MUHAMMAD IQBAL KALHORO, J.--Petitioner is tenant in respect of a Shop No,
1. C.S. No, D/2219 Resham Bazar, Hyderabad and respondent No,1 is the landlord. He filed a Rent, Application No,244 of 2012 in respect of suit shop for ejectment against the petitioner on the ground of personal bona fide need. The petitioner filed objections thereon taking the the ground, among others, of paying the pagri/goodwill to the respondent and that as per rent agreement dated 27.07.2000, he is precluded from filing the ejectment application on the ground of personal bona fide need against him. The rent application was dismissed by learned Rent Controller vide order dated 25.02.2014 holding that in view of clause (5) of the aforesaid rent agreement, the respondent was not competent to maintain ejectment application on the ground of personal bona fide need. In the said order learned Rent Controller, however, rejected the plea of the petitioner that he had paid the pagri/goodwill amounting to Rs,25,00,000/- to the respondent. Both the parties felt aggrieved by the said order; and resultantly the petitioner filed F.R.A. No,35/2014 against the findings in respect of his plea of the pagri/goodwill; whereas, respondent No,1 filed F.R.A No,32/2014 against rejection of ejectment application. Both the said FRAs have been decided by the impugned judgment dated 30.05.2014, whereby the learned Appellate Court has allowed the FRA filed by the respondent for ejectment and has given 120 days' time to the petitioner to vacate the subject shop; and has dismissed the FRA filed by the petitioner. Being aggrieved by the said findings, the petitioner has filed this petition.
2. Learned counsel for petitioner has argued that the findings of the appellate court are not based on material available on record, that the appellate court has mis-appreciated the evidence and has misunderstood the implication and affect of clause (5) of the rent agreement dated 27.07.2000, whereby respondent has been stopped from filing ejectment application against the petitioner on personal bona fide need; that the learned appellate court has not properly attended to the ground of the petitioner regarding payment of pagri; that the respondent has failed to establish that he requires the suit premises in good faith for personal use, which is the sine qua non for filin" the ejectment application on the ground of personal bona fide need; that the respondent filed ejectment application out of mala fide. Learned Counsel has further contended that although the petitioner has not been able to prove the ground of pagri as decided by the courts below but in his objection to the rent application, he has mentioned the fact of payment of Pagri. In support of his arguments learned counsel has relied upon the case law reported in 1998 CLC 349, PLD 1986 Karachi 16, 1999 MLD 2989 and PLD 2001 Quetta 40.
3. On the other hand learned Counsel for the respondent has submitted that the rent agreement in which such clause was provided was signed by the respondent without reading it on the basis of good faith, as the petitioner was his old tenant, and knowing that in the previous rent agreements no such clause was available; that the respondent is an uneducated man and does not know reading or writing in English therefore, without understanding all the clauses of the rent agreement he signed it. He has further contended that such clause in the rent agreement would not erect a bar to the respondent to file an ejectment application on personal bona fide need, which is otherwise his right as provided in law. Learned Counsel further submits that no pagri amount was paid by the petitioner and no such fact is either mentioned in any of the rent agreements nor the petitioner was able to establish such fact in his evidence. There are concurrent findings against the petitioner in this respect and he has not been able to point out any illegality therein. Learned cousel has relied upon the case law reported in PLD 1998 SC 190, MLD 1997 Page 3232, 1985 CLC 1997, 1997 MLD 2725, 1988 SCMR 819 and 1989 SCMR 1366.
4. I have considered submissions of the parties and have perused the material available on record including the case law relied at bar. The rent application was filed on the ground of personal bona fide need. To counter it, learned counsel for the petitioner has emphasized that since in the rent agreement dated 27.02.2000, it is provided that landlord shall not file any ejectment proceedings against the tenant on the ground of personal use, the respondent is stopped/precluded from filing such application bound by the terms of the said agreement. It may be said in the said backdrop that no doubt the landlord is bound by the terms and conditions of the rent agreement entered by him with his tenant, but such construction would be presumed when the terms and conditions of the rent agreement are not in conflict with the provisions case-law governing relations of tenancy between the parties. The law recognizes the right of the landlord to file ejectment application on personal bona fide use, which would not stand abridged just because a condition holding such right has been stipulated in the rent agreement signed by him. The reason is very simple, such a condition in the rent agreement would not be considered having overriding affect over the very provisions of law regulating such agreements and the consequential relations between the parties.
Therefore, in my view, the contention of learned counsel that the respondent was not competent to resort to ejectment proceedings against the petitioner on the ground of personal bona fide use is not sustainable.
5. This would be one aspect of the case, the other most important is the evidence of the respondent. In his cross-examination, he has explained that he signed the rent agreement without reading it and on the disclosure of the petitioner that it was similar in respect of all its terms and conditions to that of previous rent agreement executed in 1991; that the rent agreement was in English and he cannot write or read or understand English. These assertions of the respondent do not appear to have been challenged by the petitioner and this goes to prove that the respondent had not consciously signed the rent agreement, and thus not agreed to a clause therein abridging his right to file ejectment proceedings against the respondent on personal bona fide use. Learned Appellate Court while discussing this issue in Paras-14, 15, 16 and 17 of the impugned judgment has exhaustively dealt with the said facts and while referring to the certain case law has concluded that the terms of . tenancy agreement, which are in conflict with the provisions of the law, would not be binding on the respondent. It has been further held by the said court that the evidence of the respondent that he is jobless and requires the suit premises for his personal bona fide need has not been rebutted. These findings are based on proper appreciation of evidence and need not be interfered with in view of above discussion.
6. Additionaly, it may be mentioned that the Honourable Supreme Court in the case of Shakeel Ahmed and another v. Muhammad Tarique Farogh and others (2010 SCMR 1925) has observed that to discharge the burden of establishing the ground of personal bona fide use, it would be sufficient for a landlord to appear in the witness box and support such plea on oath or in the form of an affidavit-in-evidence, if his plea is not rebutted in the evidence and not-shattered in cross- examination. In the present case nothing has been brought on record by the petitioner to discredit veracity of assertions of the respondent in respect of his ground of personal bona fide use.
7. insofar as the ground of payment of a pagri to the tune of Rs,25,00,000/- by the petitioner to the respondent at the time of execution of the rent agreement is concerned, both the courts below have concurrently decided this case against the petitioner, and nothing has been brought on record to show that the concurrent findings are illegal or against the material available on record.
It is a matter of record that no supporting documentary or oral evidence has been led by the petitioner to prove that he paid Rs,25,00,000/- as a pargri/goodwill to respondent at the time of execution of the rent agreement. This being the position, the petitioner cannot succeed on this ground either in the present proceedings filed under constitutional jurisdiction of this court.
8. For foregoing discussion, I am of the view that this constitutional petition is devoid of merits, and is dismissed accordingly. The petitioner is allowed a period of 30 days to vacate and hand over possession of the suit shop to the respondent.
This petition is disposed of in the above terms along with listed application.