1. ' GHULAM DASTAGIR A. SHAHANI, J.--- This constitutional petition has been directed against the orders dated 26-7-2005 and 18-4-2008 passed by the VIIth Rent Controller, Karachi and Vth Additional District Judge, Karachi South, in a Rent Case No,800 of 2000 and First Rent Appeal No,181 of 2005 respectively, whereby Rent Controller allowed the ejectment application, and Additional District and Sessions Judge, Karachi dismissed the appeal.
2. ' Facts are that respondent Ali Akbar Kumaili is the owner of land measuring about 197 sq. Yards whereupon a shed is constructed and known as tenement No,8, Survey No,1/19, (Old No,E-5/10) sheet No,LR-5, situated in Lawrence Quarter, Karachi according to him acquired the same by way of gift from his father namely Muhammad Abbas Kumaili and declaration/confirmation of oral gift and registered No,182, Book No,1, dated 22-3-2003 by Sub-Registrar "I" Divisional VI-B, Karachi MF Roll No,U-26224/772, dated 27-5-2002 and record also mutated in his favour. Originally petitioner was a tenant of Haji Muhammad Abbas and this tenement has been carrying on his business of timber. He was tenant in respect of said premises at the rate of Rs,350 per month. Respondent informed the petitioner about his becoming the absolute owner and served a notice dated 15-6- 2002 under section 18 of the Sindh Rented Premises Ordinance, 1979 to the petitioner to vacate the premises as the same is lawfully needed to him for his personal bona fide use but same was not replied. Not only this but petitioner wilfully failed to pay or tender monthly rent to the respondent at least from June, 2002 till date. As respondent is businessman and he wanted to carry his own business independently as he has completed his education. He has no other suitable place for his bona fide need except this one. According to the information of respondent the above name petitioner has sub-let the premises to a stranger who is carrying on his business of timber under the title Messrs Ashique Hussain Saw Mill, therefore, filed rent application on the ground of wilful default, sub-letting and personal bona fide use.
3. ' The case of opponent is that opponent was not in knowledge about the transfer of property in favour of applicant, though prior to this opponent fought long litigation with the father of applicant, upto Honourable Supreme Court of Pakistan more than once and gift is made with mala fide intention, else opponent was a tenant of Muhammad Abbas (father of the applicant/respondent) and now petitioner is depositing the rent in the name of applicant and denied the service of notice dated 15-6-2002 and further that property is not required to the applicant for his personal bona fide use.
4. ' From record further reveals that Rent Case No,80/08 (Ali Akbar v. Ghulam Hussain) was filed and on the basis of pleading, points for determination were framed in respect of particular ground of defaulter in payment of rent, sub-letting and personal bona fide use and disposed of, vide order, dated 19-7-2005 passed by VIIth Rent Controller, Karachi South. Being aggrieved and dissatisfied with the impugned order dated 19-7-2003 F.R.A. No,181 of 2005 (Ghulam Hussain v. Ali Akbar) was preferred, but that was also dismissed vide order/judgment dated 18-4-2008 passed by the Vth Additional Sessions Judge, Karachi South, therefore, present petition is submitted.
5. ' Learned counsel for the petitioner states that impugned orders are illegal, and Appellate Court failed to consider the legal position that after refusal of the landlord tender by money order and deposit of rent with Rent Controller is at par and does not constitute default, muchless a wilful default, and also failed to apply his mind to the facts and has not gone through the evidence on record. He further states that Appellate Court did not appreciate that in the background of past round of litigation respondent would have refused to accept the rent to compelling petitioner resort other modes of payment of rent to avoid the penal consequence of default. Although the rent had been paid in advance upto December, 2003 in favour of ex-landlord, while rent is being paid since January, 2004 in the name of present respondent, hence there is no default. He states that Appellate Court erred in not allowing additional evidence although having all the powers of the trial Court, which if allowed would have dislodged the entire claim of respondent based upon his plea of bona fide personal need, when he and his father are in fact one and same having common designs to get the eviction of the tenants including petitioner by twisting provisions of law and to frustrate the recorded earlier findings of the superior Courts. He further states that Appellate Court failed to take note of the fact that tenements contesting ground of ejectment in the present rent case and the previous, decided upto the level of the Honourable Supreme Court are same, which fully attracted the well-known principle of the res judicata, thus, impugned judgment is gross violations of recognized principle of law, as matter in issue was already heard and decided.
6. Reliance is placed on the case of Shafiqur Rehman v. Saeed Ahmed 1991 M LD 1393, Mst. Zulekha Bai v: Muhammad Yaqoob 1989 M LD 2882, Daniyal Pervaiz v. VIIth Additional District Judge, Karachi and 2 others 2006 M LD 1135, Lal Din Masih v. Mst. Sakina Jan and another 1985 SCM R 1972, Mahboob Elahi v. Muhammad Zaman 1983 SCM R 37, Muhammad Yousuf and another v. Muhammad Ebrahim Khandwani PLD 1991 Kar. 226 and M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCM R 200.
7. ' Mr. Nasir Hussain Jafri learned counsel for the respondent states that orders passed by two Courts below are proper, legal and in accordance to law, therefore, same do not need interference by this Court. He states that petition may be dismissed in limine. According to him offer and tender of rent by money order are missing and mere depositing of rent at later stage without adopting all of the modes, is not enough and petitioner failed to prove that rent was offered, tendered and refused or avoided to accept by the landlord. So far his ground of res judicata is concerned he states that High Court cannot interfere with the findings of the fact recorded by appellate forum. Reliance is placed on the case of Allah Bakhsh v. Member (Colonies), Board of Revenue Punjab and another 1983 CLC 2281, S. Abdul Khaliq Shah, Halwa Sohan Merchant and another v. District Judge, Karachi East and others 2004 M LD 13 and Muhammad Sharif and another v. Muhammad Afzal Sohail PLD 1981 SC 246.
8. ' Heard Raja Basanti learned counsel for the petitioner, as well as Mr. Nasir Hussain Jafri learned counsel for the respondent and with their assistance perused the material available on record.
9. Most important and main issue insisted and pleaded in the present matter for consideration is that what will be the legal effect of first round of litigation ended after judgment passed on 14-6-2001 by the Honourable Supreme Court of Pakistan, filed by previous landlord namely Muhammad Abbas Kumaili (father of respondent No,2) who on 27-5-2002 gifted the property in question in favour of his son Ali Akbar Kumaili (respondent No,2) who required the property for his personal bona fide use, and further that order passed on 18-4-2002 in F.R.A. No,181 of 2005 (Ghulam Hussain v. Ali Akbar Kumaili) affirming the order, dated 6-7-2005 passed in Rent Case No,80 of 2005 (Ali Akbar Kumaili v. Ghulam Hussain) passed by Rent Controller/Senior Civil Judge, Karachi South respectively, are in accordance to law or both the Courts below have committed violation of law by passing the impugned orders, so indulgence be necessary in the present matter at this stage. High Court can interfere with the decision of Court or Tribunal if finding of facts not properly recorded by appellate forum, sufficient material existing to show misreading of evidence by Courts below, but not in each case, but in an appropriate cases, where there be a sufficient reason and necessary, and order be without lawful authority or was of no legal effect or judgment passed by Appellate Court suffeking from any illegality or material irregularity. As per record relationship and rate of rent is not in dispute nor produced the document that applicant/respondent owned and in possession of another property in his name, nor produced any evidence against the respondent that he wants eviction with mala fide intention, though burden of proof lies upon the tenant, not upon the landlord, as he is not occupying any other property and has not got vacated, and his requirement for personal bona fide use is in good faith, prima facie established, and nothing is mala fide on his part and requirement seems to be bona fide and trial Court has not acted against the law. On the contrary followed settled principle of law in respect of personal bona fide use, and no hardship and inconvenience is caused nor violated constitutional provisions including fundamental rights. Even otherwise landlord had a prerogative choice for property of his personal use and no exception could be taken to the findings of the Courts below. Even otherwise landlord is a Judge of suitability of premises of his requirement and tenant cannot have option to choose which premises would be suitable for landlord. Though in the present matter respondent/applicant has no other property and required the property to him for his personal bona fide use, which is his right and cannot be snatched from him, therefore, need of applicant for personal bona fide use is bona fide and not mala fide. Even it is not necessary for the landlord to disclose the nature of business.
10. ' So far wilful default is concerned statement of landlord on oath is sufficient that no rent was paid to him by saying so shifted his burden and tenant has to prove the payment of rent by positive evidence, as it is a duty of tenant to obtain a valid receipt of payment. Even M.R.C. Would be improper and invalid if no attempt made by tenant to offer or tender through money order and deposit of rent after filing of rent application, tenant has to prove his bona fide that he had tendered rent to landlord before filing of rent application. Even otherwise if notice has been sent through registered post A.D. On a proper address shown on an envelope, presumption can be taken to have been served. Reliance is placed on the case of Mahboob Saghri v. Mst. Zubeda Begum 1999 M LD 2070, Haji Abdul Majeed v. Khawaja Kamaluddin 1994 M LD 958, Amjad Khan v. Mst.
11. Karim 1993 CLC 175, Muhammad Raza v. Ishtiaq Ali 1995 NLR 486, Ms. Nadira Farooqi v. District and Sessions Judge, Karachi South and another 1987 M LD 616, Raja Shahbaz Khan v. Muhammad Kiyani 1988 CLC 811, 1990 SCM R 1070, 2001 CLC 690. In the present matter no rent was offered or tendered nor refusal on the part of applicant/respondent, but in the present matter at later stage rent is being deposited in the name of landlord which is legally wrong, only denial of notices is not sufficient at least alter filing of rent application, tenant cannot deny or said to have no knowledge in respect of ownership. As such petitioner has committed a wilful default in payment of rent, as things are to be done in accordance to law, otherwise same may not be done. Reliance is placed on the case of Naseem Begum v. Mrs. Raeesa Khatoon and 2 others 1997 M LD 1030, Syed Abul Hussain v. Mst. Majda 2000 CLC 1982, Arshad Khan v. Mrs. Fauzia Nasir 2005 CLC 787, Abdul Rasheed v. Hanifur Rahman 1994 M LD 955.
12. ' So far the law relied by learned counsel appearing for the petitioner is concerned, is not relevant and identical to the case in hand and will not help to the petitioner, as landlord/respondent has not occupied any other property and has not got vacated or sold out any vacant shop in the vicinity.
13. ' On the other hand law relied by learned counsel appearing for the respondent No,2 is so relevant mostly having similar facts based upon a number of decision, where it has been observed that second application for ejectment filed by the landlord (son) who had become owner of the premises in the meantime as a result of gift in his favour, by observing that no period of limitation can be prescribed for change of circumstances nor for personal need, or might change said factum which depend upon facts of each case and further that requirement of landlord for his personal use or use of his children can be different from requirement of successor landlord and such landlord possibly having purchased the premises for purposes of personal occupation. Even requirement of same landlord on different time can be different.
14. ' In view of above facts, evidence and law it has been established that petitioner has failed to prove his case and not able to point out any illegality or material irregularity, misreading and non- reading of evidence which required indulgence by this Court and orders passed by two Courts below are maintained being proper, legal and in accordance to law and that was the reason that appeal was dismissed by a short order dated 16-10-2008.
15. ' These are the reasons