' 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 and validity of the judgment dated 29-7-2008, passed by the learned Ist. Additional District Judge Nawabshah in F.R.A. No,2 of 2007 Abdul Rehman v. Abdul Ohaffar and others, whereby the rent appeal filed by the petitioner against the order passed by the learned Rent Controller Nawabshah in Rent Case No,1 of 2006, thereby directing the eviction of the petitioner from the premises in question, has been maintained.
2. The facts as stated in the petition in brief are that the respondent. No's.1 to 7 claimed to be owners of property bearing No, II-A 129, Main Road Sakrand, Sakrand Town which was rented out to petitioner at monthly rent of Rs,300 per month; the petitioner subsequently stopped the payment of rent in February 2003. The respondents, therefore, filed application for eviction of petitioner from the demised premises on the ground of default in payment of monthly rent from February 2003 and requirement of the property in question for personal bona fide use of the respondents because Muhammad Naeem and Muhammad Aleem, respondents Nos.5 and 6, respectively, have attained the marriageable age and their marriage has been held up for want of sufficient accommodation.
3. The petitioner on receipt of the notice of the ejectment application appeared before the learned Rent Controller, and filed written statement, wherein the default in payment of monthly rent since from February 2003 has not been specifically controverted, nor the requirement of the property for personal bona fide use of the respondent No,'s 5 and 6 has been refuted. However, the petitioner in his written statement has contended that he is residing in the said house since last 40 years being close relative to the respondents and the respondent did not get the repair or Whitewash etc. Of the property in question, therefore, he constructed pucca house after spending an amount of Rs,300,000. Besides, the pucca repair work, he also obtained electric, sui-gas and water connection etc in the premises and the respondent, who had allowed him to carry out the construction work, has not returned the amount of Rs,300,000 being repair charges and the expenses incurred on obtaining the sui-gas, electric and water connections, and that the property is not required for personal bona fide use of the respondents.
4. Both parties led their evidence to prove their respective claim and after hearing the learned counsel for the parties the learned Rent Controller while framing the points for determination viz. "(1) Whether the opponent has committed wilful default in the payment of rent since from the period of February 2003? (2) Whether the premises in question is required for the personal bona fide use of the brothers of the applicants? And (3) what should the order be?" vide his order dated 23-5-2007 allowed the ejectment application and directed the petitioner to vacate the premises.
5. The petitioner being aggrieved against the order passed by the learned Rent Controller preferred F.R.A. No,2 of 2007 before the learned District Judge Nawabshah, who transferred the said appeal to learned Ist Additional District Judge Nawabshah, who after hearing of learned counsel for the parties affirmed the finding of Rent Controller and dismissed the appeal. Hence the present petition.
6. I have heard Syed Hassan Tariq, learned counsel for the petitioner. He vehemently contended that the petitioner incurred expenses of Rs,300,000 in getting repair work of the property in question and the respondent had agreed to adjust the said repair charges towards the monthly rent but subsequently the respondents resiled from their assurance and had mala fidely filed the ejectment application on the ground of default in payment of monthly rent. He further contended that the property in question is not required for personal bona fide use of the respondent No's. 5 and 6 and the ejectment application has been filed for harassment of the petitioner so as to avoid the payment of repair charges, as well as the electric, sui-gas and water connection charges and the learned lower' Court has failed to consider the evidence led by the petitioner regarding reconstruction of the property in question and its adjustment towards monthly rent, therefore, the order impugned herein suffers from material illegality and irregularity, which is liable to be set aside.
7. I have considered the arguments advanced on behalf of the petitioner and have gone through the material available before me. Admittedly, the respondents have filed the rent application for eviction of the petitioner on two grounds viz. Default in payment of monthly rent at the c rate of Rs,300 per month since from February 2003 and the requirement of the property in question for the personal bona fide use of respondent No's.5 and 6. In the application the respondents have pleaded that the property in question was rented out to the petitioner at the monthly rent of Rs,300 per month; which fact has not been controverted by the petitioner. The respondents have stated about the default committed by the petitioner in payment of monthly rent at the Rate of Rs,300 per month since from February 2003. In Para 2 of the rent application filed by the respondents before the Rent Controller it is pleaded by them that the petitioner failed to pay the monthly rent since from February 2003. The petitioner in his written statement has nowhere denied the assertion of the respondents made by them in para 2 of the ejectment application that the petitioner has failed to pay the monthly rent since from February 2003. On the other hand the petitioner has introduced a new theory regarding adjustment of repair charges of Rs,300,000 towards monthly rent, but he completely failed to produce any independent or sufficient evidence to prove that respondent had allowed him to carry out the repair work of the property in question and repair charges may be adjusted towards monthly rent. The respondents in their affidavit-in-evidence have also reiterated the same fact of default committed by the petitioner in payment of monthly rent and in their cross-examination no case has been fished out by the petitioner regarding non-payment of monthly rent by him or adjustment of the same towards the repair charges of Rs,300,000 allegedly incurred by the petitioner. The petitioner has also failed to prove through any independent and confidence inspiring evidence that the respondent had allowed him to raise any construction or carry out repair work over their property and that the expenses incurred on the construction work will be adjusted towards the monthly rent. In absence of any reliable evidence to the effect that the respondent had allowed the petitioner to carry out the repair work at his own cost, the respondents could not be held responsible for alleged repair charges and the petitioner is himself responsible for the expenses, if any, incurred by him on repair work of the property. The petitioner has, therefore, committed default in payment of monthly rent since from February 2003 and no evidence is available on record to show that the alleged expenses of Rs,300,000 incurred over the construction of property in question were/are adjustable towards the monthly rent. The learned lower Court has, therefore, rightly held that the petitioner was responsible for committing default in payment of rent since from February 2003 and the learned appellate Court has also correctly appraised the evidence available on record in support of the impugned judgment.
8. The respondents have also claimed that the property in question is required for their personal bona fide use on the ground that respondents Nos. 5 and 6, whose marriages are held up for want of sufficient accommodation and the property in question is suitable for their personal use.
' The petitioner nowhere has disputed the assertion made by the respondent regarding ownership of the property in question. It is also not denied by the petitioner that the property in question is required by the respondent Nos.5 and 6 for their personal bona fide use. The respondents have also stepped in the witness-box and have substantiated their bona fide need, which evidence remains unshaken in their cross-examination, as such the respondents have proved their claim through cogent evidence that the property in question is required by them for their personal bona fide use, which has not been disproved by the petitioner.
9. After appraisal of the whole material available on record I am of the firm opinion that the learned lower Court has rightly held the petitioner guilty of committing default in payment of rent from February 2003 and that the property in question is required for personal bona fide use of the respondents and the learned appellate Court has also after appraisal of the evidence available on record was of the same opinion that the petitioner has committed default in payment of rent suit from February 2003 and the property in question is required for personal bonafide use of the respondents. The concurrent findings of both the lower Courts on both the points involved herein therefore, could not be set aside. The constitutional petition was, therefore, dismissed by short order dated 19-9-2008 which is usefully quoted herein below for the sake of convenience:-- "For the reasons to be recorded later on, this petition is hereby dismissed summarily. Petitioner is directed to handover vacant physical and peaceful possession of the property in question to the respondents within a month subject, however, to the condition that he will deposit the amount of arrears of rent outstanding against him before the learned Rent Controller within a week hereof, failing which the learned Rent Controller may issue writ of possession against him without issuance of any further notice to him."
' The above are the reasons of the aforesaid short order.