1. ' BIN YAMIN, J.---This order will dispose of above noted Constitutional Petition filed by Muhammad Younus Baloch through his attorney Ali Muhammad against the order, dated 20-1-2007 passed by learned District Judge, Karachi South, in F.R.A. No, 303 of 2006, directing the appellant to vacate the premises in their possession and hand over the same to the respondent No,2 Through the afore- noted order passed in appeal, the learned District Judge has upheld the order passed by learned VIIth Rent Controller, Karachi South.
2. ' Brief facts of the case are that respondent No,2 filed ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979 against petitioner in the Court of VIIth Rent Controller, Karachi South. The applicant in his ejectment application has claimed that he is landlord/owner of the premises bearing Shop No,6, situated in Electronic Centre. Ground Floor, Al-Haroon Building, 10 Garden Road, Karachi, measuring 1800 sq. Ft. (hereinafter referred to disputed premises). The respondent No,2 further stated that the rate of rent of the disputed premises is at Rs,1105 per month payable in advance by 5th of each calendar month. He further contended that appellant is also liable to pay the actual electricity consumption charges as per meter reading in the premises in question. It is further claimed by respondent No,2 in his application that appellant failed to pay monthly rent of the premises since March, 2004 till the filing of ejectment application and thereby committed wilful default in payment of rent thus he is liable to be ejected from the premises in question. Besides, the ground of default in payment of rent, the respondent No,2 further claimed that he is sole agent/distributor of L.G. Korea Products of L.G. Television L.G. Air-conditioners etc. At Winder, Balochistan, therefore, to promote the sale of the above products, respondent No,2 also requires to establish appropriate showroom for the establishment of his business and that the premises in question is the most appropriate place for establishing showroom as the same is situated in the Electronics Market. Respondent No,2 requested for grant of his ejectment application and for ordering the petitioner to vacate the premises in question and hand over its peaceful vacant possession to him.
3. ' Petitioner appeared in the Court of Rent Controller and filed his written statement in which he denied the allegations of the respondent/applicant and further submitted that the respondent used to send electricity bills to petitioner for payment which he used to pay in time. That since March, 2004, the respondent No,2 avoided to send the bill to the petitioner with some ulterior motives. That it was respondent who refused to receive the rent and issue receipt of the same in March, 2004. The petitioner further claimed that because of refusal of the respondent to receive the rent he sent the rent by urgent money orders on 27-7-2004 and 29-7-2004 for Rs,5525 towards rent from March to July, 2004 to the respondent/applicant who refused to receive the same, therefore, the petitioner was constrained to deposit the rent in Court in MRC No,797/2004. It is further contended that during the proceeding of the case, respondent/applicant has obtained Rs,5601, the rent for five months from March to July, 2004, as such, there is no default in payment of rent on the part of the petitioner. The petitioner further contended that there are about 114 shops on the ground floor of market and that respondent/applicant plans to reconstruct a multi-storeyed plaza after getting all the tenants ejected including appellant. That respondent have filed so many identical cases against the remaining tenants of the shops, so that he may get possession of the same.
4. ' On pleading of the parties Court framed following issues:--
(1) Whether the opponent has committed default in payment of rent as alleged?
(2) Whether the applicant requires case premises for his personal, use in good faith?
(3) What should the order be?
5. ' Parties filed their respective affidavits in evidence. After hearing the advocate for the parties, the learned Rent Controller allowed the ejectment application and directed the tenant to vacate the premises and hand over its possession to the respondent. No,2.
6. ' Feeling aggrieved with the order of the learned Rent Controller, petitioner filed appeal in the Court of learned District Judge, Karachi South, which was registered as F.R.A. No,303 of 2006. The learned District Judge after hearing the Advocate for the parties dismissed the appeal in question and upheld the order of the Rent Controller passed in Rent Application No,694 of 2004 vide his order, dated 20-1-2007.
7. ' Being dissatisfied with the order of the learned Rent Controller and subsequent order of the District Judge, Karachi South, the petitioner through instant Constitutional petition has challenged the aforesaid order and has prayed as under:--
(i) Set aside the impugned judgment, dated 21-1-2007 passed by the learned respondent No,1 in F.R.A. No .303/2006 filed by the petitioner.
(ii) Set aside the order, dated 31-8-2006 passed by the learned respondent No,3 in Rent Case No,694/2004 filed by respondent No,2.
(iii) Any further order/relief as this Honourable Court deems appropriate in the circumstances of the case.
(iv) Cost of the petition.
8. ' Heard Advocate for parties and perused the case papers.
9. ' Learned counsel for the petitioner contends that the learned trial Court as well as appellate Court have decided this case, without taking into consideration the material facts of the case. That the applicant/tenant was earlier tenant of the Republic Motors to whom he had paid huge amount as a goodwill, therefore, having regard to this aspect of this matter, the applicant/tenant was allowed to transfer tenancy subject to their depositing six months rent as a transfer fee with the owner. That the learned trial Court while deciding this case have not taken this fact into consideration and allowed the ejectment. That the impugned judgment is contrary to the facts on record and the same has been passed without proper application of judicial mind. That the entire proceedings before the learned Rent Controller and before the learned District and Sessions Judge, Karachi, South is also illegal as the same was filed by an unauthorized person. That the findings of the learned District and Sessions Judge, Karachi South is erroneous as he failed to consider that lease deed executed between the petitioner and respondent No,2 is transferable in nature and was executed upon consideration and does not entitle the respondent No,2 to get the shop in question vacated for his personal use. He further submitted that for all outstanding dues/default the predecessor-in-interest of respondent No,2, the lessor used to charge 15% carrying charges. This fact is also reflected from the receipt issued by the respondent No,2, thus, default in payment of rentals does not arise. That the learned District and Sessions Judge, Karachi South while passing the impugned judgment has completely overlooked the record, particularly with regard to alleged ground of default in payment of rent. That the learned trial Court as well as learned appellate Court before passing the impugned orders have failed to take into consideration the fact that the petitioners are regularly paying all charges inclusive electricity to the respondent No,2. That the learned District & Sessions Judge, Karachi South has also failed to take into consideration the material documents viz lease deed and previous monthly receipts, which clearly reflect the mala fide on the part of the respondent No,2. That the District & Sessions Judge, Karachi South fell into error when he failed to apply the case law as laid down by superior Courts that for evicting a tenant from a commercial premises a heavy onus lies on the shoulders of landlord. Therefore, the petitioner prays to set aside the impugned judgment, dated 21-1-2007 passed by the learned District & Sessions Judge, Karachi South in FRA No,303/2006 and also to set aside the order dated 31-8-2006 passed by the learned VIIth Rent Controller, Karachi South. The learned counsel for petitioner relied upon the cases of The Majlis-I-Intizamia. Jamia Masjid, Ghulam Muhammad Abad Colony. Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department. Lahore (PLD 1963 SC 109), Muhammad Hanif v. Mumtaz Ahmad (PLD 1986 Karachi 16), Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCM R 338), Messrs. Olympia Shipping and Weaving Mills Ltd. And another v. State Life Insurance Corporation of Pakistan (2001 SCM R 1103) and Allied Book Corporation v. Sultan Ahmad and others (2006 SCM R 152).
10. ' On the other hand, learned counsel for the respondent has disputed the contentions of the learned counsel for petitioner and further submitted that both the Courts i.e, the Rent Controller as well as District Judge, Karachi South have given concurrent findings with regard to the default in payment of rent and also with regard to the personal bona fide use of the respondent No,2. That this Court in its constitutional jurisdiction generally do not disturb the findings of facts given by the subordinate Court. This Court in such-like cases generally see that the lower Court has not passed any order without jurisdiction. But if the learned lower Court vested with the jurisdiction has properly exercised its jurisdiction, then this Court does not disturb the same. That in this case, it is not the grievance of the petitioner that the learned Rent Controller of the learned Appellate Court i.e, District Judge, Karachi, South has passed the impugned order without jurisdiction. Thus the order passed by the learned lower Courts having jurisdiction is not to be disturbed by this Court in its constitutional jurisdiction.
11. ' He secondly submitted that this Court in its constitutional jurisdiction also sees that the lower Courts have not committed the error of non-reading or misreading of the evidence brought by the parties on the record. That the learned counsel for petitioner has not been able to draw the attention of this Court to show that the learned trial Court has committed error of misreading or non-reading of the evidence brought on the record. Even on this score, the concurrent findings does not warrant any interference. That the concurrent findings of facts given by the lower Court in this case are quite appropriate, legal and according to material available on the record, therefore, the same does not warrant any interference by this Court. He, therefore, requested for dismissal of the instant petition in limine.
12. ' I have considered the contentions of learned counsel for parties and perused the record.
13. ' It is well settled law that in the Constitutional petitions filed against the rent cases, this Court sees that the learned lower Court which has passed the orders had the jurisdiction to pass such orders.
14. In this case, there is no dispute that the learned Rent Controller and the learned District Judge, Karachi South, who have passed the impugned orders in this case had the jurisdiction to pass the same. The other guiding principle for decision of such applications is that this Court has to see that the learned lower Courts have properly B gone through the material on record and have not committed the error of misreading or non-reading of the material/evidence available on the record. No such thing has been pointed out by the learned counsel for petitioner i.e, the learned lower Courts have committed error of misreading or non-reading of the evidence brought on the record. The orders passed by the learned Rent Controller and the learned District Judge, Karachi South are speaking ones and well discussed. They have taken into consideration each and every point raised by the parties before them. The judgment/ order passed by the learned lower Courts after appreciating the material available on the record, the same are quite legal and appropriate and require no interference by this Court. Hence finding no merits in the instant Constitutional petition. I hereby dismiss the same in limine with costs. The petitioner is carrying on business in the premises in question, therefore, having regard to this aspect of the matter. I allow four months time to the petitioner to vacate the premises in question provided he continues to deposit rent in Court.
15. In case of failure of the petitioner to vacate the premises in question the learned executing Court will be at liberty to issue writ of possession against the petitioner without issuing any notice.