1. ' KHAWAJA NAVEED AHMED, J.---This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. ' Petitioner Islamuddin filed this petition in capacity of owner of shop situated at House No, 10/1, Area 36-D, Landhi No,5-1/2, near Gosht Market, Karachi being No,1, which his father had given on rent to respondent No,3 Khrushid Ahmed Khan about 26 years back.
3. ' The petitioner has filed the case in the Court of Rent Controller on the bona fide ground of personal requirement and the learned Rent Controller, Karachi East after going through the pleadings was pleased to frame the following points for determination:--
(1) Whether the Opponent committed wilful default in payment of monthly rent? If yes, for what period?
(2) Whether the applicant need the demised. Shop for his bona fide use?
(3) Whether the opponent minimized the value of demised premises by alteration?
(4) What should the order be?
4. ' The learned Rent Controller after perusal of the evidence and arguments of the parties was pleased to answer Point No,1 in negative, while Points Nos.2 and 3 replied in affirmative. While deciding Point No,2 in affirmative the learned Rent Controller has observed as under:-- "I have examined the evidence brought on record by the respective parties. I am of the humble view that in all there are six shops on the plot whereas two shops are with the opponent and one shop each is with Sajjad in Shop No,6, applicant's brother Aashiq is in Shop No,5, applicant brother Muhammed Ali in Shop No,4 and applicant brother Muhammed Suleman is in Shop No, 1 . The applicant in his application, affidavit and evidence and his supporting witnesses categorically stated that the applicant is jobless and a patient of Asthma and wants to carry out business of general store as the only source of income of applicant is rent of Rs,3,000 which is insufficient.
5. ' Such evidence on record is sufficient for the applicant side to show his personal need. The apprehension of the opponent that the applicant will re-let the shops on higher rent is pre-mature even otherwise the opponent has remedy if the applicant will be-let the shop on higher rent. The thin line which separate the owner/landlord from the occupant/tenant is no right to possession on the basis of ownership such right cannot be taken any from the landlord on apprehension that he will re-let the demised premises after taking possession.
6. ' It is not within the power of tenant to question the intention of the applicant unless there is strong prima facie evidence in support of the apprehension of the opponent. It is the right of the applicant to decide the cause of his growth and increase the income such desire should not be defeated by a mere apprehension that the premises be re-let on higher rent. The ground reality is that other brothers of the applicant are also carrying on business on the shops situated on the plot where the demised shops are situated; therefore, it will be a natural advantage for the applicant to start his business of General Store on the demised premises. In such circumstances, I am of the humble view that the intentions of applicant cannot be questioned as such it is clear that the applicant need the demised premises for his personal use I, therefore, decide in affirmative."
7. ' Being aggrieved from this order appeal was filed by the respondent No,3 Khrushid Ahmed Khan in the District Court, which came up for hearing before the learned IV-ADJ, Karachi East vide FRA No,72 of 2006. The learned appellate Court had reversed the' findings of the learned Rent Controller mainly on the ground that there is contradiction and confusion in respect of the rented property as to what is the actual number of the shop given on rent, whether it is Shop No,1 or Shop No,2 or 3. On the basis of this controversy and confusion the learned appellate Court had observed as under:-- "It may be pertinent to note that the appellant has accepted himself tenant in respect of the Shop No,1 .The controversy would have been perhaps solved if the landlord had be made efforts to bring evidence in conformity of his rent application in respect of the Shop No,
1. The respondent's deficient evidence in the matter, dislodges the alleged grounds, taken in the rent application, with this observation the appeal is accepted. Consequent thereof, the order passed by the learned Rent Controller, is set aside."
8. ' Against this order the landlord had preferred this constitutional petition in this Court.
9. ' I have heard the learned counsel Mr. Muhammad Afaq Khan Shahid for the petitioner and Mr. Sami Ahsan, Advocate for the respondent No,3.
10. Mr. Afaq Shahid Khan, Advocate states that the number of the shop is not material. It was a typographical error in the ejectment application. Fact remains that it is a small house and the tenant is Khurshid Ahmed for last 26 years and the present petitioner is seeking ejectment of Khurshid Ahmed from the shop, which is in his occupation for last 26 years. The number of shop is not material.
11. ' Mr.Sami Ahsan, Advocate for the respondent No,3 states that the landlord himself does not know as to which shop he actually needs for his personal bona fide need and as such this fact alone is sufficient to prove his contention that the plea of personal bona fide need is a bogus plea and the petitioner wants this shop because rate of rent in the area has gone higher and he wants to give this shop on rent to somebody else on higher rent or. This pressure technique landlord has applied only to pressurize the present tenant, who is respondent No,3 to enhance the rent to the desire of the landlord. Mr.Sami Ahsan, Advocate states that the ejectment applications contains number of shop as No,1, while in the legal notice given by the Advocate it has been shown as Shop No,3.In evidence he has changed version and stated a different shop number.
12. ' Mr. Sami Ahsan, Advocate's plea basically revolves around the number of the shop and from this confusion he develops the arguments that the need is not bona fide. He further states that when the Rent Controller had passed an ejectment order in respect of a wrong number of shops the landlord should have gone in appeal to get the number corrected. He says that the landlord has not applied for correction of the number of the shop and only the tenant had gone in appeal where the order of the Rent Controller was reversed. The learned Advocate says that since the landlord had not filed any appeal for correction of the number of the shop in the District Court therefore, it has become res judicata for him and he cannot invoke the constitutional jurisdiction of this court for any relief. He further states that this Court has very limited powers in the constitutional jurisdiction and as such cannot' go through the facts and should only confine itself to the legal point raised before the Court and confine the relief given to the party in respect of legal remedy only and not to enter into factual controversies.
13. ' I have considered the arguments of both the learned counsel and have gone through the .Record of the lower courts placed before me.
14. As has been observed earlier in this order while mentioning the arguments of Mr. Afaq Shahid Khan, Advocate I have observed that the number of the shop is not material as the premises on which this shop is located is a small house in Landhi bearing No,10/1. The whole house has been constructed on 120 Sq. Yards and there is only one tenant by name of Khurshid Ahmed Khan. The petitioner has sought ejectment of Khurshid Ahmed Khan and he needs shop of Khurshid Ahmed Khan for his personal bona fide use. Shop is in occupation of tenant for last 26 years now. One generation of landlord has already died. Second generation is in its advance age. I am of the considered view that in the light of the law recently developed by the Honourable Supreme Court of Pakistan in respect of personal bona fide need of the landlord it will be in the interest of justice to allow this petition and uphold the order of the learned Rent Controller for ejectment.
15. ' However, since it is a business place and it will be very difficult for tenant Khurshd Ahmed Khan (respondent No,3) to develop a new business in a short time therefore, I grant two years time to the tenant Khurshid Ahmed Khan (respondent No,3) to vacate the shop in question. On expiry of two years period from today the learned Rent Controller will issue writ of possession without notice with police aid with order of breaking open the lock of the shop occupied by tenant Khrushid Ahmed Khan regardless of number of the shop.
16. ' Petition No,S-141 of 2007 stands disposed of.