' SHAHNAWAZ TARIQ, J.---Through the captioned petition, the petitioner Allah Mehar through his legal heir Irshad Ahmed has agitated the impugned judgment dated 03.05.2012, passed by the Court of learned 1st Additional District Judge, Karachi Central, in first rent appeal No.34 of 2011, whereby the ejectment order dated 22.01.2011, passed by the learned II Rent Controller, Karachi Central, in Rent Case No.409 of 2007, was maintained.
2. The petitioner has sought following prayers:-- a) To set-aside the impugned order dated 22.01.2011, passed by II Rent Controller, Karachi Central, in Rent Case No.409/2007, subsequently to set-aside the impugned judgment dated 03.05.2012, passed by the learned 1st Additional District Judge, Karachi Central, in F.R.A. No. 34/2011, and further rent case No. 409/2007, may be remanded for retrial on merits by reversing doubtful finding of impugned order or by framing fresh issues on the grounds of this petition that either the petitioner was in default of rent and liable for ejectment from tenement/ premises, while there is no default.
3. The relevant facts depicted in the instant petition are that the respondent No.1 filed ejectment application on the grounds of default and personal need against the late petitioner Allah Mehar, who was the tenant of the respondent No.1 in respect of shop No.2 (5 x 12 sq. Feet) situated on the ground floor of house No.R-6, Block-17, Federal 'B' Area, Karachi, which was let out to him in the year 1967. Thereafter, ejectment proceedings were initiated against the petitioner and in result of order dated 19.04.1992, passed in FRAs No.887/1988 and 925/1988, by this Court, wherein the respondent No.1 was directed to handover the possession of the said premises after reconstruction of the said shop. Consequently, the petitioner was handed over the possession of the demised premises vide tenancy agreement dated, 18.07.1992, executed between the petitioner and the respondent No.1.
4. The petitioner started a business of Pan Challia in the demised premises on the agreed rent of Rs.300/- per month, payable in advance on 2nd day of each month of English Calendar. The monthly rent was enhanced from Rs.300/- to Rs.500/-, and the petitioner paid the rent directly to the respondent No.1 till the month of February 2005, and respondent No.1 issued rent receipts accordingly. After the death of petitioner, his legal heirs started sending the monthly rent through money orders and paid rent up to February, 2007, thereafter, legal heirs of the deceased tenant committed willful default in payment of rent as well as failed to pay water and conservancy charges since the inspection of tenancy which comes to Rs.17,500/- till filing of the rent case.
5. It is further averred that the respondent No.1 required the demised premises for his growing children under the ground of personal bona fide need. The respondent No.1 intended to demolish and merge the demised shop with his living room. The respondent No.1 in this respect, made several requests to the deceased tenant and thereafter his legal heirs to vacate the demised shop, but they failed to handover the possession to him on one or another pretext. It is also stated that they, are carrying out their business in adjacent shop which is situated in house No.R-5, Block-17, F.B. Area, Karachi.
6. It is further alleged that legal heirs of the deceased tenant had illegally and without written permission damaged not only the floor, but also the plinth and pillars of the shop, by constructing a loft (do-chhatti) and installing a sunshade on the demised premises which has caused nuisance as the respondent No.1 could not clean and whitewash the above portion, and thus the value and utility of the subject property was impaired. On 02.03.2007, the respondent No.1 sent a legal notice to the legal heirs of the deceased which was replied on 20.03.2007.
7. The petitioner filed written statement and resisted the allegations made by the respondent No.1, stating that the deceased tenant requested the applicant to issue the rent receipts but the respondent No.1 refused to do so, therefore, in order to keep the proper record, the rent was remitted through money orders. The respondent No.1 refused to receive the rent remitted for the months of March and April 2007, hence the petitioner deposited the same in MRC No.196/2007. The petitioner has not committed default in payment of the rent. The water connection is not available in the demised premises, as such question of default in payment of water bill does not arise.
8. It is further stated that the respondent No.1 has no need of the demised premises for his personal bona fide need, as his brother namely Arshad Ahmed is carrying out a business in separate tenement in house No.R-5, Block-17, F.B Area Karachi. The petitioner had not built any double roof nor created any problem to whitewash the premises, hence the rent application is liable to be dismissed.
9. The respondent No.1 filed his affidavit in evidence as Ex-A/1, and produced photostat copies of tenancy agreement as Ex-A/2, C.T.C. Of order in consolidated FRA No.887/1988, and 925/1988, as Ex- A/3, legal notice dated 02.03.2007, as Ex-A/4, reply of notice dated 20.03.2007, as Ex-A/5, certified Copy of judgment passed by II Rent Controller, Karachi Central, in rent case bearing No.548/1988, as Ex-A/6. For the petitioner, his legal heir Irshad Ahmed filed affidavit in evidence and was examined. After hearing the parties, the learned Rent 'Controller allowed the ejectment application with directions to vacate the premises in question within 45 days.
10. The petitioner filed FRA bearing No.34/2011, and learned appellate Court of 1st Additional District Judge, Karachi Central, after hearing the parties, dismissed first rent appeal vide judgment dated 22.01.2011.
11. Learned counsel for the petitioner contended that both impugned judgments passed by the Courts below are without legal substance and not sustainable under the law. He submitted that the concurrent decisions are based purely on technical grounds which are discouraged by the Superior Courts. He further argued that petitioner had not committed any default in payment of monthly rent. He further contended that respondent No.1 cannot merge the demised shop with his house as he did not obtain any permission from the competent authority.
12. Learned counsel for respondent argued that the rent application was allowed by the learned II Rent Controller in the favour of the respondent No.1 on the grounds of personal bona fide need and for addition and alteration made by the petitioner without written permission. He submitted that the petitioner had not agitated the findings of the learned Rent Controller for bona fide use in first rent appeal No.34 of 2011, as such the ground of personal need of the respondent No.1 could not be challenged before this Court. He also submitted that the petitioner's witness had admitted in his cross-examination the construction of loft (do-chhatti) by the petitioner, therefore, the concurrent findings are just, proper and legal. He further contended that the building consists of ground plus first floor, therefore, there is no need of reconstruction and demolition of the structure of the demised premises as the demised shop is adjacent to the bedroom and only needs the removal of the intervening wall and closure of the shutter of shop in order to merge.
13. Perusal of the available record and consideration of the arguments advanced by the parties reflect that the respondent No.1 is owner and landlord of the demised shop which was let out to the petitioner and after his death, his legal heirs became its statutory tenants. The respondent No.1 filed the rent applicant against the petitioner on the grounds of personal bona fide need and for addition and alteration without seeking permission from the landlord and commission of default in the payment of monthly rent. After recording the evidence of parties and hearing their arguments, the learned Rent Controller framed the following points for determination:--
1. Whether the applicant requires the shop bearing No.2 situated at Plot No.R-6, Block-17, Federal 'B'
Area, Karachi?
2. Whether the opponent has carried out amendment and alteration in the premises in question without seeking prior permission from the applicant?
3. Whether the opponent has committed default in payment of rent from March, 2007?
4. What should the order be?
14. The learned Rent Controller allowed the ejectment application on the grounds of the personal bona fide need of the respondent and the addition and alteration made by the petitioner without seeking prior permission of the respondent No.
1. It is significant to mention that the petitioner impugned the ejectment by preferring FRA No.34 of 2011, on the general grounds emphasizing the point of default but he had failed to challenge specifically the findings of the Rent Controller regarding the personal bona fide need, as such the said question attained finality and the petitioner has no scope to check the legality of the concurrent findings of the Courts below to the extent of the personal need through instant petition.
15. While dealing with the point for the addition and alteration of the demised premises, it is worthwhile to mention that the petitioner had denied such averments in his written statement but in his cross examination he had admitted that his father had constructed temporary roof and shade of iron without the written permission of the respondent No. 1. He also admitted that his brother had received the notice from the respondent No.1, but he did not reply the same. The above referred admission of the petitioner has strengthen the claim of the respondent No.1 that the petitioner had damaged the floor, along with the plinth and pillars of the demised shop by constructing a loft (do-chhatti) and shade which impaired the utility of the demised premises.
16. It is well settled that in rent matters, the concurrent findings should not be interfered or disturbed except when there is misreading and non-reading of the evidence or failure to appreciate the relevant facts or any serious irregularity was committed by the Courts below.
17. For the above reasons, I am of the considered view that the petitioner has failed to point out any illegality or irregularity in the concurrent findings of both the Courts below, which do not call for any interference, hence, are maintained. Consequently, instant constitution petition stands dismissed.