' NADEEM AKHTAR, J.---Respondent No,1 filed Rent Case No,527 of 2008 for the eviction of the petitioner on the grounds of default and personal bona fide need, which was dismissed by the learned Vth Rent Controller, Karachi Central, vide judgment delivered on 17-12-2009. First Rent Appeal No, 27 of 2010 filed by respondent No,1 against the said judgment, was partly allowed on the ground of personal bona fide need by the learned 1st Additional District Judge, Karachi Central, vide judgment delivered on 29-11-2012, whereby the petitioner was directed to vacate the shop in question within a period of 60 days subject to payment of rent. Being aggrieved with the said judgment of the learned appellate court, the petitioner has filed this Constitutional Petition.
2. The relevant facts of the case, as averred by respondent No,1 in her eviction application, are that respondent No,1 is the owner of a half portion of the shop situated on Plot No,LS-3/13 Block No,13, near Farood-e-Azam Masjid, Commercial Area, Federal 'B' Area, Karachi ('the demised premises').
The demised premises were rented out by respondent No,1 to the petitioner through an agreement dated 7-5-2002 on a monthly rent of Rs,2,000. A sum of Rs,20,000, which was refundable; was deposited by the petitioner with respondent No,1 at the time of the agreement. The demised premises were to be used by the petitioner as a workshop for denting and painting, without joining any other person or partner. The monthly rent was increased from time to time, and when the Rent Case was filed by respondent No,1, the monthly rent was Rs,3,200. The respondent No,1 's husband was engaged "in a gold related business/work", but due to increase in the price of gold, his business was badly affected and he became jobless. Respondent No, met with a road accident, which resulted into the fracture of her right hand and three fractures in her left leg, for which she had to undergo surgery, and rods and plates were implanted in her leg. Due to the above mentioned reasons, the family of respondent No,1 started facing financial crises. In order to overcome such crisis, they planned to set up and start their own business in the demised premises, and requested the petitioner to vacate the same. The petitioner not only refused to vacate the demised premises, but he also stopped paying the agreed rent to respondent No,1 after August 2007. An amount of Rs,38,400 was outstanding against the petitioner as arrears of rent till the time of filing the rent case. In violation of the terms and conditions of the agreement, the petitioner joined his brothers Arif and Kashif in his business in the demised premises. The said brothers of the petitioner created nuisance for respondent No,1 and her family and they harassed them; and, they made a shed and occupied the front portion of the adjoining shop belonging to respondent No,1, due to which the value of the demised premises as well as the said adjoining shop of respondent No,1, had been impaired.
3. The petitioner filed his written statement, wherein he vehemently denied all the assertions and allegations made by respondent No,1 in her Rent Case. The last rate of rent was also disputed by the petitioner. It was claimed by him that the last agreed monthly rent was Rs,2,600 and not Rs,3,200. The allegation of default was specifically denied by the petitioner. It was averred by the petitioner in his written statement that he and respondent No,1 's family had developed family relations, and when respondent No,1 and her husband were injured in an accident, the petitioner and his brothers provided financial assistance to them. Respondent No,1 took loan of Rs,40,000 from the petitioner for medical treatment, and she also took loans of Rs,20,000.00, Rs,10,000.00 and Rs,10,000.00 on various occasions from the petitioner. The total amount of the loan given by the petitioner to respondent No,1 at her requests was Rs,80,000.00, which was acknowledged by her in her own handwriting in the diary maintained by the petitioner. In addition to the above, respondent No,1 requested the petitioner to pay Rs,2,500 per month, out of they monthly rent of Rs,2,600, with effect from August 2007 towards her share in a joint committee and, to pay the balance amount of Rs,100 to the van driver of the respondent No, l's children. The respondent No, l's claim of personal bona fide need, was also denied by the petitioner. According to him, the respondent No, 1 's husband was earning a handsome amount from his business, and the Rent Case was filed by respondent No,1 as a counterblast to the quarrel between her family members and the petitioner' brother.
4. On the basis of the pleadings of the parties, the learned Rent Controller framed three points for determination; namely, (1) Whether the opponent committed default in payment of monthly rent?;
(2) Whether the demised premises are required by the applicant for her personal bona fide use?; and, (3) What should the order be ? Respondent No,1 examined herself and one Muhammad All as her witness, who were cross-examined at length by the learned counsel for the petitioner. The said Muhammad Ali claimed to have been residing in front of the demised premises. The petitioner examined himself and his brother Arif Ali Shah as his witness, who were cross-examined by the learned counsel for respondent No,
1. Vide judgment delivered on 17-12-2009, the learned Rent Controller dismissed the respondent No,1 's eviction application on both the grounds. The appeal filed by respondent No,1 was partly allowed through the impugned judgment dated 29-11-2012 by the learned appellate court on the ground of personal bona fide need, directing the petitioner to vacate the demised premises within a period of 60 days subject to payment of rent. Being aggrieved with the said judgment of the learned appellate court, the petitioner has filed this Constitutional Petition. It is to be noted that, through the impugned judgment delivered in the respondent No,1 's appeal, the learned appellate court maintained the dismissal of the respondent No, 1 's case by the learned Rent Controller on the ground of default, which was not challenged by respondent No,
1. As such, the said dismissal of the respondent No, 1 's case by the learned Rent Controller on the ground of default, has attained finality. This petition and judgment are, therefore, confined to the case of respondent No,1 only on the ground of her personal bona fide need.
5. I have heard the learned counsel for the petitioner, and also respondent No,1, who is appearing in person. I have also examined the record with their assistance, as well as the law cited at the bar by the learned counsel for the petitioner. In support of his submissions, learned counsel for the petitioner cited and relied upon the cases of (1) Allies Book Corporation through L. Rs, v. Sultan Ahmed and others, 2006 SCMR 152, (2) Shakir Hussain Chishty v. E. A. Breganza, PLD 1984 Karachi 141, (3) Mrs. Aziz Sultana v. Abdul Jabbar Khan, 1987 CLC 539, (4) Asif v. Mst. Raeesa Khatoon Jafri, PLD 1988 Karachi 364, and (5) Abdul Majid v. Anwar Ali, 1983 CLC 2511.
6.
7. #TBS
8. A
9. 8
10. #TBE
11. Since both the learned courts below have given conflicting findings on the issue of the respondent No,1 's personal bona fide need, and I have two divergent views before me on the said issue, it has become necessary for me to minutely examine and evaluate the evidence that resulted into opposite and contrary findings. Regarding her personal bona fide need, respondent No,1 had pleaded in her eviction application that she was in a financial crisis because she had met with a road accident and also as her husband had become jobless; and, they had planned to start their own business at the demised premises. It was also stated by her that her husband was engaged "in a gold related business/ work in the previous years", but due to increase in the price of gold, his business was badly affected and he became jobless. However, in her cross-examination, she took two different stands by first stating that her husband had the experience of hotel business and he used to spend more time in Saudi Arabia, and then by stating that her husband was working as a goldsmith, but he was unable to work due to poor eyesight. Many important and relevant admissions were made by her in her cross-examination, which are highlighted here. It was admitted by her that she did not disclose in her affidavit-in-evidence about the nature of the business that she wanted to establish at the demised premises; and, another shop belonging to her, which was bigger than the demised premises, was lying vacant and was in her possession since one and a half year prior to the filing of the Rent Case by her. She tried to improve her case in her evidence by stating that the said other shop was not sufficient for the hotel business, as she had not claimed so either in her eviction application or in her affidavit-in-evidence.
7. The aforementioned statements and important admissions made by respondent No,1 were specifically noticed and discussed by the learned Rent Controller in his judgment. It was held by him that the evidence produced by respondent No,1 did not corroborate the assertions made by her, and there was nothing on record to prove that the applicant actually required the demised premises in good faith for her personal bona fide need. The above findings of the learned Rent Controller were reversed by the learned appellate court by holding that "It is well settled by now that where the statement of landlord on oath was quite consistent with his averment made in the ejectment application neither his statement was shaken nor anything was put in evidence to contradict the statement that would be considered sufficient for acceptance of the ejectment application " In my humble opinion, such finding by the learned appellate court was erroneous and based on misreading of evidence as the statements and categorical admissions made by respondent No,1 in her cross-examination were not consistent with the averments made by her in her eviction application and affidavit-in-evidence.
8. It was further held by the learned appellate court that "I am mindful of the settled law reproduced above that it is the prerogative of-the landlord to choose a particular house, shop or building for his personal bona fide use, but it is the duty of the landlord to give plausible and satisfactory ground for his insistence to occupy on the premises in preference to occupy other premises available for occupation and use. In the instant case the appellant satisfactorily explained the reason of filing ejectment application on the ground of personal requirement." In support of the above findings, reliance was placed by the learned appellate court on the cases of Juma Sher v. Sabz Ali, 1997 SCMR 1062, and Akhtar Qureshi v. Nisar Ahmed, 2000 SCMR 1292. Despite being fully conscious of the law laid down by the Hon'ble Supreme Court and making an observation to that effect in the impugned judgment, about the duty of the landlord to give plausible and satisfactory ground for his insistence to occupy a particular premises in preference to occupy other premises available for occupation and use, the learned appellate court failed to appreciate that no ground whatsoever, let alone a plausible or satisfactory ground, was given by respondent No,1 in her eviction application or affidavit-in-evidence for her insistence to occupy the demised premises in preference to her other shop, which was admittedly bigger than the demised premises and was available for occupation and use. Therefore, the finding of the learned appellate court, that respondent No,1 had satisfactorily explained the reason for filing the ejectment application on the ground of personal requirement, was also erroneous and was based on misreading of evidence.
9. In the above context, I would like to refer here to Paragraphs 11, 13 and 14 of the judgment delivered by the Hon'ble Supreme Court in the case of Allies Book Corporation through L.Rs, (supra), cited and relied upon by the learned counsel for the petitioner, which are reproduced below for the sake of convenience and ready reference:-- "11. The contention that a shop on the first floor is still in occupation of the respondents and that Shop No,6 on the ground floor had fallen vacant but instead of being occupied by respondent Mansoor Ahmed for establishing his business was rented out completely negated the bona fides of the respondent and demonstrated that the demised premises was not required by the respondents for bona fide personal requirement and use by respondent No,3 but the petitioners were sought to be evicted with some ulterior motive cannot be lightly discarded or ignored.
Respondents Sultan Ahmed and Mansoor Ahmed neither in their original affidavits nor in the fresh affidavits-in-evidence stated that the shop on the first floor would not be suitable for establishing business of Optician 'notwithstanding the fact that some Opticians were doing their business in shops situated on first floor. With regard to Shop No,6 on the ground floor not a single word was mentioned of the same having fallen vacant and subsequently let out. The respondents thus, had made concealment of fact which was very material in establishing good faith and bona fides of the respondents in respect of the personal requirement of the demised shops."
(Emphasis added)
"13. We are mindful of the settled law that it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory ground/explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use.
From perusal of the material on record it transpires that not a single word has come from the respondent as to why the shop on the first floor, which is in their occupation would not be sufficient and would not meet the demands of the business sought to be established by respondent Mansoor Ahmed. With regard to Shop No,6 on the ground floor the respondents even did not make a mention of the same having fallen vacant and let out during the litigation going on between the parties. The respondents instead of providing plausible, satisfactory and cogent grounds for not occupying the shops which had become available for occupation did not even disclose the facturn of a shop on the ground floor having become vacant which completely negated their good faith and bona fides. This Court in the case of Mst, Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 categorically pronounced, that concealment by the landlord of one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide personal need and good faith of the landlord and would be detrimental to his case."
(Emphasis added)
"14 However, all these facts had been brought on record through the cross-examination of the respondents whereas neither respondent Sultan Ahmed nor respondent Mansoor Ahmed disclosed the above facts either in the ejectment application or in their affidavits-in-evidence.
These were very material facts in establishing the good faith and bona fides of the respondents for their bona fide personal requirement for occupation and use of the demised shops and by suppressing/concealing them they had completely demolished their case that the demised shops are required by them for bona fide personal occupation and use" (Emphasis added)
10. In the instant case also, respondent No,1 did not mention a single word, either in her application or in her affidavit-in-evidence, that another shop owned by her, which is admittedly bigger than the demised premises, was lying vacant and was in her possession since one and a half year prior to the filing of the Rent Case by her; the said other/bigger shop in her possession was not suitable or sufficient for the business which she intended to start; she wanted to start the business of a hotel in the demised premises; and, for such business, she required the demised premises as well as the said other/bigger shop. All the above facts came on record through the admissions made by respondent No,1 in her cross-examination. As laid down by the Hon'ble Supreme Court, it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises, but for exercising such prerogative, it is the duty of the landlord to give plausible and satisfactory ground/explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use. The learned appellate court was fully conscious of this settled law, as it has been discussed in the impugned judgment. However, the law laid down by the Hon'ble Supreme Court was not followed by the learned appellate court, as it failed to appreciate that instead of providing plausible, satisfactory and cogent grounds for not occupying the said other/bigger shop which was admittedly in possession of respondent No,1, she did not even disclose the factum of having vacant possession of the said other/bigger shop since one and a half year prior to the filing of the Rent Case by her. As held by the Hon'ble Supreme Court in the case of Allies Book Corporation through L.Rs, (supra), which is fully applicable in the instant case, respondent No,1 made concealment of fact which was very material in establishing her good faith and bona fides in respect of the personal requirement of the demised premises; and, such concealment not only completely negated her good faith and bona fides, but it also completely demolished her case that the demised premises were required by her for bona fide personal occupation and use.
11. It is important to note that the above mentioned concealment of material facts by respondent No,1, and the important admissions made by her in her cross-examination, were not discussed at all by the learned appellate court, nor was any reason given by the learned appellate court for disagreeing with the well-reasoned findings of the learned Rent Controller on the issue of personal bona fide need. The learned Rent Controller had discussed the entire evidence and after full application of mind, had given exhaustive findings on the issue of personal bona fide need.
However, the impugned judgment is vague and non-speaking. This shows that the impugned judgment was passed without full application of mind and without appreciation of the evidence on record. It was the duty of the learned appellate court to give its own independent and logical reasons for setting aside the well-reasoned judgment validly passed by the learned Rent Controller. After examining the evidence and the judgments of the learned Rent Controller and the learned appellate court, I have come to the conclusion that the learned appellant a grave error in law by misreading the evidence on record the reasons for disagreeing with the well-reasoned findings of Rent Controller, and by not following the law laid down by the Supreme Court. The learned appellate court, therefore, faile exercising the jurisdiction vest in it. It is a settled law that this Court ha inherent and constitutional powers to remedy/correct the wrongs committed by subordinate courts when judgments/orders are passed either without exercising jurisdiction vested in them, or by exercising jurisdiction not vested in them.
12. The upshot of the above discussion is that this petition is allowed with no order as to costs. The impugned judgment delivered on 29-11-2012 by the learned 1st Additional District Judge, Karachi Central, in First Rent Appeal No,27 of 2010, is declared to be of no legal effect and is hereby set aside.