' SALMAN HAMID, J.--- Haji Muhammad Saeed, son of Late Islamuddin, is a petitioner in Petition No,S-300 and S-301 of 2009 (Petitions) which, petitions through this single handing down will be decided.
2. The background of the petitions is that Mst. Bano Begum, widow of Abdul Majeed, (Respondent No,1) in both petitions filed Rent Case No,82 of 2003, (Rent Case) before the Vth Senior Civil Judge and Rent Controller, Karachi, East, (Rent Controller) against the petitioner for his eviction from shop in a building raised and constructed on Plot No,142-C, Central Commercial Area, Tariq Road, Block- 2, PECHS, Karachi, (Shop) on the grounds of personal bona fide need, default in payment of monthly rent for the period October, 2002 to January, 2003 and subletting. Petitioner contested the Rent Case and altogether disputed personal bona fide need, default and subletting. It was asserted that the petitioner does not require the Shop as she is already in possession of other shops and flats in the building and that she, (Respondent No,1) is also an owner of the building on Plot No,923-C, which was adjacent to the building where the shop is located. Default of aforementioned period (October, 2002 to January, 2003) was disputed by arguing that payment of rent having been refused by the respondent No,1, it was tendered through money order and upon refusal he (Petitioner) started depositing the same by filing MRC. Subletting was denied by stating that the Shop is under his exclusive tenancy. The Rent Controller in terms of order dated 21-1-2005, allowed the Rent Case but only to the extent of default. Grounds of personal bona fide need and subletting: were decided against the respondent No,l. The petitioner challenged Order dated 21-1- 2005,. By filing F.R.A. No,115 of 2005 (F.R.A. 115 of 2006) and questioned his (petitioner)'s ejectment on the ground of default. The respondent No,1 also challenged the Rent Order dated 21-1-2005 by preferring F.R.A. No,116 of 2006, (F.R.A. 116 of 2005) challenging denial of ejectment of Petitioner on the grounds of personal bona fide need and subletting. Both F.R.As. Collectively referred to as "F.R.As.". The F.R.As. Were heard together by V-Additional District Judge Karachi, East, (V-ADJ) and were decided by a common Judgment dated 12-3-2009, whereby F.R.A. No,115 of 2005, preferred by the petitioner, was dismissed; whereas F.R.A. No,116 of 2005 filed by the respondent No,1 was allowed to the extent of personal bona fide need only. The petitioner has challenged the judgment dated 12-3-2009 by way of these petitions. The respondent No,1, it seems, was contended with the judgment as the denial of subletting was not challenged.
3. Briefly the facts of the case are that the petitioner is a tenant in the shop. Respondent No,1 filed Rent Case against him on the grounds of personal bona fide need, default in payment of monthly rent from October, 2002 to January, 2003 and for subletting. In defence the petitioner stated that the personal need of the respondent No,1 is sham inasmuch that she is already in occupation of other shops in the building together with four flats and that one of his sons is employed with Karachi Water and Sewerage Board and the other son is already doing his business in one of the shops in the building and that the son for whose bona fide personal need the shop was required is also doing business in a shop in the building and that adjacent to the building where the shop is located is another building of which respondent No,1 is an owner and her two sons are doing business there. Subletting was also disputed by asserting that it.Is being used by the petitioner himself exclusively and by none else. To support and substantiate above defence, the petitioner led evidence and produced documents.
4. Respondent No,l's son namely Shahid Majeed led evidence for whose bona fide need the shop was required wherein he asserted personal bona fide need. To substantiate default, it was mentioned that the petitioner without any refusal by respondent No,1 in receiving rent discontinued payment thereof from October, 2002 upto January, 2003 when Rent Case was filed. In support of subletting it was asserted that it is being used by a Pathan.
5. I have heard learned counsel for the parties and have gone through the record of the file. It would be evident from the cross-examination of Shahid Majeed, son of the respondent No,1, that he clearly mentioned that out of three shops, one is in possession of Lal Muhammad and the other one is in possession of a watchmaker' and that the third one is the Shop in question which is under occupation of the petitioner and required for his personal bona fide use. Further in the cross- examination of Shahid Majeed it was established that his two brothers are tenants in adjacent building on rent, owned and possessed by one Mr. Iqbal Baig Abdul Majeed also mentioned in his cross that the petitioner is a defaulter from October, 2002 and that her mother, (Respondent No,1) did not receive money order for the months of October, 2002 - January, 2003 as claimed by the petitioner. Besides this, the petitioner admitted in his cross that there was no shop in possession of respondent No,l's son and that no document was produced by him to show that Building No,923-C, belonged to respondent No,1. It was also admitted by the petitioner that respondent No,1 filed Rent Case for personal need and requirement of Shahid Majeed and that rent was paid to respondent No,1 upto 16-9-2002 and after refusal he started depositing it (rent) in court and that in the month of October, on 16/17, 2002, petitioner went to the Respondent No,1 to pay the rent but she refused.
After refusal on 21-10-2002 rent through money order was sent It came on record and also admitted by the petitioner that coupon of money order was not produced. It was also admitted that no notice of application under section 10(3) of Sindh Rented Premises Ordinance 1979, (SRPO) was issued to the respondent No, 1 after filing MRC and she, (Respondent No,1) was not informed regarding deposit of the rent in court.
6. Above evidence of petitioner and respondent No, 1/witness of respondent No,1 would show that the courts below, looking at it (evidence) came to the conclusion that default was made by respondent No,1 in payment of monthly rent for the period October, 2002 upto January, 2003 and that the personal need of Abdul Majeed also proved. It may be noted, when it comes to default and/or refusal by landlord to accept the rent, section 10 of SRPO gives a machinery as to how upon refusal of rent by the landlord it be tendered. Subsection (3) of section 10 mandates that where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or be deposited with the controller within whose jurisdiction the premises is situated. It has come on record that the respondent No,1 admitted in his cross-examination that no postal money order receipt was produced by him to show that upon refusal it was attempted to be paid through money order and thereafter MRC was filed. Since it has come on record that due rent of the Shop had not been tendered by the petitioner to respondent No,1 and/or such was deposited in MRC without any refusal, same amounts to default inasmuch as that the stipulations of subsection (3) and subsection (4) of section 10 SRPO had not been complied with. It may also be noted that subsection (4) of section 10 SRPO clearly demands that the written acknowledgment, postal money order, receipt or receipt of the controller, as the case may be, shall be produced and accepted in proof of payment of the rent. Proof of payment of rent by petition to respondent No,1 remains unproved.
7. Coming to the ground of personal need, it has come on record, and quite amply that the respondent No,2's sons namely Asif Majeed and Abdul Majeed are doing their business in a Building No,923-C owned by one Iqbal Baig and the respondent No,1 has no concern and/or she is not owner thereof as was claimed by the petitioner and that because of such reason the Rent Case was filed for eviction of petitioner from the Shop, enable Shahid Majeed, the son of respondent No,1 to do his business therein. This personal need could not be dislodged by the petitioner and therefore, the need which was expressed by the respondent No,1 remained unshaken and such position should also go in favour of the respondent No,l.
8. The two courts below have come to the conclusion correctly and after appreciation of evidence properly which require no interference of this court which even otherwise cannot be interfered with in its constitutional jurisdiction, merely on the ground that different view on the basis of same evidence was possible, particularly when there was no misreading or non-reading of evidence, whereby serious prejudice had been caused to the party. High Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, may interfere only when it was necessary and a wrong or illegal conclusion, was drawn by the courts below, not based on facts and such findings would amount to an error of law and need correction. However, High Court in a constitutional jurisdiction would not sit as a court of appeal on questions and finding of facts, recorded by competent court and would not interfere with the same in exercise of constitutional jurisdiction in a routine. In the case in hand nothing has come on record which would convince this court to upset the findings of the courts below. Under the circumstances, the petitions are meritless and the same are hereby dismissed.