' ABDUL RASOOL MEMON, J.---Through this constitutional petition under Article 199 of the Constitution of Pakistan 1973; the petitioner/tenant has called in question the judgment dated 22- 3-2012 passed by IIIrd Additional District and Sessions Judge Karachi Central (respondent No,2) whereby the learned Judge allowed F.R.A. No,1 of 2011 and set aside the order dated 10-12-2010 passed by VIIth Senior Civil Judge and Rent Controller (Central) Karachi in Rent Case No,494 of 2009 whereby the rent application filed by respondent No,1 was dismissed.
2. The petitioner was admittedly the tenant of respondent No,1 in respect of a shop bearing No,3 situated on Plot No,R-695, Sector 15-A/2 Buffer Zone, North Karachi under rent agreement dated 19- 5-1991. According to rent agreement the rent shall be paid by the petitioner in advance on or before 5th of each calendar month, failing which the petitioner shall be liable to ejectment. As per agreement the rent shall be increased 10% of the current year after every three yeaRs, Respondent No,1 has claimed that initially the rate of rent-was at Rs,450/- per month which by passage of time was enhanced in view of terms of agreement and lastly the rent of Rs,800/- was paid by the petitioner in the month of September, 2008 and thereafter he became defaulter in payment of rent thus respondent No,1/landlord filed rent application for ejectment of the petitioner on the ground of default in payment of rent and for personal bona fide need.
3. The petitioner/tenant filed written statement admitting the relationship of landlord and tenant, agreement dated 19-5-1991, so also the rate of rent. The petitioner contended that he paid rent up to the month of September, 2008 and thereafter approached the respondent No,1/landlord for payment of monthly rent of October and November, 2008 but he refused to receive the rent consequently he tendered the rent through money order dated 27-11-2008 which too was refused by the respondent No,1, therefore, he filed M.R.C. No,80 of 2009 in January, 2009 before respondent No,3 wherein he deposited the rent from October, 2008 to February, 2009 and on 17-4-2009 the advance rent for six months was also deposited. For personal bona fide need of the demised premises by the respondent No,1/landlord the petitioner alleged that malafidely this ground has been taken otherwise the respondent No,1 being patient of brain tumor, his sons are settled at America is not in a position to run his business and is in need of demises premises.
4. Respondent No, 1/landlord filed affidavit in evidence of his attorney namely Muhammad Roshan Khan and so also affidavit of Syed Muhammad Shaukatullah and Mirza Iqbal and they were cross examined by the counsel for petitioner, while the petitioner has filed his affidavit in evidence and was cross examined by the counsel for respondent No,
1. He has also filed affidavit in evidence of his witnesses namely Muhammad Ameen and Islam Ahmed who did not put themselves in witness box therefore, they were not cross examined. Learned Rent Controller framed the points for determination as under:--
(1) Whether the opponent is defaulter in payment of rent from October, 2008?
(2) Whether the case premises- is required to the applicant for his personal bona tide need in good faith?
(3) What should the order be?
5. Learned Rent Controller answering the above point Nos. 1 and 2 in negative dismissed the rent application. The respondent No,1/landlord assailed the order of Rent Controller in F.R.A. No,1 of 2011 who reversed the findings of the Rent controller on point Nos.1 and 2 framed above and held that the petitioner/tenant is defaulter in payment of rent since October, 2008 and the premises is required by the respondent No,1/landlord for his personal use in good faith and thereby allowed the appeal, the same order is impugned in this writ petition.
6. Learned counsel for petitioner has contended that the order of the Rent Controller was based on cogent reasons and material available on record while the judgment of the Appellate Court is contrary to law and facts. He has contended that the Appellate Court has erred in holding that the petitioner is defaulter in payment of rent since October, 2008. The rent of October and November was tendered to respondent No,1 by the petitioner through money order but the same was refused hence the petitioner deposited the same in M.R.C. No,80 of 2009 and thereby he cannot be held defaulter in payment of rent. On the point of personal bona fide need of the respondent No,1 he has contended that respondent No,1 in his application has averred that after retirement he became jobless and is in need of demised premises for his personal use and also for the use of one of his son while the attorney of respondent No,1 in his cross examination admitted that all the sons of the respondent are settled at America while respondent No,1 himself is suffering from brain tumor hence due to such disease he cannot carry out the work at his shop, therefore, the intention of respondent No,1 is not bona fide in good faith but only to evict the petitioner with mala fide intention. He has further contended that respondent No,1 in whose need demised premises is required has failed to appear in the witness box and no reason had been advanced for his non- appearance which seriously caused doubt upon the contention for personal bona fide need , of the respondent No,
1. He has further argued that the appellate court has failed to 'appreciate that the said shop was taken into possession after paying handsome amount in the shape of 90% of the total value of the said shop prevailing at the market as Pugri to previous tenant. In support Of his contention he has relied upon the case of Shabzad v. Mst. Kulsoom (2009 YLR 2166), Abdul Fayyaz Khan v. 111rd Additional District Judge, Karachi South (2012 CLC 793).
7. Conversely, learned counsel for respondent No,1 has argued that the findings of learned Rent Controller were contrary to the record and there was misreading and non reading of the evidence by learned Rent Controller while the findings of the, learned Appellate Court are based on proper appreciation of evidence which was brought on record in respect of default in payment of rent. He has contended that the petitioner has failed to show that the respondent ever refused to accept the rent in person or by money order and the petitioner without any justification started depositing the rent in MRC before the Rent Controller, therefore, in absence of any: proof in this regard it would nor be valid tender in the eyes of law. It is contended that rent from October 2008 to February, 2009 was deposited in MRC for the first time on 6-2-2009. Admittedly, the relationship of landlord and tenant is regulated by an agreement; therefore, counting the grace period of 60 days as provided under section 15(2)(ii) of SRPO 1979 if the remaining period is calculated then it will suggest that there is clear default on the part of the petitioner in payment of rent. So far as non-examination of respondent No,1 he has contended that respondent No,1 has examined his attorney and the petitioner has failed to show any case-law which preclude the landlord from recording his statement through attorney. He further added that the statement of the attorney in support of personal bona fide need of the respondent No,1 cannot be brushed aside because it is in conformity with the statement made in the application. He has further contended that respondent No,1 in his power of attorney executed in favour of Muhammad Roshan has clearly stated that due to other engagements he is unable to appear before the court, department or office and as such he desirous to appoint attorney in this behalf. He has contended that there is no compulsion that the principal must appear in the witness box to prove his personal need, he can examine his attorney. For payment of Pugri he has submitted that the appellant has failed to bring any tangible evidence to prove the payment of Pugri to the previous tenant or the respondent No,1. In support of his contention he has placed reliance on the cases of javed Ahmed v. Muhammad Imran Malak (PLD 2011 Isl. 30), Malak Muhammad Rainzan v. M/s. General Iron Stores and others (1995 SCM R 1125), Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCM R 1925), Raees Ahmed Pasha v. Kamaluddin and others (2004 M LD 587), Messrs F.K. Irani & Co. v. Begun: Feroze (1996 SCM R 1178), Abdul Qadeer v. S. Azeemuddin Ahmed (1987 CLC 2347), Ghulam Nabi and another v. T. Ismail (2000 M LD 186), Mirza Yawar Baig v. Usman Ghani Chippa (1989 CLC 247) and Muhammad Amin v. Ghulam Muhammad Dossal (1987 CLC 1777).
8. I have given careful consideration to the arguments and gone through the relevant papers on record.
9. The petitioner has taken plea that he has paid the rent up to September 2008 and for, the month of October and November 2008 the respondent refused to accept as such he sent through money order dated 27-11-2008 which too was refused by the applicant. Thereafter in the month of January 2009 he filed M.R.C. No, 80 of 2009. I have gone through the record. The applicant has examined his attorney Muhammad Roshan who in his affidavit in evidence has stated that the petitioner/tenant did not pay monthly rent for the month of October, 2008 till filing of rent application. In his cross examination he has denied the suggestion that the landlord has refused to accept the rent of October, 2008 from the petitioner/tenant. It has also been denied to a suggestion . That the respondent No,1 has refused to receive the rent through money order in the month of October.
10. The petitioner in his affidavt in evidence pleaded that respondent No,1 has refused to receive the rent for the month of October and November 2008 tendered by him and thereafter he tendered the same through money order on 27-11-2008 to the landlord but he refus I to receive the rent hence he deposited the same by filing M.R.C. No,80 of 2009. In his cross examination he admitted that he has paid the rent up to September, 2008 to the landlord. He lips also admitted that first time he sent the rent through money order to the landlord on 27-11-2008 and it was for the month of November 2008. He has admitted in cross examination that he has not produced the proof regarding payment of rent for the month of October 2008. He has also admitted in cross examination that he has not sent any money order except Exhs.O-2 and 0-3 and he admitted that he deposited the rent on 6th February 2009 in M.R.C. No,80 of 2009. He has also admitted that he did not issue any notice to the landlord regarding deposit of the rent in court. He admitted that he has not produced any proof regarding refusal of the rent by the landlord.
11. From the perusal of record, it appears that respondent No,1 has alleged the default in payment of rent from October 2008 and his attorney has clearly stated in his affidavit that the petitioner has failed to pay rent since October 2008, now the burden lies upon the petitioner/tenant to prove that he has offered the rent but the same was refused by the respondent No,1/landlord. It is admitted fact on record that the petitioner has claimed that he tendered the rent in October and November 2008 to the respondent No,1 but he refused, no such proof has been brought on record that the petitioner actually tendered the rent for these two months personally to the respondent No,1 but he refused to receive the same. In this context the petitioner has also filed affidavits of two witnesses namely Muhammad Ameen and Islamuddin but they were not put in witness box and their affidavits were excluded from consideration. In such circumstances, presumption would be that had they been examined, they would have not supported the version of the petitioner. So far as tendering the rent through money order is concerned B the attorney of respondent No,1 has denied the fact of tendering the rent through money order. Only copies of money order coupons have been placed on record to substantiate the plea of the petitioner that the respondent No,1 refused the payment of rent through money order. The said coupons do not indicate the same were delivered to the respondent No,1 or he has refused to receive the rent. Record reveals that the petitioner in his affidavit in evidence has clearly stated that on 6-2-2009 he deposited Rs,4350/- being rent from October 2008 to February 2009 in M.R.C. 80 of 2009 which clearly shows that the rent for October, November and December was deposited in the month of February 2009. It is also admitted fact on record that there is relationship of landlord and tenant is regulated by agreement and under section 15(2)(ii) of SRPO 1979 period of sixty days grace can be extended in payment of rent but the above deposit clearly shows that it has exceeded 60 days. Moreso, as the petitioner has failed to prove that the landlord has refused to accept the rent by tender or through money order so as to entitle or give any justification to him to change the mode of payment by depositing the rent in the office of Rent Controller therefore, in the circumstance the conduct of the tenant would be termed to be contumacious as it would operate as an act of harassment to the landlord.
This dictum is laid down in the case of Muhammad Asif v. Shaikh Israr (2008 SCMR 1872).
12. Learned counsel for appellant has laid much emphasis on the point that the landlord did not appear in the witness box and has examined his attorney. It is worth while to note that the landlord in order to prove personal need can examine his attorney and there is no compulsion that he must appear in the witness box. Non-appearance of the landlord and representation through attorney was not fatal for the landlord. In this respect I am fortified by the cases of Syed Abdul Rauf v. Abdul Sattar 1998 SCM R 2525 and so also Javed Ahmed supra.
13. Reverting to the point of personal need the landlord in his rent application has stated that he has retired from service and wants to establish his own business in the shop in question. It is further stated in the application that he is patient of brain tumor and in the year 2003 he has gone abroad for his treatment. The attorney of respondent No,1 in his affidavit in evidence in para-7 has stated that the demised premises is required by the respondent No,1 and his son for their personal bona fide need as due to disease of brain tumor he is not able to do any job. In his cross examination the attorney of respondent No,1 has denied the suggestion of learned counsel for petitioner that respondent No,1 has not been able to do any business due to brain tumor. In view of clear statement of attorney wherein he has denied the suggestion that respondent No,1 is not able to do the business, it is clear that the version of respondent No,1 pleaded in the rent application is in conformity with the affidavit in evidence has not been shaken in cross examination.
14. In the circumstances respondent No,1 has examined his attorney and his evidence is found by the Appellate Court as trustworthy and consistent to the averments made in the plaint, the landlord has succeeded in leading reliable and sufficient evidence to prove that the demised premises was required in good faith for his personal bona fide need and the claim is based on sincerity and honesty and no flaw has been cited by learned counsel for petitioner except that the due to brain tumor he is not able to work on his shop which is denied by the attorney of the petitioner. Moreover if the landlord does not occupy the demised premises got vacated on account of personal need the rights of tenant have been protected under section 15-A SRPO which reads as under:- 15-A, Penalty for use of premises other than personal use.-- ' Where the landlord who has obtained the possession of a building under section 14 or premises under clause (VII) of section 15, re-lets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession:-
(i) he shall be punishable with fine which shall not exceed one year's rent of the building or the premises, as the case may be, payable immediately before the possession was so obtained; and
(ii) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall made an order accordingly.
15. The other contention of learned counsel for petitioner that the respondent No,1 has also other properties, no evidence has been brought on record that why the demised premises is suitable for his business. In this context I am of the opinion that that the selection of business place is a sole prerogative of the landlord so also choice of rented shop if having more than one, therefore, no restriction can be enforced upon the landlord. In this context I am fortified by case of SHAKEEL AHMED and another v. MUHAMMAD TARIQ FAROGH and others (2010 SCM R 1925).
16. Adverting to the plea of petitioner, regarding obtaining tenancy rights on payment of Pagri to previous tenant, to substantiate his plea he has not produced any documentary evidence or examined previous tenant. Moreover, plea of Pagri would not disentitle the owner to file ejectment proceedings against the tenant on the ground of personal bona fide need. Reliance is placed on a case of RAEES AHMED PASHA v. KAMALUDDIN and others (2004 M LD 587).
17. More so in case of Shakeel Ahmed supra honourable Supreme Court has held that Appellate Court was the final authority under SRPO 1979 and constitutional jurisdiction cannot be invoked as substitute to another appeal against such order. In view of above discussion, I do not see any reason to arrive at any different conclusion to that of Appellate Court, therefore, I find no cogent reason to interfere with the order of learned Appellate Court; consequently this petition is dismissed.