1. ' AFTAB AHMED GORAR, J.--- Through this Constitutional Petition, petitioner has impugned the Judgment dated 6-3-2010 passed by VIlth Additional District Judge, Karachi South whereby he dismissed F.R.A. No.28 of 2009 filed by the petitioner/tenant against eviction Order/ Judgment dated 23-12-2009 passed by IVth Rent Controller, Karachi South.
2. ' Brief facts giving rise to the filing of instant petition are that respondents are the joint owners and landlords of the building constructed over a plot of land bearing No.WO-1/3, Nanakwara, Pan Mandi, Syedna Tahir Saifuddin Road, Essa Masjid, Karachi and the petitioner Messrs Najam Hardware Store being run through its proprietor Shaikh Ahmed Ali, is tenant in respect of godown on ground floor of the said tenement against the monthly rent of Rs.1200 excluding all taxes, utility bills and charges etc. Which are payable by the petitioner tenant. It is the case of the respondent/that respondent No.2 is doing his business under the name and style of "New Global Digital Photo Color Lab and Studio" and of Glass Works at Shop No.209, Dr. Dawood Pota Road, Saddar, Karachi and due to shortage of accommodation he is facing hardship to store the raw material and other equipments relating to his business and used to keep the same in other rented godown, therefore the tenement in question is required for his personal bona fide need in good faith. Respondents further asserted that they had requested the petitioner/tenant through their officials to vacate the tenement in question and to deliver peaceful possession of the same but all efforts went in futile, as such they filed ejectment application against the petitioner, ' The petitioner contested the rent application and filed written statement wherein while admitting the relationship of landlord and tenant between the parties and the rate of monthly rent, he denied rest of the averments made in the ejectment application including the personal bona fide need of the respondents. He further asserted that the respondents always used to ask the petitioner to enhance the rent which was increased from time to time, however lastly when the petitioner did not accept the demand of the respondents for enhancement of rent, they filed ejectment application.
3. ' After framing the point regarding personal bona fide need, recording the evidence of the parties and hearing their counsel, learned Rent Controller vide order dated 23-12-2009 allowed the ejectment application and directed the petitioner to hand over peaceful and vacant possession of the godown in question to the respondents within a period of 60 days. The said order was challenged by the petitioner through F.R.A. No.28 of 2009 which was also dismissed, hence this petition.
4. ' Mr. Mazhar Imtiaz Lari, learned counsel for the petitioner contended that the respondents do not need the premises in question for their personal bona fide need. He further argued that, in fact, the respondents had demanded enhancement of monthly rent and in this respect they got issued a legal notice through their Advocate and when the petitioner did not agree to the enhancement of rent, they filed a false case on the ground of personal bona fide need, as such it cannot be said that the respondents require the premises in question in good faith. He contended that respondent No.2 is doing his business at Shop No.209, Bohri Bazar, Saddar, Karachi and the tenement in question is far away from that place, as such it cannot serve any useful purpose for storing the raw material and other equipments relating to his business. In support of his arguments, he relied upon PLD 1982 Karachi 5257, RLD 1978 Karachi 188, PLD 1982 Karachi 790, PLD 1960 SC 266 and 1985 MLD
594. He prayed for setting aside the two orders passed by courts below.
5. ' On the other hand, Mr. Abdul Rasheed, learned counsel for the respondents, contended that the orders passed by learned Rent Controller as well as appellate court are well-reasoned and in accordance with principles enunciated by the superior courts, that the petition is not maintainable against the concurrent findings of the two courts below as the High Court has no power to reappraise the evidence; that respondents succeeded in establishing their personal bona fide need in respect of the tenement in question; that if for the sake of arguments it is accepted that the respondents had demanded enhancement of rent from the petitioner even then such demand would not disentitle them from seeking eviction on the ground of personal bona fide need; that, in fact, the petitioner has not challenged/rebutted the claim of the respondents regarding personal bona fide need which amounts to admission on their part regarding respondents' claim. In support of his contentions he relied upon the decisions reported in 2010 SCMR 1925, 2001 SCMR 1197, 2008 SCMR 28, 2001 SCMR 1700, PLD 2006 SC 214 and 2011 CLC 633, 1993 CLC 505, 1997 MLD 1, PLD 2000 SC 67, 2008 CLC 431, 2006 CLC 379, 1990 SCMR 544, 1992 SCMR 1296 and 2003 SCMR 1398. He prayed for maintaining the concurrent findings of the two courts below.
6. ' I have heard the learned counsel for the parties and with their assistance perused the material available on record.
7. ' In his Affidavit-in-evidence respondent No.2 deposed in clear terms that he is doing his business at a shop situated at Bohri Bazar, Saddar, Karachi and he is facing acute problem to store his raw material and equipments related to his business and that he is keeping such material in a rented godown which is insufficient and in these circumstances he is facing difficulties and is unable to expand his business for want of his own accommodation for storing the raw material. He denied that the shop in his occupation mostly remains empty and is sufficient for his need. He also denied that he or any of the respondents ever demanded the petitioner to enhance the monthly rent. He asserted that, in fact, the petitioner himself increased the monthly rent of the premises in question voluntarily with the consent of the respondents. He also stated that he repeatedly requested the petitioner to vacate the premises in question but the petitioner failed to do so. In cross- examination he denied that as he wanted to increase the huge amount in monthly rent and when the petitioner/tenant refused to accept his demand, he has filed this false rent case on the ground of personal bona fide need. He, however, admitted that through legal notice issued by his Advocate he demanded monthly rent at the rate of Rs.8,000 instead of Rs.1200, however, he denied that when the petitioner refused to do so, he filed a false rent case against him.
8. ' It is now well-settled that the moment a landlord appears in the witness box and makes statement regarding his personal bona fide need which remains unshattered in cross-examination and unrebutted in the evidence adduced by the tenant, the requirement of law, on the part of the landlord stands discharged. Even sole testimony of the landlord is sufficient to establish his personal bona fine need if the statement of the landlord on oath is consistent, with his averments made in the ejectment application. The case-law relied upon by the learned counsel for the respondents in support of this point viz. 2010 SCMR 1925, 2001 SCMR 1197, 2008 CLC 446, 2003 SCMR 1398, 199.7 SCMR 1062 and 1992 SCMR 1296 are fully applicable in the present case. In the case in hand, as stated above, respondent No.2 deposed in his evidence that as he is facing difficulties and is unable to expand his business for want of his own accommodation for storing the raw material relating to his business, therefore the premises in question is required for his personal bona fide need. The petitioner neither succeed in shaking such statement nor could he rebut the same in his own evidence.
9. ' The only favourable point which counsel for the petitioner could be able to derive from cross- examination of respondent No.2 is to the following effect:- ' It is correct to suggest that in the legal notice issued by my Advocate namely Peshori and Peshori I claimed monthly rent of the rented godown at the rate of Rs.8,000 p.m. Instead of Rs.1200 p.m."
10. ' Now question arises as to whether demand of higher rent by landlord from a tenant, would debar him from seeking eviction of the tenant on the ground of personal bona fide need? The superior courts from have dealt with this point in various decisions. In the case reported in PLD 2000 SC 67 honourable Supreme Court held as under:-- "It is by now well-settled that mere demand for enhancement of rent and previous ejectment applications would detract from the veracity of an eviction petition based on personal need if it is instituted in changed circumstances on a different cause of action and is substantiated by reliable evidence to prove bonafide personal need."
11. ' In 1990 SCMR 544 the apex court held:-- "We cannot accept the very wide argument vis-avis, the demand for increase of rent, as presented by the learned counsel. Such a demand per se can neither be a basis for a finding of mala fides nor such like alleged mala fides, can be the basis for rejection of an application for eviction, in every case. Nothing has been pointed out in this case, so as to demonstrate that the demand of increased rent even if factually made, would make the subsequent demand for eviction on ground of personal requirement, as otherwise than bona fide."
12. 1993 CLC 905 this Court held as under:--"Even otherwise demand of higher rent does not per se cast any doubt about personal bona fide requirement, if proved independently."
13. ' In this connection reference could also be made to 1985 SCMR 1996, 1997 MLD 1 and 2008 CLC 431.
14. ' In view of dictum laid down in the above-cited case-law, it can safely be held that even if any demand was made by the respondents/landlords for enhancing the rent, such demand would not debar them to subsequently seek eviction of the petitioner/tenant on the ground of personal bona fide need which they have succeeded to establish during the course of their evidence.
15. ' Yet examining the case from another angle, it could be held that even the constitutional petition itself is not maintainable. There are concurrent findings of the learned Rent Controller as well as the Appellate Court. Needless to emphasize that constitutional jurisdiction of this Court in rent matters is very much limited and confined only to ascertain whether the appellate court has not flouted provisions relating to the statute or failed to follow the law relating thereto. In the case reported as Hafiz Shafatullah v. Mst. Shamim Jehan and another (PLD 2004 Karachi 502) this Court held as under:-- "By conferring only one right of appeal under section 21 of Sindh Rented Premises Ordinance, 1979, Legislature in its wisdom seemed to have tried to shorten the span of litigation in rent case and in such circumstances interference by High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial order passed by Tribunal of competent jurisdiction, merely on ground that another view of the matter was also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute."
16. ' In 2010 SCMR 1025 the honourable Supreme Court held as under:-- "...Jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of the appellate Court. Therefore, mere fact that upon perusal of evidence High Court came to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws i.e. Sindh Rented Premises Ordinance, 1979."
17. ' In the instant case neither there is any jurisdictional error, nor any perversity, illegality or infirmity was found in the orders passed by two courts below. Needless to mention that constitutional jurisdiction is a discretionary jurisdiction .Vhich is meant to foster justice and to remedy the wrong but could not be allowed to be invoked in routine course as an additional remedy to hamper the findings of fact,' correctly recorded by the forums below.
18. ' Now I advert to the case-law relied upon by the learned counsel for the petitioner in support of his contentions.
19. ' In PLD 1882 Karachi 557 relied upon by petitiontk s :counsel it was held that if landlord occupies a rented house and requires his own house for his own occupation and makes application on that ground, occupation of rented house cannot be considered as a bar to making an application for eviction of tenant. In PLD 1978 Kar. 188 the words "bona fide" and "mala fide" were defined and it was held that it is necessary for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by certain conditions. In PLD 1982 Karachi 790 it was held that landlord would be deemed to have satisfied conditions of 'good faith' by leading evidence of reasonableness of his need and in such a case onus would shift to tenant to prove facts which militate against existence' of good faith or which positively establish dishonesty of purpose on part of landlord to claim possession of premises on ground of personal need. PLD 1960 SC 266 is altogether on different point and not attracted to the facts of the present case. In 1985 MLD 594 it was held that mere demand of higher rent was not act of bad faith and the burden of proof regarding unreasonableness of such demand was on tenant. Apparently, the decisions relied upon by the learned counsel for the petitioner are of no help to him, rather the same go against the petitioner.
20. ' The upshot of above discussion is that the constitutional petition is dismissed in limine and the orders/judgments passed by learned Rent Controller and the Appellate Court are upheld. The petitioner/tenant is directed to vacate the premises in question and hand over its vacant and peaceful posession to the respondents within 30 days.