ABDUL RASOOL MEMON J.--- Through this constitutional petition the petitioner being tenant of the demised premises has challenged the judgment dated 08.02.2016 passed by learned District Judge, Sukkur whereby Rent Appeal No.2 of 2014 filed by the petitioner was dismissed and order dated 13.02.2013 of 1st Senior Civil Judge/Rent Controller passed in R.A. No.43 of 2012 allowing the ejectment application and directing the petitioner to vacate the premises in question was maintained.
1. The factual background of the petition, briefly stated, are that the petitioner is the tenant of the shop bearing C.S. No.B-595 ground floor opposite Madina Masjid Jinnah Cloth Market Sukkur on monthly rent of Rs.1500/-, which was let out to him by previous owner Mohammad Saeed (husband of the respondent No.1). Later on the demised premises was transferred to respondent No.1 through registered gift deed dated 04.07.2006. After acquiring the title, respondent No.1 served a legal notice on the petitioner and demanded him to vacate the demised premises on the ground that her daughter respondent No.2 is an advocate and member of District Bar Sukkur, as such, she intended to establish her own office in the demised premises which is fit for her requirement but in spite of repeated requests he failed to vacate the same. Thereafter, respondent No.1 filed Rent Application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter to be referred as the Rent Ordinance) seeking ejectment of the petitioner from the demised sole premises on the sole ground of personal bona fide need in good faith.
3. In reply to aforesaid ejectment application the petitioner filed his written statement admitting the relationship of landlord and tenant between the parties but disputed the personal bona fide need of the respondents. After due contest between the parties learned Rent Controller allowed the rent application thereby directing the petitioner to vacate the premises in question within 90 days.
4. The petitioner filed an appeal against the order of rent controller which was dismissed by the District Judge, Sukkur vide impugned judgment, hence this petition.
5. Learned counsel for the petitioner contended with vehemence that Rent Application No.52 of 2007 filed by respondent No.1 against the petitioner on the ground of default in payment of rent and requirement of the said shop for her son Mohammad Rehan was dismissed by the Rent Controller and Appeal No.35 of 2010 filed against the said order was withdrawn by the attorney/ husband of respondent No.1 in January, 2012 thereafter the second application was mala fidly filed to usurp the security amount of Rs.10,00,000/- paid by the petitioner; that the respondents have created false ground of personal use of the demised premise for her married daughter, even otherwise the demised premises is situated in Jinnah Cloth Market which is used exclusively for wholesalers of cloths therefore it is unfit to be used for the office of advocacy as such, the claim of the respondents to have the demised premises vacated is mala fide but both the Courts below did not consider these grounds of the petitioner, thus, have committed miscarriage of justice, therefore, the concurrent findings are liable to be set-aside.
6. On the other hand learned counsel for the respondents argued that the respondents having established the need of the demised premises in good faith for use and occupation of respondent No.2 is entitled in law to seek the ejectment of petitioner as married daughter is also included in children as provided in section 15(iii)(viii) of the Rent Ordinance; that the previous Rent Application No.55 was filed on different grounds while the present rent application has been filed for the personal bona fide need of the daughter Ambreen/respondent No.2, thus, there is no bar for seeking eviction on fresh ground; that for determination of security deposit both the parties have filed suits which are subjudiced before the subordinate Courts and the petitioner cannot get benefit of the suits in this petition; that the suitability and selection of area is choice of the landlord, therefore, on this point concurrent findings cannot be interfered in writ jurisdiction.
7. I have considered the arguments advanced by both the counsel in the light of the material available on record. The scope of constitutional petition in rent matters is very limited and confined only to ascertain as to whether judge has flouted the provisions related to the statute or failed to follow the law relating thereto as laid down by superior Courts.
8. I have gone through the impugned judgment and find that the reasons recorded by the appellate Court are in consonance with the evidence and as per law settled. Before dilating upon the merits of the case it would be necessary to decide the legal objections raised by the petitioners' counsel as to maintainability of second rent application after dismissal of the earlier. As a matter of fact respondent No.1 had filed Rent Application No.52 of 2007 for ejectment of the petitioner on the ground of personal requirement of demised premises for her son Mohammad Rehan which was dismissed by the Rent Controller and appeal against it was also withdrawn by her. It may be mentioned here that the instant application has not been filed on the same ground but it has come on record that respondent needs the possession of the demised premises for establishment of office of her advocate daughter, as such, earlier case will not come in the way of her claim of personal bona fide need of demised premises for her daughter. In such circumstances the principle of resjudicata is not attracted. In this context I have been referred to the case of Mohammad Sadiq and Company v. Dawat-Ehadiya Akbar Ali Hassan Ali Trust, Rawalpindi wala Building (1999 CLC 1102).
9. So far as the arguments of learned counsel for the petitioner that an amount of Rs.10,00,000/- is outstanding against the husband of the respondent No.1 as security deposit, it has come on record that in this' regard both the parties have filed suits, which are pending before civil court which will not come in the way of ejectment proceedings.
10. Now adverting to the main controversy whether the demised premises are required for personal use of landlady and the need is based on good faith. In the instant case relationship of landlord and tenant is admitted by the parties. Mst. Hanifa Anjum respondent No.1 in para 2 of her affidavit in evidence has stated in clear terms that respondent No.2 (her daughter Mst. Ambreen) is an enrolled practicing advocate and member of District Bar Sukkur having required the shop in question, which is comfortable to fulfill the requirements of her personal bona fide need for establishing her office. Respondent No.2 Ambreen also supported the version of respondent No.1 stating that she being an advocate intends to establish her office in the demised premises, which is in occupation of the petitioner. They both were cross-examined by counsel for the petitioner but their evidence remained unrebutted and unshattered. Through this evidence the landlady has established the proof of her bona fide need. In this regard reliance is placed on a case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCM R 1925) wherein it has been held as under: "6. For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of his bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on oath or in the form of an affidavit in evidence as prescribed by law, if it remains unshattered in cross-examination and unrebutted in the evidence adduced by the opposite party. If any case law is needed to fortify this view, reference can be made to the case of Mst. Toheed Khanum v. Mohammad Shamshad (1980 SCM R 593), wherein the opinion of I. Mahmood, J. (as he then was) in the case of Hassan Khan v. Munawar Begum (PLD 1976 Karachi 832) to the same effect, was approved.
11. The petitioner in his written statement as well as in evidence has denied the personal bona fide need of respondents Nos.1 and 2 on simple ground that the shop in question is not suitable for establishing the office of the advocate because it is situated in cloth market. This ground is not sustainable as the selection of the area and nature of the business is D choice and prerogative of the landlord which cannot be interfered. In this context I am supported by a case titled F.K. Irani & Co. v. Begum Feroze (1996 SCM R 1178). The petitioner has failed to bring any material on record to dislodge the claim of respondents Nos.1 and 2.
12. So far as the contention of the petitioner's counsel that respondent No.2 is married and after marriage is excluded from children of landlady, I am not in agreement with this submission as there are plethora of case law on the subject that requirement of children of the landlady would include the requirement of married daughter. In this respect if any law is needed reliance may be placed on the case of Mohammad Deen v. Nazeer (1982 CLC 1916) Wherein this Court upheld the eviction seeking ejectment of the opponent for the bona fide requirement to settle his married daughter and his son in law. In another case Mst. Amtul Begum v. Junta Khan (1996 M LD 853) authored by Justice Rana Baghwandas (as his lordship then was) in similar circumstances in para 17 has held as under:- "17. In the light of the aforesaid precedents and even on a plain reading of the provisions relating to bona fide requirement of the premises for use of the landlord and or any of children it does not sound logical that after the marriage of daughter, landlord should be disentitled to seek eviction of a tenant for rehabilitating his married daughter who does not become an outcast or alien to the family of the landlord. In fact under the Muslim Personal Law she is entitled to her share by way of inheritance in the property of her father or mother. In case a landlord desires bona fide to settle and lodge his married daughter along with her husband and children in his property, I see no logical reason to deny this privilege."
13. For the foregoing reasons I am of the considered opinion that the respondents have proved their case on the point of personal bona fide need and nothing solid or concrete could be brought in rebuttal by petitioner showing that the need of landlady is imaginary or based on mala fide. The learned counsel for the petitioner has failed to show any legal flow in the impugned judgment, therefore it does not call for any interference. Consequently, this petition being devoid of merits is dismissed. However, the petitioner being doing business for so many years is granted three months' time from the date of this order to vacate and handover the possession of the demised premises to the respondents.