1. ' DR. RANA MUHAMMAD SHAMIM, J.---In this petition the petitioner has assailed the judgment dated 29-8-2005 passed by 'learned I-Additional District Judge Karachi South whereby F.R.A. No,117 of 2002 filed against the order dated 31-1-2002 passed by learned II-Rent Controller Karachi South dismissing Rent Case No, 2676 of 2000, was dismissed.
2. ' The facts of which this petition has arisen are that the petitioners are the owners of the demised premises in which the respondent No,1 is their tenant vide lease agreement dated 1-10-1977 which was for five years renewable from time to time. Lastly the same was renewed vide supplementary lease agreement dated 27-10-1996 effecitve from 1-1-1995 to 30-9-2000 with agreed monthly rent of Rs,25000. The case of the petitioners is that they required the demised premises for their genuine requirement in good faith for personal bona fide use to establish and start business for their grown up sons for which they do not possess-any other suitable premises elsewhere and before the expiry of agreement ending. On 30-9-1995 they had informed the same through legal notice dated 27-11-1994. However, on insistence of respondent No,1 and looking into the difficulties the petitioners allowed extension of five years in the lease agreement as stated above. Thereafter the respondent No,1 again asked for further extension of lease agreement for another five years vide letter dated 8- 8-2000 to which the petitioners sent legal notice dated 11-9-2000 calling to vacate the demised premises on or before 30-9-2000 which was not conceded to by the respondent No, 1 vide their reply dated 27-9-2000, hence the petitioners filed the ejectment application.
3. ' Respondent No,1 refuted the claim of the petitioners and pleaded that demised premises is not required by them for their personal requirement but the demand was painted with malice with the aim to increase in the rent, which was done and the rent was enhanced from Rs,16,000 to Rs,25,000 at the time of renewal of agreement dated 27-10-1996. The mala fides of the petitioners are also evident from the fact that though they themselves have waived their personal need in the said agreement but again started asking to vacate the demised premises and initiated rent proceedings. Respondent No,1 further pleaded that the petitioners used to take the plea of personal need as a pretext to enhance the rate of rent. Per clause 3 of the agreement the option to renew the tenancy lies with respondent No,1 and in the line of the same respondent No,1 asked the petitioners to renew the tenancy but they failed to do so. Even they refused to receive the monthly rent hence respondent No,1 deposited the rent in M.R.C.
4. ' In order to prove the issue as to personal bona fide use of the petitioners, petitioners Nos.2 and 4 examined themselves while respondent No,1 examined their attorney who also produced original documents as Exh.O/1 to 0/14. All the witnesses were duly cross-examined by their respective counsel.
5. ' Learned Rent Controller, after hearing the learned counsel for both the parties and going through the material placed on record, dismissed the ejectment application and appeal against the same also met with the same fate, as stated above, hence this petition.
6. ' On service of notice, respondent No,1 put an appearance by filing objections to the petition. Since it is a short matter, with the consent of the learned counsel. I propose to dispose of this petition at Katcha Peshi stage.
7. ' Learned counsel for the petitioners has contended that the courts below have not considered the material placed before them. While referring to clause 4 of the supplementary agreement dated 27-10-1996 wherein it is stated that the provisions of the main agreement shall stand amended, learned counsel contended that after execution of this agreement the waiver clause stands amended, which gave the petitioners a right to get the demised premises evicted on personal ground. He further contended that admittedly the petitioners have sent the legal notice firstly on 27-11-1994 to respondent No,1 asking for vacating the demised premises on personal ground and the plea of waiver clause was not taken by the respondent at that time. Even otherwise, per learned counsel, on the basis of waiver clause, the owners/petitioners cannot be deprived of a property forever. The petitioners have shown their bona fide by giving sufficient time to respondent No,1 to vacate the demised premises but the respondent No,1 did not reciprocate the same. The petitioners Nos. 2 and 4 in their evidence have very specifically stated that they are engaged in business of electronic, which they are doing in a rented premises with their fathers and the same is not sufficient for a combined business. While referring to the cross-examination of the respondent's attorney learned counsel contended that the said witness has admitted that after receiving notice for vacating the demised premises, negotiations took place and thus the rent was enhanced to Rs,25,000. Learned counsel further contended that in cross the evidence of said witnesses/applicants could not be shattered. Learned counsel for the petitioners has further contended that there is no need to plead each and every detail in his pleading as to the personal bona fide need and the finding recorded in that behalf by the Courts below is contrary to the principles laid down by the Superior Courts. So also it is also settled principle of law that if some fact is not mentioned in the ejectment application the same can be spelt out in evidence and it is the statutory right of the landlord to eject the tenant on any ground even if not mentioned in ejectment application. Learned counsel further contended that the Courts below have failed to consider the fact that it is the prerogative of the landlord to choose which, one the properties he would like for his business need as variously held by the superior Courts. In support of his contentions learned counsel has placed reliance on the cases of Muhammad Anwar v.
8. Muhammad Saeed (1991 SCMR 2337), Sher Khan v. Haji Navebuddin (1995 .MLD 148), Haji Mohibullah & Co. v. Khawaja Bahauddin (1990 SCMR 1070), Muhammad Ashraf v. Muhammad Adil Zaidi (1999 MLD 3312 [Lahore]), Mst. $arwari Begum v. Ata-ur-Rehman (1997 CLC 1500), Haji Zainul Abedeen v.
9. Mst. Sharifan Begum (1991 CLC 1515), Muhammad Saleem Qureshi v. M Mohsin Butt (1996 CLC 381 [Karachi]), Gohar Rashid v. Fazal Hasan Mazhar (PLD 1995 Lahore 469), Lahore Diocesen Trust v.
10. Messrs Glaxo Laboratories (1996 MLD 1825), Zahoor Din v. Mirza Ayub Baig (1981 SCMR 1081) and Malik Islam Akber v. Mustafa Hussain (1992 CLC 1753).
11. ' Learned counsel for respondent No,1 has contended that the petitioners have not come with clean hands and have concealed the material facts from the Court and as such they are not entitled to get eviction of respondent No,l. Petitioners have failed to show any bona fide for their personal requirement. He further contended that the execution of supplementary agreement will not supersede the provisions of main agreement dated 1-10-1977 wherein the petitioners have waived their right to seek eviction on personal need. Learned counsel referred to the agreements executed after the first agreement and contended that respondent No,1 is paying advance rent for the entire period of five years and each time the rate of rent is enhanced. Learned counsel alleged that the petitioner is not needy but greedy and has referred to letter dated January 10, 1994 in which the petitioners have very clearly demanded. Increase in rent to Rs,50,000. In the said letter it is also mentioned that the petitioners have already booked a shop in Saddar for starting their business.
12. Learned counsel contended that since respondent No,1 did not concede to the demand of the petitioners, they sent notice for eviction on 27-11-1994 followed by letters dated 6-12-1995 and 21-7- 1996 for increase of rent up to Rs,40,000 but thereafter the petitioners conceded to continue the tenancy at enhanced monthly rent of Rs,25,000, which shows their mala fides. Thereafter in October, 2000 the petitioners refused to accept the rent which resulted in deposit of rent in M.R.C.
13. No,2755/2000. Learned counsel contended that from the conduct of the petitioners inference can be drawn that they have failed to prove that their requirement was honest and bona fide and in such circumstances the view of the Honourable Superior Courts is very clear that even if personal need proved Court could not automatically order eviction unless it further satisfied itself that the requirement was also honest and bona fide one. He also contended that as both the Courts below have recorded their findings on the basis of facts, the petition is not maintainable in view of the law laid down by the superior Courts that there is no justification to invoke the constitutional jurisdiction on the concurrent finding of facts by two Courts below. In support of his contentions he placed reliance on the cases of Shajar Islam v. Muhammad Siddique (PLD 2007 SC 45), Mrs. Tahira Dilwar Ali Khan v. Mst. Syeda Kaneez Sughra (PLD 2007 Karachi 50), Col. Shah Sadiq v. Muhammad Ashiq (2006 SCMR 276), Matloob Hussain v. Syed Abdul Qayyum (1988 MLD 2150), Muhammad Ismail v.
14. Mst. Bushra Fayyaz (1993 MLD 702), Syed Abdul Khair v. Syed Jan Muhammad (1997 CLC 403), Zafarullah v. Muhammad Akbar (1986 MLD 1755 [Karachi]), Manzoor Ahmad v. Karim Bux (PLD 1986 Karachi 637), Akber Ali v. Abdul Majid (1988 MLD 1412 [Karachi]), Pakistan Food Manufactures v.
15. Sadiq Ishaque (1992 CLC 482 [Karachi]), Fasahat Ali v. Mst. Noor Jehan Begum (1991 CLC 1902 [Karachi]), Fida Hussain v. Noor Muhammad Bana (1985 CLC 3014), Muhammad Moosa Khawaja v.
16. Haji Muhammad Umar (1995 MLD 1880), Associated Sales Agencies, Karachi v. The Standard Insurance Co. Ltd. (1985 CLD 2419), Muhammad Ramzan v. Soofi Muhammad Bashir (1989 MLD 548 [Karachi]), Muzaffar Hussain Jafri v. Fazal Ahmad (1993 MLD 1707), Adam Limited v. General & Rubber Trading Co. (1998 MLD 579), Yaqoob Ali v. Ismail (1987 CLC 526 [Karachi]), Faqir Taj v. Mst.
17. Shamsho (2003 YLR 894 [Peshawar]), Sakina Bibi v. Aziz Begum (2005 YLR 2947 [Lahore]) and Haji Muhammad v. Allah Yar (2007 CLC 960 [Lahore]).
18. ' I have heard both the learned counsel and have perused the material available on record so also with their assistance have gone through the case law.
19. ' From the perusal of the order/judgment impugned in this petition and the arguments advanced it reveals that the petitioners have stand their case firstly on the premise that the Courts below have failed to consider the law laid down by the Superior Courts regarding fact that the landlord had a rented shop would not disentitle him to seek eviction of tenant from demised premises owned by him for setting up his business therein and it is the prerogative of the landlord to choose the premises according to his suitability as held in the case of Muhammad Anwar. Sher Khan, Muhammad Ashraf, Zainul Abedeen and Muhammad Saleem Qureshi (supra). Secondly, the landlord seeking ejectment on ground of personal need was not required to give each and every detail in his pleading and the same may be established by leading evidence as laid down in the cases of Haji Mohibullah & Co., Mst. Sarwari Begum. Gohar Rashid and Lahore Diocesen Trust (supra).
20. There is no cavil with the law laid down in the cited cases but in my humble view it is the duty of the Court to see each and every case on its own merits. The burden to prove personal need was upon the landlords/petitioners which they were to prove through convincing evidence as mere wish, whim or convenience of landlord is not enough to prove good faith. From the material available on record it is an admitted position that the petitioners firstly claimed personal bona fide need on 27- 11-1994 when legal notice was served upon respondent No,1 but in my humble view on entering into supplementary agreement on 27-10-1996 for five years on the increased rent the petitioners themselves withdrew their claim of personal need. Particularly in view of the fact that in such supplementary agreement the Bank/respondent No,1 have been given option to renew the tenancy. The said clause is reproduced hereunder:-- "The period of lease is hereby extended for a further period of five years commencing from 1-10- 1995 on the expiry of the said period the lease shall not determine by afflux of time, but the Bank shall have the option. Without being bound to do so, to renew the same for a further period of five years and thereafter to renew the same from time to time after the expiry of such renewed period or periods."
21. In the circumstances, the finding of the appellate Court that the plea of requirement of demised premises by petitioner has already buried long before when they entered into agreement on 27-10- 1996 subsequent to issue of legal notice on 27-11-1994.
22. ' Furthermore, the oral assertion of the petitioners for personal need is to be seen very carefully.
23. Petitioner No,4 in his affidavit-inevidence took the plea that the sons of petitioner No,1 and sons of Haji Saleh Muhammad are already doing business jointly in a small rented shop premises. This plea was not taken in the ejectment application. Even otherwise petitioners Nos.1 and 4 in their cross have admitted that they owned other property in the city and so also another shop situated in Saddar area. Petitioner No,1 has also admitted to have mentioned in his letter dated 10-1-1994 that he had booked shop for Rs, 20 lacs in Saddar while in the ejectment application it is stated that the demised premises is required in good faith for personal bona fide use of the applicants to establish and start their grown up sons in business for which they do not possess any other suitable premises elsewhere. It is also pertinent to note that in para. 3 of the ejectment application, the petitioners have stated the above fact to have been mentioned in their legal notice dated 27- 11-1994 while from the bare reading of the said notice nothing like that is mentioned and the finding of the appellate Court that the appellants/applicants have made a wrong statement on oath in their ejectment application appears to be correct.
24. ' In view of the above facts and circumstances, the case law relied upon by the learned counsel for the petitioners are distinguishable and are not applicable to the present case.
25. ' As regards the plea that it is the statutory right of a landlord to eject his tenant on any of grounds recognized by Ordinance, 1979 and such right could not be nullified by agreement arrived at between landlord and tenant as held in the case of Malik Islam Akber (supra). Learned counsel for respondent No,1 while referring to Article 114 Qanoon-e-Shahadat Order, 1984 has contended that in view of the waiver clause, the petitioners are estopped, in support of this contention, learned counsel has placed reliance on certain cases but the facts of those cases are entirely different as nothing of the same are pertaining to a dispute between the landlord and tenant. Indeed in the case of Malik Islam Akbar the same point arose and this Court has held as under:-- ' It would be relevant here to refer the case of Ghulam Hussain (1985 CLC 1997) where a clause in the agreement between the parties precluded the landlord from resorting to remedy of ejectment of the tenant and the view taken was that such stipulation in the rent agreement merely emphasised the need for regular payment of rent which in any case is the duty and obligation of the tenant to discharge and if assurance for payment of rent coupled with undertaking not to eject the tenant is treated to be an estoppel for the landlord for not ejecting the tenant on any ground for ever, it would not only be contrary to the concept of ownership of immovable property, but would also be against the scheme and spirit of law which permits such a remedy to a landlord, moreover, it is statutory right of a landlord to eject his tenant on any of the grounds recognized by Sindh Rented Premises Ordinance and such right cannot be nullified by an agreement...
26. In view of the above, I am of the view that the waiver clause does not preclude the petitioners from the remedies as available in the Sindh Rented Premises Ordinance, 1979 including the personal bona fide need. However, since the petitioners have failed to show their bona fide requirement for the demised premises, the finding on this aspect of the E matter will not affect the impugned judgment.
27. ' Before parting with I may refer to the latest case of Shajar Islam (supra) in which the Honourable apex Court has held that the High Court in the exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts based on evidence even if such finding is erroneous. The scope of the judicial review of the High Court under Article 199 of the Constitution in such cases, is limited to the extent of misreading or non-reading of evidence or if the finding is based on no evidence which may cause miscarriage of justice but it is not proper for the High Court to disturb the finding of fact through reappraisal of evidence in writ jurisdiction or exercise this jurisdiction as substitute of revision or appeal.
28. ' In view of the above, I do not find any merit in this petition. Which is accordingly dismissed along with listed application.
29. ' Above are the reasons of my short order dated 5-3-2008.