1. Granted subject to all just exception.
2. Through this Constitutional petition, invoking Constitutional jurisdiction of this Court the petitioner has challenged the legality and propriety of the orders passed by respondents Nos.2 and 3 dated 15-4-2003 and 21-1-2003, respectively.
1. ' The brief facts leading to the filling of the present Constitutional petition are that petitioner, being landlord, filed Rent Application under section 15- of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) before the learned Rent Controller Malir at Karachi seeking directions to respondent No.1 for vacating Shop No.2, situated on Plot No.23, Qaidabad, Landhi, Karachi (hereinafter referred to as the said shop) occupied by him as a tenant on two grounds, firstly, that respondent No.
1. Being wilful defaulter, did not pay rent regularly since the inception of tenancy agreement uptill March, 2000 and used to pay the same after two or three months from time to time and, secondly, that the petitioner was in the personal bona fide need of the said shop and in respect has had been requesting respondent No.1 to vacate the same but though he promised to vacate the same in the month of May. 2000 in a Jirgah, convened by the petitioner, but has failed to do so.
2. Respondent No.1 filed his written-statement wherein he denied all the allegations levelled against him by the petitioner. He further stated that he used to pay the rent of the rented premises always on time for which the petitioner never issued any receipt and he had done so till the month of May 2000. He has also rebutted the statement of the petitioner with regard to the personal need and averred that the petitioner after getting the said shop vacated, intended to re-let the same on higher rent to some other person. Moreover, it was averred that the petitioner/landlord hadgot nearly eight shops on the ground floor of his building on plot No.23 as well as six others in the close vicinity and had rented out to various tenants out of them many were rented out to other tenants during last 10-12 months. It was further disclosed in the written-statement that respondent No.1, as usual tried to pay the rent for month of June, 2000 which he refused to receive and consequently the opponent had sent the same through Money Order No.519 dated 3-6-2000 which, too, was not received by the petitioner and respondent No.1 deposited the same in the Court in Misc. Rent Case No.81 of 2000.
3. ' In view of the above pleadings, learned Rent Controller framed the following issues:
(1) Whether the applicant required the shop in question for his personal bona fide use?
(2) Whether the Opponent has committed wilful default in the payment of rent for the month of April, 2000 and onward?
(3) What should the order be?
4. ' The learned Rent Controller decided both the issues against the petitioner/landlord holding that neither respondent No.1 committed any default nor the petitioner is in the personal bona fide need of the said shop.
5. ' The petitioner filed First Rent Appeal, which was also dismissed by the learned 1st Addl. Sessions Judge, Malir at Karachi holding that the learned Rent Controller had rightly dismissed the Rent Application of the Petitioner and since the impugned order did not require any interference from the Appellate Court, it was maintained.
6. ' The petitioner has now challenged the proporiety and legality of the order of the learned 1st Additional Sessions Judge, Malir at Karachi passed on 15-4-2003 and has prayed for its setting aside coupled with the prayer that the case may be remanded to respondent No.2 with the direction to record the evidence of respondent No. 1.
7. ' I have heard Mr. K. Wahab, learned counsel appearing on behalf of the petitioner. Ms. Zaibul Nisa for respondent No.1, and have also gone through the record and case-law, cited at the bar.
8. ' It has been contended by the learned counsel for the petitioner that both the learned lower Courts below have erred in law and jurisdiction dismissing the petitioner's application for opening his side to cross-examine respondent No. 1 /tenant holding that the application is barred by time. It has, further, been contended that the petitioner is not in possession of any commercial premises where he can stand his business. He has been disentitled for getting his own shop vacated onlyon the ground that a landlord seeking ejectment of his tenant from rented premises where he is in possession of other equally suitable shop in the same locality or had rented out a shop after institution of eviction case. It has, further, been contended by the learned counsel for the petitioner that the petitioner has not committed any default in payment of rent and has been depositing rent in Misc. Rent Case No.81 of 2000. It has, also, been contended that in absence of recording evidence in respect of availability of equally suitable shop for the landlord, the Ejectment Application cannot be rejected. He has relied upon the case of Abdul Majid v. Ibrahim (PLD 1979 Kar. 238) in support of his contentions.
9. ' On the other hand, learned counsel for respondent No.1 has contended that the respondent No.1 never committed any default in payment of rent and, according to him, he has regularly depositing the rent in Misc. Rent Case No.81 of 2001 upon refusal of acceptance of Money Order by the petitioner. It has, further, been contended by the learned counsel that the said shop is not required for the personal bona fide need for the petitioner.
10. ' I have considered the arguments, advanced on behalf of both the parties and have also perused the record.
11. ' Perusal of impugned order reveals that witnesses of the petitioner/landlord namely Aziz Bin Salam and Muhammad Yousuf though supported the version of the petitioner in respect of his personal bona fide need but they have admitted in their cross-examination that the petitioner had seven shops in the same market where the said shbp is situated and out of those seven shops four were lying vacant and during the pendency of the case he had rented out two shops to tenants.
12. Moreover, contents of the impugned order further reveals that no where in the Ejectment Application it is mentioned that what type of business the petitioner intended to start and on this issue his .Witnesses also remained silent. Furthermore, though respondent No.1 had brought on record that during the pendency of the present ejectment application had let out some shops to some other tenants and few were still lying vacant which evidence went unrebutted by the petitioner and no explanation was furnished by him. Likewise, respondent No.1, in support of his case, had also filed besides his own affidavits-in-evidence of Atiq Ahmed, Vakeeluddin but they were not cross-examined at all by the petitioner and therefore, his side was closed on 8-5-2001.
13. The petitioner filed application before the trial Court for permission to cross-examine the witnesses of respondent No.1 but the said application was dismissed vide order dated 17-11-2001 and since no appeal was filed against the above orders, they attained finality. In my view, allowing prayer for remand of the case will result second round of litigation which, apparently wouldnot affect the findings of the lower Courts below as they are based on well appreciation of evidence.
14. ' In these circumstances, I am of the considered view that the learned Appellate Court has rightly rejected the appeal of the petitioner filed against the order of the learned Rent Controller, Malir at Karachi dismissing the Ejectment Application of the petitioner since none of the grounds, urged on behalf of the petitioner was proved. Accordingly, in my view, the order of the Appellate Court i.e. 1st Additional District Judge Malir Karachi does not suffer from any infirmity, illegality or material irregularity, which is the basic requirement for deciding the matter by this Court under its Constitutional jurisdiction.
15. ' In view of what has been discussed above. I am not inclined to admit this Constitutional petition for Regular hearing, which is hereby dismissed in limine.
16. ' C.P. No.S-490 of 2003, stands disposed of.