FAHIM AHMED SIDDIQUI, J.----This petition aims to question the judgments dated 25.10.2017 passed by learned Additional District Judge-X, Karachi East as well as judgment dated 10.05.2017 passed by learned Rent Controller-IX, Karachi East. Both the impugned judgments were passed in favour of the respondent No. 1, under which the petitioner was directed to vacate and handover the vacant physical possession of the rented premises (i.e. upper floor of House No.A-266, Block-5, Gulshan-e-Iqbal, Karachi) to the respondent No. 1 on the grounds of default in payment of rent and personal need.
2. The facts of the case are that respondent No. 1 has filed Rent Case through her attorney before the learned Rent Controller-IX, Karachi East seeking eviction of the petitioner on the ground of personal need and default in payment of rent. The respondent No. 1 in her rent case alleged that she rented out the demised premises to the petitioner under a tenancy agreement dated 14.05.2013 for monthly rent of Rs.20,000/ - per month.
Allegedly, the petitioner remained failed to pay the agreed monthly rent and committed default. It is also alleged by the respondent No. 1 that she needs the demised premises for her daughter, who is looking after the respondent No. 1. Due to default in payment of rent and personal need, the respondent No. 1 seeks direction to the petitioner for vacating the demised premises and handing over the peaceful vacant possession of the same to her. She also seeks a direction to the petitioner for clearing all the amenities and utilities outstanding bills as well as compensating regarding impairment caused to the property due to a fire incident on account of negligence of the petitioner. The petitioner in his written statement admits the relationship of landlord and tenant but he denies the allegations of default committed by him. He also claims that he is looking after the ground floor of the premises, as such, he is entitled to an additional amount of Rs.25,000/ - in respect of looking after the ground floor. Albeit, petitioner denies that the requirement of demised premises by the respondent No. 1 for her personal need in good faith.
3. The evidence was recorded before the learned Rent Controller, respondent No. 1 placed her side of the case by deducing evidence but petitioner failed to do so, as such, his side was closed vide order dated 20.03.2017.
The learned Rent Controller was kind enough to allow an application filed by the petitioner for recalling of the order dated 20.03.2017 and he was directed to produce his witnesses for cross-examination vide order dated 08.04.2017. However, petitioner remained fail to fulfill his obligation of producing his witnesses for cross- examination; therefore, his side of evidence was again closed vide order dated 03.05.2017. Ultimately, the rent application filed by the respondent No.1 was allowed vide order, dated 10-5-2017 and the petitioner was directed to hand over the peaceful vacant possession of the premises in question to the respondent No. 1 within a period of 30 days.
4. Mr. Iftikhar Javed Qazi, learned counsel for the petitioner, prefers his arguments at length. The gist of his arguments is that the demised premises is not required by the landlady (respondent No. 1) in good faith as she herself in eviction application states that she intends to sell the premises. The side of evidence of the petitioner was improperly closed and although it was reopened on an application but abruptly again closed after a few days, as such, fair trial is denied. The period of default is not mentioned in the rent application, as such, in the absence of a specific period, the rent application is not maintainable and should be dismissed. The petitioner has paid rent through open cheques and the landlady deposited the same in her different accounts but she produced only two bank's statements. Computer-generated bank's statements are not considerable as the same do not bear the signatures and seals of any officer of the bank, as envisaged under the provisions of Qanun-e Shahadat.
The learned Rent Controller has covered two issues in point No. 1, which is a violation of law. Landlady claims for default in her evidence for default in January 2016 but the learned Rent Controller travelled beyond that period and declared that the default was committed from 2013.
5. Finally, the learned counsel for the petitioner contends that the instant case is a fit case for remand so that the evidence can be recorded and facts can be thrashed out properly. In support of his contentions, the learned counsel for the petitioner has relied upon PLD 1981 Supreme Court 246, 2006 SCMR 152, 2010 SCMR 539, 2007 SCMR 307, 2007 SCMR 1759, 2007 CLC 1245, 1999 YLR 230, 1999 MLD 3088, 2011 YLR 307, 1987 CLC 157, 1996 SCMR 336, 2007 CLC 462, 2007 CLC 39, 2002 MLD 762, 2001 CLC 200, 2002 CLC 830 and 2012 SCMR 1235.
6. Ms. Shahida Jatoi, learned counsel for respondent No. 1, while addressing the Court, supports the judgement of learned Rent Controller - as well as the appellate forum. Concisely, her arguments are that the judgments passed by the learned Rent Controller as well as the appellate court below are based on merit and the petitioner could not point out any illegality or irregularity in the same. There are concurrent findings of two courts below, as such, do not require any interference by this Court in constitutional jurisdiction. The default is established and not only the specific plea of default is taken in the pleadings but also the respondent No. 1 has filed the statements of accounts with the pleadings/affidavits. The petitioner has sought time in June, 2014 by enhancing 10% rent, as such, rent to be charged @ Rs.22,000/ - per month. After receiving notice of eviction, the petitioner filed cases against the respondent No. 1 and even he filed an application under Section 12 (1) of the Sindh Rented Premises Ordinance, 1979 (hereinafter SRPO) for damages. The respondent No. 1 is a retired old lady and since 2013 she is ousted from her property . Although the petitioner was given the first floor on rent but practically he is using the ground floor as well. The petitioner has also filed a statement plus cheques amongst them one cheque is amounting to Rs. 10,000/ -, while the rent was Rs. 22,000/ -; as such, on this score default is established. The cheque given by the petitioner on 28-12-2015 bearing Cheque # 69831584 for an amount of Rs. 44,000/- for the month of November-December , 2015, which was bounced. The said cheque was then encashed in March, 2016. When the application under Section 16(1) of SRPO was filed, the petitioner already defaulted for 8 months, as the rent from January , 2016 to September , 2016 is not paid. It might be the intention of the respondent No. 1 to sell her house but now she doesn't want to sell the same and intends to live in the same property in ground floor while she proposes to give the first floor to her daughter , as her daughter is the only person available in town to look after and take care of her , which she needs the most being an old and ailing lady .
7. In support of her contentions, the learned counsel for the respondent No. 1 relies upon 1988 CLC 2338, 2009 MLD 341, 2006 CLC 379, 2008 SCMR 1530 , 1987 SCMR 307, 2016 SCMR 1926 , 2017 CLD 873, 2007 SCMR 729, 2018 CLC Note 26, 1981 SCMR 844, 2016 SCMR 1961 , 2008 CLD 412, 2012 MLD 1662 , 2015 CLC 293, 2006 YLR 2194 , 2004 MLD 587, 2001 SCMR 997, PLD 2014 Sindh 194, 1999 CLC 7012, 1999 YLR 230, 2013 MLD 219 , 2015 CLC 570 , 2010 SCMR 1529, 1990 CLC 336, 2009 CLC 272 , 2012 MLD 1081 and 1992 CLC 735 .
8. It is worth noting that both the learned counsel for the respective parties have relied upon teeming numbers of case laws amongst them a good number are on similar points having same ratio. However, after hearing the parties at length, I have scanned the entire material in the light of valued submissions made before me. In the instant case, there are concurrent findings of learned Rent Controller as well as First Appellate Court that the petitioner has defaulted in payment of rent and demised premises is required by the respondent No. 1 for her personal bona-fide need. The petitioner has challenged these findings, and his case rests on the points that the findings of two forums below is not proper and due to closure of his side of evidence, he is denied the right of fair trial. In this respect, his contention is that neither he is defaulter nor the petitioner needs the premises in good faith. It is also the contention of the petitioner that the side of petitioner was closed abruptly, as such, he has not given the fair opportunity to defend himself before the tribunal. Mr. Ifitkhar Javed Qazi points out that learned Rent Controller and appellate forum below did not frame the issue or point for determination regarding 'Good Faith' as such it amounts to deletion of a statute. According to him, it is a statutory requirement to frame this point or issue with specific wordings of 'good faith', which was not done. He contends that a judge should know all laws and decide the case as per law. He further submits that the learned Rent Controller has decided the issue of default and personal need conjointly, which is contrary to law and the case is to be remanded for a fresh decision. In support of his contentions, he relies upon cases reported as Collector Land Acquisition Skardu and others v. Ghulam Muhammad and 19 others (2007 CLC 1245), Wajid Saeed Khan v. Abdul Qudoos Khan Swati and others (2007 SCMR 1759) Raja Humayon Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307) and Khan Gul Khan v. Daraz Khan (2010 SCMR 539).
9. I am of the view that the cases relied by Mr. Qazi are not directly relevant to the present cases. The case of Collector Land Acquisition Skardu (supra), Wajid Saeed Khan (supra) and Raja Hymayon Sarfarz Khan (supra) are regarding the delicate responsibilities of Judicial Officers to decide the case according to law but he could not point out the lacking and deficiencies of the Presiding Officers of two forums below in respect of deciding the instant matter. After quoting these cases, Mr. Iftikhar Javed Qazi also relied upon the case of Khan Gul Khan (supra), which pertains to pre-emption law wherein it is held that a court is not empowered to add or omit a single word in a statue. By referring the case of Khan Gul Khan (supra), the learned counsel for the petitioner contends that since in issue or point for determination the word 'good faith' is not mentioned; therefore, it amounts to omission of the words "Good Faith" from the statutory provision i.e. Section 15(2)(vii) of SRPO. In this respect, my observation is that quoting of a statute and application of the statute are two separate things. The learned Rent Controller neither has quoted Section 15(2)(vii) of SRPO wrongly nor the learned Rent Controller has purposely omitted the wordings from the said statutory provision. At the time of dealing with aforementioned statutory provision by a tribunal or court in respect 'personal need', it is inbuilt that the relief can only be given in a case of personal need when it is established by the landlord that he requires the rented premises in good faith. If a landlord willing to get vacated the rented premises without good faith, there will be no question of allowing the application of the landlord on the ground of personal, need. Similarly, if the discussion of tribunal covers the 'good faith', it is not necessary to mention the words 'good faith' with the words of 'personal need'. Besides, word 'bona-fide' is very much available in the judgment of the appellate court at the time of discussing the personal need of the landlady and the word bona-fide is synonym for the phrase 'good faith'. It is the contention of the learned counsel for the petitioner that the respondent No. 1 does not require the demised premises in good faith, as she herself has stated in the rent application that she intends to sell the premises so that she may distribute the proceeds of sale amongst the legal heirs. He submits that from this intention of the respondent No. 1, it is clear that the purpose of vacating the premises is to sell the same, as such, it does not amount to a bona-fide need. In this respect, it is worth noting that this point has not been taken by the petitioner before the two forums below. Nevertheless, being a legal point, I think it proper to address the same. It is noteworthy that no such intention was mentioned by the landlady in her affidavit in evidence, wherein she has taken plea that she needs the premises to house her daughter.
Albeit, when a specific 'plea has been taken by the landlady in her affidavit in evidence regarding the personal need and she was not cross-examined by the petitioner on that point, now he cannot take refuge from something mentioned in the pleadings. The respondent No. 1 is a retired, ailing old lady as such her contention that she needs her daughter to be settled in the upper floor of her house i.e. demised premises; appears to be coherent and reasonable. As far as selling of the premises is concerned, being an owner, she can sell the same at any moment and even without getting the same vacated. No doubt, under the provision of SRPO, the rented premises cannot be vacated solely on the ground of selling the same but under SRPO, it is nowhere mentioned that after getting the premises vacated, the landlord/ owner cannot sell the premises. In this respect, I would like to take reliance from a case of Balochistan High Court reported as Mehmood Khan v. Muhammad Ibrahim and another (2011 CLC 1606), wherein it is held as: "Similarly , the last contention of Mr. W.N. Kohli, learned counsel for the appellant, that the aim, behind institution of the eviction application, is to dispossess the appellant from the said shop and sale out the same on higher rate is also devoid of any force. 1 am inclined to hold the view that even if the respondent has expressed his desire to sell out the disputed shop that should not be permitted to come in his way in getting his tenant ejected, if he has succeeded, otherwise, in establishing his case on the ground of personal requirement."
10. Nonetheless, the learned Rent Cont roller as well as the appellate court below came to conclusion that the premises was needed by the landlady (respondent No. 1), for her personal bone-fide need after an exhaustive discussion with proper reasoning. As far as a contradictory paragraph in the rent application regarding personal need is concerned, the same may be overlooked when no cross-examination was conducted on her personal for her daughter . Besides, the respondent No. 1 has already overcome the said aspect of rent application in her affidavit in evidence and cross-examination by clearing that previously she entered into an agreement for sale but the purchaser subsequently backed out and now she has no intention to sell the premises. It is also worth noting that the rent application is not equating to the plaint of a civil suit and the provisions of C.P.C. in respect of plaint are not applicable to the same. Since, the applicant has established her personal need regarding the demised premises; therefore, on this point the findings of two courts D below is not required any interference.
11. Now come to the second aspect of the petitioner's case. It is the contention of the petitioner that he is not a defaulter in payment of rent. It is the submission of the learned counsel for the petitioner that the defaulted period of rent is not mentioned in her rent application; therefore, question of default does not arise. It is the admitted position that the petitioner used to pay rent through cheques, which were deposited by the respondent No. 1 in her bank accounts. The statements of the bank account are annexed by the respondent No. 1, as such the default of petitioner is established in the light of statements of bank produced before the learned Rent Controller. During the course of arguments, Mr. Iftikhar Javed Qazi has taken plea that the bank's statements are not admissible as the same do not bear the signature of concerned bank officials and seals of banks. According to him, under the provisions of Qanun-e-Shahadat, computer- generated documents / statements are not acceptable unless the same bear seal of the issuing office/department. However, no specific question regarding this aspect was asked to the attorney of the respondent No. 1 by the petitioner when she entered into the witness box, while she was cross-examined at length. As far as inadmissibility of such statements under the provision of Qanun-e-Shahadat is concerned, the learned counsel for the petitioner did not point out the relevant Article of Qanun-e-Shahadat but it appears that the learned counsel for the petitioner is referring Article 87 of Qanun-e-Shahadat regarding certified copies of public record. It is worth mentioning that a bank's statement is required to be admissible as certified copy under Section 8 of Banker's Books Evidence Act, 1891 and not under the provisions of Qanun-e-Shahadat, according to which F such a certified copy does not require a seal of the bank. Besides, bank statement of a person's account is not a public record but as per provision under Article 86 of Qanun- e-Shahadat, the said document is a private document. Besides, one cheque given by the petitioner to respondent No. 1 was amounting to Rs. 10,000/ - instead of 20,000/ which alone is sufficient to come to conclusion that there is some default. By producing her bank's account statements, the respondent No. 1 has established that there is a considerable default of about 8 months; therefore, the findings of the two forums below regarding default in monthly rent appear to be proper.
12. The learned counsel for the petitioner also bashes the impugned judgments by arguing that the petitioner is deprived of his right to fair trial. According to him, the learned Rent Controller did not allow him to produce his evidence as his side was closed abruptly. In this respect, it is noteworthy that after service the petitioner appeared before the tribunal and filed his written statement. He also cross-examined the attorney of respondent No. 1 at length but thereafter he remained strayed from the proceedings without any cogent reason. However, the learned Rent Controller allowed an application of the petitioner and his side was reopened but the petitioner again wandered off, as such, there was no other alternate for the learned Rent Controller and she has rightly passed an adverse order against him.
13. The upshot of the above discussion is that the concurrent findings of the learned Rent Controller as well as learned Additional District Judge do not require any interference by this Court under constitutional jurisdiction. Resultantly, the instant petition is dismissed.