Hafiz SHAFATULLAH Versus Mst. SHAMIM JAHAN and another

The petitioners claiming themselves to be the successor in interest of late Hafiz Shafatullah have preferred this Constitutional petition to question the legality of judgment dated 24-1-2002 passed by respondent No.2, whereby he allowed First Rent Appeal No.105 of 2001, set aside the judgment dated 13-5-1998 passed by First Rent Controller, Karachi Central, and allowed the Rent Application No.277 of 1993 filed by respondent No.1 with directions to the, petitioners to hand over the possession of rented shop to respondent No.1, within two months from the date of his order.

2. Succinctly, the relevant facts of the case are that on 6-4-1993 respondent No. 1 filed application under section 15 of the Sindh Rented Premises Ordinance, 1979, before the Court of First Rent Controller, Karachi Central, seeking ejectment of Hafiz Shafatullah, the predecessor in interest of the petitioners, from shop No.11 over Plot No.5-A-12/6, Shamim Market, Paposh Nagar, Nazimabad, Karachi, which he was occupying as tenant at the rate of Rs.300 per month. The only ground for ejectment urged in the application was that the said shop was required in good faith for the personal use of Syed Zaigham Hussain, son of respondent No.1/landlady, who was jobless and wanted to start his own business in the said shop. It was also stated in the rent application that in the same market shop No.4 was lying vacant but it was not suitable for the business of applicant's son as it was situated on the back side of the market and the respondent No.1 was ready and willing to let out this shop to the predecessor in interest of the petitioners/tenant.

3. The predecessor in interest of the petitioners/tenant in his written statement did not dispute the relationship of landlord and tenant between the parties in respect of rented shop but asserted that the possession of rented shop was obtained, by him on payment of goodwill, of which 25 per cent share was taken by the landlady and that the ground of personal need was fabricated to harass him as sons of landlady were already doing business in two big shops opposite to rented shop. He also made reference to a dispute with the sons of the landlady which resulted in lodging of non-cognizable report by him at Police Station Nazimabad on 19-3-1993.

4. On the above pleadings of the parties the respondent No.1 examined her son and attorney Syed Mushtaq Hussain and also her other son Syed Zaigham Hussain for whom the rented shop was required for his personal use. Both these witnesses were cross-examined by the other side counsel. From the of opponent/tenant, the tenant Hafiz Shafatullah examined himself, whereafter he was cross-examined by other side counsel.

5. The learned Rent Controller, while passing his order dated 13-5-1998, farmed following points for determination in the case:--

(1) Whether the applicant requires the demise premises in good faith for her bona fide personal use and use of her son?

(2) What should the order be?

6. Recording its findings on point No.1 in negative Rent Controller dismissed the Rent Application of respondent No. 1. Such order was challenged by respondent No.1 before this Court vide F.R.A. No.492 of 1998. However, due to change in the forum of appeal by virtue of amendment in the provisions of Sindh Rented Premises Ordinance, 1979, this appeal was transferred to the District Court where it was assigned new number as F.R.A. No.105 of 2001. This appeal was heard by the learned IIIrd Additional District Judge, Karachi Central, (Respondent No.2) who by his impugned judgment reversed findings of the Rent Controller and ordered ejectment of the petitioners from the rented shop.

7. Mr. I.A. Hashmi learned counsel for the petitioner vehemently contended that the petitioners and before that their father Hafiz Shafatullah had been occupying the rented shop for over 24 years on payment of good will and it was only due to business rivalry between them and the sons of respondent No.1 that ejectment application was filed by respondent No.1 with mala fide intention. Referring to shop No.4, lying vacant in the same building, he contended that if Syed Saigham Hussain, the son of landlady is desirous to start his own business then he could have occupied the said shop. He further made reference to the cross-examination of Syed Mushtaq Hussain where he had admitted that respondent No.1 got possession of one shop from one tenant Mohammad Farooq and re-let the same, and urged that it reflects the mala fide of respondent No.1 to upset the petitioners established business. Learned counsel, however, did not dispute that the disputed rented shop is much suitable for business purpose being facing main road while the other vacant shop was/is situated on the back side of the market with little value from business point of view. He also candidly did not dispute the prerogative of the landlady as to the choice and selection of the premises for her personal use or for the use of her children.

8. Conversely, Mr. S. Muhammad Usman, learned counsel for respondent No.1, contended that the impugned judgment passed by the Appellate Court (Respondent No.2) is, in consonance with the principles laid down by the Honourable Supreme Court of Pakistan for determining the entitlement of the landlord for seeking ejectment of the tenant from the rented premises on the ground of personal use. He made reference to the evidence adduced in this case by both the parties to show that not only the statements on oath of the two sons and attorney of respondent No.1 have remained consistent and un-shattered in cross-examination but even the tenant/predecessor in interest of the petitioners did not specifically dispute the genuineness of the claim of respondent No. 1/landlady about the requirement of her son Syed Zaigham Hussain. He specifically made reference to the following statement of the tenant in his cross-examination:--

"I do not know that Zaigham Hussain, the son of the applicant, is jobless during these days. I do not know that the shop in question is required to the applicant for business of her son namely Zaigham Hussain. It is correct to suggest that the applicant has offered me to provide alternate shop in the same building if I may vacate handover the possession of the shop in question to the applicant. I say that the shop which is provided by the applicant as alternative shop is situated away from the shop in question and whole row of shop is presently closed and is not suitable for the purpose of my business."

8-A. Mr. S. Muhammad Usman further contended that when other vacant shop inside the market is not suitable for the business of petitioners, how can they force the respondent No.1 to occupy or use that shop for the business of her son S. Zaigham Hussain, Moreso, when the prerogative of selection and choice is with the landlady. In respect of other shop which was vacated by tenant Mohammad Farooq and re-let by respondent No.1, he contended that it has nowhere come on record that when such shop was vacated or re-let therefore, this fact will not adversely effect the bona fide of the landlady. He also mentioned that the other shop was also located inside the market thus not suitable for the needs of Syed Zaigham Hussain, son of respondent No. 1.

9. To fortify the case of respondent No.1 on legal points, learned counsel placed reliance on the following cases.

(a) Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185.

(b) Malik Muhammad Ramzan v. M/s. General Iron Stores and another 1995 SCMR 1125.

(c) Messrs F.K. Irani & Co., v. Begum Feroz 1996 SCMR 1178.

(d) Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197.

10. I have carefully considered the arguments advanced by the learned counsel, perused the material placed on record and also gone through the cases cited at the bar. On reappraisal of evidence adduced by both the parties, it is evident that the case of respondent No.1/landlady as to the claim of personal bona fide need of the rented shop for her son Syed Zaigham Hussain has not only remained consistent to her pleadings but has also stood to the test of cross-examination. Mere fact that the landlady owned other shops or some shop had fallen vacant during the pendency of ejectment proceedings or other sons of the landlady were engaged m business of same nature, which was being carried on by the petitioners/tenants in the same locality, would not justify a conclusion that the ejectment proceedings initiated by the landlady were not bona fide. Syed Zaigham Hussain, the son of the landlady has himself appeared in the witness box and made a statement on oath about his need in respect of the rented shop. Nothing could be extracted from him in cross-examination to dislodge such claim. The payment of goodwill, allegedly made by the predecessor in interest of the petitioners is also not a relevant consideration to dislodge the claim of personal need of the landlady. The rule laid down by the Apex Court in the case of Sabu Mal (supra) about the prerogative and choice of the landlord and his discretion in this regard still holds the field and it has been affirmed and reaffirmed in number of cases. In the case of F.K. Irani and Co., (supra) it was held by the Honourable Supreme Court that the claim of landlord for establishing and running a business cannot be ruled out unless there is sufficient proof that it is not possible or practicable to run such business. The Court will be inclined to hold that requirement of landlord is bona fide and his statement on oath, if consistent to the application and not shaken in cross-examination or disproved in rebuttal would be sufficient to prove his bona fide. It was further held that suitability for opening a business in anyone of the premises available to the landlord entirely depends upon his discretion and mere fact that the landlord owned other premises would not disentitle him from filing ejectment case on the ground of personal need and to select the building of his choice for such purpose. (Also see 1995 SCMR 1125, 2001 SCMR 1197).

11. A bare reading of the impugned judgment passed by the Appellate Court goes to show that the Appellate Court has rightly set aside the order passed by the Rent Controller and answered the issue of personal need in favour of respondent No.1. Such findings of the Appellate Court are based on proper appreciation of evidence and do note suffer from any legal infirmity, rather the same are inconsonance with the view expressed by the Honourable Supreme Court of Pakistan in various cases, some of which have been referred above.

12. Besides, the scope of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in, rent cases has been discussed by this Court in many cases. It has been held by me in the case of M/s Mehraj (Pvt.) Ltd., v. Miss Laima Saeed and others (2003 MLD 1033) that by, conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance 1979 the legislator in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances interference by this Court in exercise of its Constitutional jurisdiction under Article 199, in the judicial order accused by the Tribunals, merely, on the ground that another view of the matter is also possible, would not serve any other purpose but would add to the misery of prolonged, litigation for the parties and would defeat the spirit, and object of the statute.

13. In view of the above discussion, in the present case, no case for interference in the impugned judgment is made out accordingly, this petition is liable to be dismissed.

14. Foregoing are the reasons for the short order dated 8-3-2004 whereby this petition was dismissed in limine alongwith listed applications.

H.B.T./S-35/K Petition dismissed.