' SYED SAJJAD HASSAN SHAH, J.--- Qamar Zaman, the petitioner by way of instant constitutional petition called in question the legality and proprietary of the judgment and decree dated 124-2010 passed by the learned Additional District Judge, Charsadda, whereby, the appeal filed by the petitioner against the judgment and decree dated 8-2-2010 passed by the learned Senior Civil Judge/Rent Controller, Charsadda was dismissed.
2. Briefly stated facts are that the landlord/respondent (hereinafter called as respondent) filed an application for ejectment of the tenant/petitioner (hereinafter called as petitioner) from two shops and godown fully detailed in the heading of the ejectment application. The averments made by the respondent in his application are that he and his brother namely Afzal Khan are owners of the disputed shops and godown. He averred that the petitioner is the chronic defaulter in the payment of rent of the suit shops and godown, the same were rented out on payment of Rs,4,500 per month.
The said shops and godown are required for the occupation of respondent's son namely Zahir Shah, who being unemployed required the shops and godown for his personal bona fide need.
' The petitioner contested the application by filing written reply and refuted the claim of the respondent. In the light of divergent pleas raised by the parties in their pleadings, the learned Rent Controller framed issues and, thereafter, recorded pro and contra evidence adduced by the parties as they wished to produce. The learned Rent Controller while seized of the matter accepted the application and passed the order of ejectment and recovery of the outstanding rent.
' The petitioner feeling aggrieved of the judgment and decree passed by the learned Rent Controller filed an appeal, the same was dismissed by the Additional District Judge vide impugned judgment and decree, hence the present writ petition.
2. The learned counsel appearing on behalf of the petitioner contended that the learned courts below while deciding the matter, failed to consider the material available on record, as the respondent nowhere pleaded his bona fide need, no proof has been furnished in support of his plea. He further contended that the petitioner has been sending the monthly rent of the suit shops and godown through money orders but the respondent has refused to accept the payment of rent.. The learned counsel further pointed out that the respondent admitted that he is the owner of other shops, this statement of respondent militates against the bona fide requirement of respondent. In this regard, made the reference of section 13(3)(ii) of the Urban Rent Restriction Ordinance, 1959. He further placed reliance and referred different portions from the statements of witnesses, in order to prove that respondent has not required the disputed shops and godown in good faith and intended to make enhancement in payment of rent. He further contended that the bona fide of the respondent shrouded in mystery, as he is having vacant premises for his occupation even then asking the petitioner to vacate the disputed shops and godown.
3. The, learned counsel for the respondent while rebutting the arguments of learned counsel for the petitioner vehemently contended that the respondent has filed the ejectment petition, as the demised premises required for his bona fide need, as his son namely Zahir Shah is unemployed and he will start business in the suit shops and godown to earn his livelihood and the disputed shops and godown are suitable for his need. An offer was made to the petitioner to have occupied the premises situated on the back of said shops but he refused and agreed to pay enhanced rent of the demised premises as a result of decision taken by the Jirga but, thereafter, refused to pay, thus, violated his own commitment. He further contended that the respondent is wilful defaulter. He has not paid the rent since July, 2009 till today and he has also not disputed the same when directed to deposit by the learned Rent Controller, whereof, his defence was liable to be struck off.
Moreso, again failed to deposit as per the direction of appellate court. Despite occupying the shops and godown not bothered to pay the monthly rent. The said negligent attitude of the petitioner is sufficient proof to support the contention of the petitioner. He further contended that the respondent is not bound to follow the dictation of the petitioner but even then permitted him to occupy the shops and godown on his own choice.
4. Arguments of the learned counsel for the parties considered and record carefully perused.
5. A perusal of record, arguments of the learned counsel for the parties and the judgments of both the courts below, we are of the firmed view that the petitioner failed to pay monthly rent to the respondent as he had admitted that since July, 2009 till today, the rent of the demised premises not paid still outstanding. He has also admitted that the monthly rent of the suit premises enhanced and total rent was Rs,5800/- per month and he has sent Rs,2800 through money order.
He further admitted that no receipt regarding the payment of rent of godown produced by him, however, monthly rent proved through oral evidence. He has also admitted the execution Exh.P.W.1/1, whereby, the rent of the premises was enhanced from Rs,2800 to Rs,5800.
6. R.W.2 namely Aziz-ul-Haq examined as witness on behalf of the petitioner, admitted that the petitioner had not paid rent to the respondent since July, 2009. The burden rested on the shoulders of petitioner to prove that the monthly rent being regularly paid by the petitioner in accordance with terms and conditions of his agreement but the default in payment of monthly rent candidly admitted by the petitioner as well as his witnesses, therefore, the findings of both the courts below are lawful. The default committed by the petitioner is wilful, as it is quite evident from the conduct demonstrated before the learned Tribunal by not depositing the monthly rent was sufficient to support the default committed by the petitioner in payment of rent.
7. On the other ground of personal need, both the learned lower Tribunal concurrently held: that the demiscd premises are required for the use of Zahir Shah, the son of the respondent, for his occupation as he is unemployed. In this respect, the respondent in support of his claim made in his application, got himself examined as P. W.1, wherein, he reiterated that his son namely. Zahir Shah is unemployed and the suit shops and godown required for his occupation. In support, thereof, P.W.2 Haji Haroon, P.W.3 Mukhtiar, P.W.4 Khan Afzal and P.W.5 Faridoon Shah examined and supported the stance of the respondent. The petitioner has also admitted in his court statement that son of Zahir Shah associating in the business of his father in his shop. The respondent by leading sufficient evidence proved the ground of personal need. The learned counsel for the petitioner stressed that the respondent's need is not bona fide and the disputed shops and godown have not been required in good faith.
8. The petitioner admitted that Zahir Shah not occupying any separate shop or carrying on business independently in the said premises. Moreso, the objection of learned counsel that the respondent owns other shops in the same market lying vacant, however, failed to prove that any shop lying vacant in the market of the respondent.
9. In case the shops lying vacant, this aspect of the case is not sufficient to hold that the respondent need is not bona fide because in case he failed to occupy the shops and godown within the specified period in terms of section 13(4) of the Rent Restriction Ordinance, the tenant has the remedy to seek the recovery of possession and landlord can be punished for non- occupation of the premises. The provisions contained in section 13(4) of the Ordinance (ibid), reproduced as. Under:-- "Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under subparagraph (i) of subparagraph (ii) of paragraph (a) of subsection (3), does not himself or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession, or having been so occupied is re-let within two months of the said date to any person other than the original tenant, the tenant who has been evicted may apply to the Controller, for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly."
10. Since, the respondent appeared in person before the learned Rent Controller and made the statement on Oath, therefore, successfully proved his bona tide personal need and the petitioner has failed to dispel the bona tide requirement of the respondent. In this regard, reliance placed on dictum laid down by august Supreme Court of Pakistan to a case titled Messrs F.K. Irani & Co. v.
Begum Feroze, reported as 1996 SCM R 1178, wherein, it was held that:- "There is nothing on record by way of rebuttal evidence that Najib cannot establish or run a departmental store in the premises. The establishment and running a departmental store by the respondent as stated by him cannot be ruled out. Unless, there is cogent evidence and sufficient proof that it is not possible or practicable to run such a business, the court would be inclined to hold that the requirement is bona fide. The learned counsel for the respondent has referred to Hasan Khan v. MRs, Munawar Begum PLD 1976 Karachi 832 and Jehangir Rustam Kakalia v. State Bank of Pakistan 1992 SCM R 1296. In the latter case, while approving Hassan Khan and relying on Tauhid Khanum v. Muhammad Shamshad 1980 SCM R 593, it was observed that on the issue of personal need, statement on oath, if consistent with the application and not shaken in cross examination or disproved in rebuttal is sufficient to prove that it is bona fide. Applying this test, we find that the respondent has been consistent and the evidence produced is not in conflict or inconsistent with the ejectment application. No evidence in rebuttal has been produced to shake the testimony nor in cross examination the witnesses have shown any infirmity to discredit it."
11. In case Messrs F.K. Irani & Co v. Begum Feroze (Supra) at page No,1184, it was observed that:-- "Merely the fact that respondent's husband had 62 shops in Defence Society and 21 shops in Gulshan-e-lqbal would not disentitle 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". Therefore, this argument raised again is a closed chapter. The learned counsel for the appellant contended that the appellant has been a tenant from the year 1964 and has invested huge amounts on establishment of business, which has earned good will as well. That may be so, but the fact remains that these considerations are irrelevant if the ejectment case falls within the four corners of section 15 of the Sindh Rented Premises Ordinance. Ejectment of a tenant is regulated by statute, which provides specific grounds on which a landlord can seek ejectment. Once such ground is proved, the contentions now raised become completely immaterial."
12. The concept of good faith as provided under section 13(3)(ii) of the Urban Rent Restriction Ordinance, 1959, merely requires that demand of the landlord must be based upon honesty and might be reasonable. It is not sufficient to doubt the bona fide personal need of the landlord that other premises let out by landlord before initiating the ejectment proceedings or during the pendency of the same. As it is the choice of landlord, as earlier stated, to select the shop for his occupation. Reliance placed upon a case titled S.M. Noor-ud-Din 9 others v. Saga Printers, reported as 1998 SCM R 2119, wherein, it observed that:- "The law is too well established on the point viz. That a landlord has a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith".
13. The august Supreme Court while emphasizing the bona fide personal need of the landlord extensively observed in case titled S.M. Noor-ud-Din and 9 others v. Saga Printers (supra) at page No,2122, wherein, it was held that:--- "Taking up the next question in the controversy viz, that the landlady deliberately parted with an available commercial space and thereby negated her appellant's learned counsel, places reliance on Mansoorul Haq v. Akbar Ali 1994 CLC 48, a case decided by one of us, namely, Mamoon Kazi, J., while in the High Court. The relevant passage occurring in that precedent is as follows:--- "No doubt, it was established that the wife of the landlord had let out certain premises on rent during the intervening period, as earlier pointed out, but this evidence in no way can defeat the case of the appellant in regard to his personal need. Mr. Naraindas Motiani has referred to a number of judgments of the Supreme Court in this regard, which are as follows:-
(1) Sardar Khan v. Riaz Ahmed 1986 SCM R 1981
(2) Allah Ditta v. Mst. Rasollan Bibi 1976 SCMR 459
(3) Muhammad Latif v. Hakim Nisar Ahmed 1986 SCM R 650
(4) Dildar Hussain Nayar v. Niaz Muhammad Dar 1985 SCM R 1769 ' It was emphasized in the above cases that the selection of the premises is a matter of choice for the landlord and the mere fact that some shops had been let out earlier by the landlord is not sufficient to defeat his plea for personal requirement. I would like to point out that in case the tenant wants to rely upon such evidence, it will be necessary to seek explanation of the landlord on the point first."
' We subscribe to the same view which, as seen, is duly documented by various decisions from this very jurisdiction. Mere letting out of other premises by a landlord either before or after the institution of eviction proceedings on the ground of personal need in itself is not always enough to non suit the landlord. Once the landlord has duly acquitted himself by stating on oath that this requirement is in 'good faith' as understood in law, he should normally be deemed to have discharged his burden, which, thereupon shifts to the tenant for whom it remains initially, to cross- examine the landlord and, that being done, lead his own evidence in rebuttal. In the same context where other premises, if any, are shown to have been let out in anticipation of or in the face of eviction proceedings, based on personal requirement, it has to be shown firstly, that similar premises were so let out or otherwise parted with, secondly, that the physical possession was first acquired by or otherwise subsisted with the landlord before being made over and finally, that the timing of such act or acts made it unconscionable for the landlord to maintain the matching eviction proceedings".
14. The same view followed by a learned Division Bench of this Court in a case titled Nasrullah Jan v.
Mst. Farzana Begum, reported as 2002 CLC 1523, wherein, it was held that- "The argument of the learned counsel for the petitioner that there were other shops in the same market and the respondent Nos.1 to 5/landlords have failed to prove as to why the shop in question was required has no force at all. The landlord has a complete option to choose any of his properties occupied by tenants to avail of the personal requirement. In this regard reliance can be safely placed on dicta laid down by august Supreme Court of Pakistan in S.M. Noor-ud-Din and 9 others v. Saga Printers 1998 SCM R 2119, it was held:-- "The law is too well established on the point viz. That a landlord has a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith."
15. In case Nasrullah Jan v. Mst. Farzana Begum (supra) at pages Nos.1526 and 1527, it was further observed that:--- "Not only the learned Rent Controller after appreciating the evidence available on record came to the conclusion that the shop in question is required by the landlord but the learned appellate court also on reappraisal of evidence has concurred with the findings of the learned Rent Controller. This court does not sit as the court of, appeal and cannot decide whether evidence sufficed for conclusion arrived and is not at X11 obliged to go into the merits of the case de novo reappraise and assess evidence on question of personal need of the landlord. Wisdom in this respect has been sought from Messrs Muhammadia Medical Hall, Khan Arm Dealers through Khurshid A lam v.
Mahmoodul Hassan and 3 others NLR 1982 SCJ 23. We while exercising our Constitutional jurisdiction cannot disturb the concurrent findings of facts recorded by the courts below on reappraisal of evidence unless it is shown that the courts below either misread the evidence or perversely appreciated the evidence. Merely because of fresh appraisal of the evidence this court would reach a different conclusion is no ground to disturb the concurrent findings of facts recorded by the Courts below.
' Mst. Farzana Begum (P.W.2) and Adeel Ahmed (P.W.3) for whom the shop in question is required have stated that on vacation of shop in question they will not give the same on rent to anybody else and in that regard they were ready to give surety to the satisfaction of the court. Subsection
(4) of section 13 of the Urban Rent Restriction Ordinance, 1959 provides full protection to the petitioner/tenant. In case the landlord fail to occupy the shop in question within one month of the date of obtaining possession, the tenant who has been affected may apply to the Controller for an order directing that possession should be restored to him".
16. In view of the above discussion, the findings of both the learned lower Tribunal are not suffering from any material illegality or irregularity and misreading or non-reading of evidence, much less jurisdictional error, therefore, maintained.
17. This petition is being without any substance, hence, dismissed with no order as to costs.