ADNAN-UL-KARIM MEMON, J.---In the captioned Petition, the Petitioner (tenant) has impugned Order and Judgment dated 16.11.2015 passed by learned Rent Controller-III, Karachi, Central in Rent Case No. 113 of 2013, whereby rent case filed by Respondent No.1 (landlord) is allowed. Petitioner assailed the said impugned Order in First Rent Appeal No. 10 of 2016, which was dismissed vide Order dated 05.10.2016 passed by learned Vth Additional District Judge, Karachi, Central.
2. Brief facts of the case are that Petitioner is tenant of shop No.10,5-A-11/1, Nazimabad No. 5, Karachi (hereinafter referred to as subject premises). In the month of March 2013, the Respondent No. 1 as owner of subject premises filed Ejectment Application under section 15 of Sindh Rented.
Premises Ordinance, 1979 against the Petitioner; that on 29.01.2010 Tenancy Agreement was executed between Petitioner and Respondent No. 1 for a period of eleven months with effect from 01.02.2010 at Rs. 2000/- per month rent to be paid in advance on or before 05th of each month. The Petitioner deposited Rs. 20,000/- as security deposit which is refundable at the time of termination of Tenancy Agreement after adjustment of damages, if any. It is further mentioned in the Ejectment Application that after expiry of above said fixed period of tenancy the Petitioner is still in possession of subject premises as tenant. The Respondent No. 1 has asserted that after completion of initial three years of tenancy he demanded statutory, increase in rent at the rate of 10% per annum in accordance with law but Petitioner never paid the rent with statutory increase that is, Rs. 2200/-per month from the month of January, 2011 to March, 2013. Besides, Petitioner has failed to pay rent for the 'months of September, 2012 to March, 2013 resulting in unpaid rent of Rs. 19400/- to be paid by the Petitioner. The Respondent No. 1 has further asserted in Ejectment Application that the Petitioner has failed to pay utility bills i.e. electricity, telephone, water, sanitation and other charges imposed by Government. It is the case of Respondent No. 1 that prior to letting out subject premises to the Petitioner the Respondent No. 1 was running his business in the subject premises therefore, he requires the same for his personal bona fide use to establish his own business. Therefore, Respondent No. 1 filed rent case in the learned Trial Court. The Petitioner contested the rent case and filed written statement wherein took the plea that Respondent No. 1 demanded payment of Rs.
5,00,000/- as goodwill amount/pagri from him, which Petitioner declined and offered sum of Rs.
3,00,000/- to be paid in installments. The Petitioner has asserted that he paid entire rent to Respondent No. 1 at the rate of Rs. 2000/- per month up to August 2012 for which Respondent No. 1 never issued receipt. In September, 2012, Respondent No. 1 refused to accept rent of Rs. 2000/- instead demanded Rs. 5000/-per month and goodwill amount of Rs. 5,00,000/-Therefore, Petitioner deposited rent in M.R.C. No. 571 of 2012, ledger No. 143 of 2012 in the court of learned IVth Senior Civil Judge/ Rent Controller, Karachi, Central on regular basis. Petitioner denied the contents of Ejectment Application and took the plea that need of Respondent No. 1 is not bona fide. Per petitioner all the utility bills and other charges are paid by him. In the circumstances, Petitioner claimed dismissal of Ejectment Application. That Respondent No. 1 filed affidavit in evidence and produced the photocopy of Tenancy Agreement dated 29.01.2010. Learned counsel for Petitioner cross examined the Respondent No. 1 and his side was closed. That the Petitioner also filed affidavit in evidence and produced photocopies of rent despot slip in MRC No. 571 of 2012, KESC bill dated 19.4.2013; that he was also cross-examined by the learned counsel for Respondent No. 1 and his side was closed. Learned Rent Controller framed the following points for determination: i) Whether the opponent has committed willful default in payment of monthly rent from May, 2013 and on wards? ii) Whether the applicant requires the demised premises for his personal bonafide use in good faith? iii) What should the order be?
3. The learned IIIrd Rent Controller, Karachi, Central after recording evidence of the parties allowed the Ejectment Application vide judgment dated 16.11.2015 with directions to the Petitioner to handover vacant, physical and peaceful possession of subject premises to Respondent No. 1 within thirty days from the date hereof. Petitioner feeling aggrieved by and dissatisfied with the judgment dated 16.11.2015 preferred First Rent Appeal No. 10 of 2016 before the learned Vth Additional District Judge, Karachi, Central which was dismissed vide Order dated 5.10.2016. On 25.10.2016 Petitioner approached this Court against the decisions rendered by the learned Rent Controller and Appellate Court.
4. Mr. Muhammad Nadeem Khan, learned counsel for the Petitioner has contended that learned trial Court as well as learned Appellate Court without touching the merits of the case have non- suited the Petitioner due to non-reading and misreading of evidence; that Respondent No. 1 (landlord) has admitted that he has withdrawn rent from MRC which was filed by the Petitioner with effect from September 2012 till date; that there is no default on the part of Petitioner as alleged default money has already been deposited in the Rent Controller Court in M.R.C; that Respondent No. 1 has admitted that he does not need subject premises for his personal use but the same is required for his son which is hardly a ground for eviction from the subject premises; that learned Rent Controller has failed to consider that evidence of Respondent No. 1 is silent on the issue of personal need; that learned Rent Controller also failed to consider the difference between personal need of a landlord and need of son of a landlord; that the Respondent No.1 did not file affidavit in evidence of his son to prove the contention of personal need of son; that Petitioner recently came to know that Respondent No. 1 is doing job as government servant at water board therefore the question of personal need of the subject premises does not arise; that learned Rent Controller and Appellate court have overlooked important aspect of the case that even Respondent No. l's claim of default is not true as no default in payment has been committed by the Petitioner; that Petitioner filed FRA No. 10/2015 before learned District Judge, Karachi, Central wherein assailed the said order but learned Appellate Court also failed to appreciate the facts and law involved in the matter and dismissed the Appeal of Petitioner by ignoring all the grounds. He concluded the arguments by praying for reversal of both the judgments passed by the learned courts below. In support of his contentions reliance has been placed upon the case of Ghulam Hussain v. Munawar Ali (1996 SCM R 1323), Abdullah v. Hassan Abbas (1985 CLC 892), Ismail v. Ahmed Bux and sons (1998 M LD 940) and Mst. Faiyazi Begum v. Zakiuddin (1986 CLC 1280 = 1988 MLD 602).
5. Mr. Naqvi Ahmed Taha, learned counsel for Respondent No.1 has supported both the impugned judgments. He emphasized that Petitioner has committed willful default in payment of Rent therefore he is rightly evicted by both the courts. He next added that Respondent No.1 needs the subject premises for personal use in good faith. He next added that merely depositing rent in court without tendering same to the Respondent No. 1 is no compliance under the Rent Agreement and law. He next added that once default is committed, it cannot be condoned. He next argued that need of subject premises by the Respondent No. 1 for personal use is bona fide and in this regard there is nothing on record to show that there is mala fide on the part of Respondent No. 1.
6. I have heard learned counsel for the parties and perused the material available on record as well as case law cited at the Bar.
7. The impugned judgments passed by learned IIIrd Rent Controller, Karachi, Central and learned Vth Additional District Judge, Karachi, Central are based on the evidence brought on record. The record reflects that the learned Rent Controller has premised his findings on the issue of willful default in payment of rent by the Petitioner and personal need of Respondent No.1. Finding of facts given by learned Rent Controller are concurred by the learned Appellate Court therefore, at this juncture under the constitutional jurisdiction this Court avoids to give contrary findings until and unless the same are perverse, based on misreading or non-reading of evidence.
8. Reverting to the issue of personal need of the Respondent No.1 it is well settled law that sole testimony of landlord is sufficient to establish personal bona fide need of the rented premises if the landlord's statement on oath is consistent with the averments made in the Ejectment Application. It is also well settled that the said testimony of the landlord when not rebutted in cross-examination then the burden on the part of landlord stands discharged. Secondly, Petitioner failed to prove his case before the learned trial court and Appellate court on the above mentioned points of determination framed by the learned Rent Controller. The Honourable Supreme Court has already enunciated the principle on the point of Personal bonafide need of landlord in the case of Pakistan Institute of International Affairs v. Naveed Marchant and others (2012 SCM R 1498). This court has also followed the principles laid down by the Honourable Supreme Court with respect to the issues of landlord and tenet in the case of Nisar Ahmed Shaikh v. VIlth Additional District and Sessions Judge District South and others (2017 M LD 605) Thirdly, the grounds taken by the learned counsel for Petitioner are dilated upon by the both the courts below.
9. I am of the view that in rent matters, powers under Constitutional Jurisdiction of this Court are limited and confined only to ascertain whether the learned lower courts have flouted the statute or failed to follow the law relating thereto? In the instant case, neither there is any jurisdictional error nor any perversity, illegality or infirmity in the impugned orders passed by both the Courts below.
Besides, I do not see misreading or non-reading of evidence which could warrant interference of this Court.
10. The case law cited by the learned counsel for the Petitioner is distinguishable from the facts and circumstances of the present case.
11. In the light of facts, circumstances and law mentioned above the instant Constitution petition is dismissed along with pending applications.
12. The petitioner is directed to vacate the subject premises and handover its vacant and peaceful possession to the Respondents No.1 within thirty days from the date of this judgment. In case of failure, the petitioner shall be evicted from the subject premises without notice.