2017 PLP 63 (YLRN)

MUHAMMAD IQBAL KALHORO, J.

Petitioner is aggrieved by the concurrent findings recorded in Rent Case No.1910/2007 filed by the respondent No.1 in respect of Shop No.5 Mehboob Manzil (Roshan Manzil) constructed on R.C. 5/115 Ranchhore Lane, Jameela Street, Jobli Karachi on the grounds of impairing utility of said shop, personal bona fide need and default in payment of rent. Petitioner resisted the case by submitting his written objections denying all the above stated grounds. The case was, however, decided in favour of respondent No.1 vide order dated 24.12.2009, whereby, the petitioner was directed to vacate the shop within 60 days. Petitioner challenged the same in F.R.A. 139/2010, which was decided vide impugned judgment dated 13.04.2011 and this time also the petitioner was directed to handover possession of the said shop to the respondent No.1 within 60 days. Petitioner was still dissatisfied, and by means of this petition has impugned both the judgments.

2. Mr. Haq Nawaz Talpur advocate argued that both the courts below did not appreciate the evidence available on record; that it was a case of misreading and non-reading of evidence and the two courts below while deciding the case had misdirected themselves by assuming that burden was on the petitioner to disprove the grounds taken by the respondent No.1 in his rent case. Learned counsel stated that under Article 117 of Qanun-e-Shahadat Order, 1984 the burden to prove a fact was on the person who desired the court to give judgment as to any legal right dependent upon existence of such fact and therefore it was duty of the respondent to prove the grounds of his ejectment application and not that of the petitioner to disprove them. Learned counsel also read out the relevant portions of the evidence to establish his case that the respondent had failed to prove default in payment of rent against the petitioner, and his case on the ground of impairing the value of the shop was not supported by any evidence. In regard to the ground; of personal bona fide need, his contention was that respondent in his cross-examination had admitted that in the said building he had two other shops which were lying vacant and therefore, according to him, in such circumstances, the ground of requirement of the shop for personal bona fide need by the respondent was not made out as the respondent was already in possession of the two shops situated in the same building. In support of his arguments, he relied upon 2010 SCMR 1630, 2005 CLC 101, PLD 1971 SC 730, 1989 CLC 599 and 1986 SCMR 1844.

3. On the other hand, learned counsel for the respondent submitted that in constitutional jurisdiction the disputed facts could not be attended to; that two courts below had examined the contentious facts between the parties, and had decided the case in favour of the respondent. According to him, such concurrent findings could not be interfered with unless it was shown that the courts below had not exercised jurisdiction in accordance with law. His case was that respondent No.1 had proved all the three grounds on the basis of which he had filed ejectment application. In support of his arguments, he relied upon 1987 SCMR 511, PLD 2006 SC 214, PLD 2014 Sindh 194 and 2013 CLC 280.

4. I have considered the submissions of the parties and perused the record, and have also taken guidance from the case laws cited at the bar. It is obvious that the rent case was filed on three grounds, which are, impairing the value and utility of the shop, personal bona fide use and the default in payment of rent. Learned counsel for the petitioner in his arguments emphasized that both the courts below had wrongly assumed that burden was on the petitioner to disprove the facts agitated by the respondent. He had in this regard referred to Article 117 of Qanun-e-Shahadat to establish his case. It may be observed that in rent cases the burden of the landlord to prove his personal bona fide need of the premises stands discharged the moment he appears in the court and gives evidence on oath or file affidavit in evidence in support of his plea, if it is un-shattered in the cross-examination. Learned counsel for the petitioner was not able to show that the statement of respondent No.1 to the effect that the shop was required for personal use where his would do business stood rebutted. Although in this regard he referred to cross-examination of the landlord disclosing possession by him of two other shops lying vacant in the same building, but it has also come on the record those shops are inside the street and not suitable for a kind of business his son would be doing. Even otherwise, it is the prerogative of the landlord to choose any of the premises which is suitable for his personal use and to it the tenant has no right to raise any objection. Pleadings of the parties also show that although the petitioner has denied the default in payment of rent but there is no proof that he had paid rent of the shop from January 2005, to June, 2005. His stance is that although he had paid the rent but the respondent had not issued any receipt during that period and subsequently in the month of August, 2005 he sent rent of July 2005 to respondent No.1 through money order, and thereafter in September, 2005 he started paying rent through MRC. It is thus clear that in regard to payment of rent from January, 2005 to June, 2005 the petitioner has no documentary proof to offer, and to discharge his burden in this regard he has taken a specific stance. And when a party takes a specific stance in his defense the burden lies on him to prove it because if no evidence from either side is given on that particular fact, it would be the party who asserts such fact, which would fail. The record does not indicate that petitioner has been able to prove his plea of making payment of rent for the above months. The respondent No.1 has admitted receiving rent of the shop up to December 2004, and thereafter as per his stance the petitioner committed default. And exactly in consonance with such statement, the petitioner possesses rent receipts up to December 2004, and thereafter he has made a claim that rent receipts were not issued to him but his claim, record reveals is unsubstantiated.

5. Both the courts below have exhaustively dealt with the factual controversies between the parties in the light of their evidence. Learned counsel was not able to establish any irregularity or illegality in exercise of jurisdiction by the two court below. I therefore do not see any reason to interfere in the concurrent findings recorded in the matter in the constitutional jurisdiction. The petition is meritless and was dismissed vide short order dated 24.05.2016 and above are the reasons whereof. ZC/M-115/Sindh Petition dismissed.