' This petition is directed against the order, dated 15-9-2003 passed by learned Vth Additional District Judge, Hyderabad in F.R.A. No,375 of 2001. Under this order learned Appellate Court allowed the appeal filed by respondent No,3 with costs, set aside the order passed by learned Rent Controller in Rent Application No,72 of 2000 and directed the petitioners to vacate the premises within thirty days.
2. Precisely, facts of the case are that respondent No,3 is owner of Shop No,5 constructed on C.S. No,C/277 Chittal Chari, Khata Chowk, Hyderabad by virtue of sale-deed MF Roll No,76 of 6-4-1995.
As per contents of the rent application said shop was rented out to petitioner No,1, who sublet the same to petitioner No,2. The petitioner No,1 is also alleged to have committed default, in payment of rent and that the shop was required by landlord for personal bona fide use, as his grown up son Asif was to start Chappal business.
3. The petitioners filed written statement and denied the averments and the allegations levelled by the landlord. The respective parties led their evidence before the Rent Controller. On the basis of the pleadings learned Rent Controller formulated following points for determination.
(1) Whether opponent No,1 has sublet the demised shop to opponent No,2?
(2) Whether opponent defaulter in payment of rent?
(3) Whether demised shop is required to the applicant for his grown up son Asif to start Chappal business?
(4) What should the order be?
4. On appraisal of the evidence, learned Rent Controller found that none of the grounds for ejectment was proved. Accordingly the rent application was dismissed. However, in appeal, learned Appellate Court arrived at a controvertible conclusion and found that the plea of subletting, default and personal bona fide need were proved. Accordingly, the orders passed by learned Rent Controller were reversed and the appeal was accepted.
5. In pursuance of pre-admission notice, respondents have filed objections to the petition, which are taken on record. Copy of the same has been supplied to learned counsel for the petitioners. It has been urged by learned counsel for the parties that the matter be heard and decided at Katcha Peshi stage.
' Accordingly both the learned counsel were heard at length.
6. It was contended by learned counsel for the petitioners that the petitioner No,1 was in occupation of the premises since more than 20 years and regularly depositing the rent. Neither the premises were sublet, nor there was a default. It was submitted that initially the petitioner No,1 was inducted as tenant by previous owner Abdul Rasheed prior to the year 1982. Since the said previous owner refused to receive the rent, the petitioner filed Rent Application No,502 of 1982 and started depositing rent in the Court. After receipt of notice in respect of change of ownership the petitioners sent the rent for the months of April and May, 1996 through money order to the landlord viz. Respondent No,3 but since he refused to accept the rent so tendered, the petitioner No,1 filed Rent Application No,110 of 1996 and started depositing rent in the Court. The respondent No,3/landlord also filed an ejectment application in the year 1997 but the same was withdrawn with a prayer for permission to file a fresh application, which was allowed. However, the landlord remained silent for two years and moved a fresh application in the year 2000.
' It was next contended that the rent application was causelessly filed with malicious intention to cause harassm ent to the petitioners/ tenants and that the premises were not bona fidely needed for the personal use of respondent No,3. It was argued that no evidence was led to prove any of the grounds. The order passed by the Rent Controller was based on evidence while the order passed by the learned Appellate Court was against evidence. The same was without lawful authority, as such liable to be nullified and declared void.
7. Learned counsel for respondent No,3 controverted above arguments contending that the petition itself was motivated by malice, both the petitioners are real brothers and are in occupation of the premises by perpetually involving the landlord in a frivolous litigation. Learned counsel for respondent No,13 criticized the order passed by the Rent Controller contending that the same was based on surmises and conjectures. He argued that there was ample evidence to prove the grounds for ejectment and that the order passed by the Appellate Court was just and proper.
8. Arguments advanced at the Bar have been considered and the material placed on record is perused.
9. The ownership of the property is not disputed. In the first instance respondent No,3/landlord filed an ejectment application against four brothers, which included present petitioners. Written statement was filed by petitioner No,1 admitting himself to be the tenant in the premises. It seems that the respondent No,3 moved an application for withdrawal of rent application with a prayer for allowing him to file a fresh application. On the basis of no objection recorded by counsel for the petitioners/opponents, the said application was allowed, vide order dated 18-4-1998. Merely because the fresh application was filed in the year 2000 will create no bar. Even otherwise the landlord can always file an ejectment application, unless it was shown that the same was tainted with malice. Nothing specific has been brought on record to show that such action of the landlord was motivated. In the fresh application apart from the two grounds previously taken by the respondent No,3/landlord. He also pressed the ground of personal bona fide requirement stating that the premises was required for starting a business for his grownup son namely Asif. This plea was taken in para. No,7 of the Rent Application. Written objections only show an specific evasive denial by petitioner No,
1. However, in paras. Nos.7 and 13 of the affidavit-in-evidence, respondent No,3/landlord has reasserted his personal requirement and specifically averred that the shop is required for Chappal business for personal bona fide need of his son, further stating that he was running his business in a rented shop. In cross-examination respondent No,3/landord categorically denied the suggestion that the demised premises was not required for personal bona fide need of his son. However, there is no suggestion that the landlord was not running his business in a rented shop as asserted by him in his affidavit. It is settled proposition of law that the statement of the landlord on oath if found consistent with the averments made in the ejectment application in respect of personal bona fide requirement and could not be shaken nor satisfactorily contradicted had to be trusted with truth. There is plethora of case-law on the subject, however, the case titled Akhtar Qureshi v. Nisar Ahmed 2000 SCM R 1292 and Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCM R 1197 could conveniently be referred.
10. A contention was raised and the trend of cross-examination tends to show that since the respondent/landlord has in the past rented out certain other premises to other tenants, therefore, the personal requirement was neither genuine nor bona fide. A complete and pertinent answer to this contention has been provided in the recent verdict of the apex Court report in the case of Zarina Ayaz v. Khadim Ali Shah 2003 SCM R 1398. It will be advantageous to reproduce hereunder the relevant observation appearing in paragraph 7 of the report:- "7. The repeated verdicts of superior Courts in general and the Supreme Court in particular have almost become absolute on the point that even if a landlord has many premises in a vicinity, it is his own subjective approach, choice and decision as to which one in particular is desired to be occupied. No one else has a right to interpret the circumstances from his own point of view and by making allusions to different attending circumstances of the case."
11. Indeed the personal requirement of the respondent/landlord has been proved to be in good faith. Consequently, it could not be said that the respondent landlord was requiring the said shop mala fide, considering that no evidence has been brought in rebuttal. Reference can be made to Muhammad Aslam and others v. Haneef Abdullah and Brothers 2003 SCM R 1667.
12. It was strenuously argued that neither the subletting of the premises was proved nor the factum of default was established. Though having arrived at a definite conclusion that the ground of personal requirement was fully established, it was not necessary to make observations on the above points yet it appear: appropriate to dilate upon these issues with the sole object of unveiling and understanding the conduct of the petitioner. It is pleaded in the petition that petitioner No,1 is in occupation'of demised premises since the year 1979. It is further pleaded that the rate of monthly rent is Rs.100. It is admitted that since 1982- the petitioner is depositing the rent in Court. After change of ownership, the petitioner has admitted to have received a notice dated 2-4-1996 from the respondent. But the petitioner replied that he has already deposited the rent for April, to June, 1996 in Court in previously filed R.A. No,502 of 1982. However, subsequently, the petitioner filed another case R.A. No,110 of 1996 and started depositing the rent in Court in the fresh case. The petitioner is not in possession of any document to believe that the rate of rent was Rs.100 per month, though he was running a decoration shop in the said premises, which is in the name of petitioner No,2 Muhammad Akram. Obviously, this meager amount of monthly rent has been unilaterally fixed by the petitioner himself as a self-declared tenant which he is depositing with the Rent Controller. The amount of rent so deposited by the petitioner was never ever withdrawn by the respondent nor appropriated, which is a depressing reality. It is also horrified irony that the amount of rent viz. Rs.100 per month, so proclaimed by the petitioner/tenant according to his own wishes in the year 1979, has remained unaffected deposit passing of quarter century in spite of drastic devaluation of national currency and alarming rise in the cost of living and sky rocketing prices of commodities and utilities. This demonstrates terrible state of affairs. It could be observed without' fear of contradiction that the possession of the petitioner on the shop is without the consent of the owner. The deposit of rent of shop by the petitioner through the Rent Controller, of his own, would not ipso facto make him tenant of the shop in the change situation.
' In such circumstances, the possession without the consent of the owner could not be a source of his tenancy in the property. It is evidently clear that the owner of the shop was being consistently deprived of the legitimate right of possession and fruits of his property and the petitioner while occupying the shop without payment of rent to the owner was prolonging his possession through the delaying tactics.
' In the given circumstances, allowing the petitioner to retain the possession of the premises would tantamount to perpetuating injustice, which could neither be legal, nor just and equitable.
Needless to emphasise that the Constitutional jurisdiction cannot be exercised to protect the wrongdoers. The discretionary jurisdiction of this Court under Article 199 is meant to rectify the illegalities and to curb mischief in order to do justice. It is well-established principle that neither Constitutional jurisdiction could be allowed to be used as a cloak to perpetuate injustice nor could this Court be rendered as an instrument of oppression.
13. After examining the entire material placed on record and considering the contentions raised by learned counsel. I have arrived at an irresistible conclusion that the petition is manifestly devoid of merit, and liable to be dismissed. The same is accordingly dismissed.
14. The chequered history of the case would show that the petitioners are in possession of the property since the year 1980 as per their own showing. The modus operandi adopted by them had been to drag the landlord in frivolous litigation to retain the possession of the property in lieu of meager amount of rent viz. Rs.100 per month having. Never been paid to the respondent by using the judicial forums for their malicious purposes. It is high time for this Court to put curbs on such litigants who approach the Court with soiled hands. In the circumstances the cost of Rs.25,000 is imposed upon the petitioners, which shall be deposited in this Court within a period of fifteen days hereof.
' These are the reasons for the short order passed on 6-11-2003.