1. ' SYED ZAWWAR HUSSAIN JAFFERY, J.-1 to 3. Through this petition, the petitioner has prayed for the following relief:-
(a) Call for the record and proceedings of F.R.A. No. 1141 of 2001 (Muhammad Shafiq v. Muhammad Younis) from the Court of Ilnd Additional District Judge, Karachi South, respondents Nos.3 and after hearing to allow the petition and set aside the impugned judgment.
(b) Cost of the petition may be awarded.
(c) Any other relief which this Honourable Court may deem fit and proper under the circumstances of the case may be awarded.
2. ' The petitioner being aggrieved with the Order dated 18-10-2002 passed by the learned Ilnd Additional District Judge (South), Karachi in F.R.A. No. 1141 of 2001 (Old F.R.A. No.615 of 1999) Re.
3. Muhammad Shafique v. Muhammad Younis by allowing the appeal and setting aside the order passed by the learned Rent Controller dated 30-9-1999, wherein Ejectment Application was dismissed. The Ejectment Application was filed on the ground of personal bona fide use. The petitioner has prayed that the judgment of the learned Additional District Judge (South), Karachi, may beset aside.
4. ' The brief fact of the dispute between the parties is that the petitioner has taken a Shop No. 126, Sadder Cooperative Market, Abdullah Haroon Road, Karachi from respondent's father (Muhammad Ayub) in the year, 1974 on monthly rent of Rs.400 and also paid the Pagri as demanded by him. He established a cloth business and invested huge amount for running the said business. The father of the Respondent, filed an Ejectment Application, which was allowed, against which, an Appeal was preferred and it was also allowed. Against the said decision of Appeal, a Ilnd Appeal was filed being Appeal No.38 of 1979. After lapse of substantial time father of the respondent had died and after his death, the respondent No. 2 filed an Ejectment Application bearing No.2167 of 1997 under section 15 of the S.R.P.O. Against the petitioner in which the respondent took the plea that the shop is needed for his personal need as he has no other shop and wants to do his business therein. The notice of the application was issued and after the service of notice, a written statement was filed by the petitioner. After recording the evidence, the above mentioned Rent Application was dismissed by observing that the premises is not required by the respondent in good faith as he is already possessing a factory in Liaquatabad. The order of the learned Rent Controller was challenged by the respondent No.2 by filing the F.R.A. No. 1141 of 2001, which was allowed by the respondent No.3, against which the present petition is filed.
5. ' Mr. Abdul Khair, learned counsel appearing for the petitioner, has contended that impugned judgment is perverse and is liable to be set aside as the evidence was not appreciated and there was elaborated order of the learned Rent Controller that the respondent had come with unclean hands and concealed the facts from the Court that he had no other premises whereas he is running a factory in Liaquatabad, which was admitted in the cross-examination. It is further urged by the learned counsel for the petitioner that the learned Rent Controller had framed only two issues one on the maintainability of the application as the respondent had not disclosed that when his father has expired, no letter of administration was obtained as the respondent is not sole owner of the property, therefore, this ground was sufficient for rejecting the application of the respondent.
6. He has not disclosed that under what circumstances the factory was closed. The petitioner is doing his business in the said shop since long and invested huge amount and the respondent had moved an Ejectment Application malafidely. The personal need was disbelieved by the learned Rent Controller but the said order was set aside by the learned Appellate Court without any justification, therefore, the same judgment is liable to be set aside. The learned counsel has relied upon the case-law reported as Ittefaq Foundries (Pvt.) Ltd. v. Pakistan Railways and others. (PLD 1990 Lahore 164), Mst. Tahira Almas and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad, and others (PLD 2002 Supreme Court 830), Nusratullah v. Quresh Ahmed (1992 XLC 508) and 199 Constitution 343.
7. ' Mr. S. Masroor Ahmed Alvi, learned counsel appearing on behalf of the respondent No. 2 has supported the impugned judgment and submits that the view taken by the learned Rent Controller, was erroneous, therefore, the same has been set aside by the learned Appellate Court as there was sufficient evidence to show that the demise premises is required by the respondent No.2 for personal need and on this point cross-examination has not been made. The Appellate Court has appraised the evidence. The responden No.2 is jobless. -The respondent has no intention to let out the same premises on huge money/Pagri, nor respondent wants to sale the said shop to any person but the respondent and his son wants to carry on their own business for their livelihood. In case the respondents extends this property on higher rate, instead of personal need, then there is a penalty clause provided under section 15^A of S.R.P.O. 79, learned counsel in support of this arguments has relied upon the case law reported as Iqbal Book Depot and others v. Khatib Ahmed and 6 others .(2001 SCMR 1197).
8. ' I have heard the arguments of the learned counsel for the respective parties, examined the material placed on record and case law cited at bar.
9. ' The petitioner in the written statement, has taken the plea of maintainability of the Ejectment Application as the original owner of the said shop was Muhammad Ayub, father of the respondent No.2, who expired and the respondent No.(?) is one of the owner but co-sharer, has not filed the Application being legal heir of the deceased Muhammad Ayub so the Ejectment Application is not maintainable. The respondent No.2 while submitting the Ejectment Application had stated that his father has expired and the case premises is required in good faith as he is jobless and wants to start with his own business in the shop in question. The Appellate Court while examining the evidence at the time of'hearing of Appeal, it is observed as under: - "Voluntarily says I used to run factory/Kharkhana but I have wound up my work from there and have given its possession to its owner. It -' is correct that the said Kharkhana , was situated to Liaquatabad."
10. ' In fact the respondent No.2 was not owner of the Kharkhana but doing his business, but work was wound up and its premises was given to its owner. If it is presumed that the respondent No.2 was running a Kharkhana whether for his own property he can file Ejectment Application on the ground of personal requirement, but this plea is maintainable: It is further observed by the learned Appellate Court that he had gone through the record and pleadings and examined the evidence.
11. During the evidence, the landlord has stated that it is incorrect that I am running a Factory/Kharkhana voluntarily says I used to run a Factory/Kharkhana but I have wound up my work from there and gave its possession to its owner. "It is correct that the said Kharkhana was situated in Liaqtiatabad". I require the shop for my personal need to start the business in the said shop. It is in correct to suggest that the shop in question is not required to me for my personal use.
12. "Since 3 years I am jobless. " It is correct that my son is doing job and he is bearing my expenses. It is correct that my son will do business with me in the said shop.
13. ' From the pleadings, it has come on record that there is no denial of relationship of landlord and tenant. The plea of the respondent No.2 was not considered when the landlord has deposed on oath that he need the said premises for his personal need and Ejectment Application was filed only on this plea, which was turned down by the learned Rent Controller without any justification. The Appellate Court has rightly set aside the order dated 30-9-1999 and allowed the appeal. The respondents No.2 has mentioned his need in the Ejectment Application, which was also established through evidence by entering the witness box and deposed on oath about the personal bona fide need. The respondent No.2 has also brought on record that he is jobless since last 3 years and his son is maintaining him, therefore, the premises is in need to start his own business.. While deciding the appeal by the learned Appellate Court; the judgments reported in 1991 CLC 481, PLD 1991 Kar.226, PLD 1993 Kar.300 and 1992 CLC 2508 were taken into consideration for deciding the appeal. The learned counsel for the petitioner is unable to pinpoint any material irregularity in the impugned judgment or to show any jurisdictional error for setting aside the said judgment. The Appellate Court has rightly set aside the order of the learned trial Court as the plea of personal need was not taken into consideration at all. The petitioner is directed to hand over the vacant possession of the demised premises to the respondent No.2 within a period of 30 days. In case of failure, the executing Court shall issue writ of possession if any help is needed for law and order situation, then the direction be issued to the concerned authorities for its execution. There is no substance in this petition, the same is dismissed along with listed applications.