MRS. ASHRAF JAHAN, J.:- Being aggrieved with the Judgment dated 18.04.2014, passed in F.R.A.No.105 of 2013, dismissing the appeal of the petitioner, and the order dated 28.11.2013 in Rent Case No.277 of 2012, whereby learned Rent Controller ordered eviction of the petitioner from the property bearing No.690-C, Allama Iqbal Road, Central Commercial Area, PECHS, Karachi (hereinafter referred to as the "premises"), the petitioner has filed the instant petition with the following prayers: "a. That the impugned order dated 28.11.2013 and that the impugned Judgment dated 18.04.2014 for ejectment of rented premises may be set aside in the interest of justice and the case be remanded to the learned Rent Controller to make an adjudication on merits after hearing both the parties. b. That till the disposal of this petition, the operation of the judgment dated 18.04.2014 be suspended and that the petitioner shall be allowed to operate his restaurant peacefully. c. The petitioner therefore pray that this Honourable Court may be pleased to call R & P in Rent Case No.277/2012 from the Court of IVth Senior Civil Judge and Rent Controller (East) at Karachi and FRA No.105/2013 from the Court of 1st Additional District Judge, Karachi (East). d. Cost of litigation be awarded to the petitioner. e. Any other relief this Honourble Court deems fit and proper."
2. The brief facts of the case are that the respondents No.1 & 2 /applicants in rent case No.277 of 2012 (hereinafter referred to as the respondents) claiming to be the owners of the premises, filed Rent Case under section 15(VII)(IV) & (II) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance 1979"), against the petitioner/opponent (hereinafter referred to as the petitioner) who is tenant in the premises by virtue of tenancy agreement executed between him and the predecessor-in-interest of the respondents, from whom premises have been purchased by them through registered sale deed dated 31.01.2012. On 08.08.2012 a notice under section 18 of the Ordinance, 1979 was given by the respondents to the petitioner, whereby he was informed that they have purchased the premises from Agha Jaffar Raza for their personal bonafide need to carry on business and he was specifically asked to vacate the premises within a period of three (03) months from the date of the notice and also to pay the rent for the period from the date of notice, till expiry of the notice period to the respondents. The petitioner replied the said notice on 01.10.2012, informing that he is tenant in respect of the premises since last more than forty (40) years and has maintained the property in good condition. Further, that lease agreement for the premises is till 30.11.2013, therefore, he has no intention to vacate the premises at least till the expiry of tenancy agreement. It is the case of respondents that petitioner failed to pay rent and thus committed default as well.
3. As per respondent No.1, she is widow and respondent No.2 is an orphan, they have purchased the premises for their personal bonafide need as both of them are unemployed and have no other source of income. The rent was paid to the predecessor-in-interest of the respondents @ Rs.51,000/-(Rupees Fifty One Thousand) per month, which after service of notice under section 18 of the Ordinance, 1979 was never paid by the petitioner and even otherwise insufficient to meet daily expenses of respondents. The respondents also alleged that the petitioner has broken the wall of the premises, which separated it from the adjacent property, thus caused irreparable loss/damage to the property; hence they filed the ejectment application on the above grounds.
4. The petitioner filed the written statement, wherein he stated that he is operating a Chinese restaurant in the premises since last 40 years, which is properly maintained. As a consequence of vacating the premises, he will have to relocate his business to another area, which will cause irreparable loss and damage to him. In response to notice under section 18 of the Ordinance, 1979, it is stated that respondents have failed to show their personal bonafide and genuine need. The petitioner denied that the rent was not paid and asserted that the payment of rent has been made through cheques before 10th of each month, but these cheques were neither rejected nor returned.
It is further the case of petitioner that he renovated the premises as per his business needs and maintained it properly and no damage or loss was caused to the premises.
5. Both the parties led their evidence, whereafter their respective counsel closed their sides for evidence.
6. The learned Rent Controller formulated the following points for determination: "1. Whether the applicants need the premises in question for their personal bonafide use in good faith?
2. Whether the opponent has committed default in payment of monthly rent?
3. What should the order be?"
After concluding the proceedings, the learned Rent Controller allowed the ejectment application vide order dated 28.11.2013, which was assailed by the petitioner in the First Rent Appeal No.15/2013, before the learned First Additional District & Sessions Judge, Karachi (East), who after hearing both the parties dismissed the appeal vide Judgment dated 18.04.2014 and maintained the order of the learned Rent Controller with directions to the petitioner to vacate the premises and handover its peaceful possession to the respondents within 60 days from passing of the impugned judgment.
The above concurrent findings recorded by the Courts below have been challenged by the petitioner through instant constitutional petition.
7. It has been contended by learned counsel for the petitioner that both the Courts below have erred in law and facts by allowing the ejectment of the petitioner from the premises without appreciating the facts that the ejectment application was filed by the respondents with malafide intention. He further contended that both the Courts below have failed to appreciate that there was no willful default in the payment of rent. The petitioner and before him his father have remained tenants in the premises since 1967 and have been operating the restaurant under the name of "Kowloon Chinese Restaurant" since then. The petitioner has all the time maintained the premises in best condition and has always made payment of rent in time and has even paid all the taxes and levies regularly. The present respondents have become the owner of the premises in the year 2012. Before the change of ownership of the premises there was not a single stance, where any dispute arose between the landlord and tenant and both always had cordial relations based on mutual respect. The petitioner was informed through notice dated 08.08.2012 in the month of August, 2012 that the premises has been purchased by the respondents for their personal need and that the subsequent rent payments shall be made in favour of respondent No.1. Such legal notice was replied through letter dated 01.10.2012 and in compliance to it the petitioner started payment of monthly rent through cheques in favour of the respondent No.1 at her address provided in notice, through TCS. The cheques were addressed to Ms. Fahmida as instructed in the notice and the same were received at her address, but no cheque was ever rejected or returned, thus there was no willful default. In this regard, he has referred to the photocopies of cheques and TCS receipts produced on record. It is further the case of petitioner that in September, 2012 the petitioner and the respondents had a meeting to discuss the increase of rent of the premises, but the respondents refused to consider the proposal and asked the petitioner to handover the operation and management of Kowloon Chinese Restaurant to him, which was aptly rejected by the petitioner. He has further contended that during the proceedings of rent case before the Rent Controller when the case was fixed for arguments on 28.11.2013, due to engagement of petitioner's counsel before the High Court, he was not able to reach the Court in time, and when he reached, the learned Rent Controller had already passed the impugned order without hearing the arguments of the petitioner's counsel, which is in gross violation of laws of land including CPC and in specific Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which guarantees every individual, the due process of law, therefore, being aggrieved from the judgment of the Rent Controller, the petitioner preferred the First Rent Appeal No.105/2013, which was also dismissed by the 1stAdditional Sessions Judge, Karachi (East). In support of his contentions, he has relied upon the cases of B. Surinder Singh Kanda v/s. Government of the Federation of Malaya (1962 PC 322), Commissioner of Income Tax and others v/s. Messers Media Network and others (PLD 2006 SC 787) and Ch.Mohammad Nazir Cheema v/s. Mujahid Sherdil, DCO/Chairman, District Task Force, Sialkot and 3 others (2012 CLC 764).
8. The second contention advanced by learned counsel the petitioner is that in both the judgments, the issue of willful default was not properly adjudicated as there was no willful default at all on the part of the petitioner in making payment of rent to the respondents. Infact the respondents, not acting in good faith, had adopted this tactic by falsely stating that rent had not been received to make it a ground for eviction. The petitioner before the Rent Controller had produced photocopies of cheques issued in favour of respondent No.1 alongwith the delivery receipts /acknowledgments, which were sufficient to prove payment of rent within time. To substantiate the above contention he relied upon the cases of Habib Bank Limited v/s. Amanullah (1986 CLC 2917), Ghulam Mohammad Khan Lundkhor v/s. Safdar Ali (PLD 1967 SC 530), Shahzad v/s. Mst. Kalsoom and 3 others (2009 YLR 2166) and lastly upon the case of Pakistan State Oil Company Limited v/s. Sikandar A. Karim and others (2005 CLC 03). It is lastly submitted by learned counsel for the petitioner that because of inconsistencies in the cross-examination of the respondent No.2 and their other witness, the respondents have not been able to prove that they need the premises in good faith.
9. On the other hand, it is contended by learned counsel for the respondents that the first objection of learned counsel for the petitioner that he was not given time by the learned Rent Controller to argue the matter, only the perusal of case diaries would be sufficient because as many as nine opportunities were given to the learned counsel for the petitioner to argue the matter, but deliberately and intentionally he remained absent and did not opt to make his submissions before the learned Rent Controller, therefore, his contention that he was not given due opportunity to argue his case is totally incorrect and against the facts, thus, cannot be considered. He further contended that admittedly present respondents have purchased the premises in the year 2012 and thereafter on 08.08.2012 sent a notice under Section 18 of the Ordinance, 1979, whereby they had clearly asked the present petitioner to vacate the premises within a period of three months and to pay the future monthly rent to them. He also referred that the petitioner in his reply to the above notice, clearly disclosed that he has no intention to vacate the premises and even did not pay any rent, and the present respondents received the rent only after passing of rent order dated 05.04.2013 on an application under Section 16(1) of the Ordinance, 1979, therefore, the default is proved. He has also contended that the premises is required by the respondents for their personal bonafide use and in this regard on oath statement of respondent No.2 is on record, which is also supported with the evidence of another witness. Conversely, the petitioner has failed to bring on record any such evidence to contradict their stand; therefore, the learned Rent Controller and the learned first Appellate Court have rightly decided this issue in their favour. Lastly, he contended that the concurrent findings of the two Courts below in respect of personal bonafide need of the landlord are based on the proper appreciation of evidence and on the point of default also, do not suffer from any legal infirmity or jurisdictional error. Therefore, such findings would not call for any interference in exercise of constitutional jurisdiction and the present petition is liable to be dismissed with costs. In support of his contentions, learned counsel has relied upon the cases of Ijaz Hussain and 12 others v/s. Mst. Hussain Ara and 6 others (PLD 1989 Peshawar 39), Muhammad Yaqoob through Attorney Amir Yaqoob v/s. Nazirullah Khan (1999 CLC 868) and Habib-ur-Rehman and 7 others v/s. VIIth Additional District Judge, Hyderabad and 2 others (PLD 2013 Sindh 25).
10. I have considered the arguments and have perused the case record, the respondents have filed the ejectment application mainly on two grounds i.e. personal bonafide need and default in the payment of rent. As discussed earlier, it is the case of the respondents that they have purchased the premises for the purpose to start their own business, as they both are jobless having no other source of income. The perusal of affidavit-in-evidence and its cross examination before the Rent Controller reveals that respondent No.2, who is also attorney of respondent No.1, has made categorical statement on oath that the present premises is the only premises in their name and they need it for their own business and they have purchased the premises after selling the properties of their deceased husband/father. This piece of evidence could not be shaken by the petitioner during cross examination as he has failed to show or point out any other property in the name of present respondents or any other business, in which the present respondents are engaged. It has also come on record that respondent No.2 is jobless for last four years, and prior to that he was supplying confectionary items to different shops and now he intends to open hotel in the premises or to start a general store. The witness of the respondents namely Liaquat Ali has also supported the version of landlord on all material points and nothing contradictory could be brought on record to shatter their stand. It is settled legal position that if on oath statement of the landlord is consistent and it could not be shaken in cross examination then it is sufficient to prove that requirement of landlord as bonafide and genuine. In this regard, the perusal of orders of two Courts below, also reveal that this issue was thoroughly discussed by them and therefore, it has rightly been answered in affirmative.
11. Now I come to the other contention of learned counsel with regard to the default in payment of rent. It is the case of the landlord that inspite of service of notice under section 18 of the Ordinance, 1979 the petitioner has failed to make the payment of rent. On the other hand, it is the case of petitioner that he has sent two cheques towards the payment of rent, and has produced alongwith his written statement photocopies of these cheques and TCS receipts, but against it, it is the case of the landlord/respondents that Mst. Fahmida Zaidi has no bank account, therefore, neither she received the cheques nor the same were encashed. The perusal of record reveals that the present petitioner alongwith his written statement has annexed the photocopies of two cheques dated 04.10.2012 and 02.11.2012 alongwith TCS delivery report, showing one consignment received by Ali Nawaz and the other by Nadeem. Nowhere such receipts show that the cheques were received by the respondents. It is also important to note that neither the petitioner has produced the copies of cheques or receipts of courier service with his affidavit-in-evidence, nor the counterfoil of cheques.
Thus there is mere word of the petitioner and not a single document is produced alongwith affidavit-in-evidence to show the payment of rent through cheques. Further, it is the case of the respondents that the present petitioner failed to pay rent even after filing of ejectment application and after the order of the Rent Controller, passed upon their application under section 16 of the Ordinance, 1979 on 05.04.2013, they received the rent w.e.f August 2012 till April, 2013. In such situation, it is obvious that the present petitioner inspite of institution of rent case against him on 10.11.2012 did not make any effort for payment of rent to the respondents. In this regard, language of section 10 of the Ordinance, 1979 regulating the mode of payment of rent is also relevant, for the sake of convenience the same is reproduced as under: "10. Payment of rent. (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated.
(4) The written acknowledgment, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent; Provided that nothing contained in this section shall apply in the cases pending before the Controllers on the commencement of this Ordinance."
The perusal of above referred section reveals that under the Sindh Rented Premises Ordinance, 1979, either the rent could be paid in person to the landlord on receipt, or in case of refusal it could be sent through postal money order, or could be deposited with the rent Controller of the area. It will be pertinent to mention here that the above provision of law does not provide payment of rent through cheques. Thus in the present case, no mode for payment of rent as provided under the above referred section was adopted by the petitioner. It is, therefore, an admitted position that even after filing of the rent case No.277/2012 on 10.11.2012 no serious efforts were made by the petitioner for payment of rent and as per case record when the respondents moved an application under section 16 of the Ordinance, 1979, thereafter vide order dated 05.04.2013 the learned Rent Controller ordered for deposit of rent in Court alongwith arrears. The contention of the petitioner regarding payment of rent through cheques is also belied from the contents of last tenancy agreement between him and the predecessor-in-interest of the respondents, which provides for payment of advance rent on or before 10th of the month and a receipt duly acknowledging such payment issued by the landlord and does not contain any stipulation for payment of rent through cheque. In the above circumstances, the default in the payment of rent is fully proved from all corners, therefore, learned Rent Controller and thereafter learned First Appellate Court have rightly decided this issue in favour of the respondents.
12. Lastly, the learned counsel for the petitioner has vehemently urged that he was not given proper opportunity by the Rent Controller to argue his case. In this regard learned counsel for the respondents has placed on record copies of diaries, showing that the present petitioner deliberately and intentionally avoided to argue the matter, though it was repeatedly fixed for the same purpose. In this regard, the perusal of such diaries reveal that the side for the opponent was closed on 29.08.2013 and matter was adjourned for final arguments to 16.09.2013. The record further reveals that thereafter on eight dates of hearing, matter was kept for final arguments, but the learned counsel for the petitioner did not turn up and finally judgment was announced on 28.11.2013. In such a state of affairs when the eight dates of hearing were given to the learned counsel to argue his case and he failed to do so, there appears no justification for him to agitate such plea before this forum, therefore, I am of the view that his contention merits no consideration.
Further the case law cited by the learned counsel for the petitioner is distinguishable and thus not applicable to the facts and circumstances of present case.
13. This Court is also cognizant of the legal position that the concurrent findings of fact recorded by the Courts below, unless proved to be perverse, without jurisdiction and patently illegal, cannot be disturbed while exercising its constitutional jurisdiction. Reference in this regard is made to decision of the Honourble Supreme Court in the case of Dilawar Jan v/s. Gul Rehman and 5 others (PLD 2001 SC 149), Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer V/s. Ghulam Nabi and 3 others) PLD 2001 SC 415) and Mohammad Sharif and another v/s. Mohammad Afzal Sohail Etc. (PLD 1981 SC 246).
14. In view of the above discussion, this petition is dismissed being devoid of merits, with no order as to costs.