1. DR. RANA MUHAMMAD SHAMIM, J.--- Through this petition the petitioners have assailed the impugned judgment dated 24.07.2002 passed by learned IIIrd Additional District Judge, Karachi South in FRA No. 639/2001 (Old No. 545/1995) whereby the FRA was allowed, set aside the impugned judgment dated 31.10.1995 passed by the IlIrd Senior Civil Judge and Rent Controller, Karachi South in Rent Case No. 724/1989 and dismissed the ejectment application. Hence this petition.
2. Brief facts of the case are that the petitioners being . The owner/landlords of the Building bearing Survey No. 11, Sheet No. LR-4, situated at Lawrence Quarters, Karachi, filed the ejectment application against the Respondent No. 1, who is their tenant with the current rate of rent at Rs. 50/- per month on the sole ground of personal bona fide need and the ground of default. The petitioners have premised the ground of personal bona fide need by pleading that they alnogwith their families, at present are residing with their parents and shall reside' in IInd floor, for which they want first and second floor as each flat is comprising of one and half room and the flat in question is required in good faith for the use and occupation of the petitioners for the personal bona fide use as the petitioners need bedroom for them, their children, sitting room, guest room and drawing room etc., consequently eviction application was filed. As regards the default in payment of monthly rent, the petitioners alleged that the Respondent No. 1 failed to pay the monthly rent of Rs. 50/- per month for the last 22 months from July. 1987 to April, 1989.
3. Learned counsel for the petitioner contended that the learned Appellate Court has passed the impugned judgment without considering the evidence available on record. Learned counsel for the petitioners submitted that the judgment passed by the respondent No., 2 is had in law and on facts and have acted illegally and derogatory to the spirit of law; that the impugned judgment is resulted of misreading and non-reading of evidence available on record as adduced by the parties; that there are material contradictions in the impugned judgment with regard to the confirmation of the postal authorities; that while passing the impugned judgment, learned Appellate Court was very much stressed on the point of default and a very little findings had been given on the issue of personal need which was the most important ground but it was not touched properly, which resulted in the miscarriage of justice. According to learned counsel for the petitioners, the ground of personal need was the most important issue raised by the petitioners but the learned Appellate Court did not consider this fact when several authorities of the Superior Courts opined that the plea of enhancement of rent and non-choice of premises cannot negotiate the plea of personal need; that the learned Appellate Court erred in law by overlooking the evidence of the Respondent NG. 1 in respect of admission of personal need in good faith of the petitioners She made reliance on the cases of Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185), a case of Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178), a' case of Bhaledino v. Din Muhammad (1.986 CLC 395) and a case of Muhammad Shafi v. Mst. Samina Kausar (1999 MLD 2098).
4. On the other hand, learned counsel for the respondent No. 1 refuted the allegations of the petitioners by stating that the respondent No. 1 has never ever committed any defaL'it in payment of rent as alleged. In fact the respondent No. 1 has always paid the rent to the petitioners regularly.
5. The petitioners in the month of July, 1987 asked the respondent No: 1 to increase the rent but the respondent No. 1 refused to comply with the illegal demands of the petitioners for increase of rent without any justification. .According to the learned counsel for the respondent No.. 1, when the petitioner refused to accept the rent for the month of July. 1987 the respondent No. 1 was compelled to send the rent for the month of July, 1987 through money Order bearing No. 06282 but the same was also refused. Learned counsel further stated that thereafter the respondent No. 1 also sent the rent for the month of July, and August, 1987 on 20.08.1987 through Money order No. 06979, which was also refused by petitioners. Again the respondent No. 1 sent the rent for the months of July, August and September, 1987 on 01.09.1987 through Money Order No. 07476, which was also refused by the petitioners. Finally, the respondent No. 1 was compelled to deposit the rent in the Court in Misc. Case No. 1358/1987 and is continuously depositing the rent in Court. Learned counsel for the respondent No. 1 argued that the petitioners filed the case on the point of personal bona fide need with the intention to force and compel the respondent. No. 1 to enhance the rent and that the mala fide intentions of the petitioners are very much clear on the fact that they filed ejectment cases against most of the tenants of the building. In fact the petitioners have sufficient accommodation in their possession to meet their requirements. He made reliance on a case of Chaudhry Nazir Ahmed v. Mrs. Mariam Salahuddin Khawaja (PLD 1994 Lahore 252) and a case of Dr. Abdul Hafeez v.
6. Province of Punjab and others (PLD 1991 SC 165), a case of Nazar Hussain v. Ali Akbar (1995 CLC 452) and a case of Abdul Sattar v. Allah Diya (1996 CLC 1016). The learned counsel for the respondent No. 1 submitted that the petitioners could not prove the issue of default and their bona fide personal requirement in good faith of the premises in question.
7. From the material available on record, it is manifestly clear that the petitioners have failed to prove the plea of default in payment of monthly rent as after refusal to accept the monthly rent by the petitioners, the respondent No. 1 was compelled to send the rent for the month of July, 1987 through Money Order bearing No. 06282 but the same was also refused. Thereafter the respondent No. 1 also sent the rent for the month of July and August, 1987 on 20.08.1987 through Money Order No. 06979 which was also refused by the petitioners. Again the respondent No. 1 sent the rent for the months of July, August and September, 1987 on 01.09.1987 through Money Order No. 07476, which was also refused by the petitioners, Finally, the respondent No. 1 was compelled to deposit the rent in the Court in Misc. Rent Case No. 1358/1987 and is continuously depoiting the rent in Court. It is settled principle of law that in case the landlord refuses or avoids the receipt the monthly rent, the tenant has to tender the monthly rent through money order. In this case, the respondent No. 1 has very much done so.
8. 2002 SCMR 241), Mehdi Nisar Rizvi v. Muhammad Usman Siddiqi (2000 SCMR 13), Muhammad Bashir v. Sakhawat Hussain (1991 SCMR 846).. .Merely the fact that resopndent's husband had 62 shops in Defence Society and 21 shops in Gulshan-e-Iqbal, would not dis-entitle the respondent to apply for ejectment on the ground of personal requirement of her son as it is for a landlord to select which of the buildings he wishes to use personally or to provide the same to his children." In the case of Muhammad Shafi v. Mst.
9. Samina Kausar (supra), it has been held that "............................ Besides the respondent being landlady of the disputed premises has prerogative right in respect of her on house to live in, it was not necessary for the respondent/landlady to show that demand was made by her brother to vacate the said house or any pressure was placed upon her to vacate the said house of her brother. Every landlord/owner has a right to live in his/her house and he/she could not be deprived only because once it was rented out. The respondent has proved her requirement in good faith and on exception could be taken to the finding of learned Rent Controller." .