' SYED MUHAMMAD FAROOQ SHAH, J.---Both the captioned petitions, arising from common/concurrent judgments of both the courts below, relating to eviction of petitioners from Shops Nos. 1, 2 and 3, respectively, situated at Ground floor, on Commercial Plot No, 274/Z, Survey Sheet No, 35--P/1 and Survey No, Z/8-A, measuring 77 sq. Yards, Blocks 7/8, Al-Hamra Co-operative Housing Society, Karachi, at a monthly rent of Rs,1000 for shop No,1 and Rs, 2,300 for Shop Nos.2 and 3, payable in advance, are taken together, as the parties, cause of action, issues and evidence is the same but since there are two petitioners/tenants in the shops in question, hence two different petitions have been instituted.
2. Mst. Kishwar Sultana, wife of Zahoor Iqbal, being owner of the aforesaid property, gifted the same, including shops (demised premises) by registered gift deed to her daughter namely Samina/respondent No, 3 (present landlady). On change of ownership, Mst. Samina has sought eviction of tenants/petitioners on the grounds of wilful default in payment of monthly rent from June, 1998 to December, 1998, despite receipt of notice under section 18 of the Sindh Rented Premises Ordinance, 1979. Next ground for eviction of tenant, raised by the landlady is personal bona fide requirement of the said premises for her daughter namely Ayesha, who intends to start a Computer Institute in it. By concurrent findings, both the courts below, answered the aforementioned grounds of ejectment of petitioners in affirmative and accordingly they were directed to handover the vacant possession of the demised premises/shops in question to the landlady.
3. Succinct background of filing the ejectment applications by the landlady, as narrated in the pleadings and in evidence is that on change of ownership of demised premises, in favour of respondent No, 3, the tenants have failed to pay the rent, though they were served with required notices under section 18 of the Sindh Rented Premises Ordinance, 1979, hence committed wilful default in payment of monthly rent. Landlady has further stated that she needs the case premises for her daughter namely Ayesha, who shall establish in it a Computer Institute. Though the petitioners (tenants) have admitted receipt of notice but have taken a defence plea that the said notice was not proper regarding change of ownership, as provided under section 18 of the Ordinance. It is further stated by the tenants that in case of any change of ownership by operation of law, they become statutory tenants of the new owner and on refusal of landlady to receive the rent, they (petitioners) tendered the rent through money order and on refusal to accept the same, they started depositing rent in court. It appears that landlady has also taken other grounds of ejectment of the tenants, which included removal of intervening wall of shops in question, installation of electric cutting machine, causing nuisance and subletting the demised property by the tenant Abdul Rasheed, to his brother Tanvir. It appears that on these grounds, neither the learned Appellate Court framed issues/points for determination nor the same have been discussed in view of the contentions of the learned counsel for the landlady that he has not pressed these grounds, therefore, the same were rightly dropped by the learned tribunal.
4. Both the parties and their counsel much have iterated on the grounds of wilful default in payment of rent. According to tenants, they were served firstly with vague notice, dated 2-11-1998, which was duly replied, wherein they claimed proper notice as required by the statute and subsequently they were served with proper notice on 1612-1998. It is stated that on refusal of landlady to accept the accumulated rent, they (tenants) directly remitted the rent up to the month of November 1998 to the previous landlady, through money order and on endorsement of refusal by the post office to receive the rent by previous landlady, the rent was deposited in MRC's Nos.796-797 of 1998, for the period from June, 1998 to December, 1998. The tenants have averred in the instant petitions that on refusal to accept the rent for the month of January 1999 by the husband/rent collector namely Nisar Ahmed, the same was sent through money order and on her refusal, the rent was deposited in MRC's Nos. 9091/99 for the month of January, 1999 to onward, in favour of the present landlady and since then the rent is being regularly deposited in court, as such there is no default in payment of rent. The petitioners/tenants have also averred that need of the demised premises for personal use of landlady is neither bona fide nor genuine, as computer classes cannot be started in a thickly populated vicinity, surrounded by different shops, as such the case premises are not suitable for the said business.
5. Arguments advanced by the learned counsel for the parties have been considered in light of the case law and material available on record.
6. Learned counsel for the tenants contended that landlady has sought ejectment of the tenants on two grounds. It is submitted that default in payment of rent has not been committed by the tenants within the meaning of section 18 of the Sindh Rented Premises Ordinance, 1979 as the tenants have deposited the rent in the name of the previous landlady namely Mst. Kishwar Sultana in MRC Nos. 796-797/ 1998 And money orders remitted to the previous landlady returned with the endorsement that she has refused to receive the same.
7. On the other hand, learned counsel representing the landlady, submitted that under the law, the landlady who sent intimation to the tenants regarding change of ownership in writing by registered post is sufficient and the tenants are required to pay rent due, on receipt of such intimation and since there is no denial of the fact that the tenants were intimated through such notice dated 2-11- 1998, who have failed to comply such requirement of the provisions of statute, by not tendering the rent to the landlady, even after expiry of 90 days. Learned counsel for the landlady submitted that the tenants, after having the knowledge that the demised premises was transferred by registered document in favour of new landlady, continued depositing the rent in favour of previous landlady, such conduct of tenants was considered wilful default in the case of GHULAM SAMDANI v. ABDUL HAMEED (1992 SCMR 1170). Learned counsel has also placed reliance on the case of KHUDA BUX v.
MUHAMMAD YAQOOB AND OTHERS (1981 SCMR 179), SYED AZHAR IMAM RIZVI v. MST. SALMA KHATOON (1985 SCMR 24), MAJ. (RETD) MUHAMMAD YOUSUF v. MAIRAJUDDIN AND OTHERS (1986 SCMR 751) and submitted that the principle as laid down by the Apex court is that even institution of application for ejectment would be deemed to be substantial compliance of the provisions of section 18 of the Ordinance. Per learned counsel wilful default has committed by the tenants in making payment of rent, within the meaning of section 18, therefore, the concurrent findings of learned courts below do not warrant any interference.
8. While commenting upon the ground of personal bona fide use of the demised premises for daughter of landlady, learned counsel for the tenants/petitioners submitted that the landlady is under obligation to prove that the requirement is bona fide to run business by her daughter, who intends to establish a Computer Institute, though the demised premises is entirely unsuitable for such business. Learned counsel submitted that the landlady is required to disclose that in case any other premises was lying vacant, the said vacant premises is not suitable for her need to start such business but such fact has not been stated by her. Learned counsel re-emphasized that the shops in question are not required bonafidely, more particularly, the other premises owned by the landlady was lying vacant, which was suitable for her need, as the vacant property was situated in the same locality and suitable for proposed business of daughter of the landlady but such fact is suppressed by her, as such the landlady has not come to the court with clean hands. It is contended that both courts below did not consider the evidence available on record about genuine need of landlady, therefore, per learned counsel concurrent judgments of courts below are suffering from legal infirmity, hence may not sustain on the ground of personal need of the landlady. To support his contentions learned counsel relied upon the cases reported as SARWAR ALI v. IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI (EAST) AND 2 OTHERS (2010 YLR 815), JAN MUHAMMAD v. A.RAZZAK (1999 SCMR 2924), ALLIES BOOK CORPORATION THROUGH L.RS. v. SULTAN AHMED AND OTHERS (2006 SCMR 152), ABDUL HANEEF KHAN v. VTH ADDITIONAL DISTRICT AND SESSIONS JUDGE KARACHI-CENTRAL (2008 CLC 1271) and the case of MST. SHAMIM AKHTAR v. ZAKARIA YOUSUF AND OTHERS (1998 CLC 410).
9. In rebuttal, learned counsel for the landlady submitted that there was no suppression of material facts and it is settled principle of law as held by the Apex Court that the question of suitability of the shops in question and the choice of the property is the absolute prerogative of the landlady/respondent. In support of his contention, learned counsel referred the cases reported as MST. TAUHEED KHANUM v. MUHAMMAD SHAMSHAD (1980 SCMR 593), MUHAMMAD ANIS v. MUHAMMAD YAHIYA SULTAN AND OTHERS (2011 SCMR 589), MST. YASMEEN KHAN v. ABDUL QADIR AND ANOTHER (2006 SCMR 15010), 2001 SCMR 1197, relevant page 1206 Placitum (d), 2000 SCMR 1292 relevant page 1296 Placitum (d), 2002 SCMR 241 relevant page is 245 Placitum (a), 2003 SCMR 1398 relevant page is 1400 Placitum (a), 1991 SCMR 846 relevant page is 848 Placitum (d & c), JAVED KHALEEQUE v.
MUHAMMAD IRFAN (2008 SCMR 28) and ZAHEER AHMED KHAN v. MST. AMEENA BEGUM (1989 SCMR 1370).
10. A perusal of the judgments recorded by the learned appellate court transpires that the contentions of the learned counsel for the parties have been fully discussed and considered in all respect. The learned appellate court has rightly observed that the owner of the property has absolute right to deal with her property, in the manner she likes and no disqualification or adverse inference can be A recorded by the Rent Controller in this context, nor can it be made a ground for refusal of ejectment on the plea of personal need, as in such a situation, section 15 of the Ordinance of 1979 provides ample safeguard to the interest of the tenants in the rented shops in question but the tenants were not required to decide the suitability of the need of the landlord/respondent, which is absolute choice and prerogative of landlady. Learned appellate court in such context placed reliance on the cases of SABU MUL v. KIKA RAM (1973 SCMR 185), Messrs F.K. IRANI & CO., v. BEGUM FEROZE (1996 SCMR 1178).
11. Before adverting to the factual aspect of the case and to consider the contentions of the learned counsel, in view of averments of the parties in their pleadings, it shall not be out of context to mention here that the jurisdiction of this court under Article 199 of the Constitution is extra ordinary in nature, which is for the dispensation of justice and to avoid abuse of the process of law as the legislator done away filing of second appeal, while promulgating the statutes viz. Sindh Rented Premises Ordinance 1979, unless the finding of the lower courts are arbitrary, capricious and perverse and has resulted in gross miscarriage of justice. The concurrent findings recorded by the courts below having jurisdiction cannot be interfered with by the High Court in writ jurisdiction, as held by the Apex Court in the cases of MAZHAR HUSSAIN SHAH THROUGH HIS L.RS. v. MEMBER BOARD OF REVENUE PUJAB LAHORE AND OTHERS (2006 SCMR 959) and MALIK MUHAMMAD HUSSAIN VS. DISTRICT RETURNING OFFICER AND OTHERS (2008 SCMR 488). In such context, Mr. Muhammad Rafi, learned counsel for the landlady has rightly contended that Legislator in its wisdom shortened the span of litigation in rent cases and in such circumstances, interference by this court, in exercise of its constitutional jurisdiction under Article 199,would add to the misery of prolonged litigation in between the parties and surely would defeat the spirit and object of statute, as well as timely dispensation of justice, as B scope of constitutional petition with regard to the concurrent findings arrived at by two courts below is very limited and such findings can be interfered in exceptional circumstances.
12. In the case of HAJI MUHAMMAD SIDDIQUE v. DISTRICT COURT PESHAWAR AND OTHERS (1990 SCMR 997), the principle as laid down in the judgment, reported as PLD 1977 SC 442 was referred, wherein it is held that a landlord who is occupying a rented premises is entitled to claim the possession of his property. Reference may also be made to the case of ABDUL LATIF v. FAQIR MUHAMMAD (1982 SCMR 1046). In the case of WASEEM AHMED v. SHAIKH KARIM RIAZI (1996 SCMR 1055), the Hon'ble Apex Court held that landlord would have the option to choose and select of his property where he wanted to reside. In the case of MST. TAUHEED KHANUM v. MUHAMMAD SHAMSHAD (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.
13. In the case of JAHANGIR RUSTAM 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 the Constitution. In the case of IQBAL BOOK DEPOT v. KHATEEB AHMED (2001 SCMR 1197), the Hon'ble Supreme Court held that where the statement on oath was consistent with his averment made in the ejectment application and the same had neither been shaken nor anything has been brought in evidence to contradict the statement of landlord, as such statement on oath would be considered sufficient for acceptance of the ejectment application. While dealing with the case of M/S. F.K. IRANI v. BEGUM FEROZE (1996 SCMR 1178), the Hon'ble Apex Court held that the suitability of business and selection of area is choice of landlord and the same cannot be interfered with.
14. On wilful default in payment of rent, there is no denial of the fact that the tenants were intimated by the landlady through notices but it appears that the tenants have failed to comply the requirement of law, as contained in section 18 of Sindh Rented Premises Ordinance, 1979, therefore, as discussed supra, the trial court has rightly answered the point of wilful default in payment of rent, against the tenants/petitioners, more particularly, in light of the dictum as laid down by the Apex Court. Admittedly, in her statement, in shape of affidavit-inevidence, the landlady and her daughter Ayesha have shown their appearance before the learned Tribunal and during cross- examination both ladies have shown their requirement of case premises, which was not shattered in cross-examination. Moreover, it is settled proposition of law that the choice lies with the landlady to select any of her tenements for her personal need and for this purpose, the tenants have no locus standi to give their advice for alternate accommodation.
15. In light of the dictum as laid down by the apex court in the reported judgment's referred hereinabove, I reached at the irresistible conclusion that it has been proved by evidence and law that there is no illegality or material irregularity, which warrants indulgence by this court. In view of latest case pronouncement of Hon'ble Apex Court on the afore-discussed points, more particularly, on the ground of personal bona fide use by landlord, starts from the case of SAIRA BIBI v. SYED ANISUR REHMAN (1989 SCMR 1366) and several subsequent decisions mentioned hereinabove, the case-law relied upon by the learned counsel for the petitioners is not attracting in the facts and circumstances of the case in hand.
16. For the foregoing, I am satisfied with the orders of ejectment passed by the courts below, founded upon sound reasons, therefore, there is no justification for interference in constitutional jurisdiction of this court. Consequently, the captioned petitions are dismissed with costs.
17. Petitioners are, however, directed to vacate the premises in question within a period of 30 days and in their failure to vacate the demised premises, the Rent Controller may have to issue writ of possession with police aid, if needs so, without any further notice.
' Captioned Constitutional Petitions are decided in the manner indicated above along with listed applications.