1. Through this petition, the petitioners have prayed that the judgment dated 18-5-2002, passed by the learned 1st Appellate Court, whereby the F.R.A. No,28 of 2002 filed by the respondent/tenant was allowed. The judgment of the Trial Court was to the effect that the vacant possession of the premises be handed over within sixty days to the landlord/applicant, but the same was wrongly set aside by the learned Appellate Court and observed that landlord have no case for the ejectment of the tenant. The petitioners have assailed the judgment of the Appellate Court, that finding on the point of personal need was reversed on erroneous consideration by the Appellate Court without lawful justification. The brief facts of the dispute between the parties are that the petitioners/landlords filed eviction application on 9-9-1998 on the ground of default in payment of electricity charges, nuisance and personal need of son of the applicant No,
1. The notice of the eviction application was sent to the respondent No,3, who filed his written statement and resisted the grounds urged by the petitioners/landlords. The Trial Court on the basis of the pleadings of the parties framed the following issues for determination:--
(1) Whether opponent has committed willful default in payment of electricity charges infringed the terms of tenancy and also whether due to disconnection of electricity, the utility of the premises has been impaired?
(2) Whether opponent create nuisance for applicants?
(3) Whether shop in question required by the applicant for the personal bona fide use of his son in good faith?
(4) What should the order be?
2. On the basis of point raised by the parties, the petitioners/applicants examined themselves through their attorney, who is applicant No,1, and also produced photo stat copies of general power of attorney as Exh.A/1, A/2 and A/3. The applicant also filed order of K.E.S.C. As Exh.A/4, statement of account as Exh.A/5, electricity bill as Exh.A/6, certified copy of plaint in Suit No,291/98 as Exh.A/7, certified copy of opponent application under section 155, C.P.C. In Suit No,291/98 along with supporting affidavit as Exh.A/8, photo-copy of the Rent Case No,486/98 filed against one tenant, namely, Farman Elahi as Exh.A/9, applicant's reply letter dated 30-4-1998 submitted to KESC as Exh.A/10, certified photo-copy of Rent Case No,47 of 1991 as Exh.A/11 and A/12. The applicant also submitted complaint to K.E.S.C. Dated 5-9-1998 as Exh.A/13, K.E.S.C. Paid bill by applicant as Exh.A/14 and A/15, opponent's brother's complaint to S.H.O. Gulbahar Police Station as Exh.A/16 statements of opponent's brother as Exh.A/17, A/18 and A/19, applicant's intimation dated 19-1-1998 submitted as Exh.A/20 and thereafter closed his side. The opponent/respondent examined himself and his brother Muhammad Hashim and closed his side. The trial Court after hearing the learned counsel for respective parties allowed the application with direction to vacate the premises in question within sixty days and hand over peaceful vacant possession to the applicant/landlord. Mr. Khalid Javed, learned counsel for petitioner has contended that petitioner No,1 has filed his affidavit on oath incorporating the same facts as stated in the ejectment application and further stated in para.11 of the affidavit-in-evidence that the respondent/tenant is creating nuisance to the neighboring landlord as well as to the petitioners and produced documentary evidence. The personal need was resisted only on the ground that son of the applicant No,1 for whom the shop in question is required is minor of 15 years as such the need is not bona fide. It is further pointed out that the tenant has failed to rebut the statement, which was made on oath by the petitioner/landlord and he was cross-examined at length but not a single question was put to him to challenge the statement made on oath on the point of nuisance and personal bona fide need.
3. The respondent/tenant and his witness (his real brother) has filed their affidavits-in-evidence and were subjected to cross-examination and the truth of averments of ejectment application has been proved during the course of cross-examination of respondent/tenant and his witness. The trial Court while passing ejectment order has believed the personal need and evidence in respect of the nuisance and the said judgment was wrongly set aside by the learned Appellate Judge. The Appellate Court without considering the evidence available on the record has wrongly set aside the finding on personal need as well as on the point of nuisance. This is a case of non-reading of evidence and thereby it has resulted in miscarriage of justice. There is no iota of evidence in rebuttal of personal need. The point of personal need went completely unchallenged and un- rebutted. The petitioner/landlord has categorically stated on oath that the shop in question is bona fide required for the personal need of his son and same will not be let out to any one after getting possession of the said suit shop. Mr. Khalid Javed has also pointed out several contradictions on the findings of issues, which are apparent even from the bare reading of the impugned judgment passed by the Appellate Judge. The Appellate Court has observed as under:-- "The findings of the learned Rent Controller on the point of personal requirement is not based on proper appreciation of facts and law, and the findings on the remaining points are correct." Learned counsel has, therefore, contended that this single instance shows as to how the learned Appellate Court has applied its judicious mind while deciding the appeal itself. It is further contended by the learned counsel that the impugned judgment of the said Appellate Court is in complete disregard and in violation of Order XLI, rule 31 of C.P.C. In support of his arguments on this point, learned counsel referred to the cases reported in 1992 MLD 1782 (1786), (1788), PLD 1969 SC 617 (page 622). It is further urged that the judgment of the Appellate Court is also in violation of Article 23 of the Constitution of Islamic Republic of Pakistan, 1973. He had relied upon the cases reported in 2000 SCMR 1613 and 2002 SCMR 241. It is further urged by the learned counsel that petitioners/landlord filed two separate ejectment applications bearing Nos. 485 and 486 of 1998 on the ground of personal need and both shops are adjacent to each other, hence suitable for the personal need of petitioner's son, namely, Syed Khurram Mujtaba Abidi. Both the aforesaid ejectment applications were allowed by the learned, Rent Controller on the ground of personal need and nuisance, however, the learned District Judge-Central has set aside the ejectment order passed in Rent Case No,485 of 1998, which is impugned through this petition while the ejectment order passed in Rent Case No,486 of 1998 has been upheld by the learned Nth Additional District Judge, Central, Karachi and the same has been upheld by this Court in C.P.
4. No,1023 of 2002 vide judgment dated 12-5-2003 and the ejectment application has, also been confirmed by the Hon'ble Supreme Court of Pakistan in C.P.L.A. No,545-K of 2003 vide judgment dated 25-11-2003 holding that the ejectment order passed by the Courts below in Rent Case No,486 of 1998 is based on correct and proper appreciation of law. Mr. Javed, has also filed Photostat copies of the above-mentioned judgments. The landlord has specifically stated in the ejectment application vide para. 5 that the shop in question along with Shop No,2-A (Subject-matter in C.P.L.A. No,545-K of 2003) are required for the personal need of his son Syed Khurram Mujataba Abidi, therefore, the petitioners/landlords are entitled for both the shops. Further reliance on this particular point is based on the following case laws:-- "(1) 1991 SCMR 846 (D&E) and (2) 2002 SCMR 680(E)." The Appellate Court while holding that since the son of petitioner/landlord is not living separately and dependent upon his father, as such is not entitled for personal need, has committed gross error of law and contrary to the provisions of section 15 (vii) of the Sindh Rented Premises Ordinance, 1979. Reliance on this particular point has been placed on the cases reported in PLD 2001 SC 31 (pages 36 & 37) (B,C,F & G), 1976 SCMR 52 (53), NLR 1982 AC 387, 1990 MLD 1715, 1993 MLD 39, Civil Appeals Nos. 157 & 158 of 1999, Civil Petition No,152- K/99, 1988 SCMR 819, 1982 CLC 153, 1998 MLD 1049, C.P. Nos. D-2000 & 2146, and C.P. No,S-1012/02. Lastly, he has relied upon the following case laws:--
(1) PLD 2000 SC 67, (2) 1975 SCMR 183 and (3) Civil Appeal No,1542 of 2000 decided by the Hon'ble Supreme Court. It is further argued that the son of the petitioner/landlord even otherwise become major during the pendency of the rent case before the learned Rent Controller, which has elaborately been discussed but the Appellate Court has completely brushed aside them while reversing the well- reasoned ejectment order. He has also relied upon the following case-laws: --
(1) 1995 SCMR 1811, (2) 1980 SCMR 339, (3) 1987 CLC 404, (4) 2003 CLC 1631, (5) 2000 CLC 1656, (6)
5. FRA No,522/93 decided by this Court., (7) 1997 CLC 339, (8) 1994 CLC 2422, (9) 1982 CLC 332, (10)
6. 1989 CLC 599. The petitioner/landlord was cross-examined by the respondent/tenant at length but not a single question was put to him to challenge the point of personal need and nuisance as well as default in payment of electricity charges. He has also relied upon the cases reported in 1999 SCMR 28, Civil Petition No,76-K of 2000 and NLR (sic) Civil 556. Mr. Nazar Akbar, learned counsel for respondent, has supported the impugned judgment passed by the learned Appellate Court and submits that the petitioners are not authorized to file ejectment applications, there is no agreement of tenancy but the tenancy is not disputed and notice was sent by the K.E.S.C. For change of meter and disconnection was made properly and the personal requirement of the petitioner's son is mala fide as his son is a school going boy who has to attend the school at least for six hours daily except holidays and living with his father, as the petitioner while filing affidavit-in-evidence on behalf of the applicant has stated in para. 6 to the extent that the premises in question is required by the applicant No,1 for his son for personal bona fide need and occupation in good faith as the son of the applicant. No,1, namely, Syed Khurram lvlujtaba Abidi is in grown up age who is about 15 years, having height of more than 6 feet and studying is SSC at P.M. Public School and willing to run his business as General Store in Shops Nos.2 & 2-A, which shops are very much suitable to him as both the shops are adjacent to each other for which the applicant has also filed separate eviction application against the shop No,2-A, which is under occupation of tenant namely Farman Elahi for running his own business and applicants are ready to give undertaking not to let out the premises to any other person after got vacated from the Opponent. Learned counsel for the respondent has also pointed out para. 9 of the ejectment application which reads as under:-- "It is not denied that applicant has got vacated two shops in the building. In this regard it is submitted that the two shops under occupation of the applicants/tenants, namely Mst. Sultana are got vacated by the applicant as the applicant filed R.C. Nos.47/91 and 48/91 that the personal bona fide need of the applicant No,1 as such the same are in possession for personal need." The applicant/landlord in his ejectment application has also stated in para. 5, that premises in question is required by the applicant No,1 for his son for personal bona fide need and occupation in good faith as the son of applicant No,1, namely Syed Khurram Mujtaba Abidi is in grown up age and willing to run business of General Store shop. There is conflict of finding in respect of the order and judgment passed by the two Courts below and Appellate Court has rightly held that landlords have no case for ejectment of tenant and dismissed the appeal. Learned counsel for respondent has pointed out that respondent No,3 has filed his affidavit-in-evidence and cross-examination was made and in the light of evidence the Appellate Court reversing the finding of the trial Court and there is no illegality or infirmity in the impugned judgment. Mr. Nazar Akbar, learned counsel for the respondent No,3, has relied upon the following case-laws:--
(1) 1989 SCMR 1366 (2) 1989 CLC 1883, (3) 1998 CLC 410, and (4) 2001 MLD (Kar.) 1817. I have heard the arguments of the learned counsel for parties, examined the record placed on record and gone through the case-law, cited at the Bar.
7. As per evidence, the respondent No,3 was using the electricity from Consumer No,AL-085901 and was not regular, but bills are issued in the name of consumer/father of the applicant and due to non-payment of electricity charges disconnection order of electricity against above consumer number was issued on many occasions by the K.E.S.C. And lastly the K.E.S.C. Had disconnected the electricity of aforesaid consumer number vide Disconnection Order No,185969, dated 3-6-1998. As such, the Opponent has infringed the terms of tenancy and impaired the utility of premises. The trial Court on this issue has wrongly held that the tenant is not liable to be evicted from the shop in question being in arrears of electricity charges up to May, 1998 in the sum of Rs,6782. Due to non- payment of electricity charges, the electricity of entire building was disconnected for which the petitioner/landlord including family members suffered a lot. The petitioner approached the Civil Court for restoration of electricity due to fault of the tenant by which conduct of the Opponent they suffered a great hardship/inconvenience/nuisance and tenant is liable to be ejected from the premises in question. The respondent/tenant although vehemently denied the allegations and stated that he is regular in payment of electricity charges within time. The electricity meter was installed outside the building but the petitioner with mala fide intention got the said meter installed inside the building as such whenever Meter Readers come to check the reading, the premises was found locked. As such, the bills were issued on average basis on higher rate. The opponent has also written letters to the authorities that the applicant is not allowing them to restore the electricity. The petitioner after receiving the bills from K.E.S.C. Failed to deliver the same and the opponent has to obtain duplicate bill for payment. It is denied that opponent has committed any breach of terms of tenancy or he is in arrears of electricity charges. The petitioner No,1 in his cross-examination says that: "It is correct that electricity meter are installed and affixed in the premises, which is in my possession and control. I do not know whether the dues of K.E.S.C. Are not outstanding against the opponent at present". He further says, that: "It is correct that K.E.S.C. Had issued letter dated 1-4- 1998 (Annexure 0/7), which was duly replied by him on 20-4-1998. I had already given reply to K.E.S.C.. It is correct to suggest that in the month of July no K.E.S.C. Dues were outstanding against Consumer No,AL-085901". On the basis of above material available on the record, the opponent has filed Dues Clearance Certificate dated 23-7-1998 as Annexure 0/2. Although applicant opposed this annexure, but did not file any proof that this document is forged and fabricated. It has also come on record that K.E.S.C. Also served a letter to the applicant in the month of April, 1998 in which they alleged that applicant unauthorisedly shifted the meter where it was actually installed by the Department. The respondent No,3, during his cross-examination, has admitted to the extent, that: "I see Exh. A/16 and say that may brother Hashmi has lodged complaint against petitioner No,1 at Police Station Gulbahar, Karachi. Muhammad Azam is also my brother. It is correct that my brother Muhammad Azam recorded his statement before Gulbahar Police Station vide Exh. A/17 against the petitioner/landlord. I see Exh.A/18 of affidavit-in-evidence of applicant and say that is the statement of my brother Muhammad Hashim against applicant No, 1 . I do not know my brother Muhammad Qasim has given statement before Police Station Gulbahar against the applicant No, 1 . It is correct that from 1995 there is civil litigation between the applicant and me. It is incorrect to suggest that due to lodging complaint in police station nuisance has been created to the applicant by facing criminal proceedings. Muhammad Hashim, brother of respondent No,3 during his cross-examination, has admitted to the extent, that: "I see Exh.A/18 and say that it is same which I had made before Gulbahar Police Station on 20-1-1998. I see Exh.A/16 and say that I have made complaint before S.H.O. Of Gulbahar Police Station with my own signature dated 15-10-1998. It is incorrect to suggest that due to my complaint, the applicant has suffered any inconvenience or nuisance". Reference here can be made to the case of Haleema Banker v. Ghulam Rasool Samroo, reported in 1994 CLC 2422 and for the sake of convenience, the relevant observation contained therein is reproduced as under:-- "It is thus evident that the landlady and tenant cannot live in peace within the same four-walls.
8. Who then should go? In view of the tenancy, degenerating into the open hostility and tenant arguably having committed acts constituting nuisance for the neighboring landlady, it is he I think, who should move out. Eviction on the ground of nuisance as well, accordingly, deserves to be allowed."
9. The petitioner while filing the application before the learned Rent Controller has specifically stated in para. 5 that the premises in question is required by the petitioner No,1 for his son for personal bona fide use and occupation in good faith, as the son of applicant, namely, Syed Khurram Mujtaba Abidi is in grown up age and willing to run his business of General Store in the Shop No, 1.
10. The respondent although has denied the personal use of the applicant for his son, as the age of his son is about 15 years and he is studying in School and is not capable of doing any business. During the pendency of the proceedings between the parties in different forums, the son of the petitioner has become adult, as such the contention of the respondent No,3 is not tenable. Needless to say that a body having 16/17 years of age can successfully run a shop and the said son of the petitioner had appeared in the Court proceedings before this Court and his intelligence has been noted. In respect of the other shop in Rent Case No,486 of 199$ upheld by the learned IV th Additional District Judge, Central and same has been upheld by this Court in C.P.No,1023 of 2002 vide judgment 12-5- 2003 and the ejectment has also been confirmed by the Honourable Supreme Court, of Pakistan In C.P.L.A. No,545 of 2002 vide judgment dated 25-11-2003 holding that the ejectment orders passed by the Courts below in Rent Case No,486 of 1998 are based on correct and proper construction of raw. The evidence, adduced by the parties, was properly evaluated by the learned Rent Controller while deciding the rent case and thereby allowed the application and tenant was directed to vacate the premises in question and hand over its vacant and peaceful possession of the same.
11. Although there is a long history of litigation between the parties up to the Hon'ble Supreme Court. Due to non-payment of electricity charges, the disconnection order was issued and ultimately the electric supply was disconnected and the petitioner being helpless filed a suit for restoration of electricity, the respondent and his brother moved applications at police station and dragged the petitioner in criminal proceedings. The conduct of the respondent is horrible. From the evidence, it is crystal clear that the demised premises is required by the petitioner for personal need of his son. The case-law, cited by the learned counsel for the petitioner, also supports his version whereas the case-law referred to by the learned counsel for the respondent is quite different and distinguishable from the facts of the case in hand, hence not helpful to the respondent. In view of the foregoing reasons, the petitioners have proved through pleadings and evidence that the shop in dispute is required for personal bona fide need of his son namely Syed Khurram Mujtaba Abidi, who intent to start his business therein. Resultantly, the petition is allowed and the impugned judgment dated 18-5-2002 passed by the learned Appellate Court is set aside and the order of the learned Rent Controller is maintained, leaving the parties to bear their own cost. The respondent is directed to hand over the peaceful vacant physical possession of the premises in question to the petitioner/landlord within thirty days from the date of this judgment. In case of failure, writ of possession be issued by the Rent Controller with police aid without any further notice.