2013 PLP 1200 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

The captioned constitutional petition has been filed under Article 199 of the Constitution of Pakistan, wherein the petitioners have assailed the legality, validity and propriety of the concurrent findings of both learned lower Courts below, whereby the eviction order of petitioners from tenement i.e. Shop Nos.1 and 2 of Fatima Shopping Centre, Khisakpura, Mirpurkhas, has been passed. The ejectment of petitioners/tenants was sought by respondents on the ground of wilful default in payment of rent and personal bona fide requirement. Petitioners have sought relief that the impugned orders dated 28-9-2009 and dated 26-3-2010 passed by the Rent Controller in Rent Application No.6 of 2009 and learned District Judge Mirpurkhas in F.R.A. No.1 of 2010 may be set aside.

2. From perusal of the record, it appears that in the month of January, 1997, the tenement was rented out to petitioner No.1 at the monthly rent of Rs.550 which was subsequently enhanced to Rs.1000, to be paid on 5th of each Calendar month. The landlord/respondent No.1 was issuing receipt for payment of monthly rent. It was submitted that petitioner No.1 has paid monthly rent of premises till February, 2008 and failed to pay monthly rent from March, 2008 and onwards and thus has committed default in payment of rent though such demands were regularly being made by the respondents/landlords repeatedly. Another ground which was taken by the landlords/respondents for ejectment of the petitioners was that the respondents were doing private job/service and lost jobs and for the last four months the landlords/respondents have been requesting the petitioners to vacate the premises and put them in vacant possession thereof as the same was required by them for their own use and occupation in good faith but the tenants/petitioners kept them on false hopes and finally they refused to vacate the shops in question and to hand over its vacant possession and also failed to pay the rent from March, 2008.

3. Third ground urged by the respondents for their ejectment was that the petitioners have been running their business in premises but for the last one month or so have divested themselves of possession and tenancy of premises in question and handed over its possession to petitioner No.2 who is doing his own business at two other places/shops as well.

4. The petitioners have denied the allegations levelled against them and stated that they were regularly paying the rent and there was no default at all. They have further contended that the premises is not required by the landlords/respondents for their personal bona fide requirement and stated that earlier the case premises were on rent with one Abdul Rasheed since the year 1985 with the option to the tenant to give the same to anyone on rent, with the consent of landlord with the increase of 10% in rent.

5. On pleadings of the parties, the learned Rent Controller has settled following points for determination:-- (1) Whether opponents have committed wilful default in payment of rent? (2) Whether the opponent No.1 has sub let shops in question to opponent No.2 without knowledge and consent of the applicants? (3) Whether applicants require premises in question for their personal bona fide use? (4) What should the decree be?

6. With regard to wilful default in payment of rent, the assertion made by the respondents/landlords was that the petitioner No.1 has failed to pay the rent since March, 2008 onwards and thus he has committed default in payment of rent which other side has vehemently denied and stated that the tenant is not defaulter of payment of rent since the month of March, 2008 but it was the respondent No.1 who with his mala fide intention did not issue the receipts of rent for the month of January, 2008 to May, 2008 though the opponent No.1/ petitioner has paid such rent for these months regularly and the respondents/ landlords have refused to receive the rent for the month of June, 2008 which was sent through money order but it was returned un-disbursed and thereafter, the petitioners started depositing rent in the Court. The learned Rent Controller observed that the money order Receipt No.1764 shows that rent for the month of June was paid on 24th of July, also Court receipt issued on 20-8-2008 shows payment of rent from June, 2008 to December, 2008, on 20-8-2008, with delay of about two and half months in payment of rent which is admitted by opponent No.1 in his evidence, cross-examination to counsel for the applicant, therefore, it can be said that opponent/tenant has made wilful default in payment of rent.

7. With regard to personal bona fide use of the premises, the learned Rent Controller observed that the shops in question were given on rent by father of applicant to one Abdul Rasheed who let out it to Muhammad Siddique without knowledge and consent to the owner/ landlord and further that landlords who have been doing private job are now without job and for last four months they were requesting the petitioners to vacate the premises and put them in vacant possession thereof, as the same tenement is required for their use and occupation in good faith. The petitioners were avoiding to give any positive reply and thereafter refused to vacate the same and hand over its vacant possession. The respondents have submitted that the premises in question is required by them in good faith for their personal bona fide use.

8. The learned Rent Controller observed that in view of the contents of rent application and evidence of the respondents that they are jobless and they require rented premises for their personal bona fide use, which fact was also admitted by the petitioner No.1 in the written reply stating that the respondents are doing private job and if the respondents had an intention to run their business of cloths they can do so in their large size shops situated in the ground floor and they recently about one month ago have rented out the large size shops to one Saleem Qadir who is their relative just for the sake of filing the ejectment application. The learned Rent Controller placed reliance on the case-law reported in PLD 1995 Lahore 470, wherein it was held that landlord has prerogative to select any one of his properties for his use and neither the tenant nor the appellant has any right to insist that he should occupy some other property. In another citation reported as 2004 MLD 587 Karachi it was held that mere statement of landlord to the effect that he needed premises in question for his personal need should be sufficient proof of personal bona fide need of the landlord.

9. While deciding First Rent Appeal No.1 of 2010, the learned District Judge, Mirpurkhas in his judgment dated 26-3-2010 has maintained the order of learned Rent Controller and observed that the respondents have claimed that the petitioner No.1 paid rent till February, 2008 and has failed to pay the rent from March, 2008 and then offered rent for the month of June, 2008 which respondent No.1 has refused and he did not receive any money order and lastly he used to deposit monthly rent in Miscellaneous Rent Application No.36 of 2008, therefore, it is an admitted position that there is no rent receipt with the petitioners to show that they have made payment of rent for the months of March, April and May, 2008. The claim of the petitioners that the respondent No.1 did not issue rent receipt due to non-availability of receipt book seems to be without force as the respondent No.1 has produced receipt book in evidence which shows that there were still many blank receipts available in the receipt book. The appellants-petitioner alleged that when the respondent No.1 refused to receive the rent, he sent rent amount for the month of June, 2008 through money order but the money order coupon produced on record as Annexure-D shows that it was sent on 24-7-2008, though in terms of agreement, the rent was liable to be paid by 5th of each calendar month. Again money order coupon shows that the appellant No.1-petitioner sent rent for the two months namely July and August, 2008 on 4-8-2008 without including the rent for the month of June, 2008 and thereby they had not sent rent for the month of June, 2008. The petitioners by their conduct seems to be negligent even in sending the rental amount through money order. Burden to prove that the rent was actually tendered to the landlord always fell on the shoulder of the tenant and such burden shall not be discharged by the presumption as stated by the petitioners. The petitioners have not only alleged that the rent receipts were not being issued by the respondent No.1 but they also alleged that they made payment of rent till May, 2008 and thereafter the respondent No.1 made enhancement of rent, therefore, negotiations were held and rate was settled and formal agreement was executed but in the month of July, 2008 the respondents filed this ejectment application. From the above discussion, learned appellate Court came to the conclusion that the petitioners/ tenants have failed to prove that they had actually tendered the rent to the respondent No.1 from the month of March, 2008, therefore, the findings of the learned Rent Controller to the effect that the appellant No.1-petitioner committed default in the payment of rent requires no interference.

10. As far the findings of the learned Rent Controller in respect of subletting the rented shops is concerned, the learned appellate Court had set aside the findings, however in respect of personal bona fide use for the establishment of cloth business by the respondents, the learned appellate Court answered the point in determination in affirmative due to the reasons that it is the discretion of the landlord to select premises of his own choice for establishment of his business and the suitability or sufficient of premises for landlord cannot be determined by the tenant, particularly the respondent No.1 in his affidavit in evidence has stated that he and his brother are jobless and the rented shops are required by them in good faith for their personal use. The petitioner-tenants have not been able to shake the evidence of respondent No.1, so as to prove that the rented premises are not required by the respondents in good faith for their personal use. The contention of petitioners that since the respondents have let out their another shop, they deemed to be not in the need of rented shops for their personal use, is without force, for the reason that the respondent No.1 in his evidence has stated that their another premises is not a shop but it is a godown. The learned appellate Court placed reliance on case-laws wherein it has been laid down that mere statement of landlord to the effect that he needed premises in question for his personal need would be sufficient proof of personal need of landlord and selection of the premises is the discretion of the landlord and tenant could not determine the suitability of premises for the landlord as held in reported case-law 2003 SCMR 1398.

11. I have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record.

12. Mrs. Razia Ali Zaman Khan, representing the petitioners agitated the similar grounds which were earlier taken before learned lower Courts below and decided by the learned Courts. It is urged that in cross-examination respondent Muhammad Riaz has stated that he has filed the application only for enhancement of rent, therefore, the other grounds raised by the respondents for ejectment of petitioners are not tenable in law. It is a lengthy cross-examination of respondent Muhammad Riaz wherein he has stated that his father used to issue receipts of rent and thereafter he started issuing the rent receipts. He has further stated in cross that "I am not ready to continue shops to him on rent in case of enhancement of rent amount." Further stated that after death of his father, he did not make any new rent agreement with the opponents and that before filing of the rent application in the Court a 'Faisla' was made on the point of enhancement of rent which was settled and the opponents/ petitioners are increasing rent since 1997 with mutual consultation. He has denied that the opponents/tenants have paid rent till June, 2008 and that he had not issued receipt to them. In cross, he has also denied that the opponent also offered him to pay rent for the month of July and August, 2008 but he refused to receive, therefore, the admission with regard to enhancement of rent by respondent No.1 is based on some misunderstanding or this may be a typographical mistake. The respondent No.1 has further stated in cross that he needs the premises for his personal bona fide use as being unemployed he filed this rent application. He has denied that he along with his brother are running their own business and earning money and are not in need of personal use of their shop. In the last of his cross-examination he has denied that the opponents have not defaulted in payment of rent.

13. On the other hand, opponent Muhammad Siddique admitted in cross examination that he does not remember the dates of sending money order and after seeing the money order receipts, he has affirmed that the date of money order is 24th July, 2008. He has further stated that he do not remember the date from which he is paying the rent in the Courts and that he also does not remember for how many months he paid the rent in the Court. Voluntarily said, it might be of two or three months. He has admitted that he paid the rent amount in Court for the period from June, 2008 to December, 2008 and this rent application was filed on 7-7-2008. He has admitted that he did not deposit the rent amount from month of March, 2008 in the Court. Further admitted that his brother Rafique has remained member of Parliament on the ticket of Mutahida Qaumi Movement and he does not know whether criminal cases were filed against his brother Rafique.

14. It is an admitted position that there are concurrent findings of the fact recorded by both learned lower Courts having jurisdiction and the High Court in writ jurisdiction could not interfere with such findings particularly when no illegality or impropriety is pointed out. With regard to willful default in payment of rent sufficient material has been brought on the record that there was intentional and deliberate default for about three months period as the burden of proof lies upon the petitioners that they have tendered the rent due, by them, as required under the Sindh Rented Premises Ordinance, as the non-payment of rent is a negative aspect and if the landlord appears in Court and states on Oath that he has not received the rent for the certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. Reliance in this respect may conveniently be placed on the case of Allahdin v. Habib (PLD 1982 SC 465). In the case of Alifdin v. Khadim Hussain 1980 SCMR 767, the fact that the landlord had in the past been accepting the rent after due dates does not mean that the relevant term in the lease deed had become inoperative. In the mentioned citation, it was held that rent deed stipulating payment of rent on 5th of every month in advance, terms of deed would continue in spite of absence of agreement and the default would occur if rent is not paid within 15 days of date specified in lease agreement. In the case of Sulleman v. Karim (PLD 1986 Karachi 344), a dictum laid down by this Court is that duty is upon the tenant to produce evidence to satisfy Court that he has not committed the default. In the case of Syed Arshad Ali Hashmi v. Khursheed Begum (2001 CLC 690), similar view has been taken by this Court with regard to default in payment of rent and held that non-payment of rent was a negative fact and once the landlord stated on Oath to have not received the rent for specific period, the burden to prove would shift upon the tenant who had to prove affirmatively to have paid or tendered the rent. Reliance is being placed on a decision reported in PLD 1982 SC 465 and 1997 CLC

216. The respondent No.1-applicant has specifically stated that the petitioners/tenants had not paid rent since March 2008. As mentioned supra, the petitioner No.1-tenant has shown his ignorance in respect of default in payment of rent, in his cross-examination. The findings of both the learned lower Courts are based on the material and evidence available on the record. The default is admittedly there. The petitioners-tenants have not produced any documentary or oral evidence to show that the rent was paid for the mentioned period, therefore, I have no hesitation to hold that the petitioners were defaulter in the payment of rent for the disputed period from March, 2008 to May, 2008.

15. From the perusal of the record, it appears that respondents have discharged initial burden, stating on oath that they require premises in good faith for their personal use as being jobless they have to run business. It further appears that the case of the respondents was consistent throughout and the statements on oath made by the respondents were not shaken in cross-examination nor any evidence to the contrary was brought on record. Examination of judgment passed by the learned Rent Controller shows that he had taken care of all the material evidence available on record and the findings were recorded strictly in accordance with the rule laid down by the honourable apex Court. Whereas the findings recorded by the learned appellate Court were also in line with the evidence on record and in consonance with the judgment of the honourable Supreme Court of Pakistan on the point of personal bona fide use. To deal with above aspect of the matter, it will be advantageous to refer some of the judgments rendered by the honourable Supreme Court of Pakistan on the point of personal bona fide use of the landlord. The Expression "Good Faith" has been dealt with in detail by the Hon'ble Supreme Court of Pakistan.

16. In the case of Mst. Shirin Bai (2006 SCMR 117), relied by learned counsel for the petitioners, the expression good faith has been extensively dealt with by the honourable Supreme Court of Pakistan as under:-- "8. "Good faith" means an honest act. Honesty is a state of mind and is capable of proof or disproof only by evidence of conduct. If requirement of landlord is found to be genuine, Rent Controller is bound to order eviction of tenant notwithstanding the fact that he had also made a demand for enhancement of rent or any other demand from the tenant. The expression "good faith" is abstract term not capable of any rigid definition. The ordinary dictionary meaning of the expression "good faith" is honesty of intention and, therefore, what is required under clause (vii) of subsection (2) of section 15 of the Ordinance is that the landlord should have a genuine need of the premises, which should certainly be more than a mere wish or desire. The expression "good faith" has been used in the Ordinance purposely meaning an act performed honestly without fraud, collusion or participation in wrong doing. The words "desire" or "need" have not been used, which would negate the two extreme views which are pleaded in cases of this nature. The expression "good faith" employed in clause (vii) must be interpreted in the light of definition thereof as embodied in section 2(28) of the West Pakistan General Clauses Act, 1956, which provides that "a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not". Strictly speaking it means honesty and when a person is in occupation of another premises, generally speaking he cannot be said to be acting honestly when he asks for another premises unless the premises in his occupation is not sufficient for his need. Mere whim or fancy, wish opr convenience of the landlord should not be adequate to demonstrate that the landlord requires the premises in "good faith". He must plead and prove his requirement by sufficient and satisfactory evidence inspiring confidence. It is a state of mind, which may be inferred from circumstances attending to each case and Courts ordinarily accept requirement of landlord without imputing bad faith unless strong circumstances indicate to the contrary. Right of landlord to claim possession from a tenant is regulated by Rent Controller only to the extent to examine whether the request of landlord for possession is inspired with "good faith", or is frivolous or mala fide. Sufficiency or insufficiency of accommodation available with a landlord is a matter of individual taste and discretion with which neither Controller nor the Appellate Authority would ordinarily interfere. All that Controller has to see or the Appellate Authority has to examine is whether the landlord requires the premises in "good faith" for his own occupation or use or for occupation or use of his spouse or any of his children. Expression "require the premises in good faith" cannot be confined to precise, identical and invariable definition nor any hard and fast rule can be propounded as to encompass all possible eventualities which could arise due to particular facts and circumstances of a case. Bona fide requirement cannot be turned down simply on assumption of tenant that proposed business could not be carried out profitably in the tenanted premises. Even otherwise, it is a fundamental right of landlord to shift his business or to change its nature so long it remains lawful and not against the public interest. "Good faith" means bona fide, which would show reasonableness of requirement of landlord whereas mala fide would mean that case has been brought with some ulterior or collateral purpose. Where landlord wants to carry on his business in his own premises, instead of rented accommodation, to deprive him of the use and enjoyment of his property would be against all canons of justice unless he is expressly prevented by law from carrying on such business or there are circumstances to reflect that his need is not bona fide. Once a landlord has elected to live in his own house or start a business in the premises earlier let out on rent, his demand for eviction of the tenant would be presumed to be bona fide and founded on "good faith" unless mala fide is alleged and proved by the tenant. Suitability of requirement of landlord to commence a lawful business in the premises in dispute can by no stretch of imagination be said to be mere desire rather than bona fide need. In law a landlord is required to discharge his onus and to satisfy the conscience of the Controller that his requirement is based on "good faith" and is bona fide. Once a landlord is able to satisfy the Controller about the truth and genuineness of his requirement, the latter is left with no discretion but to order ejectment of a tenant irrespective of the fact that it would result in uprooting its long standing trade or business. In Iqbal Book Deport (supra), it was, inter alia, held that where the statement on oath was quite consistent with the averments of the landlord in the ejectment application and the same had neither been shaken nor anything had been brought in evidence to contradict the statement, such statement on oath would be considered sufficient for acceptance of the ejectment application. It was also observed that "good faith" of landlord being a question of fact, finding on the issue could not be taken exception to unless it was shown that finding suffered from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. Likewise in F.K. Irani and Co. (supra) statement of law was reiterated to the effect that suitability of opening a departmental store by landlord, in any one of the available premises, entirely depends upon the choice of the landlord. It was cautioned that such need and choice, however, should be real, genuine and not tainted with mala fide. In Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846, it was observed that there appears to be no legal impediment in the way of landlord if he wanted to start business in the demised premises in spite of the fact that he is a rich man and has no children. Sajjad Ali Shah, J. (as his Lordship then was) remarked that the landlord can do whatever he liked with his property and if the interest of the tenant was involved because property of landlord was rented out to him, then his rights are protected under the law. If landlord did not contravene the provision of rent law, which allows him the relief, it would not be open to the tenant and even for that matter to the Court to make a comment as to what landlord should do or should not do. In Imran Ahmed (supra), right of the landlord to seek eviction of his tenant on the ground of personal requirement in good faith for his own use or for the use of his spouse or children was fully recognized by this Court without any unreasonable restriction. In Jehangir Rustam Kakalia v. Haswani Sales and Services (Pvt.) Limited 2002 SCMR 241, this Court candidly held that a landlord of the demised premises cannot be deprived of his right and interest to use his property in a manner more suited to his requirement. It was expressly laid down that no unreasonable restriction can be placed on the exercise of such right, which would offend the fundamental rights guaranteed under Article 23 of the Constitution."

17. In the case of Jehangir Rustam Kakalia (2002 SCMR 241), the honourable Supreme Court of Pakistan while dealing with the personal bona fide need of landlord has observed at paragraph 8 as under:-- "Adverting to the submissions advanced by Mr. R.F. Virjee, Advocate Supreme Court we are of the view, that the respondents being owner and landlord of the demised premises could not be deprived of their right and interest to use their property in a manner more suited to their requirements. No unreasonable restriction can be placed on the exercise of their right which would offend the fundamental rights guaranteed under Article 23 of the Constitution. As regards the argument that the provisions of Ordinances, 1959 and 1979 were misinterpreted, learned counsel was unable to reinforce his submissions by any specific piece of evidence. Likewise, insinuation against the respondent that it had sold out other properties after seeking ejectment orders from the Court, could not be substantiated by the material on record."

18. In another case of United Bank Limited v. Mrs. Alafia Hussain (1999 SCMR 1796), the honourable Supreme Court of Pakistan while dealing with the personal bona fide need of landlord has dealt with the issue in the following words:-- Paragraph 8:-- "This Court has laid down through its earlier pronouncements that in the case of personal requirement of the landlord, the initial burden for the landlord to prove his bona fides is very light and what is required to be considered by the Court in this regard is that the evidence adduced on the landlord's behalf if unshakable and consistent with the averments made by him in the ejectment application. In that case the burden would shift to the tenant to establish that the claim of the landlord is not bona fide. In Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178) it was held by this Court that desire of landlord to establish and run a departmental store in the premises occupied by tenant could not be ruled out unless was cogent evidence and sufficient proof that it was not possible and practicable to run such a business. Otherwise the Court would be inclined to hold that requirement of the landlord was bona fide. It was further held in this case that on the issue of personal need if the statement of the landlord is consistent with ejectment application and the same is not shaken in cross-examination or dislodged in rebuttal, such statement would be sufficient to prove his bona fides. In Juma Sher v. Sabz Ali 1997 SCMR 1062, the requirement for the landlord to disclose nature of business which he intends to start in the premises or to show experience in any trade or business which he intends to set up in the premises after eviction of the tenant was held to be unnecessary."

19. Similarly in another case of Iqbal Book Depot and others (2001 SCMR 1197), the honourable Supreme Court of Pakistan, while dealing with the discretion of the landlord who alone has the authority to decide as to whether which tenement suits to his requirement, has dealt with the point in issue in the following words:-- "We have also dilated upon the question as to whether the entire building would be needed or a part of and, we are of the view it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advisers. In this regard we are fortified by the dictum laid down in 1968 SCMR 1087. Let we mention here at this juncture that "the real test whether a premises is required for personal use is whether the need is bases on good faith. This being a question of fact and finding on this subject cannot be taken exception to unless it is shown that it suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence." 1978 SCMR

437. Nothing solid or concrete could be brought in rebuttal by the appellants showing that the need of landlord is imaginary or based on mala fide."

20. In the case of Mehdi Nasir Rizvi (2000 SCMR 1613), where desire of the landlord to use his own property was not seriously challenged and no material was brought on record to establish the mala fides on the part of the landlord, the honourable Supreme Court of Pakistan while dealing with the absolute right of landlord to acquire and deal with his property in the manner best suited to him and tenant had no right to disentitle the landlord of his valuable right to acquire, deal and possess his property which right is again guaranteed by Article 23 of the Constitution, has dealt with the issue in the following terms:-- "There is no circumstance available on the record tending to show that the desire of the respondent to use his own property is tainted with malice or any evil design. In fact respondent's statement on oath has not been seriously challenged and in law it being consistent with the case pleaded by him must be accepted on its face value and given due weight. In the absence of any strong evidence to rebut the presumption of truth in the statement of the respondent it is difficult to dislodge the conclusion drawn by the learned Rent Controller as well as the learned High Court. It is well well-settled that the landlord has the absolute right to acquire and deal with his property in the manner best suited to him and a tenant has no right to disentitle the landlord of his valuable right to acquire, deal and possess his property which right is again guaranteed by Article 23 of the Constitution."

21. In another case of Shakeel Ahmed and another (2010 SCMR 1925), the honourable Supreme Court of Pakistan has held as under:-- "It is well-settled principle of law regarding appreciation of evidence that the evidence adduced by the parties is to be read, evaluated and assessed as a whole, and the impact of the evidence of an individual witness is also to be gauged in the same manner. In the instant case, there is categorical statement on behalf of appellant No.1 Shakeel Ahmed about his personal need of the rented shop, which has remained unshattered in his cross-examination and unrebutted in the evidence of opposite party . . . . . For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of his bona fide need by the landlord, which 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 as prescribed by law, if it remains unshattered in cross-examination and unrebutted in the evidence adduced by the opposite party. If any case law is needed to fortify this view, reference can be made to the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCMR 593), wherein the opinion of I. Mahmood, J. (as he then was) in the case of Hassan Khan v. Munawar Begum (PLD 1976 Karachi 832) to the same effect, was approved."

22. In another case of Zarina Ayaz v. Khadim Ali 2003 SCMR 1398, the honourable Supreme Court of Pakistan has held as under:-- ". . . . . . . .The only question that requires to be determined is as to whether, in the given circum-stances, the personal need of the landlady is bona fide or not. It appears that different verdicts of this Court on the subject rendered from time to time have escaped the notice of the Rent Controller as well as the High Court. In Muhammad Abdul Rauf v. Mst. Mahmooda Begum (1995 SCMR 1960) a landlady though living with her husband in a better house and yet sought ejectment of her tenant on ground of personal need. The interference drawn by the Rent Controller that in the circumstances her plea was mala fide, was held by this Court to be palpably erroneous and unsustainable, for, a wife could independently hold property and had a right to live in her own house. The repeated verdicts of superior Courts in general and the Supreme Court in particular have almost become absolute on the point that even if a landlord has many premises in a vicinity, it is his own subjective approach, choice and decision as to which one in particular is desired to be occupied. No one else has a right to interpret the circumstances from his own point of view and by making allusions to different attending circumstances of the case. In the instant case, the other bungalow stated to have been vacated and not occupied by the appellant, is one that belongs to her husband and not to herself. If she in her own discretion intends to take up residence in her own house, the intention could never be doubted for the reason that the husband's house was not occupied. In law, the two ownerships are altogether different as well as independent from each other. We are of the view hat the factual background in the instant case was not properly taken to its logical and legal consequence by the two forums."

23. From the perusal of above case laws on the subject, it can safely be concluded that no unreasonable restriction can be placed on the right of landlord which would offend the fundamental rights guaranteed under Article 23 of the Constitution. It is settled that the initial burden for the landlord to prove bona fide is very light and what is required to be considered by the Court in this behalf is that the evidence adduced on behalf of the landlord if unshaken and consistent with the averments made by him in the ejectment application, in that case the burden would shift to the tenant to establish that the claim of the landlord is not bona fide. The real test whether the premises is required for personal use is whether the need is based on good faith. This being a question of fact and finding on the subject cannot be taken exception to unless it is shown that it suffers from violations of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. Nothing solid or concrete evidence could be brought on record in rebuttal by the petitioners showing that the need of the landlord was imaginary or based on mala fide. It has consistently been held in plethora of judgments by Apex Court that while dealing with the absolute right of a landlord to acquire and deal with his property in the manner suited to him, it has been continuously held that tenant had no right to disentitle the landlord of his valuable right to acquire, deal and possess his property which right is again guaranteed by the Constitution of Pakistan. The only requirement of law is the proof of bona fide need by the landlord, which stands discharged the moment landlord appears in the witness box and makes such statement on oath or in the form of affidavit-in-evidence as prescribed by law, if it remains unshattered in cross-examination and unrebutted in the evidence adduced by the opposite party.

24. Learned counsel for the petitioner relied on three citations i.e. 2006 SCMR 117, 2008 CLC 1271 and 1987 CLC

686. Law laid down in the case of Mst. Shirin Bai (2006 SCMR 117) has been discussed at Paragraph 16/ante, however the remaining two rulings are not attracting in the circumstances of present case.

25. Crux of the aforementioned discussion is that the learned counsel for the petitioners did not succeed to show any illegality, gross irregularity or infirmity in the findings recorded by both learned courts below. On the other side, learned counsel for respondents/landlords has successfully established on record that the concurrent findings recorded by both the learned lower Courts below are strictly in accordance with law and the evidence available on record. Accordingly, the impugned orders being sustainable in law are upheld. In view of what has been stated above, particularly in light of the aforementioned case law, the ejectment is passed in favour of the respondents, directing the petitioners to handover the possession of the premises in dispute to the respondents. They are, however, allowed one month time to vacate the shops. There shall be no order as to cost.

26. Petition is disposed of in the manner and term mentioned above. MH/M-22/K Petition dismissed.