' NADEEM AZHAR SIDDIQI, J.---Through this petition the petitioner has called in question the judgment dated 19-11-2008 passed by learned District Judge, Karachi Central in F.R.A. No,115 of 2008 whereby the said F.R.A. Was dismissed and the order dated 4-8-2008 passed by the learned Rent Controller. In Rent Case No,636 of 2007 was upheld.
2. Brief facts of the case are that the respondent No, 1/landlady filed an application under section 15(2)(ii) and (iii) of the Sindh Rented Premises Ordinance, 1979 against the petitioner/tenant in respect of Shop No,8, constructed on Plot No,A-1/9, Block 9, Dastgir Colony, Federal "B" Area, Karachi on the ground of default in payment of rent as well as personal bona fide use. Notices were issued to the petitioner/tenant who filed his written statement denying the claim of the respondent. The respondent No,1/landlady filed her affidavit-in-evidence through attorney and also of one Shakeel Ahmed while the petitioner filed his affidavit-in-evidence and also of Rehmatullah and Fazal Ahad.
The petitioner has also examined the previous landlord, namely, Irshad Ahmed. The learned Rent Controller, after hearing the parties, passed the judgment dated 4-8-2008 whereby he allowed the rent case and directed the petitioner/tenant to hand over vacant possession of premises to the respondent No, 1/landlady within sixty days of that judgment. Against that judgment the petitioner filed F.R.A. No, 115 of 2008 which was also dismissed by the learned District Judge, Karachi Central vide judgment dated 19-11-2008, as stated above. Hence this petition.
3. I have heard learned counsel for the parties and have gone through the record and the case law relied before me.
4. Learned counsel for the petitioner submitted that no default was committed by the petitioner as admittedly rent up to April, 2002 was paid by the petitioner to the respondent No, 1/landlady and, thereafter, on refusal of the landlady to accept the rent, the same was tendered through money order and then was deposited in MRC No,311/2003 and that since then the petitioner is regularly depositing the rent in the said MRC. He also submitted that since other shops were available to the respondent No,1/landlady in the same vicinity/building, the ground of personal bona fide need was not available to her. He also submitted that Pugri has been paid to the previous owner and the petitioner is entitled to adjust the same from the arrears of rent and in case the adjustment is allowed the petitioner has committed no default. He submitted that the judgments of the two Courts below are perverse and without jurisdiction and are liable to be set aside.
5. On the other hand, learned counsel for respondent No,1 has submitted that the petitioner has not tendered rent before tendering the same through money order and thus, has committed default in payment of rent. He also submits that the demised premises is required for the personal bone fide need of the respondent No,1 for running a stationery shop therein by her son and submits that it has come on record that no other vacant shop is available for the use of the son of respondent No,
1. He then submitted that the two courts below have passed concurrent judgments against the petitioner/tenant which cannot be disturbed under the constitutional jurisdiction of this Court. He then submitted that no Pugri has been paid to the respondent No,1 and the same cannot be adjusted from the arrears of rent.
6. I have heard the learned counsel for the parties and perused the record made available before me.
7. The ejectment application was filed on the ground of default in payment of rent from May 1992 onwards and on the ground of personal bona fide need of the landlady. The respondent No,1 claims that rent from May, 2002 till filing of the ejectment application has not been paid. The petitioner claims that he tendered the rent from May, 2002 to September, 2002 as usual but the applicant refused to accept the same and demanded increase in rent and the petitioner has tendered the rent through money orders. The petitioner in his cross-examination has pleaded ignorance regarding date of sending money order. The respondent No, l's attorney on oath stated that the rent from May, 2002 onwards was not paid. The burden was shifted upon the petitioner to prove that before tendering the rent for the period from May, 2002 to September, 2002 through money order the rent was personally tendered to the respondent No,1 every month, who refused to accept the same. It is the duty of the tenant to pay rent in accordance with the provisions of Sindh Rented Premises Ordinance, 1979. Admittedly, the rent for May, 2002 to September, 2002 was sent collectively and since no date is available on the money order coupon it can be said that the same was sent in the month of September, 2002 after committing default for the months of May and June, 2002. The petitioner has failed to discharge the burden as no evidence has been produced by him to show that rent for every month was tendered before sending the same by money order.
The payment of rent is a positive fact and can be proved by evidence whereas non-payment of rent is negative fact and there can be no evidence for providing a negative fact. I am fortified in my view by the reported case of Muslim Commercial Bank Ltd. v. Yaqinuddin (PLD 1992 Karachi 314) and the case of Mr. Afia Baig v. Pakistan State Oil (PLD 1991 Karachi 239). The Rent Controller has properly discussed the evidence available on record before reaching the conclusion that default has been committed and both the Courts below have recorded finding of facts which is not suffering from any perversity and illegality and is strictly in accordance with law.
8. Regarding personal need it has come on record that no other vacant shop is available. The attorney of the respondent No,1/Landlady in his cross-examination has given the account of all shops in the building and the petitioner has failed to establish that any vacant shop is available.
Mere statement in this regard without evidence is not sufficient to hold that other shops are available. Even otherwise it is the prerogative of the landlady to select the shop and the nature of business. The courts below have rightly recorded the finding of facts and no exception can be taken in this regard.
9. To prove the payment of Pugri the petitioner has examined the previous owner of the demised premises. The previous owner in his cross examination stated that petitioner paid Rs,5,000 at the time of inception of tenancy and after 15 years paid Rs,45,000 as Pugri amount. Law does not recognize payment of Pugri and on the basis of payment the tenant cannot save his ejectment if the landlady proves one of the grounds of ejectment of tenant. In the reported case of Azizur Rehman v. Pervaiz Shah (1997 SCMR 1819) the Honourable Supreme Court had held that, payment of Pugri not forming terms and conditions of tenancy and being contrary to public policy, and supra contractual arrangement which negated tenancy could not affect maintainability of eviction proceedings. In the other reported case of Sh. Muhammad Yousuf v. District Judge, Rawalpindi (1987 SCMR 307) the Honourable Supreme Court has held that the payment of Pugri being mutual agreement between the parties, would not debar the landlady from instituting eviction proceedings on the ground of bona fide personal need. It may be added that Pugri has never received any legal recognition and the tenant is not entitled to claim benefit of the same. Pugri is not an advance rent and cannot be adjusted towards arrears of rent to save the tenant from the consequences of default in payment of rent if committed by him and proved by the landlady. So far as the contention of the learned counsel for the petitioner that the petitioner has paid pugri to the previous owner is concerned, reference may be made to the reported case of Muhammad Ashraf v. Ismail (2000 SCMR 498), wherein Kamal Mansur Alam, J (as he then was), expressing the view of the DB, observed as under:-- "Even assuming, for the sake of argument, that Pugri had been paid to the previous owner, as contended by the learned counsel, then too no adjustment of the arrears of rent against such Pugri can be claimed, when the property has already been sold to the present respondent; surely these respondents cannot, by any stretch, be made to suffer for the unlawful doings of others. In the result, we find no merit in the petition which is accordingly dismissed and leave is refused."
' In view of the above observation of a Division Bench of the Honourable Supreme Court, the contention of the learned counsel has no force and is repelled.
10. For the above reasons this plition was dismissed in limine along with the listed application vide short order dated 13-4-2009.