1. The petitioner by this Constitutional Petition has challenged the concurring findings of two Courts below i,e, 1st Rent Controller, Sukkur who dismissed the Rent Application No,87 of 1999 vide order dated 25-8-2001 and the learned District Judge, Sukkur who also dismissed the Rent Appeal No,132 of 2002 vide order dated 17-4-2002.
2. The brief facts arising out of this petition are that the landlady hereinafter referred to as petitioner filed application under section 15 of the Sindh Rented Premises Ordinance, 1979 against the tenant hereinafter referred to as respondent stating therein that the petitioner is owner and landlady of property bearing CS No,3029 situated at Shahi Bazar Sukkur which was rented out to the respondent/tenant for 11 months at the monthly rent of Rs,4,000 (Rupees four thousand only) by the late husband of petitioner vide agreement, dated 1-3-1993 with the condition that the tenancy can be extended with the consent of the parties by executing fresh agreement. It was further stated in the Rent Application that at the time of execution of the agreement respondent/tenant deposited Rs,90,000 (Ninety thousand only) with the petitioner/landlady as advance, refundable at the time of expiry of the tenancy. It is the case of the petitioner that in February, 1994 after expiry of the tenancy period husband of the petitioner asked the respondent/tenant for fresh agreement and increase of the rent from Rs,4,000 to Rs,5,000 according to the market value but respondent/tenant did not agree for fresh agreement, but agreed: to enhance the rent from Rs,4,000 to Rs,4,400 per month, hence the tenancy continued on the same terms and conditions by mutual consent of the parties. After the death of the husband of petitioner respondent/tenant stopped the payment of the rent from 30-1-1997 and 16-9-1997. He sent the rent through money order and thereafter deposited the rent in the Court from October, 1997 at the rate of Rs,4,400 per month. It is also the case of the petitioner/landlady that in the month of October, 1997 she requested for the rent of last six months and increase of rent according to law at the rate of 10 per cent. after three years but the respondent/tenant filed Rent Application No,94 of 1997, dated 3-10- 1997. It was also alleged that the respondent/tenant illegally possessed the first floor which is not in the agreement and petitioner/landlay is widow and has no any source of income.
3. Respnondent/tenant has not executed any agreement after the death of husband of petitioner and she intends to open the shop for her son Shakil who is jobless as such shop is required for personal use, therefore, the petitioner filed Rent Application before the learned 1st Rent Controller, Sukkur with the following prayers:--
(1) That the opponent has committed fraud/default in paying the rent of six months from 31-1-1997 to 30-6-1997.
(2) That the premises is required for personal .use to open shop for her son.
(3) That the opponent time to time threatened the applicant.
(4) That the cost be borne by the opponent.
4. Upon service of notice issued to the respondent/tenant, he filed his written statement contending that the premises were rented out to the respondent/tenant by the husband of petitioner in the year 1986 by virtue of rent agreement dated 1-7-1986 on the rate of Rs,2,400 per month which was subsequently, increased from time to time. It was further averred in the written statement that at the time of execution of agreement of rent, husband of the petitioner received Rs,90,000 as security deposit. After the death of husband of petitioner she approached the respondent/tenant for enhancement of rent from Rs,4,000 to Rs,4,400 per month in March, 1996 which was increased on humanitarian grounds though the legal period for three years was not completed. Thereafter petitioner demanded further security amount of Rs,10,000 (Rs, ten thousand only) from respondent/tenant which he paid on 1-5-1997 in presence of witnesses Muhammad Nadeem and Roshan as such an amount of Rs,1,00,000 (Rupees one lac) as security deposit is lying with the petitioner/landlady. It is further case of the respondent/tenant that the petitioner with mala fide intention did not execute fresh agreement though the rent was increased. He has not committed any default and he is good pay-master and continuously paying the rent for the month of July, 1997 at the rate of Rs,4,400 per month in respect of the shop. It was also stated by the respondent/tenant that he tendered the rent for the month of July, 1997 as the rate of Rs,4,400 on 5-7-1997 and for August, 1997 but petitioner did not issue rent receipts for the said months with mala fide intention. Respondent/tenant approached the petitioner and requested her to issue receipt of last two months i,e, July and August, 1997 which she avoided and also refused to accept the current rent and again pressurized the respondent/tenant to increase the security deposit from Rs,1,00,000 to Rs,3,00,000 and demanded the enhancement of rent from Rs,4,400 to Rs,8,000 per month. Therefore, the respondent tenant served 41 legal notice dated 16-9-1997 by registered post A.D. through his counsel for issuance of valid rent receipts for the months of July and August, 1997 and to avoid harassm ent and illegal acts. Thereafter, the respondent/tenant sent the rent to the petitioner in advance for the month of September, 1997 through money order No,6833 dated 18-9- 1997 at the rate of Rs,4,400 but the petitioner with mala fide intention refused to receive the same.
5. So the respondent/tenant was compelled to file application under section 10(3) of the Sindh Rented Premises Ordinance, 1979 being Rent Application No,94 of 1997 for depositing the rent in Court, which was allowed by the learned 1st Rent Controller, Sukkur vide order dated 3-10-1997 and since then the respondent/tenant is regularly depositing the rent in the Court of 1st Rent Controller, Sukkur.
6. From the pleadings of the parties the learned 1st Rent Controller framed the following points for determination:--
(1) Whether the applicant required the shop in question for the personal bona fide use of her son Shakeel Ahmed?
(2) Whether the opponent has committed wilful default in payment of rent?
(3) What should the order be?
7. Respective parties have filed their affidavits-in-evidence and the learned Rent Controller after recording the cross-examination, dismissed the Rent application of the petitioner vide his order as mentioned above.
8. The petitioner assailed the order of the learned 1st Rent Controller, Sukkur before the learned District Judge, Sukkur by filing Rent Appeal No,132 of 2001. The learned District Judge has also dismissed the appeal and maintained the order of the trial Court. Hence the petitioner has challenged the impugned orders of both the Courts below before this Court.
9. I have heard Mr. A.M. Mobeen Khan the learned counsel for the petitioner and perused the record.
10. It has been contended by the learned counsel for the petitioner that the findings arrived by both the Courts below are contrary to law and facts on the record. It has further been contended by him that the impugned order is result of misreading and non-reading of the evidence brought on record and the learned lower Courts have failed to exercise jurisdiction vested in them and have acted in the exercise of their jurisdiction illegally and with material irregularity. It has also been contended that the learned Rent Controller, Sukkur has only narrated respective versions of the parties while answering the issues and the determination thereon is without any reasoning. It has also been argued that the findings of the Courts below on the point of default are erroneous and against the written reply. The learned counsel has also contended that son of the petitioner namely Shakil Ahmed who is only male member to look after his mother and sisters for whose use the tenement is required as he is jobless but the learned Rent Controller illegally did not believe the personal bona fide use of the son of the petitioner. The learned counsel for the petitioner has referred to the cases of 2002 SCMR 241, 1996 SCMR 336, 1996 SCMR 1178 and PLD 2000 Karachi 41 in support of his contentions.
11. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and examined thoroughly the material placed on record.
12. From perusal of file it is evident that the petitioner in her Rent Application has not made any prayer for ejectment of the respondent/tenant from the rented premises which is mandatory requirement for filing the rent application solely on the ground of personal bona fide use. Moreover, after the death of husband of the petitioner, she approached the respondent/tenant in the month of March, 1996 for enhancement of rent from Rs,4,000 to Rs,4,400 per month which was enhanced on humanitarian grounds though the legal period for increasing the rent was not completed.
13. Thereafter, the petitioner demanded further security amount of Rs,10,000 from the respondent which he also paid on 1-5-1997 which suggests that the demised premises was not required by the petitioner for personal bona fide need of her son because if she ought to have required the demised premises for personal bona fide use of her son she would not have demanded the enhancement of rent from Rs,4,000 to Rs,4,400 per month and further security amount of Rs,10,000.
14. Reliance is, therefore, referred to the case of Muhammad Aslam reported in 1987 CLC 686 that imposition of condition on landlord to satisfy Rent Controller about his bona fide requirement in respect of premises having been incorporated by Legislature to safeguard interest of tenant. In case of Mst. Shamim Akhtar reported in 1998. CLC 410 it was held that landlord had the option of seeking ejectment of his tenant for his personal use but personal use of landlord was clipped with words "good faith". In order to ascertain whether "good faith" was established on record, Court had to probe the record and find out whether honest intentions were available and spelled out from the record itself. part from honesty it was also to be ascertained that there was absence of malice and absence of designs to defraud or to seek an unconsciousable advantage. If honest belief was lacking and good faith of landlord was not established through record which was condition precedent to get order of ejectment as personal bona fide use. Rent Controller would rightly dismiss ejectment application of landlord. In the case in hand the petitioner/landlady has miserably failed to establish her personal bona fide use of demised premises against the respondent/tenant, therefore, both the Courts below i,e, learned 1st Rent Controller, Sukkur and the learned District Judge, Sukkur have rightly dismissed the rent application and rent appeal respectively. The case-law cited by the learned counsel for the petitioner is distinguishable with the present case.
15. For what I have discussed above, I see no substance in the present Constitutional petition for reversing/setting aside findings of both Courts below. Resultantly this petition is dismissed in limine.
16. Constitutional Petition No,S-750 of 2002 stands disposed of in the above terms.