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Constitutional Petition No.S-33 of 2014, decided on 29th September, 2014.

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Conditions---Personal bona fide need of landlord---Default in payment of rent---Good faith---Scope---Tenancy agreement between the parties for a period of 11 months was on record---Tenant was paying rent amount to the landlord without renewal of such agreement---Tenant continued to deposit the rent amount in the court after dispute---Landlord could seek eviction where default or breach was on the part of tenant---Burden was upon the owner of the premises to establish/prove such breach or default---Tenant was bound to disprove such breach or default which had come forward by placing undeniable material/fact---Landlord could not rent out the premises to some other on high rent or choice after getting eviction of tenant---Good faith would continue till the one from his/her conduct and attitude had proved otherwise---Nothing was on record to dislodge the stand of landlord with regard to his personal bona fide need---Owner of premises could not be kept out of his/her right to use his own property for his/her personal use in good faith---Appellate Court had allowed the eviction petition while assigning the reasons and directed the tenant to hand over peaceful possession of premises to the landlord within 60 days---Claim of landlord that premises was required for personal use had not been disproved by the tenant---No illegality had been pointed out in the impugned judgment passed by the Appellate Court---Tenant might apply for possession of demised premises if landlord did not use the same for his personal use after getting the possession or rented out the said premises to some other person---Constitutional petition was dismissed in circumstances.

----Art.199---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court in matters under Sindh Rented Premises Ordinance, 1979 was limited and High Court could not sit as a court of appeal or revision on the question of findings of facts---High Court, while exercising constitutional jurisdiction could only interfere when a wrong or illegal conclusion had been drawn by the courts below. Haji Muhammad Saeed v. Mst. Bano begum 2012 CLC 1195; Muhammad Arshad v. Syed Ali Hussain Rizvi and 2 others 2013 CLC 1129 and Messrs Victoria Furniture Mart v. State Life Insurance Corporation 2013 CLC 1541 rel. Noor Ahmad Memon for Petitioner. Riazuddin Qureshi for Respondents. Ashfaque Nabi Qazi Assistant A.G. Date of hearing: 29th September, 2014.

Through instant petition, the petitioner has assailed the order dated 18th November 2013 passed in FRA No.15/2013 whereby learned appellate court has allowed the rent application on the following reasons:-- "The perusal of record reveals that learned trial court has discussed the point No.1 in respect of willful default but failed to consider the point No.2 in respect of personal bona fide use. The appellant/applicant in para No.11 of his rent application as well as affidavit in evidence and cross-examination has mentioned his bona fide need and respondent/opponent has la failed to shatter his evidence on this point. In its observation to point No.2 the learned trial court has observed that in the notice the appellant/applicant has not mentioned the facts regarding personal bona fide need. The bona fide need may be arisen to appellant/applicant at any stage, even after disposing of the rent application on bona fide need only. During the cross-examination the attorney/son of appellant/applicant has clearly replied that shop in question is required for personal bona fide use for him, whereas respondent/opponent denied the bona fide need of appellant/applicant in his deposition. The respondent/ opponent has failed to bring any material/evidence on record to corroborate his version that appellant/applicant wants to sell out the said shop or wants to rent out to anyone else on higher rent then the learned trial court has committed illegality and irregularity while deciding the point No.2 in favour of respondent/ opponent. The upshot of my above discussion is that learned trial court has committed gross illegality and irregularity while passing impugned order therefore, order dated 25-2-2013 is hereby set aside, resultantly the instant appeal is allowed. The respondent/ opponent is directed to hand over the peaceful vacant physical possession of the demised premises/shop to appellant/ applicant within 60 days of this order. The learned trial court is directed to comply this order in its spirit". 2. The learned counsel for the petitioner has reiterated the grounds, taken in memo of petition and has also added that order of the learned appellate court is not based on correct appraisal of the material hence requires interference. 3 Conversely, learned counsel for respondent has argued that learned appellate court has rightly appreciated the evidence brought on record; hence such judgment cannot be disturbed in writ petition. 4. I have heard the arguments of the learned counsel for the respective parties and have also perused the available material on record. 5. The agreement, available at page 53, reflects that there was tenancy agreement between the petitioner and respondent for a period of 11 months commencing from 1-5-1998; further it is evident that without renewal of such agreement petitioner was paying rent amount to the landlord and possession of the petitioner went undisputed up-to June, 2011 when the landlord claimed that petitioner had committed default in payment of rent for six months and further claimed that demised premises is required for personal bona fide need. It is evident that after dispute petitioner continued to deposit the rent amount in court. The learned appellate court while assigning the reasons hereinabove allowed such eviction application with directions to hand over peaceful possession of the demised premises to the landlord within 60 days. 6. Here, it is worth to mention that Section 15 of the Sindh Rented Premises Ordinance, 1979 gives right to the owner to seek eviction in situation where default or breach is on part of the tenant. In such eventuality the burden is upon the owner to establish/prove such breach or default but condition (s) (vi) and (vii) are exceptions which read as under:-- 15(vi) the premises is required by the landlord for reconstruction or erection of a new building at the site and landlord has obtained necessary sanction for such reconstruction or erection from the authority competent under any law for the time being in force to give such sanction; 15(vii) the landlord required the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children; Both the above condition (s) speak about acts which the owner pleads to do in future hence once such claim comes forward the tenant is liable to disprove it by placing undeniable material/fact because "words to perform an act in future cannot be proved to be otherwise until relevant time (future point)". However, section 15(vii) of Sindh Rented Premises Ordinance, 1979 is not a license to owner for getting a tenant ousted and then to rent out the premises to other on high rent or choice. This aspect was very much in view with legislature; therefore, the phrase "good faith" was used in this condition, hence good faith continues till one from his/her conduct and attitude proves otherwise. 7. So far as to the specific claim of the respondent/applicant that premises, in question, is required for personal bona-fide need the present petitioner/opponent brought nothing on record to dislodge such stand of the respondent/applicant. Since the right of the owner to require and retain the premises for personal use/need is such a right which the tenant cannot avoid except by establishing that things are otherwise because an owner, in ordinary circumstances, cannot be kept out of his/her right to use his own property for his/her personal use in good faith. Pertinent to mention that it is well settled principle of law that High Court while exercising its jurisdiction under Article 199 of the Constitution could only interfere only when a wrong or illegal conclusion had been drawn by the Court (s) below because Constitutional jurisdiction of High court in rent matters is very much limited and it cannot sit as a Court of appeal or revision on questions of findings of facts, as it was held in the case of Haji Muhammad Saeed v. Mst. Bano Begum (2012 CLC 1195):-- "High Court while exercising jurisdiction under Article 199 of the Constitution may interfere only when it was necessary and a wrong or illegal conclusion had been drawn by the courts below. High Court in its constitutional jurisdiction was not to sit as a court of appeal on questions and findings of facts, recorded by a competent court and would not interfere in the same in constitutional jurisdiction in a routine" In the case of Muhammad Arshad v. Syed Ali Hussain Rizvi and 2 others (2013 CLC 1129). Landlord in evidence had deposed that demised premises was bona fide required by him for his personal use. High Court in exercise of its constitutional jurisdiction could not evaluate evidence and decide such factual controversy" Similarly, in the case of Messrs Victoria Furniture Mart v. State Life Insurance Corporation (2013 CLC 1541. "Constitutional jurisdiction of High Court in such matters was very much limited and confined only to ascertain whether appellate court had not flouted provisions relating to the statute or had failed to follow the law related thereto. 8. Keeping in view of above touchstone, the claim of the respondent/applicant regarding premises to be required for personal use was not disproved by the tenant/petitioner nor the petitioner has pointed out any patent illegality or flouting of the provisions by learned appellate court, therefore, in absence thereof, the petitioner cannot be allowed to keep the respondent/applicant (owner) out of his right to use property for his personal bona fide use. However, if the respondent/applicant does not use the premises for his personal use after getting the possession of premises and rents it out to other the petitioner/tenant may apply for possession thereof. This, however, shall not debar the respondent/ applicant to exercise right of ownership, including rent out premises at subsequent point of time. 9. In view of above, the petition is devoid of merits and is dismissed. AG/A-134/Sindh Petition dismissed.

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