Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. S – 3426 of 2014

Before :

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing : 09.11.2018.

Date of judgment : 13.11.2018.

Mr. Shafqat Rahim Rajput, Advocate for the petitioner.

Mr. Sarfraz A. Akhund, Advocate for respondent No.1.

Mr. Zulfiqar Ali Naich, Assistant Advocate General Sindh.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. – This petition was filed by the tenant / petitioner against the conflicting findings of two Courts below. In the first round, the case was remanded by this Court to the Rent Controller. New Rent Application number was assigned as 35 of 2010. The Rent Controller dismissed the application on the strength of the evidence came on record whereafter the appellate Court allowed the appeal of the landlord. The petitioner has filed this petition that the appellate Court ignored the evidence that came on record and that the provisions of Order XLI Rule 31, CPC, have not been complied as the points for determination have not been framed.

2. Learned counsel for the petitioner submits that the impugned judgment is without reasoning and without determination of points. He has relied upon cases of Messrs Suhail Printing Press v. Syed Aley Eba Zaidi reported in 2005 SCMR 882, Saif Ullah v. Waqar-ul-Haq and 2 others reported in 2012 CLC 899, Moar through Legal Heir v. Member Board of Revenue, Sindh Hyderabad and others reported in 2012 CLC 912 and Syed Ayoob Ali Shah v. Mst. Rabia Begum reported in 2013 CLC 419.

3. Whereas, the respondent’s counsel on the other hand submits that to the contrary, the trial Court’s / Rent Controller’s judgment is totally devoid of reasoning and the appellate Court appreciated the evidence though he concedes that one of the para, that was typed, was not related to the judgment.

4. I have heard the learned counsel and perused the material available on record.

5. This case has already consumed enough time as it was once remanded by this Court for re-examination. The respondent had filed a rent case for personal bona fide need. The Rent Application is available at page 15, and in para 5 of the application, the applicant has stated that he has purchased the demised shop only to start his own independent business and as such he requires the same in good faith for his personal bona fide use to run the business of toys in the demised shop and he has no other shop. This plea was supported by his affidavit-in-evidence and in paras 6 and 7 of the affidavit-in-evidence, he reiterated his stance that he wants to start his own independent business and that the shop is required for personal bona fide need. Much emphasis was laid down by the petitioner’s counsel on the evidence as the applicant was shown photograph where he claimed to have been sitting in his father’s shop being run under the name and style of Shoaib and Brothers. The relevant cross-examination of the petitioner is as under:

“ ………… It is correct to say that there is no shop of opponent Shamim Ahmed at Frere Road, Sukkur. It is correct to say that Photographs filed with written statement shown to me today are mine. It is correct to say that Photograph (sic) were taken at Shoaib Khilona Shop. It is incorrect to say that receipts attached with written statement, shown to me belongs to my shop. It is incorrect to say that receipts were signed by me. It is incorrect to say that in the Photographs I am putting my signature on the receipt but I am playing with pen over some papers. It is incorrect to say that I am cutting the receipt from the book in the Photographs. It is incorrect to say that I am deposing falsely before this Court. ………… it is incorrect to say that in the year 2004 I was sitting with my father in the shop. ………… I don’t know that in my presence opponent Shamim Ahmed approached to my father for purchasing the shop. I don’t know that my father first time demanded Rs.10 Lacs and again Rs.12 Lacs and later on Rs.15 Lacs. We are 4 brothers. ………… it is incorrect to say that I am running the business with the name and style of SHOAIB & BROTHERS, at Madni Street Nishtar Road, Sukkur. It is incorrect to say that I am residing in Madni Street. I don’t know that my father had other properties at Sukkur. ”

6. The entire cross-examination as read out by the petitioner’s counsel does not show that the respondent was running his own business in his own/independent shop; merely a photograph wherein he claimed have been sitting in his father’s shop and issuing a receipt does not establish that he is running his own/independent shop. No question was suggested that it was his own/independent shop. In fact, on the contrary the cumulative effect of evidence was that it was his father’s shop wherein he was sitting.

7. Similarly, insofar as the points for determination are concerned, no doubt it is the requirement of Order XLI Rule 31, CPC, that the appellate Court may frame points for determination, however, if substantial questions as raised, have been answered accordingly in the judgment of the appellate Court, then it would not be justified to remand the case back to the appellate Court for framing the points for determination when such points have already been answered in the judgment.

8. I have perused the judgment of the trial Court as well as the appellate Court. The trial Court has given its reasoning on the strength of photograph which was shown to the witness / respondent, which in my view is no evidence to discharge the burden that it was the independently owned shop of the respondent wherein he was conducting his own business and, hence, the findings reached by Rent Controller, were erroneous and misconceived.

9. Similarly, the case laws relied upon the trial Court are also not relevant as one of those case law was based upon mere promise of the tenant which, of course, would be immaterial and the other too to uproot old tenant. When the case of personal requirement is otherwise established, then it is immaterial if a tenant is an old tenant or a new assignment. In fact, nothing was discussed by the Rent Controller which could be termed as reasoning.

10. To the contrary, the appellate Court in page 7 of the judgment discussed about the evidence of the parties and burden to be discharged by the tenant. The appellate Court also discussed that the photograph of the respondent is not sufficient to prove that the landlord is running the shop independently as its owner. His father may have owned several properties but the respondent, being owner of a shop, has his own independent right to evict his own tenant for his personal bona fide need, and this burden has been satisfactorily discharged by landlord and not discharged by the tenant to shatter the case of personal requirement. No doubt, at page 3 and at page 9 of the judgment of the appellate Court, one of the witness Abdul Qadir has wrongly been mentioned and so also a case law of “2020” SCMR 1925, but this could be a typing mistake of the trial Court / Rent Controller, and for this, the litigant parties should not be penalized when otherwise the case of personal requirement or in any other case for tenant is made out through evidence.

11. There is enough evidence available on record for deciding the controversy involved in the case, and as such I don’t feel it necessary to remand the case back to the appellate Court to re-decide the matter thereby burdening the parties once more.

12. Consequently, the petition is dismissed along with the pending application(s), if any.

J U D G E

Abdul Basit