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Petitioner: ABDUL HUSSAIN TEHIRALLY through L. Rs, and others VS Respondent: ADDITIONAL DISTRICT JUDGMENT
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan Title:ABDUL HUSSAIN TEHIRALLY through L. Rs, and others vs ADDITIONAL DISTRICT
JUDGMENT
Reported As: 2016 CLC 1024 Result: Petition dismissed Judgment JUDGMENT IRFAN SAADAT KHAN, J.--- The instant petition has been filed with the following prayers:- (1) Send for the records and proceedings of the First Rent Appeal No,91 of 2010 from the Sixth Court of Additional District Judge Karachi (South). (11) Send for the records and proceedings of the Rent Case No,1087 of 2005 from the Court of Senior Civil Judge and Rent Controller Karachi (South). (III) Admit and allow the Petition by setting aside the Impugned Judgment dated 15th August, 2012 passed by Respondent No, 1 . (IV) To uphold the Judgment dated 23rd January 2010 passed by the learned Rent Controller (Respondent No,2). (V) Pass such other order /orders as may be deemed just and proper in the circumstances of the case. 2. Briefly stated the facts of the case are that the respondent No,3 claims himself to be the co- owner of shop No,G/4 on plot No,SB-6/38, Shahrah-e-Iraq, Saddar, Karachi (hereinafter referred as "shop"). The petitioners claim that they are old tenants of the said shop which was given on rent to the petitioners by the late father of the respondent No,3, in 1967 on pugri basis by virtue of a Rent Note dated 02.02.1967. That the rent of the shop was fixed at Rs,100/- per month, which according to the petitioners was always promptly paid. The father of the respondent No,3 expired in the year 1994 and thereafter the respondent No,3, along with other legal heirs, stepped into the shoes of his late father Hakeem Moazzamuddin Baqai. That it is averred that the petitioners after obtaining said shop, which was in a dilapidated condition, made a huge investment on its outer and inner look. It
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is averred that the petitioners are carrying on jewellery business on the said shop, which has to be decorated properly to attract the customers comprising of mainly ladies. It is stated that the petitioners are carrying on the business under the name and style "Tahir Ali Yousuf Ali Sharoff". It is averred that some dispute arose between the petitioners and the late father of the respondent No,3 and thereafter the petitioners started depositing rent in MRC No,3036/1968, MRC No,1573/1972 and after change in procedure in MRC No,2910/2000 in favour of Azamuddin Baqai and four other legal heirs of late Hakeem Moazzamuddin Baqai before the Rent Controller under Court's ledger No,464/2000. That the late father of the respondent No,3 required from the petitioners to vacate the said shop on the ground of personal requirement. However when the petitioners refused to vacate the same thereafter the late father of the respondent filed a Rent Case No,3875/1967. The said matter went upto the Hon'ble Apex Court who remanded the case back to the High Court to ascertain certain facts. However due to change in law matter went to the District Court. However when nobody appeared in that matter the same was dismissed on account of non-prosecution. 3. Thereafter the respondent approached the petitioners and asked them to vacate the shop as he wanted to open a UNANI MATAB over there as he is a registered Hakeem. However when the petitioners refused to vacate the same he filed an application under Section 15 of the Sindh Rented Premises Ordinance, 1979 (SRPO) in Rent Case No,1087/2005. The matter proceeded before the Rent Controller (RC) who after finding no merit in the said application dismissed the same vide order dated 23.01.2010. Being aggrieved with the said order an appeal was preferred befcre the VIth Additional District Judge, Karachi South, in FRA No,91/2010, who vide order dated 15.08.2012 allowed the same and set aside the order passed by the RC. It is against this order that the present petition has been filed. 4. Mr. Ghulam Abbas Pishori Advocate has appeared on behalf of the petitioners and submitted that the order passed by the appellate authority is not in accordance with law as the learned Judge, while passing the order has not considered the various facts going to the roots of the case. Learned counsel then read out the trial Court's order, order passed by the appellate Court and the evidences recorded and thereafter submitted that the respondent No,3 has miserably failed to establish his personal bona fide need as according to him the respondent No,3 is bent upon to get the said shop vacated from the petitioners by hook or by crook. He states that the petitioners are carrying on jewellery business and the whole area is surrounded by jewellery shops hence the opening of a UNANI MATAB and DAWAKHANA in a business place surrounded by jewellery shops does not appeal to a prudent mind. He further submitted that since the petitioners are doing the business from 1967 and they enjoy a very good market position as well as reputation and if they are displaced from the shop, which they have established during the last almost 48 years, members of four families would suffer. He further submitted that the mala fide of the respondent No,3 is obvious from the fact that he already possess an established clinic in Behar Muslim Cooperative Housing Society and is successfully operating his MATAB/ DAWAKHANA from there, hence the demand of the respondent No,3 from the petitioners to vacate the shop is nothing but an act which is mala fide as well not based on good faith. Learned counsel submits that if the statement and the admission made by the respondent No,3 in cross examination are examined it would become evident that the respondent No,3 has no intention to open a DAWAKHANA but wants to sell out the shop at a high price, after getting it vacated. Learned counsel submits that the respondent No,3 is in the habit of filing rent cases as there are two other cases in which the respondent No,3 is a party which are pending adjudication before this Court. Learned counsel further submitted that while passing the order the learned Judge has totally ignored to consider the cross examination of the respondent No,3 and the other witnesses and in a slipshod manner has passed the order. Learned counsel further submitted that it is incumbent upon the landlord to prove his personal bona fide need with
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the element of good faith. He submits that since in the instant case the element of good faith is missing hence the instant petition may be allowed. In support of his above contentions the learned counsel has placed reliance upon the following decisions: 1. Mehboob Jewellers and others v. Nur Ahmad (1989 SCMR 1327) 2. Allies Book Corporation through L.Rs, v. Sultan Ahmad and others (2006 SCMR 152) 3. Mst. Kulsoom v. Abdul Rasheed (1995 CLC 230) 4. Mst. Shamim Akhtar v. Zakaria Yousuf and others (1998 CLC 410) 5. Razia Sultana v. Water and Power Development Authority (1993 MLD 477) 6. Haji Ibrahim and others v. Habib Bank Ltd. And others (PLD 2008 Karachi 361) 5. Mr. Asim Iqbal Advocate has appeared on behalf of the respondent No,3 and submitted that firstly this Court has no jurisdiction to entertain such type of matters in a constitutional petition and has placed reliance upon the following judgments: 1. Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246) 2. Saifullah v. Muhammad Bux (2003 MLD 480) 3. M/s. Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others (2003 MLD 1033) 4. Hafiz Shafatullah v. Mst. Shamim Jahan and another (PLD 2004 Kar. 502) 5. Azim Khan v. Muhammad Hussain (2003 CLC 278) ' He further submitted that since the point raised in the instant petition requires detailed examination of the factual aspects, which could not be done in a constitutional petition hence on this petition is liable to be dismissed and in support of his this contention, he placed reliance on the following decisions: 1. Secretary to the Government of the Punjab, Forest Department, Punjab Lahore v. Ghulam Nabi (PLD 2001 SC 415) 2. Shamauddin v. IVth Additional District and Sessions Judge (East) Karachi (2010 CLC 337) 3. Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 46) 4. Pakistan Tobacco Company Limited, Karachi v. Director of Octroi, Karachi (2007 YLR 2982) ' Learned counsel further submitted that since the respondent No,3 has raised a point of jurisdiction hence, before dilating upon other issues the instant petition is liable to be dismissed in limine on jurisdictional issue and in support of his contention has placed reliance on the following decisions: 1. Khurshid Ali v. Abdul Malik (1991 SCMR 1944) 2. Javed Hussain Shah v. Government of Punjab (1998 SCMR 220) 3. Asadullah Rashid v. Muhammad Muneer (1998 SCMR 2129) 4 Messrs Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd. 2003 CLC 416) 5. Muhammad Afzal Khan v. Ali Akbar (2005 CLC 988) ' In the alternative the learned counsel submitted that the respondent No,3 is a legal heir of late Hakeem Moazzamuddin Baqai, who died on 25.12.1994 and after the death of said person the assets belonging to the late father of the respondent No,3 have devolved upon him. He further submitted that the petitioners could not deny the relationship of landlord and tenant between him and the petitioners hence when a tenant does not deny the relationship of landlord and tenant, he could not turn around and say that he is not liable to pay rent to the said landlord, however, if he makes a such type of assertion he is liable to be ejected from the shop on the ground of default in payment of rent. He submitted that no doubt Rent Case bearing No,3875/1976 was filed for eviction of the petitioners by the late father of the respondent No,3 from the said shop on the ground of default in payment of rent and personal bona fide need of the eldest son of the late father of the respondent No,3, who is his elder brother, which case was dismissed on 29.10.1984 on the ground that the respondent's elder brother, namely, Muhammad Aslam Baqai was not a qualified Hakeem. Against the said dismissal FRA bearing No,1128/1984 was filed before this Court which too was dismissed on 27.11.1988 against which Civil Appeal No,292-K/1990 was filed before the Hon'ble
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Supreme Court of Pakistan and the Hon'ble Apex Court vide judgment dated 20.01.1991 remanded the matter to the High Court to decide certain points. However, due to change in law, as per Section 21-A of the SRPO, the said appeal was transferred to the VIth Additional District Judge for disposal by assigning it a new FRA No,1094/2001, however, when nobody appeared in that matter the said appeal was dismissed on account of non-prosecution on 06.03.2003. According to the learned counsel there is no relevancy of the previous case with the present case since the facts obtaining in the present matter are totally new and requires separate consideration. He submits that it is always the prerogative of the landlord to choose amongst various places the place which suits him best and there are plethora of judgments of the High Court as well as Hon'ble Supreme Court on this issue. He submitted that the respondent No,3 is a qualified Hakeem and is registered with the National Council for Tib. He submitted that it is an admitted position that there are a number of Hakeems who are operating their DAWAKHANAS in Saddar hence the assertion of the petitioners that the said shop is not suitable for the respondent No,3 for opening a DAWAKHANA is firstly misplaced and secondly it is not the concern of the petitioners to advice the respondent No,3 as to which place suits him best for opening a DAWAKHANA. He submits that the said shop is required for personal bona fide need as well as in good faith hence the petitioners may be directed to vacate the same. In support of his above contentions the learned counsel placed reliance on the following decisions: 1. Abdul Ghani v. Abrar Hussain (1999 SCMR 348) 2. Sara Bai v. Godhra Muslim (PLD 1993 Karachi 496) 3. M. Altaf Hussain v. Peshawar Motors Limited (1990 MLD 337) 4. Parvaiz Akhtar v. Muhammad Ahsan (PLD 1988 SC 734), 5. Bata Pakistan Limited through Company Secretary and General Attorney v. Muhammad Anwar (PLD 2007 Lahore 588). ' Learned counsel further submitted that there is no provision of pugri in SRPO, hence this issue raised by the learned counsel for the petitioners is also misplaced and in support of his contention the learned counsel has placed reliance on the following decisions: 1. Muhammad Yousaf v. District Judge, Rawalpindi (1987 SCMR 307) 2. M. K. Muhammad v. Muhammad Aboobakar (1991 MLD 801) 3. Muhammad Ilyas v. Khurshid Begum (1989 CLC 506) 4. Mian Brothers v. Suleman (1989 CLC 494) 5. M. Kassam & Bros. v. Sharabat Khan (1992 MLD 1225) 6. Shahzada Sultan Hamayun v. Zainab Bai (1989 CLC 1338) 7. Haleema Banker v. Ghulam Rasool Sainroo (1994 CLC 2422) 8. Qamaruddin Akbar Abbadi v. Zahid Khan (1992 ALD 52(1)) 9. Ahmad v. Haji Khair Muhammad (1992 CLC 2504) 10. Saadat Ali Baig v. S. Bux Ellahi (1991 CLC 623) ' He further submitted that though there was a previous litigation between the parties but that would not debar the present respondent from initiating present proceedings and in this regard placed reliance on the following judgments: 1. Raza Ali Shah v. Agha Hassamul Haque and another (1989 CLC 2003) 2. Sh. Muhammad Ibrahim Kohli v. Additional District Judge, and others (1989 CLC 49) ' Learned counsel further submitted that it is always the prerogative of the landlord to decide the suitability of the premises and in this regard placed reliance on the following decisions: 1. Farkhunda Jawaid v. Hnd Additional District Judge and others (2008 CLC 362) 2. Rajab Ali v. Darius B. Kandawalla and another (PLD 1984 Karachi 14) 3. Ijaz Rashid v. Mst. Inayat Begum (1984 CLC 2459) 4. Mohammad Hanif V. Mst. Sara (PLD 1982 Karachi 182)
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5. Muhammad Shafi v. Muhammad Adam Khan (1983 CLC 2657) 6. M. Altaf Hussain v. Peshawar Motors Limited (1990 MLD 337) 7. Javed Khalique v. Muhammad lrfan (2008 SCMR 28) 8. Anwar Ahmad v. Jalaluddin (2008 YLR 2265) 9. Almas Khan v. Mrs. Bano through Attorney and 2 others (PLD 2009 Karachi 268) ' Apart from raising the above objections, the learned counsel has also stated that the petitioners have failed to pay the rent through money order, which is a mandatory requirement. He further states that since the tenancy agreement was unregistered hence it is unenforceable. In support of his these contentions he placed reliance upon the following decisions: 1. Pakistan State Oil Company Ltd. v. Muhammad Naqi (2001 SCMR 1140) 2. Muhammad Rafique v. Habib Bank Limited (1994 SCMR 1012) ' Learned counsel further submitted that if the instructions issued by the Hon'ble Supreme Court of Pakistan are perused it would be seen that the respondent No,3 has fulfilled the requirements as mentioned by the Hon'ble Apex Court and hence the personal bona fide need of the respondent stands established. He further submitted that the evidence produced by the respondent No,3 had remained unshaken. He submitted that even if for argument's sake it is assumed that the respondent No,3 is not the sole owner of the property but being a co-owner of the property even then he is entitled to ask the petitioners to vacate the property on personal bona fide need. In support of his above contentions the learned counsel placed reliance on the following decisions: 1. Zakaullah v: Safdar (1986 SCMR 1873) 2. Raza Ali Shah v. Agha Hassamul Haque and another (1989 CLC 2003) 3. International Computers Limited (ICL) through Business Development Manager, Karachi v. Standard Chartered Bank Limited through General Manager and 2 others (PLD 2012 Sindh 481) 4. Niaz Muhammad Dar v. District Judge, Jhelum and another (1985 MLD 419). 5. Qamar Zaman v. IInd Additional District Judge, Karachi and another (2008 CLC 431) 6. Raja, Ali v. Darius B. Kandawalla (PLD 1984 Karachi 14) 7. Niaz Muhammad Dar v. District Judge, Jhelum (1985 MLD 419) 8. Mrs. Zahra Ali Muhammad v. Pirhai Shia Asna Ashri Jamat (Regd.) (1987 CLC 1938) 9. Muhammad Yasin v. John Nicholas (1982 CLC 1599) 10. Sara Bai v. Godhra Muslim (PLD 1993 Karachi 496) 11. Abdul Ghani v. Abrar Hussain (1999 SCMR 348) 12. M. Altaf Hussain v. Peshawar Motors Limited (1990 MLD 337) 13. Muhammad Hanif v. Sara (PLD 1982 Karachi 182) 14. Islamuddin v. IV-Additional District and Sessions Judge. Karachi East (PLD 2008 Karachi 166) ' The learned counsel further submitted that if the respondent No,3 is in litigation with some other person how it would have a negative impact on this case, as every case has to be examined on its own fact and circumstances. 6. I have heard both the learned counsel at considerable length and have also perused the record and the decisions relicd upon by them. 7. In my view the only point involved in the instant petition is whether the landlord i.e. Respondent No,3 requires the shop in question for his personal bona fide need and in good faith or otherwise and would restrict my decision on this point only. 8. From the pleadings of the parties it is evident that the petitioners had admitted that after the death of the father of the respondent No,3 they started depositing the rent in the name of the legal-heirs of the deceased, hence, in my view there is no dispute regarding the status enjoyed by the respondent No,3 being the co-owner/landlord of the property in question, therefore, there exists a relationship between the petitioners and the respondent No,3 as that of a tenant and a coowner/landlord. It is also a settled proposition of law that a co-owner can file ejectment
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application on the ground of personal bona fide need. Reference in this regard may be made to the decision given in the case of the Hon'ble Supreme Court of Pakistan reported as Abdul Ghani v. Abrar Hussain (1999 SCMR 348). Since the petitioners are paying the rent in MRC in the name of the legal heirs of late Moazzamuddin Baqai hence in my view the question of default in payment of rent does not arise. Moreover, from the cross-examination of the parties the question of pugri is also not satisfactorily explained, hence no decision on this issue is also required. Moreover, I agree with the contention raised by the learned counsel for the respondent No,3 that if the said respondent is having some disputes with other tenants and those matters are subjudice before this Court no adverse inference could be drawn in this behalf in the present case on this score alone since every case has its own pecular facts and the decision is to be given by looking at the facts obtaining in that particular case. 9. Now coming to the core controversy of the case that whether respondent No,3 requires the shop in question for his personal bonafide need in good faith or not? It is noted that previously also the late father of respondent No,3 had filed an ejectment application against the present petitioners which matter had gone upto the level of Hon'ble Supreme Court of Pakistan and the Apex Court remanded the case to the High Court to decide the following two questions:- (i) Whether the personal need of the appellant's son for carrying on business of running a DAWAKHANA, in the circumstances of this case, would require any statutory certificate/ permission/ registration? (ii) Whether the learned Rent Controller is empowered to consider and examine the collateral question of personal need of appellant's son in the instant case, in the light of the law relating to running of DAWAKHANA? ' However, due to change in law the matter went before the District Judge and when both the parties did not appear before the learned District Judge in FRA No,1094 of 2001 the learned Judge dismissed the said FRA for non-prosecution on 6.3.2003. 10. It is seen from the record that in the previous ejectment application the landlord could not satisfy the court that the person who was to run the DAWAKHANA i.e. The elder brother of the present respondent No,3, namely, Muhammad Aslam Baqai was having a statutory certificate/ permission/registration to open a MATAB or to run a DAWAKHANA. Whereas in the present case it is an admitted position that the respondent No,3 is a registered HAKEEM. Hence, so far as this aspect is concerned that respondent No,3 was having a proper degree/certificate of or not is satisfied in the instant petition. It is noted that the main emphasis of the petitioners is that the respondent No,3 is successfully running his clinic from Bihar Muslim Cooperative Housing Society hence does not require the present shop for own purposes. In my view this assertion of the petitioners also does not carry weight since it is a settled proposition of law that it is no concern of the tenant to give suggestion to a landlord that which place suits best for his business; as it is always the prerogative of the landlord to choose among many places the place which suits him best. It is seen that the petitioners have given contradictory statements in his cross-examination as at one place he has admitted that there are many shops of Tibb and Doctors in the Saddar area and on the other hand has opined that the rented shop is not suitable for the landlord since the shop is surrounded by jewelry shops. Again, I would say that it no concern of the tenant to advise a landlord as to which place is suitable or otherwise for him, which in my view is always the prerogative of a landlord. 11. It is also a settled proposition of law that even if a landlord is having a number of places/premises at his disposal he is the master to choose among those various places/premises that which place is best suitable for his needs and the assertion of a tenant that since 'X' place/premises is already vacant the landlord may be directed to run his business from 'X' place rather than choosing 'Y' place. There are a plethora of judgments on this score; however, I will discuss only some of the judgments. In the decision given in the case of M/s. M. Kassam and
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Brothers v. Sharbat Khan (1992 MLD 1225) it has been held that the statement of the landlord on oath that he required the place for his personal bonafide need is sufficient to pass an order of eviction. Similar view was taken in the case of Farkhunda Jawaid v. Hnd Additional District Judge and others (2008 CLC 362). In the said judgment it was observed that even if the landlady possesses more than one house it is her choice that where she would like to live alongwith her family which is her prerogative and discretion. In the case of Muhammad Shaft v. Muhammad Adam Khan (1983 CLC 2657) again it was held that it is the choice of the landlord to select among many premises which place/premises suits him best. Again in the case of International Computers Limited v. Standard Chartered Bank Limited and others (PLD 2012 Sindh 481) was held as under:- "12. .... Furthermore it is a settled principle of law, recognized by the apex Court that it is the exclusive prerogative of the landlord to choose any building amongst others suitable for expanding or establishing the business and nobody including the tenant of the premises required for personal bona fide use, can insist/suggest any other premises to the landlord for his business then, disclosing or not, the other building belonging to him in the ejectment proceedings would be immaterial." ' Similar view was adopted in the case of Niaz Muhammad Dar v. District Judge, Jhelum and another (1985 ,MLD 419). Again in the case of Qamar Zaman v. IInd Additional. District Judge, Karachi and another (2008 CLC 431) it has been held that tenant cannot impose restriction upon a landlord to select a property suitable for his business. 12. It is also a well settled proposition of law that it is the prerogative of the landlord to choose among a number of places which suits him or her best and no bar could be placed in this behalf upon him. The only criterion, which has to be fulfilled by the landlord, so far as the cases of personal bonafide use is concerned, is to establish that such place is genuinely required by the said landlord in good faith and such good faith has to be established from the facts obtaining in a particular case . The order passed by the appellate Court would reveal that while allowing the said appeal he has relied upon a number of decisions given by the Superior Courts, which learned counsel for the petitioners have failed to either dislodge or distinguish. The appellate Court, while allowing the appeal, has categorically observed that it is the discretion of the landlord to choose a place which suits him best. Before me also the learned counsel for the petitioners have failed to adduce a single reason with regard to the fact that the said shop was not required for the personal bonafide use by the respondent No,3. Perusal of clause (vii) of subsection (2) of Section 15 of Sindh Rented Premises Ordinance, 1979, clearly stipulates that application to the Controller could be given in the case…
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