MUHAMMAD AFZAL SOOMRO, J.--- This Constitutional petition has been filed against the order dated 15.12.1999 passed by learned 1st Rent Controller, Sukkur, whereby he allowed the Rent Application No. 11/1998 directing the petitioner to vacate the suit premises and hand over the same to the respondent within two months, and the order dated 20..2002 passed by the learned IIIrd Additional District Judge, Sukkur whereby he upheld the order of learned Trial Court while rejecting the First Rent Appeal No. 1 of 2000 of the petitioner.
2. The facts relating to the disposal of the present petition are that the respondent No. 1 filed Rent Application u/S. 15 of the Sindh Rented Premises Ordinance, 1979 mentioning therein that she is sole and exclusive owner/landlady of property bearing C.S. No. B- 1 262 situated at Nishtar Road, Sukkur which comprises of a shop on the ground floor and a house at its upper portion. It was further stated that the late father of petitioners Haji Abdul Razzak was the tenant of the respondent No. 1 in the demised shop of the aforesaid property at the rent of Rs.1173/- per month. The respondent No. 1 also alleged in her rent application that the tenant/opponent Haji Abdul Razzak paid the rent of the shop in question to the applicant/respondent No. 1 upto April,. 1997 at the same rent against discharge of valid receipts but thereafter, he failed to pay the rent from May, 1997 till filing of the rent application thus he committed wilful default in the payment of rent. It was further averred that the son of respondent Muhammad Masoom being adult is jobless and she wants to establish and settle her son in the said shop where he will start his independent business of wholesale, general merchandise as the demised premises are suitable for the said business. According to her the respondent had also other properties which is at present rented out to different tenants and the respondent's attorney being her son asked late Abdul Razzak to pay the arrears of rent and also vacate the shop as the same is required for the personal bona fide use of her son in good faith.
Thereafter the respondent filed ejectment application on the ground of personal bona fide use and default of petitioner in payment of rent.
3. The rent application was contested by late Abdul Razzak who filed his written statement wherein he denied all the allegations in toto and according to him he was regularly paying the rent to the son of respondent upto April, 1997 at the rate of Rs.1173/- per month and thereafter son of the respondent refused to accept the rent thus he remitted the rent to the respondent through money order on 25.6.1997, the said money order was also refused. The late Abdul Razzak also denied that the premises in question required for the personal bona fide need of the son of the respondent in good faith as no documentary evidence has been produced. It was also denied that the son of the respondent approached Abdul Razzak for delivery of the possession of the demised premises and when the respondent's son refused to accept rent as such he filed Misc. Rent Application No. 50/1997 and thereafter he is regularly depositing the rent. It was also stated by the petitioner that the son of respondent Muhammad Masoom is regular student of B.Sc., Part-I and he has no experience of business as such the demised premises is not required in good faith but in fact the son of respondent tried to settle the dispute with Abdul Razzak in private faisla where they demanded the enhanced rent of Rs.13000/- per month.
4. From the pleadings of the parties the learned Rent Controller framed the following issues:- "(1) Whether the opponent has committed wilful default in payment of rent?
(2) Whether the applicant required the suit premises in good faith and bona fide intention to settle the business of her son Muhammad. Masoom.
(3) What should the order be?"
The learned Trial Court recorded the evidence of respective parties and after hearing their Advocates, allowed the ejectment application only on the ground of personal use as the ground of default was not proved by the respondent against the petitioner.
5. The petitioner filed First Rent Appeal against the order of learned Trial Court, which was dismissed by the learned IIIrd Additional District Judge, Sukkur vide order dated 20.5.2002.
6. 1 have heard the learned counsel for the respective parties and perused the record.
7. It has been contended by the learned counsel for the petitioners that landlady in her power-of- attorney has not authorized her attorney to file eviction application against the petitioners on the plea of his (her attorney) need, as such the eviction application filed by the attorney on the plea of his personal need was not maintainable which fact has not been considered by two Courts below.
It has further been contended by him that respondent's attorney did not disclose in the eviction application that he was regular student of B.Sc. Studying in Islamia College, 'Sukkur and the petitioners with their efforts succeeded in acquiring the knowledge of studentship, thus the plea of personal need of attorney was mala fide. It has also been contended that the learned Appellate.
Court has wrongly observed that the petitioners have challenged the power-of-attorney as false and bogus but in fact the petitioners have simply challenged that there is no authorization for filing of the eviction application of the ground of attorney's personal needs, inasmuch as the case-law cited on behalf of the petitioners on the point of authorization has not been appreciated and considered which has resulted in erroneous decision. Learned counsel argued that the petitioners who are in occupation of the disputed shop for the last 35 years have earned good-will but the respondent who is interested in the enhancement of rent went to uproot the establishing business of the petitioner on the false grounds. He also argued that the learned Appellate Court in view of the legal ground urged in the application seeking amendment in the written statement which ought to have been allowed to narrow down the controversy regarding authorization in favour of the attorney of the respondent. This has also serious prejudiced the petitioner. He also added that the decision given by the two Courts below is not legal, proper, coupled with the fact and evidence on record led by the petitioners and the legal pleas raised by them has not been considered and appreciated which has also seriously prejudiced the petitioners. Learned counsel lastly argued that the demand of the respondent in view of the attending circumstances of the case is mala fide and that the respondent has not approached the Court with clean hands as the respondent has other properties which have rented out and the decision given by the two Courts below required- to be interfered with by this Court. The learned counsel for the petitioner has referred to the cases of Kest avlal Lallubhai Patel and others v. Lalbhai Trikumlal Mills Ltd. (AIR 1958 S.C. 512 (V. 45 C. 75), Haji Mitha Khan v. Mst. Nafees Begum and 2 others (1995 CLC 896), Ghulam A.I and 26 others v. Samail and 21 others (2002 CLC 1411) = (KLR 2002 Revenue (Lah.) 66), Abdul Rehman v. Mst. Khatoon and 2 others (1989 CLC 1979), Shahabuddin and others v. Mst. Mariam Bibi and others (1995 M LD 45), Muhammad Afsar Khan v. Khadim Hussain and 3 others (PLD 1978 SC (AJ&K) 143), Murid Hussain and others v. Muhammad Shanf through his L.R. (1996 CLC 161), Syed. Abdul Rasheed v. Mst.
Tajunnisa (1982 CLC 954), Muhammad Kashif Kamal Siddiqui v. Mirza Farooq Baig (1990 M LD 1009), A.H. Alvi v. Muhammad Tariq (PLJ, 2001 Kar. 152), Sher Afgan v. Shaikh Anjum lqbal (1997 M LD 98), Mst. Fatima Bai v. Shaikh Muhammad Zaki and 6 others (1990 CLC 1064), Noor Ahmed and another v. Khawaja Imran and another (1988 CLC 1041), Mst. Nawab Khatoon v. Saddardin (NLR 1990 C 653), Orient Pakistan (Pvt.) Ltd. v. Abdul Majid Karim (1992 M LD 58(1)), Muhammad Sajjad Hussain v.
Muhammad Anwar Hussain (1991 SCM R 703), Khawaja Muhammad Munawar v. Nisar Ahmed and 2 others (1985 CLC 1613) and unreported judgment passed in C.P. No. 196 of 2002 (Faizur-Rehman v.
Mst. Zarina and others) in support of his contentions.
8. As against the arguments of learned counsel for the petitioners, Mr. Abdul Naeem learned counsel appearing on behalf of respondent/landlady opposed the present petition. It has been contended by him that orders of both the Courts below are legal and in accordance with law. It has further been contended by him that the orders of two Courts below are based on tangible and convincing evidence adduced by the respondent No. 1 before the learned Trial Court and the same do not require interference by this Court under its Constitutional jurisdiction. It has also been contended that the statement of landlord on oath if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal was sufficient to prove that such requirement of landlord was bona fide. Learned counsel argued that personal requirement of respondent's attorney and son is genuine and the respondent No. 1 requires the shop in question for personal bona fide use of her son namely Muhammad Masoom where he will run wholesale general merchandise business. Learned counsel for the respondent No. 1 has referred to the cases of Saifullah v. Muhammad Bux and two others (2003 M LD 480), Syed Khursheed A.I Jaffery v.
Jamaluddin Siddiqui (1993 CLC 2511), Aamil Moin Farooqui v. Mst. Aasia Khalid and another (1997 M LD 3248), Qadir Bakhsh and 10 others v. Kh. Nizamuddin Khan and 4 others (2001 SCM R 1091) = (2001 PSCC (Pak) 1315), Mst. Saira Bai v. Syed Anisur-Rehman (1989 SCM R 1366), Haroon Nara etc. v.
Abdul Karim (PLJ '1998 Kar. 472), Pak Sanitary Engineering Co. v. Mst. Sughra Bai through L.Rs. (2000 M LD 261), Muhammad Bashir v. Sakhawat Hussain (1991 SCM R 846), Muhammad Shoaib Alam and others v. Muhammad lqbal (2000 SCM R 903) = (KLR 2000 SC (Pak) 192) and Ishratullah Siddiqui v.
A.I Bhoy (1996 SCM R 1833) in support of his contentions.
9. I have given my anxious consideration to the arguments of learned counsel for the respective parties, perused the record evaluated the evidence led by the respective parties and I am of the considered view that learned counsel for the petitioners have taken technicalities and the prime object of the. Court of law is to protect the interest of the parties and technicalities shall not be allowed to defeat the ends of justice. Moreover the learned counsel for the petitioners argued that the shop in question is not required in good faith by the respondent, and her demand is based in bad faith as the respondent has other premises, undisputedly it is right of the landlady to select any premises for her use or use of her son, the tenant is not supposed to give advise to her. The petitioners have also taken the plea that respondent want to enhance the fate of rent and on the refusal of petitioners the respondent had filed the ejectment application but it shall not be a valid ground to deny the prayer of respondent on personal bona fide use. However, it is fact that the petitioners and their late father Haji Abdul Razzak are running their business in the show in question since last 35 years as such it is in the fitness of the matter, meets the ends of justice to provide them sufficient time to vacate and hand over the vacant possession to the respondent, thus while dismissing this petition alongwith the listed application I direct the petitioners to vacate the shop in question and hand over its vacant possession to respondent within a period of one year so tha they may arrange the alternate place for their business. The petitioners are further directed to pay the monthly rent regularly. After prescribed period if the petitioners fail to vacate the shop in question he shall be ejected without any notice.
C.P. No. 623/2002 stands disposed of.