' SALMAN HAMID, J.---Rent Case No,1829 of 2007, (Rent Case) was filed by respondents Nos.1 and 2 against the petitioner for eviction from Shop No,1, Ground Floor, Building on Plot No,18/1, Zaibunnisa Street, Saddar, Karachi, (Shop) on the grounds of personal bona fide need and default in payment of monthly rent from July, 2005 up to the date of filing of the Rent Case on 1-11-2007. Rent Case was contested by the petitioner, amongst others, on the grounds that no default had been made and the rent of the Shop, upon refusal by the respondents Nos.1 and 2 was deposited in MRC No,1106 of 2005 (MRC); and that the personal bona fide need of respondents Nos.1 and 2 was not bona fide inasmuch as that the Shop is lying in a dilapidated condition since over two decades and that the Shop is not in a condition to be used. In terms of Order dated 21-5-2010 (Order), Rent Case was allowed by the VI-Rent Controller Karachi, South (Rent Controller), holding that the personal bona fide need was genuine and that the petitioner made default in payment of rent of the Shop.
Petitioner assailed the Order by filing. First Rent Appeal No,284 of 2010 (FRA), which was dismissed by the VII-Additional District Judge, Karachi, South (VII-ADJ) in terms of Judgment dated 4-11-2010, (Impugned Judgment). Present Constitution Petition, (Petition) was filed after above two decisions, assailing the same on the grounds that such are outcome of non-reading and misreading of evidence and, therefore, ought to be set aside.
2. Learned counsel for the petitioner to dislodge the concurrent findings of the two courts below, in the first instance argued that since it was raised by the petitioner that the Shop was in a dilapidated condition cannot be used, the Rent Controller was duty bound in terms of the provisions of subsection (5) of section 19 of the Sindh Rented Premises Ordinance 1979; (SRPO 1979) to have framed an issue on such point which was not framed and therefore the Order was a nullity and should not sustain. It was then urged that the Order, so also the Impugned Judgment was an outcome of non-reading and misreading of evidence inasmuch as that the point of default and personal need was decided by altogether ignoring, overlooking and by misreading the evidence that was brought on record. In support of his contentions, learned counsel for the petitioner relied upon the cases of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa (2001 SCMR 338), Amina Nuzhat Babar v. Khan Sher (2002 CLC Peshawar 01), Hussaini v. Mukarram Ali (2006 SCMR 1483) and Abdul Rashid v. Government of the Punjab (1985 CLC Lahore 199).
3. Learned counsel for the respondents Nos.1 and 2 resisted the petition. It was argued that the petition was not maintainable for more than one reason; first being that the petition has been filed against concurrent findings of the two courts below, which, ordinarily, would not be entertained by this court exercising constitutional jurisdiction when no misreading and non-reading of evidence was brought about; secondly it was argued that the evidence that came on record would amply show that the petitioner admitted default in payment of the rent of the Shop and that the respondents Nos.1 and 2 explicitly argued and also demonstrated their personal bona fide need for the Shop which could not be shattered or dislodged by the petitioner; and that as far as the objection of subsection (5) of section 19 SRPO 1979 was concerned, it was mentioned that the Rent Controller, had before it, the Rent Case on the grounds of default and personal bona fide need, framed such issues and default and personal bona fide need by no stretch could be defeated only because the Shop was in dilapidated condition and therefore such was not an issue before the Rent Controller and it was rightly not framed.
4. I have considered the arguments of the learned counsel and looked into the record of the file. As far as default is concerned it may be noted that in cross-examination of petitioner's witness it was admitted that, "It is fact I have paid rent to the landlord up to June 2005. It is incorrect to suggest that thereafter I have not paid the rent to the landlord. It is fact I have sent the rent through money order to Hilal Agencies Karachi, voluntarily says with request to him to pay the same to landlord. It is fact Hilal Agencies are not the landlord. It is fact there is no refusal 'endorsement of landlord on the money orders. It is fact I have sent first money order on 3-7-2005 and 2nd' money order on 8- 7-2005. It is incorrect to suggest that I have not tendered the rent to the landlord. I used to pay the rent in the first week of every calendar month in advance. I have started to deposit the rent in the Court from 12-8-2005." This cross-examination would amply show that Iast rent of the Shop was paid up to June 2005. The cross-examination would also show that the money order that was sent was in the name of Hilal Agencies, Karachi and not in the name of the landlord/respondents Nos.1 and 2. It would be also evident from the cross-examination that the respondents Nos.1 and 2 did not refuse acceptance of rent. It is also apparent from the cross-examination that rent in MRC was deposited on 12-8-2005 despite the fact, as evident from the cross-examination, that rent was payable every month in advance. This cross-examination of the petitioner's witness shows nothing but blatant and wilful default on the part of the petitioner and the mischief of default, under the circumstances, must fall on the petitioner. It was under these circumstances, that the Rent Controller ordered eviction which was maintained by the VII-ADJ. It is therefore clear that the findings of the two courts below are based on appreciation of the evidence and require no interference of this court.
5. Coming to personal bona fide need, it may be noted that respondents Nos.1 and 2 explicitly mentioned that the Shop is required for their own personal bona fide use wherein they would commence business of export of garments as they have an establishment adjacent to the Shop which is in their mother's name and that the Shop shall be used as a show-room for the purpose of local sale and to utilize sales also for export purposes as foreign businessmen in large number visits Zaibunnisa Street for purchasing commodities in the market and that the respondents Nos.1 and 2 can sell their garments, fabrics, cloths, apparels and other items to foreign and local customers by establishing and extending business in the Shop. This explicit narration of establishment and/or extending of their business in the Shop was enough to show their bona fide need which even otherwise could not be dislodged or shattered by the petitioner in cross- examination of respondents Nos.1 and 2. It may also be noted that in cross-examination of petitioner's witness it was admitted by him that, "It is fact presently the demised premises lying vacant since 10 years, voluntarily says it is in dilapidated condition. It is fact I have not filed any case against applicant with regards to its repair." This admission of non use of the Shop for over ten years shows that though the petitioner is not using the Shop, still holding it and that the respondents Nos.1 and 2 have been deprived of its fruits though it is required by them for their personal bona fide need. Under the circumstances, on this ground as well, the findings of the two courts below require no interference.
' As far as the four precedents relied upon by the learned counsel for the petitioner are concerned, it may be noted that all such precedents were with regard to non-reading and misreading of evidence, which in the present case is not even remote and therefore such precedents are of no assistance to the petitioner. There was no violation of the provisions of 19(5) SRPO 1979, attempted to be argued by the learned counsel for the petitioner as issues on default and personal bona fide need are available in the Order on which grounds Rent Case was filed. In this view of the matter Petition is found to be meritless and it is dismissed in limini. Petitioner is directed to vacate the Shop within a period of sixty days from today, failing which writ of ejectment shall be issued by the Rent Controller/executing court without notice to the petitioner upon determination of above period and/or if in the intervening period the petitioner fails to tender rent of the Shop.