' SADIQ HUSSAIN BHATTI, J.---The petitioner is aggrieved by the judgment dated 3-4-2008 passed by learned VII Additional District Judge, Karachi South, whereby he dismissed the First Rent Appeal No,318 of 2006 filed by the petitioner against the Order dated 4-10-2006 passed by the IV Rent Controller, Karachi South allowing the ejectment application filed by the respondent No,1 and ordering ejectment of the petitioner from the demised premises.
2. Brief facts of the case, relevant for the purpose of disposing of this petition, are that petitioner is tenant of the respondent No,1 in respect of Flat No,6, 3rd Floor, Rahmat Bi Mansion situated at Princes Street, Karachi at the rate of Rs,300 per month. The respondent No,1 filed ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979 ("the Ordinance") for ejectment of the petitioner/tenant on two grounds viz. Default in payment of rent and personal bona fide requirement of the sons of the landlord. The petitioner filed written statement denying the averments made in the ejectment application. On the basis of the pleadings of the parties, the following issues were framed by the trail Court:--
(1) 'Whether the opponent has committed wilful default in payment of rent from the month of July, 2000'?
(2) Whether the applicant requires the premises in question in good faith for personal bona fide use of his sons Aamir and Kamran?
3. After hearing the learned counsel for the parties, the learned IV. Rent Controller, Karachi South, allowed the ejectment application vide order dated 4-10-2006 on both the grounds i,e, on the ground of default in payment of rent and on the ground of personal bone need of the premises by landlord for his sons. The petitioner challenged the said Order through First Rent Appeal No,318 of 2006; which was dismissed by the learned VII Additional District Judge, Karachi South vide the impugned judgment dated 3-4-2008. Hence, this petition.
4. Learned counsel for the petitioner contended that the ejectment application was filed by Mr. Khizer Askar 'Zaidi, advocate and Mr. Khizer Askar Zaidi, advocate was a witness in the General Power of Attorney executed by respondent No,1 in favour of Abdul Jabbar in respect of the building in which the rented premises is situated, therefore, the ejectment application was liable to be dismissed as the advocate who filed the ejectment application has some personal interest in the demised premises. The learned counsel also contended that the period of default is alleged to be from July 2000 till filing of the rent case and it is unbelievable that the landlord will remain silent for such long period without receiving rent. It was further contended that at the time of induction of the petitioner in the rented premises, she has paid a sum of Rs-.600,000 to the builder who constructed the building in which the rented premises is situated namely, Abdul Jabbar. He stated that the Courts below have completely ignored this aspect of the case. The learned counsel also contended that the issues were framed by the trial Court only on the basis of the pleadings of the applicant/landlord and the pleadings of the petitioner/tenant were entirely ignored. In support-of his the learned counsel relied on the following cases:
(1) PLD 1950 Lahore (sic),
(2) Muhammad Abdullah v. Sughra Begum (1988 CLC 2078)
(3) Muhammad Mustaqeem through L.Rs, v. Abdul Haleem through L.Rs, (1992 CLC 435), and
(4) Allies Book Corporation v. Sultan Ahmad and others (2006 SCMR 152).
5. On the other hand, learned counsel for the respondent No,1 fully supported the impugned Judgment/order of the two Courts below and stated that since there are concurrent findings of the two Courts below and it has not been shown that any finding is against the evidence on record. The learned counsel further submitted that the trial Court as well as the Appellate court has given cogent reasons in support of their findings and the impugned judgment/order do not call for any interference from this Court and prayed that the petition may be dismissed. In support of his contentions, the learned counsel relied on the following reported cases:--
(l) Azim Khan through Attorney v. Muhammad Hussain and others (2003 CLC 278),
(2) Ali Muzaffar through L.Rs, v. Syed Muhammad Ali Abedi through L.Rs, and others (2006 CLC 379) and ,
(3) Muhammad lqbal v. Muhammad Naeem and others (PLD 2006 Karachi 658)..
6. I have heard the learned counsel for the parties, perused the record with -their assistance and have also gone through the case cited before me.
7. So far as the question of signing of the power of attorney by Mr. Khizer Askar Zaidi, advocate as a witness is concerned, suffice it to say that this point was not raised before the trial Court and, therefore, cannot now be agitated' before this Court in a constitutional petition.
8. It is an admitted position that the respondent No,1 /landlord filed ejectment application against the petitioner/tenant on two grounds viz, default in payment of rent and personal bona fide requirement of the landlord. On the point of default in payment of rent, the learned counsel has only submitted that it is unbelievable that the tenant/petitioner was not paying rent since July, 2000 and the landlord/respondent No, I kept quiet for such a long time. In this regard he also relied on the case of Muhammad Abdullah (supra) wherein it was alleged that conduct of the respondent-landlady in not asking for the payment of rent for long six years was itself sufficient to hold that her claim was bogus. However, in this the question of default in payment of rent was not decided on the ground that the landlord kept quiet for six long years, rather it was decided after discussing the evidence produced by the parties. The pivotal point in deciding the question of default in favour of the tenant being that the assertion of the- tenant that he has paid rent for the disputed period was not denied by the landlord by coming into the witness box. In the present case the landlord/respondent stepped into the witness box and stated on oath that rent was not paid for the said period. In his affidavit-in-evidence he, has stated that the petitioner has paid rent upto June, 2000 and he has issued receipts. It was only after filing of the rent case that the petitioner started depositing rent in MRC. The petitioner in her cross-examination has admitted that "It is correct to suggest that whenever I had paid the monthly rent to the applicant he issued rent receipts." The payment or non-payment of rent is a fact and the party asserting such fact has to prove the same by evidence. Therefore, once the landlord/respondent claimed on oath that rent was not paid by the petitioner for a certain period, it was for the tenant/petitioner to have produced the rent receipts for the said period and shifted the burden on the landlord/respondent No,1.
9. So far as the question of payment of huge amount by the petitioner to the respondent No,1 -as Pugree is concerned, it may be stated that though the learned counsel for the petitioner raised a preliminary objection regarding payment of Rs,600,000 as Pugree but he did not produce any receipt in support of her claith. During the course of arguments, the learned counsel produced copy of a Power of Attorney executed by the respondent No,1 in favour of one Abdul Jabbar in respect of the plot on which Rehmat Bi Mansion was constructed. Clause 4 thereof reads as under:- "(4) To accept the deposits payments in respect of the said property and to issue the valid receipts thereof. (Emphasis provided).
10. Thus, it would be seen that as per the document produced by the petitioner herself, if she has paid any amount as Pugree she was to get a valid receipt for the same. However, no such receipt was produced. Even otherwise, this document can be of no help to the learned counsel for the petitioner as it was not produced after obtaining permission for production of additional document and, therefore, the document not being a part of the record, could not be looked into. Reliance is placed on the case reported as Abdul Rehman and another v. Zia-ul-Haq Makhdoom (2012 SCMR 954).'
11. Now coming to the ground of personal bona fide requirement of the premises for use of the sons of the applicant, in the ejectment application it was stated that the premises in question is required in good faith for bona fide personal use of the sons of the applicant, namely, Aamir and Kamran who have married and have their own family and the present premises is not sufficient for them.
On this ground, the learned Rent Controller has held as under:-- "The applicant in his affidavit in evidence' has deposed on oath that the demised premises is required to [by] him in good faith for personal use of his two sons Kamran and Aamir and the applicant has also filed affidavit in evidence of his two sons Kamran and Aamir who have also supported the versions of applicant and have deposed that the demised premises is required to
[by] them for their personal use and their evidence have not been seriously challenged by the opponent in their cross-examination but she has simply' taken ground that the applicant has other properties in Karachi and one flat at 6th Floor of the same building is lying vacant but the opponent have failed to produce any documentary evidence to prove her version and even suitability. And sufficiency of accommodation of applicant and his sons cannot be determined by the opponent who cannot say that the premises where the applicant's sons are residing is suitable for them but the choice to select premises suitable for personal use lies upon the applicant and the, evidence of the applicant and his sons clearly establish their case for requirement of demised premises to [by] them for their personal use."
12. In view of the above discussion, the learned Rent Controller held that it is established that applicant requires the demised premises for personal use of his sons and answered the issue in favour of the applicant/landlord. This finding of the learned Rent Controller was upheld by the learned Appellate Court and, hence, there are concurrent, findings of the two courts below, against the petitioner which cannot be disturbed unless it is shown that the findings are against the evidence on record. The learned counsel for the petitioner failed to point out any illegality or infirmity in the impugned judgment/order.
13. In view of the above, I find no merits in this petition which is dismissed and maintain the order/judgment passed by the two Courts below with no order as to costs.