KAUSAR SULTANA HUSSAIN, J. The respondent No.3/landlord, Abdul Razzak through his son and duly constituted Attorney namely Imran had initiated ejectment proceedings against the petitioner/tenant Moosa Jumani on the ground of default in payment of monthly rent and requirement of the demised premises for personal bona fide use by filing the Rent Case No. 467 of 2016, under section 15 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as S.R.P.O 1979), who is in occupation of the demised premises viz; Shop No. 2, on the ground floor of the building constructed on plot located at Survey No. 67, Sheet No. NP-3, (old Survey No. A-21/60), Sarafa Bazar, Kamil Gali, Karachi (hereinafter referred as to "case property") at monthly rent of Rs..
1000/- per month. The learned XIth Pent Controller, Karachi South after hearing arguments of both the side on said application under section 15 of S.R.P.O. 1979 has allowed the said rent application with direction to the petitioner/tenant to vacate the case property and hand over the peaceful vacant possession to the respondent No. 3/landlord within 60 days after passing of that order.
2. The petitioner/tenant has assailed the said order dated 30.03.2019 passed by the learned Rent Controller on application under Section 15 of S.R.P.O, 1979 before learned District Judge, Karachi South through filing F.R.A No. 105 of 2019, who has transferred the said FRA to the learned VIIth Additional District Judge (MCAC), Karachi South for its disposal according to law. The learned VIIth Additional District Judge, Karachi South after hearing arguments of both the sides, vide order dated 21.08.2020 dismissed the said FRA and maintained the order dated 30.03.2019 passed by the learned trial Court under section 15 of S.R.P.O 1979 in Rent Case No. 467 of 2016.
3. Being dissatisfied with the impugned findings of the learned VIIth Additional District Judge (MCAC), Karachi South, the petitioner/tenant has approached this Court with the prayer to set aside the said impugned orders dated 21.08.2020 and 30.03.2019 respectively passed by both the courts below.
4. The respondent No.3/landlord after being served with the notice issued by this Court in this petition, has submitted his objections on 16.12.2020, whereby he has denied the contents of this petition.
5. Brief facts of the rent case No.467 of 2016 are that in the month of June 1996, the respondent No.3/landlord purchased the property bearing Survey No. 67, Sheet No. N.P-3, (old Survey No. A- 21/60) measuring 27 sq.yards situated in Napier Quarters, Sarafa Bazar, Kamil Gali, Karachi from one Iqbal Hussain Jewani son of Ghulam Hussain Jewani, through a sale deed, duly executed before the Sub-Registrar, T. Div. I (B), Karachi on 22.10.1996. There are 3 shops on the ground floor of the above mentioned building. The petitioner is tenant of shop No.2, situated in the center of said 3 shops and running therein the business of jewelry/gold ornaments. After purchase of the building in question, the respondent No.3/landlord in the month of October, 1996, verbally informed the petitioner/tenant about the purchase of property by him from the previous owner and requested him to increase the rent from 110/-00 P.M to Rs.1000/00 PM with instruction to pay the future rent to the respondent No.3/ landlord regularly on or before fifth of each month. The petitioner/tenant initially was not ready and willing to increase the rent, however on 05.11.1996 he paid the rent for the month of July to December, 1996 (6 months) at the rate of Rs. 610/00 PM then on 05.05.1997 he paid rent, at the same rate for the months of January to April, 1997. The petitioner/tenant thereafter failed and neglected to pay the rent, thus committed wilful default in paymeni of rent. On 15.10.1999 the respondent No.3/landlord served a legal notice to the petitioner/ tenant for paying the arrears of rent but the petitioner/tenant gave an evasive reply dated 20.10.1999. The respondent No.3/ landlord later on demanded rent from the petitioner/tenant on various occasions however, the petitioner/tenant refused and threatened to have contacts with armed criminal gangs. The respondent No.3 /landlord due to fear remains silent. Now an amount of Rs.1,38,470/00 being the arrears of rent with effect from May, 1997 to 31st March, 2016 (227 months) is out standing against the petitioner/tenant. The respondent No.3/landlord is also occupying and running jewelry/gold ornaments business in the shop No.1 adjacent to the petitioner's/tenant's shop, but the said shop No.1 is too small and the respondent No.3/landlord needs further space to extend his business and provide better facilities and comfort to his customers. The respondent No.3 needs shop No.2 in good faith for his personal use and occupation. In the above mentioned circumstances, the respondent No.3/landlord has filed this application.
6. I have heard the learned counsel for the parties at length and also have gone through the record with care and caution.
7. The learned counsel for petitioner has submitted first that impugned orders dated 21.08.2020 27.03.2019 respectively passed by learned trial court and the appellate court i.e. respondents Nos.1 and 2, on the face of it are against the oral and documentary evidence and record, as such are liable to be set aside; that the learned courts below failed to consider that the petitioner deposited the rent of the said shop in MRCS No. 156 of 1991 and 1422 of,1999 up to December, 2020 and the learned trial Court has also failed to consider that the respondent No.1 is not physically and mentality fit person to perform the business of gold ornaments, how his personal need is made out, when the shop No.1 is still in his possession which is locked over more than 12 years, while the shop No.3, which respondent No.1 has got vacated from his tenant is large in size consisting (2) shelter/corner shop situated on more attractive location for business of gold ornaments and available to the respondent. It is further submitted that expression "requires premises in good faith" in section 15(2) (VII) indicates that landlord has to establish his good faith by tangible evidences and not by only making simple statement that he needs premise for his own use, bona fide of landlord, if not established order of ejectment passed by trial court is liable to be set aside.
Reliance is placed 1985 CLC 1007; that it is settled law that landlord after getting one shop vacated for his personal use not to be allowed to disturb possession of another tenant on same ground, landlord having succeeded in obtaining possession of adjacent shop from tenant in another parallel proceeding, hence instant application for ejectment is not maintainable. Reliance is placed 1980 CLC 1082. He lastly prayed that the impugned orders dated 30.03.2019 and 21.08.2020, passed by the learned courts below are without jurisdiction, illegal hence are liable to be set aside.
8. On the contrary, the learned counsel for the respondent No.3/landlord has argued that the impugned orders dated 30.03.2019 and 21.08.2020 are legal and lawful as such the same do not suffer from any illegality or material irregularity and are based on the concurrent findings of the two Courts below. The learned counsel for the respondent No.3/landlord has further argued after going through the grounds urged in this petition, it appears that the petitioner has discussed the factual side of the case which is quite irrelevant. The learned counsel for the respondent/landlord submitted that the instant petition is not maintainable and deserves- to be dismissed as the petitioner has failed to establish mala fide on the part of landlord and totally failed to cause any dent in the requirement of personal need. In support of his contention he has relied upon the case law reported in 2016 MLD 358 (Sindh) (Re-Muhammad Yaseen v. Nizamuddin through L.Rs and 7 others); 2018 SCMR 1441 (Re-Muhammad Hayat v. Muhammad Miskeen (DECO) and others) and PLD 2015 SC 33 (Re-Muhamamd Amin Lasania v. Messrs Ilyas Marine and Associates and others).
9. After hearing arguments of both parties and also going through the record and proceedings available in the case file, I am of the view that the respondent/ landlord had agitated his case mainly on two propositions (i) default in the payment of rent and (ii) personal need of the demised shop. So far as default in payment is concerned, it has already been admitted by the petitioner during his cross-examination before the learned trial court that "I admit that, I have not paid the rent from May, 1997 to December, 1999. Further says that I have deposited the rent in Court". It had already come on record that the petitioner failed to produce any receipt of rent or any other proof depicting the deposit of rent for the disputed period from May, 1997 to December, 1999. The case law relied upon by the learned counsel for the petitioner on the point of default are not relevant to the facts of the present case.
10. As far as contention of respondent regarding requirement of shop No.2 for personal need is concerned, he averred that presently he is under taking business Jewelry in one shop, which cannot cater his business need being too small as such he required the demised shop to expand his business. Counter argument put forth by the petitioner is that out of three shops, shop No.3 is already got vacated by the respondent as such the same could suffice the need of respondent for expansion of his business, however this averment has little weight as the shop No.2, which is the subject matter of this case is situated between shop Nos. 1 and 3, therefore, the same cannot serve the purpose of extension or expansion of business. More so, during trial respondent was quite consistent with his assertion of personal need, which could not be rebutted on logical premise as averment of respondent regarding use of shop for personal need in good-faith could not be shaken during trial.
11. Instance taken by the petitioner of acquiring shop on pugree/goodwill also do not hold ground cause, such practice has no legal cover and validity. Similarly calling in question, the legality and veracity of the sale deed dated 30.06.1996 during instant rent case/eviction proceedings are not justified for which separate litigation is warranted by the party having locus standi to challenge the same.
12. In view of above discussion, there appears no illegality, irregularity or factual departure from the scope of the proceedings in the impugned orders by both the courts below as such the same requires no interference by this court. Accordingly, instant petition stands dismissed and the petitioner/tenant is required to hand over the physical possession of the demised shop viz; shop No.2, ground floor, plot survey No.67 Sheet No.N.P-3, (old Survey No.A-21/60) Sarafa Bazar, Karnil Gali, Karachi Sindh to respondent/landlord within four months from the date of this order subject to timely deposit of rent by the petitioner in the rent case failing thereto landlord can initiate execution proceeding before the learned trial Court, who may issue writ of possession against the tenant without any notice. Copy of this order be sent to the learned trial Court for compliance.