Judgment Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

Constitutional Petition No. S – 1591 of 2016

Constitutional Petition No. S – 1592 of 2016

Constitutional Petition No. S – 1593 of 2016

 

Petitioner in

C.P. No.S-1591/2016  :  Muhammad Hanif.

 

Petitioner in

C.P. No.S-1592/2016  :  Muhammad Ishtiaq.

 

Petitioner in

C.P. No.S-1593/2016  :  Khalid Hussain

                                   

       through Mr. Mehmood Habibullah Advocate.

 

Respondents in all petitions :

 

RespondentNo.1        :  II-Additional District Judge, Karachi Central.

 

Respondent No.2       :  II-Rent Controller, Karachi Central.

 

Respondent No.3       :  Syed Nazir Hussain Rizvi through his legal   

                                      heirs, through Mr. Zulfiqar Hyder Shah Advocate.                 

            Date of hearing          :  03.04.2019.

 

J U D G M E N T

 

NADEEM AKHTAR, J. – Through these Constitutional Petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have impugned identical orders dated 04.09.2015 passed by learned IInd Rent Controller Karachi Central / respondent No.2 in Rent Cases No. 143/2013, 144/2013 and 145/2013, whereby the said rent cases filed by respondent No.3 / landlord for eviction of the petitioners / tenants on the grounds of personal need and damage to rented premises were allowed ; and, identical judgments delivered on 19.09.2016 by learned IInd Additional District Judge Karachi Central / respondent No.1 in First Rent Appeals No. 83/2015, 84/2015 and 85/2015, whereby the said appeals filed by the petitioners against their eviction were dismissed. Since the facts and questions of law involved in these identical petitions are common, they were heard together and are being disposed of through this common judgment with the consent of learned counsel for the parties.

 

2.            Relevant facts of these cases are that the petitioners in C.P. Nos. S-1591/2016, S-1592/2016 and S-1593/2016 are the tenants of respondent No.3 in respect of Shop Nos. 4 and 5,  2 and 3, respectively, constructed on Plot No.10, B Road, Usmania Colony, Nazimabad, Karachi (‘demised premises’). It was the case of respondent No.3 that the demised premises were being used by the petitioners as workshops for denting and painting as well as for repairing engines of vehicles ; due to their said use, serious damage had been caused to the walls, pillars and beams of the demised premises due to which their value and utility had been materially impaired ; demised premises were required by respondent No.3 to accommodate and establish his son who was jobless ; and, he had no other place for this purpose. In the above background, the above rent cases were filed by respondent No.3 against the petitioners for their eviction from the demised premises on both the grounds of personal need and damage to the demised premises.

 

3.            The eviction applications were contested by the petitioners by filing their respective written statements wherein both the above grounds urged by respondent No.3 were denied. It was admitted by them that they were carrying on the business of workshop in the demised premises, but it was denied by them that the demised premises had been damaged due to their said business. It was alleged by them that respondent No.3 had demanded increase in rent and upon their refusal, the rent cases were filed against them. It was claimed by them that the respondent No.3’s son was already doing business of import and export and sale of new and second hand vehicles at Tariq Road Karachi, and as such the alleged need of respondent No.3 was not bonafide.

 

4.            In view of the divergent pleadings of the parties, the learned Rent Controller framed three points for determination viz. (1) Whether the demised shop is required by the applicant for his personal bonafide need ? (2) Whether the opponent has caused any damage to the property and impaired the material (!) as well as utility value (!) of the premises ? (3) What should the judgment     be ?. Respondent No.3 examined three witnesses, including his son who produced several documents in support of his case, whereafter they were cross-examined by the petitioners’ counsel. The petitioners examined themselves and they were also cross-examined by the respondent No.3’s counsel. After examining the material on record and hearing respective submissions of the parties, the eviction applications were allowed by the learned Rent Controller only on the ground of personal need by directing the petitioners to vacate the demised premises within 90 days. The appeals filed by the petitioners were dismissed by the learned appellate Court by maintaining the findings of the learned Rent Controller.

 

 

6.            I have heard learned counsel for the parties at considerable length and have also examined the material available on record with their assistance. Record shows that the averments made and the grounds urged by respondent No.3 in his eviction applications with regard to his personal need had throughout remained consistent and the same was further reiterated by his witnesses in their evidence, which could not be shaken in their cross-examination. On the contrary, there was a clear contradiction in the statements made on oath by the petitioners in their written statements and evidence, and certain important admissions were also made by them in their cross-examination. As noted above, it was claimed by them in their written statements that the respondent No.3’s son was already doing business of import and export and sale of new and second hand vehicles at Tariq Road Karachi. However, in their cross-examination it was stated by them that the son was running a gym behind his flat, and it was admitted by them that they had not produced any proof that the son was engaged in the business of import and export or sale and purchase of new and used cars at Tariq Road. It was further stated in their cross-examination by the petitioners that respondent No.3 was doing business at many other places including the business of marble, but it was admitted by them that they were unable to give the description or location of such other places.

 

7.            It was contended by learned counsel for the petitioners that both the learned Courts below have failed to appreciate that the alleged personal need of respondent No.3 was not bonafide. According to him, the respondent No.3’s son / witness had admitted in his cross-examination that he was doing business of car repairing / mechanic and that he was not jobless. It may be noted that the above witness was not confronted at all by the petitioners with the suggestions that the space where he was doing business / job was owned by him or his father / respondent No.3, or the same was sufficient for their needs, or demised premises were not required by him or his father / respondent No.3 for their personal use, or their personal need was not bonafide. It may also be noted that it was the case of respondent No.3 that his son had returned from France ; he was jobless ; he was an experienced mechanic and wanted to establish his own workshop ; and, he had no other place for such purpose. The above stance was reiterated by the son in his affidavits-in-evidence, and there was no contradiction in his cross-examination that could weaken, dislodge or shake the claim made in the eviction applications. The son was also not confronted by the petitioners with the suggestion that the claim that he wanted to establish his own workshop in the demised premises as he was an experienced mechanic, was malafide or false. In the absence of the above mentioned suggestions, the so-called admission by the son was inconsequential. In any case, the son had never admitted that he was doing his own business in his own premises which was sufficient for his needs.

 

8.            In addition to the above, it may be noted that if the son had admitted that he was doing the business of car repairing / mechanic, even then the personal need urged in the eviction applications could not be deemed as malafide. It was not stated by him that the said business was owned by him or he was doing the same at a place which is owned by him or his father / respondent No.3. An experienced mechanic, who was 46 years of age at the time of evidence, cannot be expected to sit idle in anticipation that he will start his own business once the premises owned by his father is vacated by the tenant and that too after litigation. Any prudent 46 years old man would certainly engage himself in some temporary or makeshift arrangement in order to earn livelihood for his family which shall not disentitle him from seeking possession of his own premises to start his own business therein.

 

9.            It is well-settled that if the statement made on oath by the landlord is consistent with the averments made by him in his ejectment application and neither his statement is shaken nor is anything brought in evidence to contradict his statement, it would be sufficient for the grant of his ejectment application ; all that the landlord has to show is that he required the demised premises of a particular tenant for his personal use and the choice was his as to the suitability of the demised premises which he required for his personal use, and that his need is reasonable and bonafide ; the landlord has the complete option to choose from any one of the several tenements occupied by the tenants in order to avail of the ground of personal need ; and, the landlord himself would determine in what way, subject to law, he wants to utilize his premises after eviction of the tenant. It is also well-settled that concurrent and well-reasoned findings of fact cannot be called in question in the constitutional jurisdiction of this Court unless there is any jurisdictional defect or misreading or non-reading of evidence. In my humble opinion, respondent No.3 had successfully discharged his burden in proving that his personal need was reasonable, genuine and bonafide, and the petitioners had failed in dislodging his claim or in proving him wrong ; and, there was no jurisdictional defect or misreading or non-reading of evidence by the learned Courts below. Therefore, the concurrent findings on this issue by both the learned Courts below do not require any interference by this Court.

 

10.          In view of the above discussion, all these petitions are dismissed. Petitioners are directed to vacate the demised premises and to hand over vacant and peaceful possession thereof to respondent No.3 within ninety (90) days. There will be no order as to costs.

 

 

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                                                                                                                   J U D G E