' SYED MUHAMMAD FAROOQ SHAH, J.---Petitioner above named putting up in a rented premises viz. House No.B-191, Block-J, North Nazimabad, Karachi, invoked extraordinary constitutional jurisdiction of this Court, against the concurrent findings of both Courts below, whereby his eviction sought by the Landlady/respondent No.1 on the ground of personal bona fide use, was accorded and the petitioner was directed to hand over the vacant possession of the case premises to the respondent.
2. Relevant facts, necessary for disposal of captioned petition are that the respondent/landlady leased out the aforesaid demised premises to the petitioner on agreed rent of Rs.13000 per month excluding utility bills, after execution of tenancy agreement dated 1-2-2005. Averments of the pleadings of the parties reveals that the petitioner has failed to vacate the demised premises in spite of oral request of the respondent No. 1/landlady hence she filed Rent Case No.505 of 2006,whch was earlier dismissed vide order dated 26-3-2008. Being aggrieved with the earlier order dated 26-3,-2008, the landlady has filed F.R.A. No.54 of 2008. By appellate order dated 26-3- 2008, the case was remanded to the Rent Controller with direction to provide fair opportunity to both the parties to lead their evidence and to decide the matter afresh within two months' period.
On remand, the case was tried and decided on merits, whereby the ejectment application was allowed and subsequently F.R.A. No.154 of 2010, filed by the petitioner, was also decided in favour of the landlady.
3. Arguments, advanced from both sides, have been considered in light of the case law available on the subject.
4. Learned counsel appearing for the petitioner/tenant submitted that both the learned Courts below have seriously erred to consider that the respondent was not entitled for having occupation of demised premises on the sole ground of personal bona fide requirement and states that the concurrent findings is the result of illegalities, misreading or non-reading of the evidence. To support his contentions reliance is being placed on the following case law:--
(i) 1984 CLC 2196 (Fazal Ahmed v. Ramzan Bibi)
(ii) 1998 CLC 349 (Nisar Hussain Rizvi v. Aisha)
(iii) 1991 CLC 1902 (Fazahat Ali v. Noor Jehan Begam)
(iv) 2001 MLD 1176 (Saleemuddin v. Bibi Jai)
(v). 1982 CLC 1444 (Hajra Bai Sulaiman v. Aisha Bai)
(vi) 1987 CLC 1250 (Shafiqa Fatima v. Rais Hassan Siddiqui)
(vii) 1988 CLC 1833 (Noorunissa v. Qamurul Huda)
5. Conversely, learned counsel for the respondent/Landlady argued that the concurrent findings of the Courts below are strictly in accordance with law. He has further submitted that sufficient evidence has been brought on the record which shows that the landlady is residing alongwith her three children in a rented premises and on her demand, the petitioner has refused to vacate it and started depositing" the rent in MRC. It is next contended that in view of well-settled law as ordained from the rulings of apex Court is that, when the landlady deposed on oath that she required the premises for her personal bona fide use and her version is fully constant with averments of pleadings, which was not shacked during cross, the landlady is entitled for possession. Learned counsel submitted that it is an admitted position, as evident from the record that the landlady stated on oath that she is a widow, mother of three children, residing in the rented premises and her landlord wants to eject her and even otherwise she cannot afford to live in a rented premises alongwith her three children, hence she needs the demised premises for her personal use and this piece of evidence neither denied nor disputed by the tenant/petitioner. It is contended that the impugned order passed by the learned Courts below are quite. Legal and does not require any interference. Learned counsel by placing reliance on citations of Apex Court, distinguished the case-law cited in favour of tenant at paragraph 5/note, ante.
6. Before discussing factual aspect of the case and examining the contentions of the learned counsel and averments of the instant petition as well, it would be appropriate to mention here that the jurisdiction of this Court under Article 199 of the Constitution is extraordinary in nature, which is for the proper dispensation of justice and to avoid abuse of the process of law as legislature done away filing of second appeal while promulgating the Sindh Rented Premises Ordinance, 1979; unless the findings of the lower Courts are arbitrary, capricious and perverse and has resulted in gross miscarriage of justice, therefore, the concurrent findings of fact recorded by competent authorities having jurisdiction, may not be interfered by this Court in writ jurisdiction as held by the apex Court in the cases of Mazhar Hussain Shah through L.Rs v. Member Board of Revenue Punjab, Lahore and others (2006 SCMR 959), Malak Muhammad Hussain v. District Returning Officer and others (2008 SCMR 488).
7. Learned Counsel for the Landlady/Respondent has rightly contended that while promulgating the 'Ordinance of 1979, it appears that legislature in its wisdom tried to shorten the span of litigation in rent cases and in such circumstances, interference by High Court, in exercise of its constitutional jurisdiction under Article 199 of the Constitution the impugned orders passed by the competent Courts having jurisdiction, would add to the misery of prolonged litigation in between the parties and surely would defeat the spirit and object of statutes as well as timely dispensation of justice.
Learned counsel further argued that the scope of constitutional petition with regard to the Concurrent findings of fact, arrived by two Courts below is very limited and such findings can be interfered in exceptional circumstances. As mentioned supra, the landlady has not only shown her appearance before the Court, but specifically stated that being a widow and mother of three children, she needs the premises in question more particularly, her landlord asked her to vacate the rented premises in which she is presently residing and there is no reason to discard her words, stated on oath.
8. During cursory examination of evidence brought by the parties on the record, relating to the bona fide requirement of the demised premises by the landlady, it appears that the landlady has categorically stated in her affidavit-inevidence that being a widow -and mother of three children, she is living in a rented premises and her landlord has time and again asked her to vacate the said,premises, moreso, being a widow, she cannot afford to live with her three children in a rented house and as such she needs her house for personal bona fide use. During her cross-examination, she has affirmed her statement made in the affidavit-in-evidence. Statement of the landlady is inline of averments stated in the rent application.
9. In the case of Haji Muhammad Siddique v. District Judge, Peshawar and others (1990 SCMR 1997), the apex Court in penultimate paragraph held that the principle laid down in the judgment PLD 1971 Supreme Court 442 is that "a landlord, who is occupying a rented premises is entitled to claim the possession of his own property." Similar dicta has also been laid down in the case of Abdul Latif v.
Faqir Muhammad (1982 SCMR 1046). Reference may also be made to the case of Wasim Ahmad Adenwalla v. Shaikh Karim Riaz (1996 SCMR 1055), wherein the Honourable apex Court held that "landlord would have the option to choose the house or place where he wanted to reside." In, the case of Mst. Tauheed Khanum v. Muhammad Shamshad, reported as 1980 SCMR 593 and in Hassan Khan's case (PLD 1976 Karachi 832), it was held that "the moment landlord appears in witness box and makes statement on oath or in the form of affidavit-in-evidence as prescribed by law, provided it remains unshattered In cross-examination is sufficient to prove the bona fide need of the landlord" . In the case of Jehangir Rustom Kakalia v. Hashwani Sales Services (Pvt.) Ltd.. (2002 SCMR 241), the apex Court held that "landlord being owner of demised premises cannot be deprived of his rights and interest to use his property in a manner more suited to his requirements.
No unreasonable restriction can be placed on exercise of right by landlord which, would offend the fundamental rights guaranteed under Article 23 of he Constitution." In the case of labal Book Depot v. Khatib Ahmed (2001 SCMR 1197), it was held that "where the statement on oath was quite consistent with his averment made in the ejectment application and the same had neither been shaken nor anything had been brought in evidence to contradict the statement, such statement on oath would be considered sufficient for acceptance of the ejectment application." It would be advantageous to reproduce hereinbelow paragraph 10 of the mentioned citation, which runs as under:-- "10. We have also dilated upon the question as to whether the entire building would be needed or a part of land, we are of the view it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advises. In this regard we are fortified by the dictum laid down in 1968 SCMR 1087. Let we mention here at this juncture that "the real test whether a premises is required for personal use is whether the need is based on good faith. This being a question of fact and finding on this subject cannot be taken exception to unless it is shown that it suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading or evidence". 1978 SCMR 437.
Nothing solid or concrete could be brought in rebuttal by the appellants showing that the need of landlord is imaginary or based on mala fide."
10. A larger Bench of Shariat Appellate Jurisdiction in the case of Sheraz Tufail v. State (2007 SCMR 518) held that "if defence has failed to cross-examine witness about a specific portion of his statement of examination-in-chief, such unchallenged statement would be deemed to have been admitted by defence."
11. It has come on the record that the landlady in the present case is having no other property and required the premises for her personal bona fide use, which is her right and, therefore, her need for personal use of the premises is bona fide and by no stretch of imagination, her such demand be considered mala fide. In the case of Pakistan Institute of International Affairs v. Naveed Merchant (2012 SCMR 1498), in paragraph 10, the Honourable Supreme Court held that "it will be nothing, but reiteration of settled legation position that the statement on oath or the landlord as regards claim of their/his personal need unshattered in cross-examination and unrebutted in defence evidence is to be accepted by the Court as bona fide. Moreover, the choice lies with the landlord to select any of the tenement for his personal need and for this purpose the tenant or the Court have no locus standi to give their advice for alternate accommodation."
12. Whatever mentioned above, more particularly in light of the dicta as laid down by the honourable apex Court, I reached at the irresistible conclusion that by evidence and in law it has been established that petitioner has failed to prove his case rather miserably failed to point out any illegality or material irregularity, misreading and non-reading of evidence which require indulgence or interference by this Court and therefore, the Orders passed by two Courts below are maintained being proper, legal and in accordance with law. The case-law relied upon by the learned counsel for the petitioner is not attracting in view of the rulings of Honourable apex Court mentioned above. Petition is accordingly dismissed, having no merits for consideration. The petitioner is directed to vacate the premises in question within a period of 30 days from today and in his failure to vacate the demised premises, the Rent Controller may have to issue writ of possession with aid of police, if needs so, without any further notice. However, there shall be no order as to costs.