' SHAHNAWAZ TARIQ, J.---- Through captioned constitution petition, petitioner Mudasir Illahi has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and impugned the judgment dated 16.10.2014, passed by the Court of learned 1st Additional District Judge, Sukkur, in Rent Appeal No,1 of 2014, whereby rent appeal was allowed.
2. Necessary facts spelt out from instant petition are that respondents Nos.1 and 2 are landlords/co-owners of the ground floor shop constructed on the plot vide Survey No,2682-A (2-6) and 2683 (18-4), (hereinafter referred to as the demised premises), situated at Chapri Road, leading towards Sarafa Bazar, Sukkur. The demised premises was gifted to respondents by their late father during his lifetime on 13.01.2011, and at the time of execution of gift, the demised premises was already in possession and occupation of the tenant/ petitioner on monthly rent vide agreement dated 30.04.2007 at the rate of Rs,10000/- per month with security deposit of Rs,3,00,000/-. Subsequently, on the request of petitioner, the deceased father of respondents had extended the tenancy period through an agreement dated 04.09.2010, on same terms and conditions with enhanced rent from Rs,10,000/- to Rs,11,000/- per month. Respondents informed the petitioner that the demised premises has been gifted to them by their father, which is required for their personal bona fide use for establishing their own Homeopathic Clinic, and petitioner requested for 2/3 months' time to vacate the same which was allowed. After expiry of said period, respondents approached the petitioner in last week of May, 2011, and asked to vacate the demised premises but he refused to vacate the same. It is further averred that petitioner tendered rent for the month of June, 2011, through money order but the respondents refused to accept the same on the pretext that petitioner should vacate the demised premises as per his promise, whereupon petitioner started depositing the rent in Court by filing an application under section. 10(3) of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the SRPO, 1979). Respondents made efforts to settle the matter through Mufti Abdul Bari, Mutawali of Allah Wali Masjid, Sukkur, but petitioner refused to settle the same.
3. Petitioner filed written statement and denied the averments of rent application and stated that respondents have intentionally and deliberately concealed the names of other legal heirs of late Dr. Anwarullah Khan viz, wife, daughters and other legal heirs. Respondents neither served written notice under Section 18 of the SRPO, 1979, for change of the ownership of the demised premises vide gift deed nor approached the petitioner to vacate the demised premises for their personal bona fide use nor he requested for time to vacate the same. On refusal to receive the rent by respondents, petitioner deposited the same in the Court and has not committed any default in payment of rent. Petitioner was inducted as tenant by late Dr. Hafiz Anwarullah Khan vide agreement dated 30.04.2007, but subsequent rent agreement dated 04.09.2010 is forged and fabricated document. Respondents are running their independent business of Homeopathic Clinics in their own respective shops, while in third shop their brother Dr. Faiz Ahmed Khan is running of Homeopathic Clinic, and all the three shops are wall to wall adjacent to each other situated on ground floor of CS No,B-3331/1-2, Mochi Bazar, Sukkur, but respondents have concealed this material fact from the Court. Adjacent to their Clinics, there is a big shop of applicants lying vacant on the ground floor of plot bearing C.S.No,B-3304, Mochi Bazar. On first floor of the demised premises, step-brother of respondents is residing along with his family members. Rent application is based on bad intentions of the respondents and good faith is lacking, hence rent application is liable to be dismissed.
4. Respondent No,1 Farooque Ahmed filed his affidavit in evidence along with rent agreements, Extract From Property Register Card and other relevant documents. Respondent No,2 Faraz Ahmed Khan filed his affidavit in evidence vide Ex.10 along with Certificate of National Council for Homeopathy, and both respondents were cross-examined by learned counsel for petitioner. In rebuttal, petitioner filed his affidavit in evidence vide Ex.35 and produced true copy of application under section 10(3) of SRPO, 1979, and other relevant documents.
5. From the pleadings and evidence adduced by the parties, learned Rent Controller framed following points for determination:-
1. Whether there is relationship of landlord and tenant between the applicants and the opponent?
2. Whether the opponent is defaulter in payment of rent?
3. Whether the demised premises is required for personal bona fide use by the applicants?
4. What should the order be?
6. After hearing arguments of learned Counsel for the parties, learned Rent Controller dismissed the rent application vide order dated 21.12.2012. Respondents agitated the impugned order by preferring first rent appeal before the Appellate Court which was allowed and impugned order was set aside.
7. At the very outset; learned Counsel for respondents did not press the ground of default and advanced his arguments only on the ground of personal bona fide need of respondents, hence the issue of default stands dismissed as withdrawn.
8. Learned Counsel for petitioner contended that learned Appellate Court has passed the impugned order without considering the material available on record properly; that respondents are running their independent business of Homeopathic Clinics in their own respective shops at Mochi Bazar, Sukkur, but they have failed to disclose such facts in the rent application and admitted such facts during their cross-examination. Learned Counsel further urged that respondents did not serve written notice U/s 18 of SRPO, 1979, upon the petitioner, which is mandatory requirement of law and such fact is admitted by respondents in their cross-examination; that petitioner never committed default in payment of rent and has been depositing the rent in M.R.C. No,38 of 2011 regularly which shows good gesture on the part of petitioner; that respondents have failed to establish their requirement of demised premises in good faith and concealment of material facts by them proved their bad intention, hence the impugned judgment passed by Appellate Court is liable to be set aside. Learned Counsel has relied on 1998 SCMR 819, 1993 CLC 2370, 2004 SCM R 578, 2010 M LD 665, 2008 SCM R 398, 1992 SCM R 46, 1995 CLC 3014, 2012 CLC 793, 1989 SCM R 1366.
9. While controverting the above submissions, learned counsel for respondents vehemently contended that respondents are running their Homeopathic Clinics in rented premises and they intend to establish their Clinics in demised shop; that petitioner has failed to produce any documentary proof in support of his claim regarding .Ownership of any premises lying vacant owned by the respondents or shops in possession of respondents are owned by them; that it is choice of the owner to establish his business in the shop deemed to be proper for his business and tenant cannot dictate the landlord for establishment of his business; that learned Appellate Court has passed a proper order, hence instant Constitution petition is liable to be dismissed.
10. Heard argument advanced by learned Counsel for the parties and scanned the material available on record minutely.
11. Perusal of material emanates that petitioner is tenant in respect of demised shop since the year, 2007, vide agreement dated 30.04.2007, executed between late father of respondents' and petitioner and on expiry of tenure of such agreement, another rent agreement was executed between the parties dated 04.09.2010, though petitioner has denied the execution of subsequent rent agreement, but he has not produced any evidence or documentary proof in support of his claim controverting the execution of second rent agreement between the parties, while he has been paying monthly rent at the rate of Rs,11000/- per second rent agreement and subsequently, started depositing monthly rent at the same rate in M.R.C. No,38 of 2011 in the Court of learned 1st Rent Controller, Sukkur, in the names of respondents, thus execution of second agreement stands proved. Such demeanor of the petitioner, prima facie, has also substantiated that petitioner was in well knowledge of change of ownership by deceased landlord in favour of respondents being his real sons .And petitioner has acknowledged them as the landlords of the demised premises. The facture of tendering rent to the respondents through money order and upon their refusal to receive the rent, continuous depositing of monthly rent in M.R.C. In, the names of respondents, demonstrates that there was no need to serve any written notice upon the petitioner as contemplated under section 18 of the SRPO, 1979, nor petitioner could agitate the stance of non- service of such written notice. Indeed, after acceptance of petitioner to the respondents as landlords, requirement of written notice has become infructuous. Moreover, respondents have already not pressed the ground of default in payment of rent, hence non-service of written notice for changing of the ownership of the demised premises under section 78 of the SRPO, 1979, will not defeat and frustrate the bona fide requirement of the respondents on instant sole ground.
Consequently, non-issuance of written notice under section 18 of the SRPO, 1979, will not defeat or frustrate the personal bona fide need of respondents being new owners/landlords of the demised premises particularly when they have dropped the ground of default in payment of rent against the petitioner, hence filing of rent application is sufficient for the purpose of .a notice .For change of ownership. In the case of Shezan Limited v. Abdul Ghaffar and others (1992 SCM R 2400), the honourable Supreme Court has observed that the object of section 18 of the Sindh Rented Premises Ordinance, 1979, seems to provide protection to the tenant and in absence of notice, the tenant shall not be deemed to have committed default in payment of rent. In the case of Messer General Services Corporation v. Messer Pakistan National Shipping Corporation (1987 MLD 2149), it was held that notice for change of ownership of premises contemplated under section 18 of Ordinance (XVII of 1979) has nothing to do with creation of relationship of landlord and tenant between parties. Such notice is simply a shield against eviction of tenant on ground of default in payment of rent.
12. So far the contention raised by the respondents regarding requirement of the demised premises, admittedly respondents are running their Homeopathic Clinics in rented shops and they want to establish their independent Homeopathic Clinics in the demised premises, nevertheless petitioner has agitated the question of ownership of shops in possession of respondents and claimed that they are owners of those shops as well as another shop lying vacant in Mochi Bazar, Sukkur, but petitioner has only produced visiting cards of the respondents for running their Homeopathic Clinics in respect of said shops, and has failed to produce any documentary proof to establish ownership of respondents, consequently, mere verbal claim of petitioner in this account has no legal substance for consideration. Indeed, the averments of rent application have been verified by respondents in their affidavits in evidence maintaining the requirement of demised shops for their personal bona fide need to establish their independent business. Respondents were also cross-examined by the learned counsel for petitioner but their statements on oath remained quite consistent with the averments of ejectment application. Neither their statements were shaken nor any controverting material was brought on record to invalidate the stance taken by the respondents. The sole testimony of the respondents on oath is sufficient to establish their personal bona fide need of premises to establish their independent business. While considering the question of personal bona fide requirement, non-disclosure of present business being carried out by the landlord or nature of the business which he intends to establish to the tenant is not essential. In the case of Iqbal Book Depot and others v. Khatib Ahmed and 6 others (2001 SCM R 1197), the honourable Supreme Court has observed that where the statement of landlord on oath was quite consistent with the averments made in the ejectment application and same had neither been shaken nor any thing had been brought in evidence to contradict the statement, such statement on oath would be considered sufficient for the acceptance of the ejectment application: In the case of Jahangir Rustam Kakalia through legal heirs v. M/s Hashwani Sales and Services (Pvt.) Ltd.
(2002 SCMR 241), the honourable Supreme Court has observed that respondents being owner and landlord of the demised premises could not be deprived of their right and interest to use their property in a manner more suited to their 'requirements. No unreasonable restrictions can be placed on the exercise of right by landlord which would offend the fundamental rights guaranteed under Article 23 of the Constitution. In case of M/s F.K. Ibrami & Co v. Begum Begoza (1996 SCMR 1178), the honourable Supreme Court has observed that bona fide personal need of landlord, statement of landlord on oath, if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal, is sufficient to prove that requirement of landlord is bona fide.
13. So far the contention raised by the petitioner that respondents have not categorically stated that present' shops was insufficient for their business, it is significant to mention that shops in possession are on rental basis and they are not owners of the same, thus it was not necessary for the respondents to categorically express the factum of insufficiency of the available space of rented shops. Conversely, respondents intend to establish their business in their own shop which is their legal right covered under Article 23 of Constitution of Pakistan. It is well settled that law does not require that the owner of the property must disclose the nature of the business which he intends to establish in demised premises as it all depends upon circumstances, need and financial implication. While considering the question of personal bona fide requirement, non-disclosure of present business being carried out by the landlord or nature of business which he intends to establish in the demised premises to the tenant is not essential. Personal bona fide need of the landlord for any specific premises could not be frustrated by the tenant by dictating the landlord to use or not to use any specific premises to meet his bona-fide requirement for a premises. Landlord has a right to choose any of specific premises for his personal bona fide requirement and no restriction can be imposed upon such requirement by the tenant, such requirement provides an independent cause of action to the landlord. In the case of Qamaruddin through his L.Rs, v. Hakeem Mehmood Khan (1988 SCM R 819), the honourable Supreme Court has observed that landlord needs not to disclose all properties which he had rented out to other tenants. All that he was required to show to Court was that he needed shop of a particular tenant for his personal use, and choice was his as to suitability of said shop which he required for his personal use. Only question. That would disentitle a landlord to such a relief would be a case where he was in possession of other equally suitable shop in same locality or had rented out a shop after institution of eviction case and had contumaciously concealed such fact in his application or statement at trial. In the case of S.M. Nooruddin and 9 others v, Saga Printers (1998 SCMR 2119), the honourable Supreme Court has observed that landlord has a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith.
14. It is significant to mention that while dealing with the rent matters in Constitution Petition, High Court will neither proceed the petition like second appeal nor can evaluate the evidence adduced by the parties for the purpose of merits of the impugned judgment.
15. As the sequel of discussion of the facts, circumstances and case law referred supra, I have no hesitation to conclude that respondents have succeeded to prove their bona fide requirement of the demised premises for personal use in good faith. Petitioner has failed to point out any illegality or infirmity or dis-appreciation of evidence adduced by the parties. Consequently, the impugned order dated 16.10.2014, passed by the learned Appellate Court does not deserve for any interference, hence same stands maintained. Consequently, instant Constitutional Petition stands dismissed being devoid of any legal substance. However, petitioner is directed to hand over the vacant possession of demised premises within 90 days to the respondents and in case of failure by the petitioner to vacate the shop within stipulated period, learned trial Court shall issue writ of possession through police aid instantly without any notice, as the matter is pending since the year 2012.