JAVED KHALIQUE vs MUHAMMAD IRFAN

' HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against judgment, dated 15- 3-2007 passed by learned Single Judge of the High Court of Sindh Bench at Sukkur, in Muhammad Irfan v. Javed Khalique C.P. No,S-389 of 2003 whereby the said constitutional petition was allowed, thereby, judgment, dated 31-3-2003 in Appeal No,24 of 2002 passed by learned District Judge, Sukkur, was set aside, hence this petition for leave to appeal.

2. Brief facts of the case are that the respondent/landlord filed an eviction application under section 15 of the Sindh Rented Premises Ordinance, 1979, against the petitioner/tenant on the grounds, (i) default in the payment of rent; and (ii) personal requirement of the respondent's wife, namely, Nigar Andaleeb, for running coaching/tuition centre for children. First Rent Controller, Sukkur, vide judgment, dated 18-11-2002 allowed eviction application of the respondent only on the ground of personal requirement. The petitioner preferred an Appeal No,24 of 2002 before the District Judge, Sukkur, who after hearing learned counsel for the parties allowed the said appeal, thereby reversed the finding of the 1st Rent Controller, Sukkur, and thereby dismissed the eviction application of the respondent. The respondent/landlord preferred C.P. No,S-389 of 2003 before the High Court of Sindh Bench at Sukkur, which constitutional petition was allowed vide impugned judgment, thereby an order of the District Judge, dated 31-3-2003 was set aside and respondent's eviction application was allowed on the grounds of personal need.

3. We have heard learned counsel for the petitioner and perused the record.

4. Learned counsel for the petitioner has submitted that learned Single Judge of the High Court has not appreciated the evidence on record in accordance with law and has erroneously and illegally reversed the finding of District Judge, appellate authority, in respect of the personal requirement of the respondent. He further submitted that the alleged personal need stated by the respondent is not based on good faith as the respondent himself was getting sufficient salary amount which was itself sufficient for the livelihood of his family, therefore, there was no need of his wife to open a tuition/coaching centre in the shop'premises. He further submitted that the respondent/landlord has suppressed the material facts from the Court which has adversely affected the plea of personal bona fide need of the respondent, therefore, the respondent/ landlord was not entitled to ejectment of ,'the petitioner. He also submitted that learned Single Judge could not in law reverse the finding arrived at by the Appellate Court.

5. We do not find substance and merit in the submission made by the learned counsel for the petitioner.

6. The learned Rent Controller under Issue Nol. Has appreciated the evidence of the parties and has rightly arrived at the finding in accordance with law that the respondent/landlord has proved personal requirement in good faith in respect of the shop in dispute in view of the need of respondent's wife for the purpose of opening tuition/coaching centre in the shop premises considering that respondent's wife has experience of teaching for long time as school teacher who left her service in 1984 before she got married with the respondent. No reliable material evidence was brought by the petitioner/tenant to controvert the evidence of the respondent/landlord on the point of personal bona fide need. The learned District Judge misconstrued the law laid down by this Court on the point of personal need of the landlord in good faith and so also misread the evidence on record produced by the parties consequently learned single Judge rightly and legally reversed the finding of District Judge in view of misreading of evidence and misconstruction of law laid down by this Court on the point involved in the appeal. Learned Single Judge has rightly held that it was sufficient for the landlord if he established his/her need to be based on good faith. In the instant case the evidence on record revealed that the landlord's wife had experience of teaching as she had remained school teacher for long time and for the purpose of opening coaching centre she genuinely required the shop premises. Learned Single Judge has also rightly held that mere fact that the respondent was employee in Grade-17 and had sufficient means of livelihood would not by itself disentitle the landlord to get back his premises in case he needed the same in good faith.

7. This Court has time and again held that for the purpose of obtaining the order of eviction on the ground of bona fide personal need the landlord has to prove his/her need to be genuine and further that he was not in occupation of similar properties at the time of filing of eviction proceeding suitable for his/her need, nor he/she got some other property vacated which was suitable for his need asked for. It is also the prerogative of the landlord/landlady to ask for personal use and unless any circumstances are brought out in evidence which indicate that his/her requirement is not based on bona fide grounds, normally landlord must be allowed benefit of use of his premises. Reliance may be placed upon unreported judgment, dated 2-1-2006 of this Court passed in Syed Abdul Haleem Agha and others v. Sikandar Khan C.P. No,2585 of 2005,

(i) S.M. Nooruddin and 9 others v. SAGA Printers 1998 SCM R 2119, (iii)Bashir Ahmed v. Muhammad Shafi 1989 SCM R 538 and (iv) Nooruddin and others v. Asghar Ali and others 1968 SCMR 1087. We have found from the evidence that landlord has not suppressed the material facts in the eviction application as well as in evidence which could disentitle him/her to the relief claimed. Mere fact that rent was enhanced from time to time would also not disentitle the landlord/ landlady from seeking eviction on personal need in view of the changed circumstances which fact in the instant case is substantiated by reliable evidence proving bona fide personal need. Reliance may be made upon Altaf Hussain v. Mst. Nuzhat-un-Nisa PLD 2000 SC 67.

8. In the instant case we find that on appraisal of evidence the Rent Controller as well as the learned Single Judge of the High Court rightly arrived at the finding that the respondent/landlord has proved his requirement in good faith as such these concurrent findings of two forums as to the fact of personal need require no interference in the constitutional jurisdiction of this Court considering that the same is based on proper appraisal of evidence on record and the law.

9. In view of above reasoning and the law, we find merit in this petition consequently leave to appeal is declined and the petition is dismissed. However, petitioner/tenant is granted six months time to vacate the premises subject to payment of monthly rent, and in case of default, he would be evicted without notice through execution proceedings.