2017 PLP 139 (YLRN)

ABDUL RASOOL MEMON, J.--Through this petition, the petitioner has called in question the order dated 31.10.2014 passed by learned District Judge Karachi Central in F.R.A. No.04/2013, whereby the appeal filed by petitioners against the order of 6th Rent Controller Karachi Central dated 28.11.2012 allowing the Rent Application No.319 of 2008 of the respondents and directing the petitioners to hand over vacant physical possession of the demised premises to the respondents within sixty days, was dismissed.

2. The facts giving rise to this petition are that Respondents Nos.1 and 2 claiming themselves to be owner and landlord of shops Nos.1 and 2 situated on ground floor of Plot No.5-C, 14/1 Naimabad, North Nazimabad Town, Karachi filed Rent Case, cited above, pleading therein that they purchased the demised premises in the year 1998 when the petitioners were already in occupation of the shops in question as tenant having been inducted by the previous owner at the rate of Rs.500/- per month for each shop. It was further pleaded that the respondents intimated the petitioners about the change of the ownership. According to the respondents, the demised premises was subletted by the petitioners to the different people and also made alteration and addition by erecting a wall in between the two shops, more so the demised premises was required by respondents for their personal bona fide need in good faith, filed a rent case No.429/2002 wherein the petitioners' predecessor to whom the property was rented out by the previous owner was given direction to deposit the rent in Court, the appellants started depositing rent in the light of the order passed on the application under section 16(1) of Sindh Rented Premises Ordinance, 1979, after that said rent case was withdrawn by the respondents, but after its withdrawal of the petitioners did not either directly sent the rent to the respondents or through money order but continued to deposit the rent in the disposed of rent case. It was further pleaded that after the death of original tenant (father of petitioners) in the year 2005, they continued to deposit the rent in the name of their late father in same disposed of rent case and they have committed willful default in payment of rent. The respondents brought the instant rent application for eviction of petitioners on the ground of default in payment of monthly rent to them as being deposited in the name of dead person in dead rent case, and subletting shop to advocates Zulfiquar Mehdi Mirza and Wajid Ali and monthly rent of Rs.3000/- so also required the shops in question in good faith for personal use of respondent No.1 and his wife who both are enrolled advocates and wanted to start their independent practice in it.

3. The petitioners have denied the subletting, additions and alterations in the demised premises so also personal bona fide need of the demised premises by the respondent No.1 or his wife, while, for depositing the rent in rent case No.429/2002, they pleaded that respondent No.1 had offered the father of the petitioners to purchase both the shops on the basis of sublease and on 27.01.2004 it was settled between the parties that the father of the petitioners after receiving Pagri amount, would hand over the physical vacant possession of shop No.2 on 14.02.2004 to the respondents as against that they would transfer shop No.1 in the name of late father of the petitioners on the basis of sublease without any compensation and on 30.01.2004 such irrevocable compromise agreement was executed between the parties with further settlement that prior to 15.02.2004 the area of both the shops would equally be divided with partition wall. It was further claimed by them that respondents themselves violated the terms and conditions of the said agreement and orally revoked it for the reasons that since they had obtained shop No.4 for their legal profession office, therefore, they were not in need of shop No.2 as they were running their own business in shop Nos.3 and

4. They also denied the default in payment of rent and asserted that the alleged default if any, is technical in nature and not bona fide.

4. In support of their case, respondent No.1/landlord filed his affidavit-in-evidence so also affidavit of Mrs. Tanveer R. Asif wife of Asif Mufti (respondent No.1) and they were cross-examined by the advocate for the petitioners. In rebuttal, petitioner No.2 filed his affidavit in evidence and of their witnesses Zulfiqar Mehdi Mirza, they were also cross-examined by the counsel for the respondents (landlords).

5. Learned Rent Controller framed points for determination as under:-- 1) Whether the opponents have committed default in payment of rent? 2) Whether the opponents have made addition and alteration in the premises thereby impairing the value and utility of the case premises? 3) Whether the opponents have sublet the case premises to Zulfiqar and Iqbal Ahmed? 4) Whether the case premises is required by the applicant No.1 for his personal bona fide use and good faith? 5) What should the order be?

6. Learned Rent Controller decided points Nos. 1 to 3 against the respondent but by answering point No.4 in affirmative, allowed the rent application and directed the petitioners to vacate the demised premises and hand over its possession to the respondents within sixty days. The petitioners assailed the said order of Rent Controller before the District Judge Karachi Central in FRA No.04/2013, who maintained the findings of the Rent Controller on points Nos.2, 3 and 4 framed above, however, reversed the findings on point No.1 and held that petitioners are defaulters in payment of rent and thereby dismissed the appeal directing the petitioners to vacate the demised premises within thirty days, The same order is impugned in this writ petition.

7. Learned counsel for the petitioners argued that the findings of both the Courts on the point of personal bona fide need of the demised premises by the respondent No.1 and his wife are not based on correct appreciation of evidence brought on record; that the respondent No.1 and his wife suppressed the material facts as they were already occupying the other shops and running their office; that admittedly the petitioners are depositing the rent in case No. 429/2002 within the knowledge of respondents Nos.1 and 2 (landlords) at the same rate in good faith, thus, the default at the best would be deemed to be technical in nature as being an irregularity not open for penal action. In support of his contentions learned counsel has placed reliance on the cases of

1. Major (Rtd.) A.S.K. Samad v. Lt.-Col. (Rtd.) A. Hussain and another (1987 SCMR 1013)

2. Noor Muhammad and another v. Mehdi (PLD 1991 Supreme Court 711),

3. Mukhtiar Ahmed v. Muhammad Saleem Bakhshi (1991 CLC 1017),

4. Muhammad Moosa Khawaja and another v. Haji Muhammad Umar (1995 MLD 1880),

5. Razia Sultana v. Water and Power Development Authority (1993 MLD 477),

6. Zaheer-ud-Din v. Riaz Ahmed and another (1991 CLC 1512),

7. Javed Khalique v. Muhammad Irfan (2008 SCMR 28),

8. Muhammad Hafeez and another v. District Judge Karachi East and another (2008 SCMR 398) and

9. Muhammad Imran v. Ghulam Mustafa (2015 SCMR 2683).

8. On the other hand, learned advocate for the respondents Nos.1 and 2 contended that for ejectment of a tenant from the demised premises, the only requirement of law is the proof of his bona fide need by the landlord, which stands discharged at the moment he appeared in witness box and makes such statement on oath if it remains un-shattered in cross-examination and unrebutted in the evidence adduced by the opposite party; that in this case the contentions of the respondent No.1 and his wife Mrs. Tanveer R. Asif given in affidavit-in-evidence, have not been shaken in cross-examination; that the findings of two Courts below on the point of personal bona fide need of the demised premises by the respondents are based on proper appreciating the evidence produced by the parties, as such, the jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of the Appellate Court. On the point of default in payment of rent, the learned counsel submitted that it is a matter of record that the petitioners were depositing the rent in the disposed of matter, in the name of their late father, nothing has come on record to show if after the withdrawal of earlier rent case, any of the petitioners offered the rent to the respondents in person or sent it through money order thus, the petitioners having full knowledge about the death of their father, have committed default in payment of rent which is bona fide and not technical one. In support of his contentions, he has relied upon the cases of

1. Shakeel Ahmed and another v. Muhammad Tarique Farogh and others (2010 SCMR 1925),

2. Bashir Ahmed v. Messrs Roots School Network through Administrator/owner and others (2011 SCMR 290),

3. Pakistan Institute of International Affairs v. Naveed Merchant and others (2012 SCMR 1498),

4. Jehangir Rustam Kakalia through Legal Heirs v. Messrs Hashwani Sales and Services (Pvt.) Limited (2002 SCMR 241),

5. Habib Bank Limited v. Anis Ahmed and 7 others (2001 SCMR 981),

6. Ghulam Akbar v. Abdul Rashid (1991 CLC 959),

7. Messrs Alam Educational Society (Regd.) v. Mst. Jamila and another (2008 YLR 1801),

8. Habib Bank Limited v. Ghulam Rasool and another (1997 MLD 820),

9. Noorul Amin v. Sheeraz Sori and others (2008 MLD 1299),

10. Samiullah v. Mian Muhammad Salim, District Judge, Rawalpindi and others (PLD 1966 (W.P) Lahore 572),

11. Abdul Haq and another v. Syed Basharat Ali (1985 CLC 1429),

12. Abdul Latif v. Syed Akhtar Ali and others (1993 CLC 1951),

13. Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs and 3 others (1994 SCMR 1507) (2),

14. Muhammad Ali v. Mst. Madina Bano and 2 others (1986 CLC 955) and

15. Ghulam Hussain through L.Rs. v. Court of Vth Additional District Judge, Karachi South and another (2009 CLC 272).

9. Arguments heard. Record perused.

10. Since two points in respect of subletting the demised premises by petitioners and making addition and alteration therein, have already been decided by two Courts below in favour of petitioners and the said findings of two Courts below have not been challenged by the respondents, I first take the point of default in payment of rent. It is an admitted fact in the written statement of the petitioners before the Rent Controller that they had been depositing the rent in rent case No. 429/2002 in compliance with order the passed on application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 initially filed by the respondents against the father of the petitioners, who was alive at that time. It is also admitted by the petitioner No.2 (Aijaz Ali) in his cross-examination that after the death of their father in year 2005 they continued depositing the rent in the said rent case in the name of their late father and did not file any application before the Rent Controller to become as a party therein.

11. It appears that even after the death of their father, the petitioners were depositing rent in a disposed of matter, without becoming a party in the said proceedings. The petitioners have not stated in clear terms that the respondents had refused to accept rent or were avoiding to accept the rent directly. Petitioners have not produced any proof regarding sending rent through money order or refusal of rent by landlord respondents. In the circumstances, the petitioners cannot be allowed to take benefit of the same that it was technical default. In this respect, reliance is placed on the cases of 'Abdul Malik v. Mrs. Qaisar Jehan' (1995 SCMR 204) 'Mehmood Ali v. Rashidullah Samma' (PLD 1996 Karachi 351). Nothing has been brought on record that the finding of the first Appellate Court is based on misreading and non-reading of evidence brought on record or any misinterpretation of law.

12. So far as the personal bona fide need of demised premises by the respondent No.1 and his wife is concerned, on this point there are concurrent findings of Rent Controller and the first Appellate Court. The respondents/landlords in their rent case have taken up specific plea of their ownership in respect of entire building constructed on Plot No.5-C, 14/1, Nazimabad, Karachi and the petitioners' are admittedly tenants in respect of shops Nos.1 and 2 of the above building. It is specifically pleaded in Para-9 of the rent application that the respondent No.1 requires the shops in question in good faith for his own use and occupation as well as for the use and occupation of his wife namely Mrs. Tanveer R. Asif who has also passed LL.B examination and is enrolled as an advocate on 21.04.2006 and they both being enrolled advocates wanted to start their independent practice and for the above purpose, the shop in question is required to them in good faith for establishment of their own office. In his affidavit-in-evidence, respondent No.1 Muhammad Asif, in Paras Nos.28 and 29, has clearly stated that he is practicing and as an enrolled advocate of High Court and is presently associated with M/s M.G Dastagir advocates and on getting possession of demised premises, he would start independent practice along with his wife. This version of respondent is supported by his wife Mrs. Tanveer R. Asif in her affidavit-in-evidence, wherein she has clearly stated that she is an enrolled advocate and has brought on record a copy of her enrolment certificate. She has stated that the shops in question are required by them in good faith for their personal use as she and her husband intends to start independent practice. Respondent No.1 in his cross-examination has denied all the suggestions made by the petitioners regarding having another shop for running their office.

13. On this point the main contention of the counsel for the petitioners is that the respondents have some other shops and no explanation has been given as to why these particular shops in question are required by them, as such, their requirement is not genuine but mala fide. This submission of learned counsel for petitioners is devoid of force for the reasons that the choice of the building is prerogative of the landlord and tenant or the Rent Controller are not allowed to decide its suitability, therefore, for the suitability the version of the respondents set up in the rent application is fully corroborated in evidence produced by them, and no restriction can be enforced upon the land lord. In this context, I am fortified by case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others' (2010 SCMR 1925). In this case the Honourable Supreme Court has also held that Appellate Court was the final authority under Sindh Rented Premises Ordinance, 1979 and constitutional jurisdiction cannot be invoked as substitute to another appeal against such order. The citations relied upon by the learned petitioners' counsel, being based on different facts, are not relevant to the facts and circumstances of this case.

14. 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 order of learned Appellate Court, consequently, this petition is dismissed along with listed applications. However, the petitioners as being old tenants for making their alternate arrangement, are hereby allowed three months' time for vacating the demised premises and handing over its vacant and peaceful possession to the respondents. MQ/S-14/Sindh Petition accepted.