2004 PLP 1738 (YLR)

3. The respondent/landlady's case is that, the petitioner was put in as a tenant, in respect of the ground floor of the premises known as Pir Hussain Bux Building, 180 Changomal Street, Soldier Bazaar, Karachi, by her late husband at the monthly rent of Rs.125, excluding utility charges. The petitioner failed to pay rent of the premises since 1982, as a result of which the bills accumulated to Rs.82475.15 Paisa. Further, that the petitioner was a willful defaulter in payment of rent since 1982.

4. That, the respondent's son is a Gadi Nasheen of Dargah Luwaari Shareef with large number of followers/Mureeds all over the country and India, who visit them alongwith their families and stay in the premises in question, but due to shortage of accommodation, was facing great inconvenience in housing them. The case of the respondent, further, is that her son who is aged more than 27 years, proposes to marry within few months, therefore, his son would be requiring the premises for his personal use. The respondent also alleged that the petitioner was negotiating with a third party and there was apprehension that the petitioner might sublet or deliver the possession of the premises to‑some one, on a handsome good‑will and leave the country.

5. The petitioner filed his written statement and denied the averments made in the rent application and stated that a portion of the ground floor was rented out to her. Her case was that in the middle of August, 1973 an agreement between the parties was executed, whereby, an amount of Rs.42000 was paid to the respondent as Pugree. It was added that there was a sub‑meter fitted on the ground floors and the respondent used to collect the electric charges from the petitioner, also the monthly rent of the premises was being deposited in Court in M.R.C. No.230 of 1993. It was stated that the respondent was possessing 1st and 2nd floors of the premises alongwith half portion of the ground floor and such accommodation was sufficient even for two or three big families. It was prayed that the case of the respondent be dismissed.

6. The respondent/landlady examined her attorney Ghazi Khan (Exh.A.1), and two other witnesses namely Budhal (Exh.A.2) and Muhammad Yaqoob (Exh.A.3) followers of Peer of Luwaari Sharif. On the other hand the petitioner examined herself (Exh.O.1) and her son Haider Ali (Exh.O.2).

7. The learned counsel for the petitioner argued that the impugned judgments are bad on facts and law; that both the lower Courts have failed to apply their mind to the evidence on record. On the ground of personal requirement of the property, it was argued that the respondent No. 1, was first of all required to prove that she was the owner of the property, and that the ground of personal use was not bona fide one. The main contentions raised on behalf of the petitioner were, thus, that none other than the owner is competent to file an ejectment case and secondly that the respondent/landlady had already in her occupation sufficient accommodation. Reliance was placed upon the cases reported as:‑‑ (1) 2001 MLD 1183, (2) PLD 1978 Karachi 188, and (3) PLD 1985 SC 1.

8. The counsel for the respondent argued that the contentions raised in support of the petition were misconceived. That there are concurrent findings by the two competent forums on issues of fact and same were not liable to be disturbed. He relied upon a number of case‑law, some of which are cited as under:‑‑ (1) 1981 SCMR 1081, (2) 1973 SCMR 893, (3) 2000 SCMR 1613, (4) 1999 SCMR 1796, (5) 2000 SCMR 1960 and (6) 2002 SCMR 429:

9. The petitioner has not challenged the respondent's title, as owner, in her written statement or before the Appellate Court. She was; therefore, not entitled to raise such question in the Constitutional petition. The law referred above fully supports the respondent's case on the point of personal use. As far the sufficiency and insufficiency of the accommodation is concerned, it depends upon the facts and circumstances of each case, the nature and extent of necessity, and the living style of the owner of the premises and other like considerations. The evidence on record I seems to have been properly appreciated by both .the learned Courts. The learned counsel for the petitioner has not disputed the status of the respondent and her son's status as a Gadi Nasheen, at any stage below. The respondent's claim cannot be dislodged on the sole ground of her failure to bring herself in the witness‑box.

10. No material irregularity or any jurisdictional error or defect in the impugned concurrent findings of the Courts of competent jurisdiction have been pointed out. Resultantly, above petition is dismissed with no order as to costs. However, the petitioner is allowed two months' time, which shall run from today, to vacate the premises and hand over the same to the respondent, failing which writ of possession shall be issued against the petitioner without notice. H.B.T./Z‑5/K Petition dismissed.