1. ' AFTAB AHMED GORAR, J.---Through this Constitutional Petition, petitioner. Mrs. Ghulam Fatima has impugned the judgment dated 21-10-2010 passed by Vlth Additional District Judge, Karachi South whereby he allowed F.R.A. No,408 of 2009 filed by the respondent No, 1/landlord against the Order dated 11-10-2009 passed by Xth Rent Controller, Karachi South whereby he dismissed Rent Case No,2042 of 2007 filed by the respondent.
2. ' Brief facts giving rise to the filing of instant petition are that respondent filed ejectment application against the petitioner stating therein that he is the absolute owner and landlord of Plot No,1407 with building standing thereon known as Shaikh Mohammad Yousuf Manzil, situated at Hilton Road, Khadda Lyari Quarters, Karachi, whereas the petitioner is tenant of the respondent in respect of a flat bearing No,4, situated at second floor of the building at monthly rent of Rs,300 plus Rs,250 as maintenance charges payable in advance. According to the respondent, he is in possession of 5th floor of the building consisting of 4 rooms, kitchen, T.V. Lounge, bath room and latrine and the applicant is using one room out of 4 rooms as drawing and dinning room and remaining three rooms are being used as bedrooms. He further asserted that his family consists of father, month, paternal grandmother, wife and four children. The eldest daughter of the respondent namely Rukhsar is aged about 11 years who is student of fifth class his son Shaikh Fahad is aged about 10 years, studying in class four. Aqsa and Shaikh Abdul Wahab, the daughter and son, respectively of the respondent are aged about 4 and 3 years and are studying in Montessori. It was further asserted that one bedroom is occupied by father and mother of the respondent and the other bedroom is in possession of respondent and his wife, whereas the third bedroom is being used by the paternal grandmother of the respondent and four children of growing age, as such a separate room is required for studies of the children, as such, the respondent requires the premises in possession of the petitioner for his personal bona fide use. It is further claimed by the respondent that the petitioner lastly paid monthly rent and maintenance charges for the period from April, 2007 to June, 2007, thereafter he failed to pay the rent as well as maintenance charges, as such committed wilful default.
3. ' The petitioner/tenant contested the matter and filed written statement wherein he denied the personal bona fide requirement of the respondent alleging that he had acquired the flat on payment of pugree of Rs,12,00,000 and if the respondent needed the flat for personal requirement, he may get a non-pugree flat in the same building vacated. In respect of default in payment of rent, he pleaded that he remitted the rent by money Order on 10-11-2007 from July, 2007 to December, 2007 but the respondent/landlord refused to receive the money order, therefore he started depositing the rent in court.
4. ' After recording the evidence of both the parties and hearing their counsel, learned Rent Controller decided both the points i,e, personal bona fide need and default in payment of rent against the respondent/landlord and dismissed the rent application vide order dated 11-11-2009. The respondent challenged the said order in appeal. The learned appellate court after hearing the arguments of both the parties vide judgment dated 21-10-2010 reversed both the findings and consequently allowed the appeal and directed the petitioner/tenant to vacate the premises in question within 60 days. The said judgment has been assailed through instant constitutional petition.
5. ' Learned counsel for the petitioner contended that the learned appellate court erred in law and on facts while reversing the findings given by the learned Rent Controller; that the learned appellate court has committed misreading and non-reading of evidence adduced before the learned Rent Controller; that the appellate court did not take into consideration that the respondent miserably failed to establish his personal bona fide need; that the learned appellate court has failed to consider that the petitioner had paid Rs,12,00,00 as goodwill to the grandmother of the respondent. He prayed for setting aside of the judgment passed by appellate court and maintaining the findings given by the learned Rent Controller.
6. ' On the other hand, learned counsel for the respondent contended that the learned appellate court rightly reversed the findings of the learned Rent Controller as the trial court while dismissing the rent application ignored the settled principle of law that it is the choice of the landlord to select any premises for his use. He further contended that learned Rent Controller had also erred while deciding the point of default in payment of rent as he did not appreciate that remittance of rent by money order or depositing the same in MRC after the default having been committed is not permissible under the law. According to him, learned appellate court while passing the impugned judgment has given sound and cogent reasons for departing from the view expressed by the learned Rent Controller, as such it requires no interference by this court under its constitutional jurisdiction. He prayed for dismissal of the petition.
7. ' I have heard the arguments advanced by the learned counsel for the parties and perused the material available on record.
8. ' On the point of personal bona fide need, the respondent in his rent application categorically stated that the premises in question is required for personal bona fide requirement of the respondent and his family. He also deposed in his evidence to this effect. The learned Rent Controller gave the finding of personal bona fide need against the respondent/landlord observing, "It is quite strange to note that it is an admitted position on the record that there are several other flats in the subject building and it also an admitted position on the record that the case premises is situated at second floor. Despite my best efforts, I've failed to understand the suitability of the case premises for personal requirement of the case premises by the opponent for his children's studies, as they are presently living at 5th floor and case premises is situated at 2nd floor and all the said children are of tender age, therefore I'm not at all convinced with the plea of personal requirement so pressed by the applicant." While giving such finding, the learned Rent Controller apparently ignored the well settled principle of law that it is the prerogative of the landlord to choose any tenement for his personal use. The fact that which of the tenements is more suitable for his use, is to be decided by the landlord and the tenant or, for that matter, even the learned Rent Controller cannot dictate him to select another premises except the one for which ejectement is being sought. At the same time, learned Rent Controller also failed to consider that it is for the landlord to decide as to in what manner he will use the premises and merely on the basis of surmises and conjectures a landlord cannot be deprived of his right to get the premises for his personal bona fide use. In the instant case the learned Rent Controller is impressed by the fact that premises sought to be used for children's studies is situated at 2nd floor whereas presently the respondent and his children are living at 5th floor, therefore, how the children who are of tender age will live/study alone at 2nd floor. As stated above, it is for the respondent/landlord to decide as to in what manner he will use the premises for his personal bona fide need which, in the present case, is the study of his children. For example, he can easily shift his father, mother and paternal grandmother to 2nd floor. In this manner he could spare sufficient space at 5th floor which may be used for the study of his children.
9. ' In the case reported in 1997 SCM R 1062 honourable Supreme Court has held that sole testimony of the landlord is sufficient to establish his personal bona fide need if the statement of the landlord on oath is consistent with his averments made in the ejectment application. During cross- examination learned counsel for the petitioner/tenant has not been able to establish that the statement of the respondent/landlord made on oath is not consistent with the averments made in the ejectment application.
10. ' In view of above, I am of the opinion that the learned appellate court rightly reversed the finding on the point of personal bona fide need in favour of the respondent.
11. ' So far as the point of default in payment of rent is concerned, the respondent/landlord deposed that the petitioner paid rent upto June, 2007 and thereafter he failed to pay the rent. The petitioner also admitted that he paid rent upto June, 2007 but thereafter the respondent refused to receive the rent, therefore on 10th November, 2007 he sent the rent from July, 2007 to December, 2007 through money order on 10th November, 2007 which was also refused by the respondent, as such ultimately he deposited the same in court. Even, for the sake of arguments, it is supposed that the respondent refused to accept the rent from the month of July, 2007, even in such eventuality it was incumbent upon the petitioner/tenant to have sent the money order immediately but in the instant case, as per his own admission, the petitioner sent the rent for the period from July, 2007 to December, 2007 through money order on 10th November, 2007. In this view of the matter it is manifestly clear that at least rents for the months of July to September, 2007 were sent belatedly thereby rendering the petitioner as defaulter in payment of rent. Therefore, even the finding on the point of default in payment of rent given by the learned Rent Controller was not just and proper, hence rightly reversed by the appellate court.
12. ' For the foregoing reasons, I do not see any justification to interfere with the Judgment passed by the appellate court. Accordingly, the constitutional petition is dismissed in limine and the judgment passed by learned Appellate Court is upheld. The petitioner/tenant is directed to vacate the premises in question and hand over its vacant and peaceful possession to the respondent within 30 days from the date of short order.
13. ' Above are the reasons for short order dated passed on 20-12-2012.