2017 PLP 109 (CLCN)

ABDUL RASOOL MEMON, J.

This petition is against the Judgment dated 28.11.2012, passed by the learned IV-Additional District Judge Karachi South whereby F.R.A. No.406/2010, filed by respondent No.3 was allowed and order dated 11.10.2010, passed by III-Rent Controller, Karachi South dismissing rent case No.726/2006 was set aside and petitioner was directed to vacate the demised premises within thirty (30) days.

2. The facts leading to this C.P are that respondent No.3/landlord/ landlady filed rent application, cited above, pleading therein that she is owner of Shop No.2, situated on ground floor of Ahmed Asa Jalal Building on plot No.RC-117/4B, Kalianjee Street, Nabi Bux Road, Gazdar Abad, Ranchore Lines, Karachi which was rented out to petitioner at the rate of Rs.200/- per month by her husband, who expired in the year 1984 and after his death the respondent No.3 being widow became the landlady and the petitioner used to pay the rent to her on issuance of proper rent receipts. It was further pleaded that old building of demised premises was got demolished and in the year 1994, a new building was got constructed thereon, in which similar space was given to the petitioner. It was alleged that the petitioner paid the rent for the month of April, 1994 and onwards he did not pay the rent to the respondent No.3/landlady, consequently, she filed a Rent Application No. 980/2003, but the same was dismissed for non-prosecution, thereafter she filed another Rent Application No. 1295/2003, which was withdrawn by her advocate due to some unknown reasons. The instant application was filed on two grounds (i) default committed by petitioner in payment of rent and (ii) demised premises required to respondent No.3/landlady for her own bona fide use to run the business of her own earning livelihood through her employees and her son, namely Jalal Bayar.

3. The petitioner (tenant) in her written statement denied the allegations of respondent No.3(landlady) and claimed that after payment of huge amount as "PUGREE" to respondent No.3's husband in the year 1983 the demise premises was taken on rent initially at Rs.50 p.m. later on enhanced to Rs.250/-. It was further stated that the rent was being paid regularly but in the month of July, 2006, the respondent No.3 refused to receive the rent so the same was tendered through money order but after refusal thereof, the petitioner has been depositing rent in MRC No.1088/2006. It was further stated that rent application No.1295/2003, was withdrawn by the respondent No.3 herself after receiving a huge amount of Rs.3,50,000/- from her. The petitioner also denied the ground of personal need of respondent No.3 for use of demised premises as she has several other places which could be used by her and her son who is out of country.

4. In support of rent application, the attorney of the respondent, namely, Ameer Farid filed his affidavit in evidence but he was not cross-examined despite several chances given to the petitioner (tenant). In rebuttal, petitioner/tenant's attorney namely, Javed filed his affidavit but did not appear in witness box and her side was closed on 02.07.2010.

5. Learned Rent Controller framed the points for determination as under:- i. Whether the opponent has committed willful default and the demise premises requires for the personal use of applicant? ii. What should the order be?

6. Learned Rent Controller by answering the point No. 1 is negative dismissed the rent application. The respondent No. 3/landlady assailed the order of Rent Controller in F.R.A. No.406/2010 and learned appellate Court reversed the findings of the Rent Controller on points Nos.1 and 2 framed above and held the petitioner/tenant as defaulter in payment of rent and the demised premises is required to respondent No.3 for her personal use in good faith and thereby allowed the appeal, which resulted in filing of instant petition.

7. Learned counsel for the petitioner contended that two Rent Applications filed by respondent No.3/landlady on ground of default in payment of rent had already been dismissed, though not on merits but legally imposes bar/res judicata on filing rent application subsequently on same grounds to be res judicata; that on personal bona fide need of respondent No.3 was also not genuine; that the petitioner was regularly depositing the rent in MRC due to refusal by the respondent No.3, therefore, the findings of appellate Court on point No.1 are contrary to the facts brought on record, thus, are liable to be set aside by invoking jurisdiction under Article

199. In support of his contentions he placed reliance on the case laws viz. PLD 2008 Karachi 361, 2006 SCMR 117 and 2008 SCMR 28.

8. On the other hand, the learned counsel for the respondent No.3 argued that the order of the Appellate Court is based on cogent reasons while the order of Rent Controller was contrary to law and material available on record. He submitted that earlier rent applications of respondent No.3 were not decided on merits, as such, provision of res judicata would not be applicable in the instant petition. On the point of default, learned counsel submitted that the rent was neither tendered to the respondent No.3 nor sent to him through money order but was directly deposited in MRC, as no coupon of money order was produced by the petitioner in evidence to show any remark of refusal by the landlady/owner or appeared her signature which proved willful default in payment of rent. He further submitted that on the point of personal bona fide need, the respondent No.3 filed affidavit in evidence of her attorney, who was not cross-examined by the counsel for the petitioner, therefore, his version has gone un-rebutted and unchallenged and not controverted by producing any evidence by the petitioner.

9. I have given careful consideration of the arguments advanced at bar and gone through the relevant record. It has come on record that previous Rent Application No.726/2006 filed by respondent No.3 was dismissed in non-prosecution, while her second rent application No.1295/2003 was withdrawn by her advocate without any condition, as such, provision of res judicata does not come in her case. Even otherwise res judicata in rent cases would not apply when cause of action of second rent application is arisen after disposal of previous application and on subsequent cause of action, fresh application is maintainable, reliance is placed on the case of Muhammad Ahmed and others v. Mst. Sakina Begum and others (1984 SCMR 881), Messrs Allied Bank Ltd. v. Messrs Rahmat and Sons Ltd. (1993 MLD 844) [Karachi].

10. So far point of default in payment of rent is concerned, the respondent No.3 in rent application has specifically pleaded that the petitioner/tenant paid rent up to April, 1994 and thereafter failed to pay or tender the rent w.e.f. May, 1994 and onwards. The petitioner in his written statement has taken up the plea that respondent No.3 had refused to receive the rent and then she sent the rent through money order and on refusal started depositing the rent in MRC No.1088/2006. It is important to note that petitioner has failed to bring on record the coupon of the money order allegedly sent by her to respondent No.3. Even no parcel of money order was placed on record nor the postman was examined in respect of refusal of rent or receipt of money order, as such, no any sort of evidence was produced to establish that respondent No.3/landlady had refused to receive the rent. In such circumstances, petitioner/tenant has failed to prove that she tendered or remitted the rent to the landlady. The petitioner's counsel neither cross-examined the witness/attorney of the respondent No.3 nor petitioner appeared in witness box to rebut the contentions of the landlord given in rent application, therefore, legally the version of respondent No.3's attorney not denied in cross-examination by petitioner is presumed to have been admitted by her.

11. With regard to personal bona fide need, respondent No. 3 has clearly pleaded in her rent application that the demised premises is required to her for her own personal use to run business to earn livelihood which would be run by her through some employees and her son namely Jalal Baya, who has planned to come back to Pakistan from abroad and settle in Karachi along with her permanently. This version by respondent No.3 given in rent application has been fully supported by her attorney Umair Farid in his affidavit in evidence which admittedly has gone un-challenged and un-rebutted. The contention of petitioner that respondent No.3 has other properties for running her business is without force as it is settled law that the selection of place is sole prerogative of the landlord so also choice of rented shop if having more than one, therefore, no restriction can be enforced upon the landlord, if any, law is needed on this point, reliance may be placed on 2010 SCMR 1925. Moreover, plea of Pugree would also not disentitle the owner from filing ejectment proceedings against the tenant on the ground of personal bona fide need. In this context, I am fortified by case reported as 2004 MLD

587. I have also gone through the citations relied upon by the petitioner's counsel, but with profound respect none of them are applicable to the facts and circumstances of this case and are not helpful to the petitioner.

12. In view of above discussion, I do not see any reason to arrive at any different conclusion to that of appellate Court, therefore, I find no cogent reason to interfere with the judgment of learned Appellate Court, consequently, this petition is dismissed along with pending application. However, looking to the old tenancy and occupation of the petitioner of the demised premises, four (04) months time is granted to the petitioner for vacating the premises in question from the date of this judgment. ZC/A-10/Sindh Petition dismissed.