SYED DEEDAR HUSSAIN SHAH, J.---Petitioner seeks leave to appeal against order dated 25-1-2002 passed by the High Court of Sindh, Karachi in Constitutional Petition No, D-74 of 2002.
2. Briefly stated the facts of the case are that the respondents tiled an ejectment application against the petitioner on the ground that the demised premises were required by them for personal use. The learned III-Rent Controller, Karachi-Central, vide order dated 30-8-1994, allowed the application and ordered eviction of the petitioner from the property in dispute, with direction to hand over vacant peaceful possession thereof to the respondents within sixty days. The petitioner/tenant assailed the aforesaid order through first rent appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) before the said High Court. After amendment in the Ordinance, the said F.R.A. Stood transferred to the District Judge, Karachi-Central, who, vide order dated 11-12-2001, dismissed the same upholding the order of eviction of the III-Rent Controller, Karachi-Central. Being left without further remedy and dissatisfied with the said order, the petitioner filed Constitutional Petition No,D-74 of 2000, which was dismissed in limine by a Division Bench of the High Court of Sindh. Vide impugned order dated 25-1-2002. Hence, this petition.
3. Learned counsel for the petitioner, inter alia, contended that the orders of the Courts below are based on misreading, non-reading of evidence; that from the evidence of respondent No,1 it could not be proved as to for whose personal use, the property in question was required; that the learned Judges of the High Court as also the First Appellate Court erred in not giving due consideration to the application under Order XLI, rule 27 read with section 21(3) of the Ordinance under which the statement of the landlord confirmed the letting out of the shops to the tenants and thereby acted illegally; and that the Courts below failed to consider the case in its proper perspective, inasmuch as nowhere in the ejectment application bona tide personal requirement of the landlord in good faith for business purpose was pleaded and the evidence adduced was not sufficient.
4. We have considered the arguments of the learned counsel for the petitioner and have also perused the material available on record. Admittedly, the ejectment application was filed by 9 respondents, who had acquired ownership of the demised premises after the death of their father Haji Ahsanuddin. In the ejectment application, it had been specifically stated that the property in question was required for personal bona tide use in good faith of Sharifuddin, Muhammad Jamal and Muhammad Moin. All the coowners/co-landlords for whose personal bona fide need the demised premises were required in good faith had filed their affidavits-in-evidence and stated that they intended to carry on business in the demised premises. The evidence of the respondents/landlords with regard to their bona fide personal requirement has not been shaken in cross-examination on behalf of the petitioner. The trial Court, the Appellate Court and the High Court have considered the evidence very carefully.
5. Next contention of the learned counsel for the petitioner is that an application under Order XLI, rule 27. C.P.C. Read with section 21(3) of the Ordinance, was filed before the Appellate Court for producing additional evidence, as according to him, the respondents recently took over the possession of six shops for their personal use, was not considered by the Appellate Court as well as the learned High Court.
6.. We have perused the record and found that no doubt, application mentioned hereinabove was filed on 16-10-2001 before the Appellate Court and notice to other side was issued by the Court on the same day. From the record it is not clear whether the aforesaid application was actually pressed by the petitioner before the Appellate Court. It further gets support from the memo. Of writ petition filed by the petitioner before the High Court in which no specific plea about application under Order XLI, rule 27, C.P.C. Was taken, therefore, High Court rightly did not consider that aspect of the case. At this belated stage, petitioner cannot be allowed to raise this plea before this Court.
Which was not seriously agitated by him before the Appellate Court as well as learned High Court.
7. We have considered the arguments of the learned counsel for the petitioner and have also perused the material available on record. The ejectment application was filed by the respondents to get the demised premises vacated for their personal bona tide need in good faith for which they produced sufficient evidence which was rightly believed by the trial Court and the findings of the trial Court were upheld by the Appellate Court. Such findings were not disturbed by the High Court while deciding the writ petition through the judgment impugned herein.
8. We also notice from the impugned judgment that the learned counsel who appeared before the High Court during the announcement of the order requested the High Court that six months' time may be granted for handing over peaceful and vacant possession of the premises to respondents/landlords, which request was granted by the High Court.
9. We do not find any misreading or non-reading of material evidence in the orders of the Courts below. The respondents/landlords have proved their bona tide need in good faith for the demised premises.
10. The impugned judgment of the High Court is founded on cogent and sound reasons and is based on the law laid down by the Court, it would be advantageous to refer here the relevant paragraphs of the impugned judgment, which reads as under:- "It was submitted by Miss Wajahat Niaz that respondent No, I was already in possession of two shops bearing Nos. 4 and 5 in the same market but she was unable to point out any evidence or material in support thereof respondent No,3 as well as all the three co-owners/co-landlords for whom the shop was required ,had vehemently denied to be in possession of any other shop. She further submitted that the shop in question was very small and not sufficient for three persons to carry on business therein. This contention is also without force as the size of the premises for carrying on the business is to be decided by the persons who intend to occupy the same for some business and it is not for the tenant to decide whether the size of the shop is sufficient for carrying on the business intended to be started by the co-owners/co-landlords. The learned Advocate for the petitioner has miserably failed to establish the argument that the orders of the two Courts below suffered from misreading, non-reading and misconstruing the evidence on record. The orders of the two Courts below are in accordance with the evidence and material on record and do not require to be interfered with Miss Wajahat Niaz had also stated that the petitioner had been carrying on business for the last about 30 years and requested that six months' time may be granted for handing over peaceful vacant possession to the respondents/co-landlords."
11. In our considered view, there is no legal infirmity in the impugned order, warranting any interference by this Court.
12. For the facts and reasons stated hereinabove, there is no merit in this petition, which is accordingly dismissed and leave to appeal declined.