' ABDUL RASOOL MEMON,J---- By way of above Petition the petitioner has challenged the order dated 21.12.2011 passed by learned III-Additional District Judge, Karachi (West) in First Rent Appeal No,87 of 2010, whereby an appeal filed by the respondent No,1 against the order dated 30.10.2010 passed by 1st Senior Civil Judge/ Rent Controller, Karachi (West) was allowed and petitioner was directed to vacate the demised premises viz. House No,D-78 situated in SITE Karachi within a period of 60 days from the date of impugned order.
2. Facts of this case gleaned from record, briefly stated, are that respondent No,1 filed an application under Section 15(2)(iii)(a) and (vii) of the Sindh Rented Premises Ordinance, 1979 for ejectment of petitioner on the grounds that the tenant/petitioner without her written permission and consent subletted the demised premises to some other person and her husband Baqar Ali (13.E. Mechanical) doing job in Arabian Air-Conditioning Co. Ltd. Jeddah, Saudi Arabia, intended to settle down his own business at Karachi, therefore, she needed the demised premises in good faith for her husband's requirement, but despite her repeated requests the petitioner failed to vacate the same.
3.The petitioner, who was opponent in the rent application, denied the allegations in respect of letting out the premises to any other person. He also refuted the personal need of the demised premises by respondent No,1 (landlady) and claimed to have made this ground just to evict him from the premises.
4.In order to prove her case, the respondent No,1 (landlady) examined filed her affidavit-in- evidence and examined her husband Baqar Ali Johar as witness. In rebuttal, one of the partners of petitioner's firm, namely, Muhammad Yahya Mohammad Yousuf Bari, filed his affidavit-in- evidence. Both the parties cross-examined each other at length.
5.The learned Rent Controller framed two main points, one relating to the subletting of demised premises by the tenant and the other on personal bona fide need of the demised premises by the landlady for establishment of business of her husband therein. Both these points were decided against the respondent No,1 (landlady). Consequently, while answering point No,3, learned trial Court dismissed the rent application vide order dated 30.10.2010. The said order was assailed in F.R.A No,87/2010 and learned III-Additional District Judge, Karachi (West) vide impugned judgment maintained the findings of the Rent Controller on point No,1, while reversed the findings recorded under point No,2, allowed the F.R.A. Now the petitioner has invoked the jurisdiction of this court seeking continuation of his tenancy.
6.The main crux of the arguments of learned Counsel for the petitioner is that the husband of the respondent No,1 Baqar Ali has not yet resigned from his job at Saudi Arabia and in cross- examination he could not give proper reply for the nature of the business, intended to be established in the demised premises and that mere desire of the petitioner that her husband intends to occupy the demised premises itself is no sufficient ground to accept the plea of landlady/respondent No,1 and no other evidence proving genuine requirement need of premises by respondent No,1 is brought on record. In support of her contention, she has placed reliance on the following reported case laws: (i)Muhammad Abdullah v. Sughra Begum (1988 CLC 2078); (ii)Fasahat Ali v. Noor Jehan Begum (1991 CLC 1902); (iii) Pak. Food Manufacturers v. Sadiq Ishaque (1992 CLC 482); (iv)United Bank Ltd. v. Abdul Razzak & Co. (1993 MLD 2575); (v)Sardar Nabeel Wali v. Addl. District Judge (PLD 2000 SC 829); (vi)Ghulam Muhammad Khan v. Muhammad Khalid (2000 CLC 764);
(vii) Allies Book Corporation v. Sultan Ahmad (2006 SCMR 152).
7. On the other hand, learned Counsel for respondent No,1 contended that the statement of landlady (respondent No,1) is consistent to the plea taken in the rent application and fully supported by her husband &gar Ali and their contentions have not been shaken in cross- examination. He further submitted that the husband of the respondent No,1 is doing his job in Saudi Arabia as he would not keep himself either idle or away from all sorts of income generating ventures till final decision of his rent application, hence he has not yet resigned and this aspect of the case will not militate his bona fideness. In support of his contention, he has relied upon the following cases:- (i)Muhammad Shafi v. Muhammad Adam Khan (1983 CLC 2657); (ii)Muhammad Yousaf v. District Judge (1987 .SCMR 307); (iii)Muhammad Ilyas v. Mst. Khursheed Begum (1989 CLC 506); (iv)Ahmad v. Khair Muhammad (1992 CLC 2504); (v)Farkhunda Jawaid v. Ilnd Additional District Judge (2008 CLC 362); (vi)Almas Khan v. Bano (PLD 2009 Karachi 268).
8. I have given careful consideration to the arguments advanced by the parties' counsel and gone through the available record. As mentioned above, respondent No, 1/landlady brought the rent application on two grounds, one is subletting the demised premises by the tenant without prior permission and the other is personal bona fide need/use. The respondent No,1 could not prove her plea of subletting of demised premises in trial Court and appellate court, as such, there are concurrent findings of courts below in favour of petitioner on the point of subletting the demises premises. Respondent No,1 has not challenged the said concurrent findings against her by filing cross-appeal, therefore, the findings of the learned Rent Controller as well as appellate court have attained finality to the extent of ground raised by landlady about subletting of demised premises.
9. There remains only the ground of personal bona fide use of premises by the husband of landlady, which holds for and against findings by the trial court and appellate court. I have gone through the evidence produced by the parties. Respondent No,1 (landlady) was cross-examined at length by the Counsel for the petitioner but nothing in rebuttal favouring the petitioner has been brought on record. Her version is also fully supported by her husband Baqar Ali. In cross- examination, to a question of petitioner's counsel about non-return to Pakistan from Saudi Arabia, this witness Baqar Ali replied as under: "It is correct to suggest that neither I have still resigned nor I have retired because my age of retirement and resignation will arise and I will have the means in my hand to start my business over there. When I will have the case premises in possession then I will start the process."
10. It is not the requirement of law that the landlord in order to prove bona fide of his/her personal need, shall not perform his duty or make any business abroad or keep himself away from all sorts of income generating ventures or to keep himself idle as long as the fate of his ejectment case is decided, which takes time in years for its final decision, therefore, the reply of husband of respondent No,1 appears to be convincing one that he would shift to Pakistan when gets the possession of the demised premises.
11.The next contention of the learned Counsel for petitioner is that some other plot of respondent No,1 is lying vacant, which is sufficient for establishing the business of her husband. In this context it is well settled principle that neither the tenant nor the rent controller has any option to choose or select the premises for starting the business of landlord in any particular place and no such advise or suggestion can be made binding upon the landlord, in this reliance is placed on the case of Pakistan Institute of International Affairs v. Naveed Merchant (2012 SCMR 1498). Moreover, the choice of selecting the premises is prerogative and discretion of the landlord. The case laws relied upon by learned Counsel for the petitioner with profound respect being based on different facts and circumstances of the case in hand and are not helpful to the petitioner.
12. After considering the material available on the record, I am of the considered view that the conclusion reached by the appellate court C appears to be sound and does not call for interference by this court. As a result this Constitutional Petition is dismissed.
13. Since the petitioners having been doing business for the last so many years, so I am inclined to grant 4 (four) months time from today onwards for handing over the vacant possession of the demised premises to the respondent No,1 subject to payment of usual rent and other charges and in case of failure writ of dispossession will be issued for ID doing the needful.