1. ' GHULAM DASTAGIR A. SHAHANI, J.---The petitioner being aggrieved and dissatisfied with the impugned order/judgment, dated 27-8-2007 passed by learned 1st Additional District Judge Karachi Central in F.R.A. No, 153 of 2006, whereby he allowed the appeal of the appellant/respondent, on the ground of personal bona fide use and the Petitioner/ Respondent was given (60) days time for vacating the demised premises. Hence Petitioner has assailed the impugned judgment through present Constitutional Petition.
2. ' The facts as succinctly stated are that respondent filed an ejectment application under section 15 of the Sindh Rented Premises Ordinance 1979 stating therein that, she is a landlady / owner of the shops bearing Nos.3 and 4 situated on plot No, LS-2, Block No,16, Federal B.Area, Karachi and petitioner was inducted as her tenant at a monthly rent of 1000 in the month of March 1997 in respect of Shop No,4, whereas, later on Shop No,3 was also rented out to the petitioner in the month of February 1998 on monthly rent at the rate of Rs,1250 per month. Such Tenancy Agreement was executed between the parties. However, up to December, 2002 the receipts of the rent collected from the petitioner were issued, but thereafter the petitioner failed to pay the rent to the respondent. She made applications to the councillor and to the concerned police, where both the parties signed Iqrarnama and petitioner agreed to vacate the shops and to clear all the arrears on or before 20th January, 2003, she also served a legal notice to the petitioner in respect of payment of its monthly rent, wherein she demanded vacant possession of shops on the ground of personal bona fide use of her sons. However, due to failure of the petitioner to fulfil his promise, respondent invoked the jurisdiction of the Rent Controller by filing a Rent Application No,412 of 2003 in the Court of learned VI-Rent Controller, Karachi Central. Petitioner upon service of summons., filed his written statement, wherein he denied the allegations levelled by the respondent and stated that he has not committed any default. Petitioner in his written statement further submitted that the shops were let out on Pagri basis and a huge amount of Rs,50,000 was taken by the respondent as Pagri in respect of shop No,4, and Rs,65,000 in respect of Shop No,3. He further states that the respondent had also taken deposit of Rs,7000 and Rs,15,000 respectively in respect of the property in question.
3. The petitioner has further asserted in the written statement that he used to pay the rent regularly, but respondent did not issue the rent receipts for every month and she used to issue rent receipt as per her convenience for months together and some time she also not issued rent receipts. However in the end of 2002 respondent demanded enhanced rent at the rate of Rs,3,000 for each shop which petitioner did not agree. However, respondent accepted the rent for shop No,4 up to December, 2002 and rent for the Shop No, 3 up to January 2003, thereafter, respondent did not accept though offered by the petitioner. Monthly rent was tendered through money order, which respondent accepted only rent for Shop No,3 for the month of February, 2003. Rent was tendered up to September, 2003, but respondent did not accept the same. It is further asserted by the petitioner that due to non acceptance of money orders the petitioner started depositing the same in M.R.C. No 663 of 2003 with the Rent Controller from March, 2003 in respect of Shop No, 3 and with effect from January, 2003 in respect of Shop No,4. Petitioner further submitted that Electricity bills were not liable to pay to the respondent directly with KESC, but there arose a dispute with KESC regarding payment of electricity charges in respect of Shop No,4, for which case is still pending.
4. Petitioner in his written statement asserted that shops in question are not required by the respondent for her personal bona fide use and the use of sons, as son of the respondent namely Aijaz is addict of heroin and is incapable to do any work, whereas her other son namely Khurram Shahzad is doing masonry work with his father. He also stated that in all there are four shops, out of which two are in occupation of one Usman Amir, who though requested the respondent to return his deposit of Rs,20,000 and get the vacant possession of the said shop, but respondent is not returning the amount to her tenant Usman Amir, and lastly prayed for dismissal of Rent Application with costs. Upon the pleading of the parties, learned trial Court framed the following points for determination:--
(1) Whether the opponent committed wilful default in payment of monthly to the applicant from January, 2003 to July, 2003?
(2) Whether the applicant requires the demised premises bona fidely and in good faith for running business through her sons?
5. 3) What should the order be?
6. ' Both the parties led their evidence and after hearing to the learned counsel for the parties, Rent Application was dismissed by the Rent Controller/Senior Civil Judge Central vide order, dated 30- 5-2003. Being aggrieved and dissatisfied Rent Appeal No,153 of 2006 was filed by the Respondent/Landlady, which was allowed vide order, dated 27-8-2007 by the 1st Additional District Judge, Karachi Central, on the ground of personal bona fide use though ground of wilful default was not pressed as stated by both the learned counsel.
7. ' Heard Mr. Shahid Qadir Advocate for the petitioner, who states that property in question is not required to the respondent for her personal bona fide use and occupation including her sons, but she wants enhanced rent of her choice, otherwise her one son namely Aijaz is addict of heroin and is incapable to do or perform any business, while her other son namely Khurram Shehzad is already engaged and working as mason with his father. He further states that there are four shops, out of which two are in occupation of one Usman Amir who is insisting, the Respondent/Landlady to take the possession of the shop on refund of deposit amount worth Rs,20,000 and prayed for dismissal of Rent Application. Learned counsel for the petitioner further states that the version of the petitioner has gone unchallenged in the entire evidence and failed to prove personal bona fide use, though Respondent/ Landlady has to prove her own case, as she cannot be benefited on the weakness of other side if any, and supported the order passed by the trial Court (Rent Controller) to be proper and legal order, with a request that ejectment order passed by 1st Additional District Judge, Karachi Central may be set aside. Reliance is placed in a case of Pakistan State Oil Company Ltd. v. Sikandar A. Karim and others (2005 CLC 3). Abdul Rehman and others v. Pakistan State Oil Co. Ltd and another (J.27 CLC 1085), Shahid Ahmed alias Shahid Mukhtar and 9 others v.
8. Mst. Rasheeda Khatoon and 12 others (1997 CLC 1186 (C), Messrs United Bank Ltd. v. Haji Abdul Razzak & Co. (1993 M LD 2575), United Bank Ltd. v. Ehsan Ellahi (1989 CLC 287(C), Noor Muhammad v.
9. Iqbal Ahmad (1985 CLC 1007(A).
10. ' On the other hand Mr. Zafaruddin Khan learned counsel for the respondent drew my attention towards para. 9 of the memo of Rent application, as well as to para. 10 of the affidavit in evidence submitted by the respondent lady stating that, landlady has asserted her personal bona fide use by disclosing that property in question is required for her sons in order to run the business, through her sons namely Aijaz and Khurram Shehzad in the said shops, which is sufficient and was to be challenged in evidence that personal demand of the respondent is incorrect and based on some mala fide, though it is a choice of the landlady to choose any shop if required for personal bona fide use and occupation and only word against word of the applicant/tenant, cannot be believed.
11. Reliance is placed on a case of Muhammad Younus v. Dr. S. Muzammil Ali (1981 CLC 327), Suleman Motala v. Turab Ali (1984 CLC 2469), Muhammad Ishaque v. Fateh Muhammad and 3 others (1984 CLC 2527), (1985 CLC 2111) and Mst. Saira Bai v. Syed Anisur Rahman (1989 SCM R 1366) respectively.
12. ' Heard Mr. Shahid Qadir learned counsel for the petitioner, as well as to Mr. Zafaruddin Khan learned counsel for the respondent and with their assistance perused the material available on record.
13. ' As per record Rent Application was filed on the ground of wilful default in payment of rent, as well as on the ground of personal bona fide use, though first ground (wilful default) was not agitated and Rent Application allowed by the appellate Court on the ground of personal bona fide use and occupation.
14. ' I have gone through the entire record. So far personal bona fide requirement is concerned, my attention was drawn to the contents of the memo. Of Rent Application, particularly para. 9, as well as to para. 10 of the affidavit in evidence, submitted by the respondent/landlady wherein, it has been stated that property in question is required to the landlady in order to run the business through her sons namely Aijaz and Khurram. Shehzad in said shops and such version of the lady has not been controverted, and remained unchallenged and has not been shaken, though same was to be challenged, because by denying the fact, burden cannot be shifted but party has to establish his plea/version to be true, based upon some material. So far the landlady is concerned, she has only to establish good faith through evidence and even to necessary to state nature of business, which she intended to start in the shops needed by her. Even otherwise such plea has not been challenged to the extent that she wants enhanced rent by transferring the same to someone else on goodwill, hence on the basis of above facts landlady cannot be deprived from her legal right of personal bona fide use and occupation which includes her family members being her choice in order to earn for their livelihood and to improve their status by business and they cannot be restrained from doing any lawful business, though have their own property. So far the allegations in respect of using of intoxication by son of respondent/landlady is concerned, that has not been challenged, though it was the duty of the tenant in order to establish his plea and to bring some evidence, there must be a question in this respect from his side which is lacking in the present matter. Even otherwise, it is not a ground on the basis of which genuine demand be refused. Even otherwise nothing has come on record nor version of the tenant/petitioner has been corroborated, even if Aijaz son of landlady is addict as alleged and wants to do the business, her parents will feel so comfortable and will be free from tension and will be so helpful for them in this age being senior citizens. Even otherwise for personal requirement, landlady's failure to examine children for whose occupation she seeking ejectment of a tenant, will not be A fatal, if the landlady's, statement on oath is convincing and tenant has failed either to shake her statement in cross-examination or to disprove by evidence in rebuttal, and further that even if a landlady owns more than one shop; it is for her to decide which of the shop sl would like to occupy/use in good faith. No hard and fast rules could be laid down for quantum and quality of evidence to prove bona fide need of landlady for -seeking eviction of tenant. Statement of landlady alone held sufficient to prove her personal requirement if it can satisfy a prudent mind by objective evidence that such requirement does exist. Even otherwise for bona fide personal requirement landlady has to state in her application the material facts which only constitute cause of action along with those facts which prima facie showed " that requirement was according to law and was made in good faith and landlady was not required to state the nature of business which she intended to carry on as stated above and the demand of higher rent by itself did not cast any doubt on the personal bona fide requirement, where the factum of bona fide requirement was independently proved, as version of the lady has not been challenged in cross-examination except single question. Therefore, presumption would be that evidence had been accepted by the opponent against whom it was in C view of sections 137 and 138 of the Qanune-Shahadat Order, as observed by the apex courts time to time. So far the law relied upon by the learned counsel for the petitioner is concerned, that is distinguishable having no nexus with the present case, as facts of the case in hand are not similar and identical to the cases relied upon, as in those cases it has been observed that applicant has to establish that premises needed bonafidely, which landlady/respondent has proved in the present matter, as her sons have no job or business, though have their own property where they can run the business of their choice. Even otherwise, word against word of the tenant/petitioner cannot be believed that one son of respondent is using intoxication and is not in a position to do any business.
15. So far non-examination of sons, it is observed that landlady has only to establish good faith and if version of the landlady have not been challenged, the purpose of their examination will not improve the case. Even otherwise, each and every case is to be decided on its own merits.
16. ' In view of aforesaid facts, circumstances and law, I am of the view that order passed by the appellate Court is legal, proper and in accordance with law, and passed on merits. Therefore, it does not require any interference, as such same is maintained and present Constitutional Petition No,S-470 of 2007 is dismissed.