to the arguments advanced at bar and gone through the relevant record. It has been admitted by the petitioner in cross-examination that he has not produced money order coupon in his evidence in respect of the remittance of rent. This admission of petitioner supports the plea taken by the respondent that after dismissal of previous rent case the petitioner did not tender the rent to the respondent directly or through money order and deposited the rent in court. On this point the Rent Controller in his order dated 29.09.2012 has rightly concluded that the direct deposit of the rent without offering to the landlord and remitting postal money order, was not valid deposit, in view of the case of Mrs. Ram Lal and 8 others v. Mst. Nargis Khanum reported in PLD 1996 Karachi

440. Furthermore, in case of Pakistan State Oil Company Ltd. Karachi v. Peerji (2001 SCMR 1140) Honourable Supreme Court has held that where a landlord refused to accept the rent it was mandatory for tenant first to remit the rent through postal money order and if that was not done, depositing of rent in Court would not absolve the tenant from being defaulter for the relevant period. It is admitted fact on record that since 02.07.2009 till date the petitioner is depositing the rent directly in MRC, therefore, he has committed default in payment of rent.

10. So far the plea of personal bona fide need of the demised premises for establishment of the collection unit for respondent's Hospital is concerned, the witness of respondent in his affidavit in evidence has clearly stated that the demised premises is required to the respondent for their personal use, as they want to establish a collection unit for outdoor patients therein, which would be suitable for the said purpose, his such version has gone unrebutted and unchallenged in cross-examination. It is settled law that for seeking eviction of a tenant from the demised premises the only requirement of law is the proof of bona fide need by the landlord which stands discharged the moment he appears in witness box and makes statement on oath in the form of affidavit in evidence as prescribed in law and if it remains un-shattered in cross-examination and un rebutted in evidence adduced by the opposite party, in this context I am fortified by the case of Shakeel Ahmed and others v. Muhammad Tariq Farogh and others (2010 SCMR 1925). It is admitted fact on record that the demised premises is situated within the premises of Saifi Hospital, therefore, the respondent through above evidence of his witness has established the plea of personal bona fide use of demised premises. The choice of selecting the premises for establishing collection unit is the prerogative and discretion of the landlord and the law does not give either to the tenant or to the rent controller the power to determine where or in which of the place the landlord should establish his business. The citations relied upon by the learned counsel for the petitioner being based on different facts and circumstances are not relevant to the case in hand and are not helpful to the petitioner.

11. In view of the above facts, evidence and law it has been established that the petitioner has failed to prove his case and has not been able to point out any illegality or material irregularity, misreading or non-reading of the evidence, therefore, the judgments passed by the two Courts below are maintained being proper, legal and in accordance with law. Consequently, this petition being without merits is dismissed accordingly. However, looking to the old tenancy of the petitioner, four months' time from the date of this order is allowed to petitioner to vacate the demised premises. ZC/A-55/Sindh Petition dismissed.