1. ' ARSHAD NOOR KHAN, J.--- By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the legality, validity and propriety of the judgment dated 14-4-2005 passed by Mr. Muhammad Zarif Qureshi,learned II-Additional District Judge, Central, Karachi in First Rent Appeal No,210 of 2004 Muhammad Iqbal v. Khuda Bux whereby the appeal filed by respondent No,1 was allowed and the judgment passed by the learned VI-Senior Civil Judge, and Rent Controller, Karachi Central, dated 410-2004, whereby the rent application filed by respondent No,1 was dismissed, has been allowed and the petitioner has been directed to hand over the vacant and peaceful possession of the shop in question to the appellant within 60 days from the date of passing of the judgment.
2. ' The facts leading rise to the present petition in brief are that respondent No,1, who is landlord and owner of the shops constructed on Plot No,344/16 Federal "B" Area, Karachi whereon ten shops have been constructed and is popularly known as Iqbal Cloth Market, wherein a big shop situated at corner of the Plot, bearing No,10 was rented out to the petitioner at a monthly rent of Rs,720 and an amount of Rs,20,000 was deposited by him as security deposit, refundable at the time of vacation of the shop in question. It is further stated in the rent application that the respondent No,1 is doing this business of grain selling, sugar and other items on small scale for want of space and to expand his business he intends to install grinding machine for grinding floor, basin and spices as such the respondent No,1 required the shop in question in good faith for his personal bona fide use and the petitioner is using the said shop as manufacturing place of sweet where he installed high flame gas burners, which also caused nuisance to the respondent and his family who are residing at first floor of the premises. It is further stated in the rent application that waste of the manufacturing of the sweet and nimco use to throw openly by the petitioner which is causing great suffocation, throat infection and great inconvenience, besides unhygienic atmosphere of the locality as such the petitioner is causing nuisance to the inhabitants of that locality. It is further stated in the petition that respondent in order to avoid the litigation and settle the matter amicably, sent legal notice dated 6-8-2002 to the petitioner who received the same and replied it through his counsel on 19-8-2002 and thereafter he stopped the payment of rent and probably the rent was deposited in Court. It is further stated in the rent application that the petitioner failed to pay rent to him since from August, 2002 till filing of the rent application and that the premises is required for personal bona fide use of the respondent No,1 and that by the act, deed and conduct of the petitioner they have impaired the utility and value of the shop in question and have, therefore, caused damage to the property in question as such the rent application was filed by respondent No,1 on all the three counts, as stated above.
3. ' The petitioner was served with notice of the rent application, who appeared before the Rent Controller and filed his written statement, admitting therein, inter alia, the relationship of landlord and tenant and that the shop in question was rented out to him at the monthly rent of Rs,730. It is further stated in the written statement that respondent No,1 has constructed 10 shops out of which six shops have been rented out to different tenants while the three shops along with the passage of the market is in possession and occupation of the respondent No,1. He has also given the details of the tenants to whom the remaining shops have been rented out by respondent No,l. It is further stated in the written statement that the shop in question was originally rented out for manufacturing of sweets, as the petitioner is running sweets shop in front of the building of respondent No,1, and with his permission, the gas burners for preparation of sweet etc. Were installed. By obtaining sui gas and electric connections. It is refuted by the petitioner that the premises is required for personal bona fide use of respondent No,
1. The notice sent by respondent No,1 was received and properly replied and thereafter the rent was tendered through money order, but respondent No,1 refused to accept the same, therefore, the rent was deposited in M.R.C. No,885 of 2002 since 24-12-2002 and is continuously depositing the same in the said M.R.C. It is further stated in the written statement that the petitioner has neither impaired the utility and value of the shop in question nor caused damage to it, nor has committed any default in payment of rent, as such the rent application was filed by respondent No,1 improperly and prayed for dismissal of the same.
4. ' After filing of the written statement, by the petitioner, respondent No,1 filed affidavit-in-evidence wherein he reiterated the whole contents of the rent application. He has been cross-examined at great length by the learned counsel for the petitioner. Respondent No,1 closed his side on 5-5-2004.
5. The petitioner examined Chiragh Din being his son and attorney, who filed his affidavit-in- evidence, thereby reproducing the averments contained in his written statement and he was also cross-examined by the learned counsel for respondent No,1 and the side of the petitioner was closed on 9-8-2004. After recording of evidence in pro and contra to their respective claims of both the parties, the learned Rent Controller after hearing of the learned counsel for the parties, dismissed the rent application vide final order, dated 4-10-2004. The learned Rent Controller while recording the final order, framed the following points for determination:--
(1) Whether the applicant requires the shop in question in good faith for his personal occupation or use?
(2) Whether the opponent has committed any wilful defaults towards payment of rent of the shop in question?
(3) Whether the opponent has impaired the value or utility of the shop in question?
(4) Whether the opponent has caused any nuisance to the applicant or his family members?
(5) What should the order be?
6. ' Being highly aggrieved and dissatisfied with the order passed by the learned Rent Controller, respondent No,1 preferred rent appeal, which was entrusted to the learned II-Additional District Judge, Central Karachi, who vide order impugned herein, set aside the order passed by the learned Rent Controller and accepted the rent application on the ground of personal bona fide use and that the petitioner has committed wilful default in payment of rent and that he has impaired the value and utility of shop in question. However, the ground of nuisance was not proved and ordered the eviction of the petitioner.
7. ' The petitioner has, therefore, preferred the present petition. During the course of pendency of the petition, he expired and his legal heirs have been brought on record.
8. ' I have heard Mr. Mehmood Hassan, Advocate for the petitioner and Mr. Badrul Alam, Advocate for respondent No, 1.
9. ' Mr. Mehmood Hassan, Advocate vehemently contended that the Rent Controller, on appraisal of the whole evidence available on record, was justified in dismissing the rent application filed by respondent No,1 on all the grounds raised by him and the learned Appellate Court without assigning any sufficient reason has reversed the findings of the learned Rent Controller. He further contended that the evidence available on record has been misconstrued by the learned Appellate Court and has drawn adverse inference to the inference drawn by the learned Rent Controller and no sufficient reasons have been assigned by the learned Appellate Court in reversing the findings of the learned Rent Controller. He further contended that respondent No,1 was running his business in three small shops and his need was neither genuine nor bona fide and that respondent No,1 refused to accept the money orders as such rent has been deposited in M.R.C. No,885 of 2002 as such no wilful default has been committed by the petitioner and that no evidence is available on record to assess the impairment of utility and value of the shop in question by the petitioner as such evidence available on record has not been considered by the learned Appellate Court in its true perspective as such the said findings of the learned Appellate Court may be reversed by restoring the orders passed by the learned Rent Controller.
10. ' Mr. Badrul Alam, Advocate for respondent No,1 vehemently contended that learned Appellate Court correctly apprised the whole evidence available on record and in fact the requirements of the shop by respondent No,1 in good faith for his personal bona fide use has neither been disputed by the petitioner nor has been disproved in his cross-examination as such the requirement of shop by respondent No,1 for his personal bona fide use has been established and the learned Appellate Court rightly reversed the findings of the Rent Controller on this aspect of the matter. He further contended that the petitioner failed to tender rent since from August, 2002 till December, 2002 and even the said rent has not been deposited in M.R.C. No,885 of 2002 as such continuous default in payment of rent from August, 2002 has been established on the basis of evidence available on record: He vehemently contended that admittedly the petitioner is using high flame burners for preparation of sweet and no permission was accorded by respondent No,1 for installation of sui gas connection and use of high flame burners, which is causing damage to the property in question. In support of his contention has relied upon the cases of Shaikh Muhammad Aslam v. Sumara Aamir reported in 1993 CLC 208; Secretary to the Government of Punjab Forest Department, Punjab, Lahore v. Ghulam Nabi, reported in PLD 2001 SC 415 and Muhammad Sharif and another v.
11. Muhammad Afzal Suahil and others reported in PLD 1981 SC 246.
12. ' I have considered the arguments advanced on behalf of the parties and have gone through the entire material available on record.
13. ' At the very outset, it has been observed that the respondent No,1 has filed rent application against Khuda Bux, who was the actual tenant of the respondent No,1 and the said Khuda Bux has not filed his affidavit-in-evidence and affidavit-in-evidence of his son Chiragh Din has been filed being his attorney. Para.1 of the of affidavit-in-evidence of the said Chiragh Din indicates that he is attorney of opponent (Khuda Bux) but surprisingly the power of attorney has not been produced in the Court of learned Rent Controller, which is also manifest from the production of the documents on 9-8-2004 before his cross-examination. A perusal of the production of the documents, prior to his cross-examination, shows that he produced four photographs Ann: from Exh.O.1/A to Exh.O.l/D; photocopies of bank deposit challan dated 25-8-2003; Licence dated 27-8-2003 and approved internal gas piping layout sketch as Exh.O.1/E to Exh.O.1/G, respectively. Apart from these documents, the copy of power of attorney has not been filed. In cross-examination to the learned counsel for respondent No,1, he admitted that the written statement was filed by opponent Khuda Bux himself whereas affidavit-in-evidence has been filed by him on behalf of his father as his attorney vide attorney deed, dated 20-3-2004 according to which he is fully authorized to do acts in respect of the present case. The said admission in his cross-examination also shows that he has acted as attorney for his father Khuda Bux but the record is completely silent to show that he has filed any copy of power of attorney and non-production of the copy of power of attorney adversely reflects on the whole case of the petitioner and since the deceased Khuda Bux did not step in the witness-box to refute the evidence led by the respondent No,1, as such, the whole case of respondent No,1 remains unrebutted. In absence of filing of power of attorney by the said Chiragh Din, his evidence could not be treated as evidence in support of the written statement filed by his father, as such, claim of the respondent No,1 remains uncontroverted by the petitioner. On this score also, the personal bona fide use of the shop in question as well as default since from August, 2002 to November, 2002 as alleged by respondent No,1 remains uncontroverted and undisputed in absence of the evidence of the petitioner.
14. ' Admittedly, the respondent No,1 sought eviction of the petitioner from the shop in question in his possession, which was rented out to deceased Khuda Bux. For the purpose of seeking ejectment of the petitioner on the ground of personal bona fide use of the shop in question, the respondent No,1 in his rent application has stated that he is doing his business of grain selling, sugar and other items on small scale for want of space, whereas to expand his business specially to install grinding machine for grinding floor, basin and spices, he required the adjacent premises, in possession of the petitioner, who is using the same for manufacturing of sweet. He further stated that the shop in question, in possession of the petitioner is biggest one and as per nature of his business he needs sufficient space, as all other shops are very small and the shop in possession of respondent No,1 is quite sufficient for storing the bags of grain, pulses, rice, sugar, Atta, spices, and to install grinding machine in the said shop. A similar assertion of requirement of the said shop bonafidely for his personal bona fide use has been incorporated in his affidavit-in-evidence and surprisingly the said need of respondent No,1 has not been seriously disputed, denied or challenged in the lengthy cross-examination, conducted on him by the learned counsel for the petitioner. The requirement of personal bona fide need of the respondent No,1 has been stated in detail by him and his cross- examination is completely silent to disprove his requirement of personal bona fide use of the said shop. It is also settled principle of law that the assertion made by the witness in examination-in- chief, in case, have not been controverted or challenged in cross-examination, would deemed to have been accepted by the opposite party, in view of Article 133 of Qanun-eShahadat Order, 1984.
15. Applying the said principle in the present case, I find that the cross-examination of respondent No,1 is completely silent on this aspect of the matter as such need of the shop by respondent No,1 is spelt out from the evidence available on record and remained uncontroverted.
16. ' Learned counsel for the petitioner has vehemently contended that the petitioner has not committed any wilful default in payment of rent as after receipt of the notice from respondent No,1, he sent rent through money order which was refused by respondent No,1 and on his refusal to accept the rent, the petitioner deposited rent in M.R.C. No,885 of 2002 as such no default has been committed. The learned counsel for respondent No,1 vehemently controverted the contention advanced by the learned counsel for the petitioner and contended that the petitioner failed to tender rent since from August, 2002, after receipt of the legal notice and he has deposited the rent since December, 2002 in M.R.C. No,885 of 2002 as such the rent for thee months has still not been paid by the petitioner. Learned counsel for the petitioner completely failed to point out that since from which month he started depositing rent in M.R.C. No,885 of 2002. In his rent application, respondent No,1 in clear terms claimed the default committed by the petitioner since from August, 2002 and the said default has also not been challenged by the petitioner in the cross-examination of respondent No,1 even it is not suggested to respondent No,1 in his cross-examination that the rent from August, 2002 has been deposited in M.R.C. The learned counsel for the petitioner was asked by me to point out the evidence showing that the rent has been deposited by the petitioner in M.R.C. :No,885 of 2002 since from August, 2002 but the learned counsel for the petitioner candidly admitted that the rent has been deposited in M.R.C. No,885 of 2002 since December, 2002 and he possess no receipt of deposit of rent since August, 2002 in Court or even money order coupon have not been produced. The said admission of the learned counsel for the petitioner clearly shows that the rent from August, 2002 to November, 2002 has not been paid by the petitioner to the respondent No, 1 . The default in payment of rent from August, 2002 to November, 2002, therefore, remains uncontroverted by the petitioner, which is sufficient to hold that the petitioners are wilful defaulters in payment of rent.
17. ' Learned counsel for the petitioner has contended that there is no evidence available on record to show that the property in any way has been damaged by the petitioner, as such learned Appellate Court was not justified in allowing the ejectment of the petitioner on this score. Admittedly the shop in possession of the petitioner was rented out to Khuda Bux in the year 1980 for manufacturing the sweets as such the intention of respondent No,1 was to rent out the shop for the purpose of manufacturing the sweets by the petitioner and for the purpose of preparing the sweets, naturally sui gas burners are being used by the petitioner and apart from the said use of burners, no major evidence has been brought on record to prove the major impairment of utility and value of the shop in question as such the sufficient evidence is not available on record to grant the ejectment of the petitioner on this score and findings of learned Appellate Court, on this point is reversed.
18. ' After going through the material available on record, I am of the firm view that the order passed by the learned Appellate Court did not suffer from any illegality, irregularity or is passed against the principle enunciated by the Honourable Supreme Court regarding appraisal of the evidence as such the judgment passed by the learned Appellate Court could not be declared as illegal, inoperative, or void ab initio. The petition has, therefore, no merit which was dismissed in the morning, vide short order, which is reproduced hereinbelow, for the sake of convenience:-- "For the reasons to be recorded later on, petition is dismissed in limine. Petitioner is allowed two months time to vacate and handover the peaceful possession of demised premises to the respondent No,1, provided he will continue to deposit the rent in the Court of learned Rent Controller failing which learned Rent Controller will be at liberty to issue writ of possession without any notice to the petitioner."
19. ' The above are the reasons for the same.