' SADIQ HUSSAIN BHATTI, J.---The petitioner is aggrieved by the judgment dated 29.9.2012 passed by III-Additional District Judge, Khairpur in First Rent Appeal No. 01 of 2011 whereby the judgment dated 27.8.2010 passed by 1st Rent Controller, Khairpur was set aside and the Rent Application filed by the petitioner was dismissed.
2. Briefly stated, the facts of the case are that father of the petitioner was owner of shop bearing No. T-1686 (New No.B-2081), situated at Shahi Bazar, Khairpur (hereinafter referred to as 'the rented premises') who had given, the rented premises to respondent No.1 on a monthly rent of Rs.200/-.
The rent was increased from time to time and finally it was Rs.5000/- per month. The shop was also divided in two shops by the father of the petitioner. In the year 2008 the petitioner purchased the rented premises from his father and informed the tenant/respondent No.1 verbally and asked the tenant/respondent No.1 to pay him the rent in future. However, the respondent No.1 failed to pay the rent to the petitioner and hence he filed Rent Application No. 08 of 2010 in the Court of 1st Rent Controller, Khairpur, on the ground of default in payment of rent, subletting and personal bona fide requirement, who allowed the same vide order dated 27.8.2010 and directed the respondent No.1/tenant to vacate the rented premises within 90 days and handover its vacant possession to the petitioner/landlord. The respondent No.1/tenant, feeling aggrieved by the order of eviction dated 27.8.2010, filed First Rent Appeal No. 01 of 2010 which was allowed by Additional District Judge, Khairpur vide his judgment dated 29.9.2011, set aside the impugned judgment of the Rent Controller and dismissed the Rent Case filed by the petitioner, hence the present petition.
3. Learned counsel for the petitioner submitted that the trial Court, after hearing the parties and going through the evidence on record allowed the Rent Case in favour of the petitioner for cogent reasons and directed the respondent No.1/tenant to vacate the rented premises within 90 days, however, the appellate Court, without any cogent reasons, allowed the First Rent Appeal filed by the respondent No.1 and set aside the eviction order passed by the Rent Controller in favour of the petitioner. He stated that there is conflict in the judgments of the two Courts below. Learned counsel submitted that the respondent No.1 has sublet one of the shops to his brother/respondent No.3 which renders him liable to eviction. He also submitted that the respondent No.1 committed wilful default by not paying rent to the petitioner, who has purchased the rented premises from his father and was thus the landlord entitled to receive rents from respondent No.
1. In this regard he relied on the case of Hameed and others v. Jitendra and others (2010 CLC 561) and Qamar Zaman v. II ADJ, Karachi and another (2008 CLC 431). Learned counsel further argued that in respect of the personal bona fide need of the landlord the statement on oath of the landlord was enough and, therefore, the learned Appellate Court was not justified in deciding this issue against the landlord. In this behalf he relied on the case of Pakistan Institute of International Affairs v. Naveed Merchant and others (2012 SCM R 1498).
4. On the other hand. Mr. Ashok Kumar Jamba, learned counsel for the respondents, submitted that the learned Appellate Court has delivered a well-reasoned and elaborate judgment and after discussing each and every issue has rightly arrived at the decision that the rent case merited dismissal. Learned counsel submitted that findings given by a Tribunal can only be interfered with by the High Court in its Constitutional jurisdiction if the same was based on no evidence or by ignoring material evidence on record. He relied on the case of Syed Abid Ali v. Ghulam Mohiuddin Khan and others (2012 CLC 143). So far as default in payment of rent is concerned, learned counsel states that since no notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was given by the landlord to the tenant regarding change of ownership, therefore, the tenant rightly paid the rent to the previous owner through his son and, on his failure to receive the rent in February, 2010 the same was sent to the petitioner who also refused to receive the rent. Thereafter, he started depositing rent in Court. Thus, there was no default in payment of rent. In this regard he relied on the case of Syed Fakhar Mehmood Gillani v. Abdul Ghafoor (1995 SCM R 96). It was also denied that the petitioner needs the rented premises for personal bona fide use as he is working as Manager with Syed Javed Ali Shah and is also running a shop in Khajoor Mandi, Khairpur.
5. I have heard the learned counsel for the parties and have gone through the record and the case law with their assistance.
6. In the present case, the Rent Case was allowed by the Rent Controller who deciding all the issues in favour of the petitioner/landlord but the Appellate Court set aside the judgment of the Rent Controller and dismissed the Rent Application by deciding all the issues in favour of the respondent No. 1/tenant. Thus, there are conflicting judgments. However, even if there are no concurrent findings of fact if the findings of the Appellate Court do not suffer from any jurisdictional error or any illegality, the appellate order shall not be open to challenge in constitutional petition on the ground that there is no concurrent finding of fact. In this regard reference may be made to the case of Ali Muzaffar through LRs v. Syed Muhammad Ali Abedi through LRs. (2006 CLC 379).
7. In view of the above, I will proceed to examine whether the appellate Judgment suffers from any illegality, non-reading or misreading of judgment which will render it open to interference by this Court in Constitutional Jurisdiction.
8. On the question of default in payment of rent, the entire case of the petitioner is that he purchased the rented premises from his father in the year 2008 and informed the petitioner verbally about change of ownership. Since there is no such provision in the Sindh Rented Premises Ordinance, 1979 which permits a landlord to inform his tenant about change in ownership of the rented premises verbally, therefore, it B was required that a notice under section 18 of the Ordinance was given by the landlord to the tenant. This was not done by the petitioner as admitted by him in his cross-examination. On the other hand, the tenant/respondent No.1 states that it was only through the notice of counsel for the petitioner that he came to know of the change in ownership and sent the rent to the father of the landlord and then to the landlord and on their refusal started depositing the rent in Court. So far as rent for previous months is concerned, it has come on record that brother of petitioner was collecting the same on behalf of his father. Even otherwise, if the tenant/respondent No.1 committed default after change of ownership then the default should have been claimed from 2008 and not from 2010, as alleged in the rent case. In the Rent Case itself it is mentioned that "since last 6 months the opponents have stopped the payment of rent....". It may be noted that the Rent Case was filed in the year 2010 and not 2008. If it is alleged that since last six months the respondent No.1 was not paying rent then it is established that since 2008 to February, 2010 rent was being paid by the tenant/respondent No.1 and was accepted by the landlord without any objection. The petitioner has himself admitted during cross-examination that rent for February, 2010 was sent to him through money order but he refused to accept the same. Thus, the Appellate Court rightly held that no default in payment of rent was committed by the respondent No.1/tenant.
9. The other ground taken by the petitioner is that one of the shops was sublet by the respondent No.1 to respondent No.3. It is an admitted position that respondents No.1 and 3 are brothers inter se and even respondent No.2, is also their brother. Therefore, if a brother is working in the shop of his brother then it cannot be said that the shop was sublet to him by his brother. No proof has been produced to show that by virtue of any deed in writing the entire ownership of the goods in the shop has been transferred by respondent No.1 to respondent No.3 or that the shop has been sublet by respondent No.1 to respondent No.3. Therefore, the finding of the Appellate Court on the issue of subletting is also correct and based on evidence.
10. The next issue is regard personal bona fide need of the rented premises by the petitioner. There is no cavil with the proposition that if to prove bona fide need of the landlord his statement on oath is enough. However, if it is found that the landlord has made some false statement in his statement on oath or that he has supressed some material facts, then the statement of the landlord is to be minutely considered to decide whether the need of the landlord is bona fide or mala fide. In para 9 of his affidavit-in-evidence, the petitioner clearly stated that "I am jobless and I want to run my own business in the said shop and I have no other alternate to start my business..." , however, during cross examination he admitted that he has a shop in Khajoor Mandy Khairpur. Although he stated this shop is on rent but it shows that he was not jobless but was running a shop in the Khajoor Mandi. Thus, the petitioner did not come to the Court with clean hands rather he suppressed material facts from the Court. It is a settled law that the choice to select a premises rests with the landlord and the tenant or the Court cannot dictate to him as to which property would be best suited for his needs but at the same time it is also necessary that the landlord comes to the Court with clean hands and lays full and true facts before the Court. Therefore, the learned Appellate Court was justified in holding that the factum of bona fides on the basis of good faith is missing in this case.
11. I am conscious of the fact that there are no concurrent findings against the landlord/petitioner but in view of the judgment in the case of Ali Muzaffar (supra), I have examined the judgment of the Appellate Court and found it to be based on cogent reasons and it does not suffer from any illegality, misreading or non-reading of the evidence. The findings of the Appellate Court are based on cogent reasons. Therefore, I am of the considered view that no interference is called from this court in the impugned judgment.
12. The case law relied upon by the counsel for the petitioner is distinguishable on facts and is not relevant for the prupose of this petition.
13. In view of the above discussion, I find no merit in this petition and the same is dismissed with no order as to costs.