' ARSHAD NOOR KHAN, J.---- By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner has assailed the legality, validity and propriety of the orders dated 29-5-2007 by the learned V-Additional District Judge, Karachi Central in R.F.A.
No,138 of 2006 Abdul Haneef Khan v. Haji Naqeebuddin, whereby the appeal filed by the petitioner was dismissed, and the order dated 29-4-2006 passed by the learned III-Rent Controller Karachi Central in Rent case No,441 of 1996 Haji Naqeebuddin v. Hanif was maintained thereby directing the petitioner to hand over the physical possession of shop in question to the respondent No,3 within 30 days thereof.
2. The facts leading rise to the present petition in brief are that the respondent No,3 Haji Naqeebuddin filed application under section 15(2) of the Sindh Rented Premises Ordinance, 1979 for ejectment of the petitioner stating therein that he is owner of building constructed on Plot No,2/865-AH Liaquatabad Karachi. The three shops on the ground floor were rented out to the petitioner at the rate of Rs,226 for each shop per month and the petitioner deposited rent in M.R.C.
Nos.51, 52 and 53 of 1996. It is further stated that the petitioner committed wilful default in payment of rent from April to August 1996. It is further stated in the rent application that the respondent No,3 is well versed with the work of Zari and Gota (embroidery) and requires the shops in possession of the petitioner in good faith for his personal bona fide use, where he will run the business with the help of his son Nazir Ahmed and grand son Pervaiz, who are skilled in embroidery field. It is further stated in the rent application that the petitioner has impaired the value and utility of the premises in question beside the default in payment of rent from April to August, 1996. It is further stated in the rent application that the petitioner has illegally dugged the floor of the shops in question, constructed under ground space which is dangerous and injurious to his property. It is further stated in the rent application that at the time of induction of the petitioner as tenant in three shops, the said shops were independent and he by illegal act has removed the partition wall of one of the shop and has amalgamated other shops and the said act of the petitioner tantamount to damage to the property as well as sewerage system of the whole premises. The respondent No,3, therefore, sought ejectment of the petitioner on the aforesaid ground.
3. The petitioner was served with the notice who appeared and filed his written statement, inter alia denying therein the allegations of the case of respondent No,3 that the shops in question are required bonafidely by him for his personal bona fide use and that he has not committed any default in payment of rent and the rent is being deposited in M.R.C. Nos.51, 52 and 53 of 1996 and that at the time of filing of the said rent application, the Shops Nos.5 and 11 were lying vacant, which fact is mentioned in para.6 of the written statement. It was further refuted by the petitioner that any damage has been caused to the shop in question nor the material utility and the value of the shops has been diminished by him. The removal of partition wall of one amongst three shops rented out to him has also been refuted by him.
4. After filing of the written statement, the respondent No,3 filed his affidavit in evidence reiterating the averments contained in the rent application and he was cross-examined at great length by the learned counsel for the petitioner. The petitioner filed his affidavit in evidence refuting the allegations of the case of the respondent.
5. The learned Rent Controller after evaluation of the evidence led by the parties in pro and contra to their respective claim, allowed the rent application, whereby directing the petitioner to hand over the possession of shops in question vide order dated 30-3-2002. The petitioner being highly aggrieved and dissatisfied with the aforesaid judgment dated 30-3-2002, preferred R.F.A No,98 of 2002, which was pending and during pendency of the said appeal, the respondent No,3 obtained possession of three shops from his another tenant in rent case No,53 of 1989, which culminated in decree by the Honourable Supreme Court, as such on 31-5-2001 he obtained possession of three shops from his another tenant Sher Khan and the said fact was brought on the record of F.R.A.
No,98 of 2002, which was filed by the petitioner and pending before the learned appellate Court and after bringing on record the said fact, the F.R.A. No,98 of 2002 was allowed and the case was remanded to the Rent Controller with the directions to record additional evidence of the parties as well as the affidavit in evidence of witness Misbahul Hassan. On remand of the matter, the Rent Controller afforded an opportunity to the respondent No,3 to lead his evidence about his taken over three shops from the tenant Sher Khan but the respondent No,3 did not avail the said opportunity and filed statement dated 7-4-2005 stating therein that he does not want to lead any other additional evidence and his earlier evidence may be treated as evidence after remand of the matter. The petitioner filed additional affidavit in evidence and he was also cross-examined by the learned counsel for the respondent No,3. The learned Rent Controller after hearing of the parties, allowed the ejectment of the petitioner on the ground of personal bona fide use. The points framed by the learned Rent Controller at the time of passing the order are usefully quoted herein below for the sake of convenience:--
(1) Whether opponent is wilful defaulter in payment of rent?
(2) Whether opponent impaired the material value of the premises in question?
(3) Whether applicant required the premises in question for his son and grand son for personal use in good faith?
(4) What should the order be?
6. The petitioner being dissatisfied and aggrieved with the order dated 29-4-2006 passed by the learned Rent Controller filed F.R.A. No,138 of 2006, which was entrusted to the learned V-Additional District Judge, Central Karachi, who vide order impugned herein upheld the ejectment of the petitioner on the ground of personal bona fide use of the premises by the respondent No,3. Hence, the present petition.
7. The respondent No,3 did not prefer any appeal against the finding on Points Nos.1 and 2, which were decided against him as such the findings of learned Rent Controller on these points attained finality.
8. I have heard Mr. S.M. Akhtar Rizvi Advocate for the petitioner and Mr. S. Ali Kausar Shah Advocate for respondent No,3. Learned counsel for the petitioner vehemently assailed the findings of both learned lower Courts recorded on the point of personal bona fide use and has contended that the evidence available on record has not been considered by the learned Courts below in its true perspective, whereby it has been established on the basis of evidence available on record that at the time of filing of rent application, two shops were already lying vacant and during the pendency of the appeal before learned appellate Court, respondent No,3 obtained possession of three shops from another tenant Sher Khan and the appeal filed by the petitioner was allowed with directions to the learned Rent Controller to record the evidence of the parties after post remand of the matter and that the respondent ,No,3 did not lead the evidence and the petitioner led quite sufficient and confidence inspiring evidence regarding mala fide of the respondent No,3 in seeking ejectment of the petitioner. As such the learned lower Courts failed to consider the evidence available on record.
In support of his contention relied upon the case of Mrs. Shah Noor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051, Abid Masood v. Dilshad Khan 1995 SCMR 146, Fareeduddin v. Mehboob Ali 1994 SCMR 1485, Latif Ahmed v. Farrukh sultana 1996 SCMR 1233, Mirza Farooq Baig v. Muhammad Arif PLD 1981 Karachi 67. He further contended that the petitioner in his affidavit in evidence has completely refuted the allegations of requirement of the respondent No,3 regarding shops in question for his personal bona fide use which have not been controverted in his cross- examination, as such the assertion contained in the affidavit in evidence of the petitioner remains unshaken. In support of his contention, he has relied upon the case of Mst. Anwar Begum and others v. Syed Muhammad Siddique 1991 MLD 1182. According to him the learned Courts below therefore, did not apprise the evidence available on record nor the case-law cited before them in support of their judgments have been considered, as such the orders passed by both the learned lower Courts may be set aside and dismiss the rent application filed by the respondent No,3.
9. Mr. S. Ali Kausar Shah learned counsel for the respondent No,3 vehemently-refuted the contention advanced by the learned counsel for the petitioner- and-has contended that additional plea regarding obtaining shops by the respondent No,3 in pursuance of long protracted litigatio with another tenant Sher Khan could not be used in the present case an' both the learned lower Courts rightly rejected this piece of evidence. He further contended that it is prerogative of landlord to select and chose the property, which is suitable for his need and no embargo or restrictio could be imposed on the unfettered powers of the landlord to select the premises suit for his need. He further contended that both the learne lower Courts concurrently held the need of the respondent No,3 as bona fide for seeking ejectment of the petitioner and concurrent finding of both learned lower Courts could not be disturbed in the constitutional petition. As such the petition merits no consideration and is liable to be dismissed.
10. I have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record.
11. The Rent Controller initially allowed the rent application on the ground of personal bona fide need of the respondent No,3 to run his business of embroidery with the help of Nazir Ahmed son of the respondent No,3 and Pervaiz grandson and the said need of the respondent No,3 has been refuted and assailed by the petitioner by stating in para.6 of the of his written statement that at the time of filing of the rent application, Shops Nos.5 and 11 of the respondent No,3 were lying vacant and in rent application it is not stated by the respondent No,3 that the premises in possession of petitioner is suitable to run his business. The said assertion of the petitioner from the very beginning of the litigation shows that the inspite of two shops lying vacant, the respondent No,3 did not mention the same in his rent application nor has stated that these shops viz., Shops Nos.5 and 11 are not suitable to run his business of embroidery, as such the non-disclosure of landlord about F the vacant shops at the time of filing the rent application adversely reflects on his need. Admittedly the respondent No,3 filed rent application for eviction of his another tenant Sher Khan who was also in possession of three shops and the ground for eviction of the said Sher Khan was same as pleaded in the present rent application and in that proceedings also the ejectment of said Sher Khan was ordered on the ground of personal bona fide use-of those shops by the respondent No,3 which findings were upheld by the Honourable Supreme Court. In consequence of the said findings of the apex Court, the respondent No,3 obtained possession of those three shops from Sher Khan tenant on 30-3-2002. The said fact was also brought on the record of F.R.A. No,98 of 2002 preferred by the present petitioner against his eviction on the personal bona fide use of the shops in question, as such the said F.R.A. No,98 of 2002 was allowed by the learned II-Additional District Judge, Karachi Central vide judgment dated 10-12-2004 and remanded the matter to the learned Rent Controller with direction to record additional evidence of the parties about the shops obtained by the respondent No,3 from his tenant Sher Khan. It is also an admitted position that on remand of the matter, the learned Rent Controller afforded an opportunity to the respondent No,3 to refute the contention of the petitioner about receipt of possession of three shops and to lead evidence that those shops were suitable or not to run his business of embroidery, but surprisingly the respondent No,3 chooses not to lead the additional evidence in pursuance of remand of the case and vide statement dated 7-4-2005, the respondent No,3 stated that he does not want to lead any other additional evidence and his evidence recorded earlier may be treated as evidence after post remand of the matter. The petitioner also filed additional affidavit in evidence stating therein that three shops obtained by the respondent No,3 from his tenant Sher Khan were in his possession beside the two vacant shops in possession of the respondent No,3 at the time of filing of the main rent application and the averments contained in the additional affidavit in evidence has not been disputed by the respondent No,3, as such the evidence led by the petitioner remains unshaken which evidence has not been considered by the Courts below, as such the bona fide need of the respondent No,3 has not been spelt out from the evidence available on record. There could be no cavil to the proposition that the landlord seeking ejectment of tenant from the premises for personal bona fide use, is under obligation to prove that his requirement is bona fide and that the premises which he requires for his personal bona fide use, is suitable to run his business then of course his need could be termed as bona fide. The landlord is also required to disclose that, in case, if any other premises is lying vacant, to show that the said premises is not suitable for his need and, in G case, if the landlord conceals any premises lying vacant in his possession at the time of filing the rent case, it adversely reflects on his bona fide. In the present case, the petitioner in his written statement stated that Shop Nos.5 and 11 were lying vacant at the time of filing the rent application before the learned Rent Controller and the said fact has not been refuted by the respondent No,3 in his affidavit in evidence, though the petitioner in his affidavit in evidence reiterated the same fact but he has also not been cross-examined him on this aspect of the matter, as such the assertion of the petitioner that two shops were lying vacant at the time of filing of the rent application and it has not been stated by the respondent No,3 that those shops were not sufficient to cater his need, as such evidence led by him has not been challenged in cross- examination which will be deemed to have been accepted. In such state of affairs, the case of Mst.
Anwar Begum (supra) fully supports the contention advanced by the learned counsel for the petitioner, wherein it has been observed that the specific assertion made by the tenant in his evidence not challenged in cross-examination will deem to have been accepted in view of Article 133 of the Qanun-e-Shahadat Order, 1984. The dictum laid down in the case of Anwar Begum is also attracted to the circumstances of the present case.
12. As discussed above, the evidence led by the petitioner that the two shops in possession of the respondent No,3 were lying at the time of filing of the ejectment application and three shops were also obtained by him during the pendency of the present lis, for which the matter was also remanded by the appellate Court to afford the parties a chance to lead their additional evidence about suitability or non-suitability the three shops obtained by the respondent No,3 for running his business, which has not been availed by the respondent No,3, as such according to learned counsel for the petitioner the dictum laid down by the Honourable Supreme Court in the case of Abid Masood (supra) fully attracts to the circumstances of the present case. The case of Abid Masood bears same history as involved in the present case and in that case also matter was remanded for recording of additional evidence with regard to need of parties and that during the pendency of the proceedings the landlord obtained possession of other shops and in post remand proceedings the parties were afforded chance to lead their respective evidence. The dictum laid down by the Honourable Supreme Court is therefore, usefully quoted herein below for the sake of convenience:-- "We have, however, perused the various orders passed by the Courts below and find that the petitioners owned numerous shops in the building and during the pendency of these proceedings got vacated some shops which were let out to tenants. In post remand proceedings the petitioners had opportunity to lead evidence to show that the shops having fallen vacant during the pendency of the ejectment proceedings were not suitable for their use but led no evidence in this behalf. The perusal of the order of the Rent Controller, shows that the evidence produced by the petitioners was vague and fell short of proving their bona fide personal need for the shop in question. .
13. In the case of Shah Noor Fazal (supra) the Honourable Supreme Court was pleased to observe that learned counsel for the petitioner was unable to convince as to how in the absence of a specific pleadings as to the vacant premises not being sufficient for her needs, she could seek ejectment of the respondent from disputed premises. In the case of Latif Ahmed (supra) the Honourable Supreme Court was pleased to observe that the averments not mentioned in the rent application that the premises required for personal bona fide use is more suitable for the requirement of the landlord is fatal to the claim of landlord. In the present case also it is not stated in the rent application, as to how and in what manner, property in possession of the petitioner is suitable for the need of the respondent No,3 and how shops lying vacant at the time of filing of rent application as well as after obtaining three shops from another tenant Sher Khan, were not suitable for the need of respondent No,3, as such the suitability of the shops have also not been agitated by the respondent No,3 himself so as to say that his need in demanding the shops in possession of the petitioner is bona fide.
14. Learned counsel for the respondent has vehemently contended that it is prerogative of the landlord to chose and select the premises which is suitable to run his business and no limitation could be imposed on such right of the landlord. The contention advanced by the learned counsel for the respondent No,3 seems to be attractive, there could be no cavil to the proposition that it is prerogative of the landlord to select the premises suitable for his need but for the said purpose it is obligatory on the part of landlord to mention such fact in his rent application but in the present case nowhere the respondent No,3 being landlord of the shops in question has stated that the shops in possession I of the petitioner are suitable to run his business of embroidery beside the availability of two shops already in his possession when the rent application was filed and also explanation have been put forward by the respondent No,3 as to how and in what manner the three shops which he obtained from tenant Sher Khan were not suitable to run his business of embroidery, which adversely reflects on his need. Admittedly the respondent No,3 in his rent application as well as in his affidavit in evidence has stated that he wants to run the shop of embroidery with the help of his son Nazir Ahmed and grand son Pervaiz but evidence of both these witnesses have not been led by the respondent No,3 to adjudge about the skill of Nazir Ahmed and Pervaiz in the field of embroidery, and that they are ready and willing to extend their cooperation and help to the respondent No,3 in running of business of embroidery.
15. Both the lower Courts have not considered the evidence available on record about the genuineness of the need of the respondent No,3 in seeking the eviction of the petitioner from the shops in possession, as such the judgment passed by the lower Courts suffer from misreading of evidence available on record which tantamount to gross injustice and miscarriage of justice. The order passed by both the learned lower Courts therefore, suffer from legal infirmity in view of the case-law discussed above and therefore, could not be sustained. The petition was allowed in the morning vide short order reproduced herein below for the sake of convenience:-- ' For reasons to be recorded later on, the petition is allowed, the judgment in F.R.A. No,138 of 2006 Abdul Haneef Khan v. Haji Nagebuddin dated 29-5-2007 of learned V-Additional District Judge Karachi Central as well as judgment passed by the learned Rent Controller in Rent case No,441 of 1996 dated 29-4-2006 are set aside and the Rent Application No,441 of 1996 Haji Naqeebuddin v.
Hanif is hereby dismissed.
' The above are reasons of the same.