P L D 1989 Karachi 185 (PLP)

13. Mr. Akhtar Mahmood also submitted that as a matter of fact the power of attorney was executed on 29‑5‑1985. It was attested on the same date photostat copy thereof was filed alongwith the ejectment application on that very date. The original power of attorney was produced in the office of the Court on the same date and it was, returned to the respondents inasmuch as the photostat copy had already been attached with the ejectment application. The learned counsel for the respondents, therefore, pleaded that the objection against the maintainability of the ejectment application was wholly misconceived and untenable.

14. I have given my earnest consideration to the submissions made at the bar and have also carefully perused the several authorities cited by both the sides. It is now a well settled view of this Court and so has it been held by the Supreme Court that the provisions of the Civil Procedure Code are in terms not applicable to the proceedings under the Ordinance, except those specifically embodied in section 20 of the Ordinance. I do not, therefore, feel hesitant in reaching the conclusion that the provisions of Order II, rule 2 C.P.C. are not attracted to the rent proceedings and hence no legitimate objection, can be made against the ejectment application being verified by and made under the signatures of a duly constituted attorney. Besides, the ejectment application in the instant case has been verified and made under the signatures of Jamal Mushariff, who is also one of the co‑owners of the property in question. It is the legal right of even one of the several co‑owners of the property to apply for and seek the eviction of the tenant. Moreover, the plea that the power of attorney was bogus was not as such admittedly taken in the written statement and hence no evidence on such a plea could be led by the appellants or be given any consideration by the learned Rent Controller or in appeal by this Court. Furthermore, in reply to a suggestion made to him during his cross‑examination, the respondent No.2, who also claimed to be the duly constituted attorney of respondents No.l and Nos.3 to 5, categorically deposed: "it is incorrect to say that P/E has not been signed by applicants and I have manipulated the same". There was even no suggestion made to the respondent No.2 in his cross‑examination that the power of attorney was not duly attested by the Notary Public and hence the question of respondents' failure to produce the Notary Public or withholding the best evidence and on that score drawing an adverse inference against them, simply did not arise. The learned Rent Controller did not, therefore, commit any error in answering issue No.l in the affirmative.

15. The next point canvassed by the learned counsel for the appellants was in respect of issue No.3 which has been decided against the appellants. Mr. M.A. Kazi, learned counsel for the appellants initially argued that the learned trial Court has simply recorded the contentions made by the parties' representatives before him without giving his reasons for answering the issue No.3 in the affirmative. The learned counsel for the appellant, therefore, vehemently urged that since the learned Rent Controller has failed to record a finding on the point of good faith and so also about the sufficiency of evidence adduced by the respondents for establishing their case of personal requirement. In short, his contention was that the learned Rent Controller has adopted a wrong method and hence his order is bad in law and liable to be set aside. This contention of the learned counsel for the appellant was, however, ultimately repelled by the learned counsel for the respondents. He drew my attention to the decision of the learned trial Court on this issue wherein he has specifically given his reasons for reaching the conclusion that the demised premises were bona fide required by the respondents for their personal use. I, therefore, in the interest of justice called upon Mr. M.A. Kazi to address me on the merits of the case inasmuch as his abovenoted contention was based on improper reading of the impugned order and was to be repelled as such. Mr. M.A. Kazi, learned counsel for the appellants, thereupon made the following submissions with regard to issue No.3: (i) that the burden of proof of this issue was on the respondents which they have failed to discharge satisfactorily. What was pleaded has not been proved. It was patently a case of mere desire and not of bona fide need. The learned Rent Controller failed to refer to the cross‑examination of the respondents' witness whose evidence was full of contradictions; (ii) that the learned Rent Controller erred in not appreciating that the respondents Nos. 2 to 5 were since long living separately even during the life time of their father and that they had strained relations, inter se. However, their claim for the demised premises for their joint use and occupation was false and mala fide. The examination of all the respondents was thus necessary and the failure to do so calls for an adverse inference being drawn against them. Reliance was placed on Haji Pir Muhammad v. Haji Abdul Rashid (1968 S C M R 959); (iii) that the learned Rent Controller also failed to appreciate that the demised premises (tenement in occupation of the appellants) is an out‑house (servant quarter) and it could not bona fide be required by the respondents; (iv) that the learned Rent Controller erred in not recording his reasons for holding that the omission on the part of the respondents to provide any particulars of the present accommodation in their occupation in the ejectment application was of no significance. Or, that it was not necessary to do so; (v) that the learned Rent Controller failed to appreciate that the respondents had to establish their bona fide requirement of the demised premises, the mere fact that they were residing in rented premises notwithstanding. The learned counsel for the appellants relied upon the following cases: (a) Mst. Hajra Bai Suleman v. Mst. Aisha Bai (1982 C L C 1444). It has been held in this case as under:‑ "Mere occupation of a rented premises does not, give a cause to the landlord to obtain ejectment unless a case is made out as provided by Section 13" . (b) Fehmida Jehan Begum v. Varindamal (1980 C L C 604) It has been held in this case as under: "There is another important aspect of the case which although not taken into consideration by the Courts below cannot be ignored. Under section 13(3)(a) a landlord can obtain possession of the demised premises for his own occupation, inter‑alia, on the condition that he is not occupying another residential building suitable for his needs and has not vacated such a building without sufficient cause. It, therefore, follows that in case the landlord 'is shown to be in occupation of other premises even though as a tenant himself, he must show that such premises are not suitable for his needs". (c) Associated Sales Agency, Karachi v. The Standard Insurance Company Limited (1985 CLC 2419). At page 2420 of the, report it is observed as under: "Furthermore, merely because a landlord is in occupation of a rented premises he cannot ipso facto obtain an ejectment of tenant in respect of his own premises unless he proves his bona fide requirement". (vi) It was next contended by Mr. M.A. Kazi that the learned Rent Controller erred in law in not holding that exhibits A/15 to A/50 being of secondary nature were not admissible in evidence. In his submission, Ex.39 even does not bear the signature of the lessor. The signatures of the recipient of the rent paid vide Exhs. A/24, A/26, A/40 and A/41 were also not proved. (vii) Lastly, it was contended by Mr. M.A. Kazi that the respondents had expressed their alleged personal need of the demised premises as far back as February 1978 during the pendency of the earlier ejectment proceedings filed by them against the appellants; whereas the ejectment application on this ground had been filed seven years thereafter in May, 1985. This fact, the counsel so .urged, by itself clearly showed that they did not require the demised premises for their personal use bona fide or in good faith. The learned Rent Controller, according to him, had repelled this plea of the appellants for no cogent reasons.

16. On behalf of the respondents Mr. Akhtar Mahmood has supported the finding of the learned Rent Controller on the ground of personal bona fide need of the demised premises. The respondents/ landlords have discharged the burden to prove their bona fide requirement satisfactorily through the evidence of respondent No.2, who is also the attorney of the other respondents. The averments made in para 6 of the application (already reproduced above) regarding the personal bona fide use were duly supported by evidence led on behalf of the respondents and hence the learned Rent Controller has rightly allowed the ejectment application on the ground of bona fide personal need. The evidence of the respondents' witness on this point could not be shattered during his cross‑examination. Mr. Akhtar Mahmood urged with vehemence that the non‑examination of the other respondents was of no material consequence more particularly when the respondent No.2 deposed about the personal bona fide need of the respondents, in his personal capacity as co‑owner as well as the duly constituted attorney of the other respondents, his co‑owners. In support of his contention he placed reliance on the following authorities: (a) M. Muhammad Sharif v. M.S.Sultan (1981 S C M R 844). It was submitted on behalf of the petitioner before the Supreme Court that the landlord's son, for whose benefit the petitioner was sought to be ejected from the shop in question, never appeared as a witness in support of the assertion that the same was required for his use. The Supreme Court held as under: "We feel that the contention is devoid of force. There is no requirement of law that the person for whose benefit the premises are required to be. vacated must be produced in support of the ejectment application. All that has to be seen in the present case is whether enough evidence has been brought on record by the applicant to sustain a finding of the requirement of the premises for the personal use of his son". (b) Dilshad Muhammad v. Mst. Zubeda Begum (1981 SCMR 895). In this petition for special leave to appeal also it was, inter alia, urged on behalf of the petitioner that the son of the landlady for whom the shop was required was not examined "although the eviction of the petitioner was being sought for his benefits". The Supreme Court repelled this contention with the following observations: "We also agree with the High Court that the non‑appearance of the son of the landlady was not fatal to the claim of the respondent and that the landlady had in the circumstances amply established that she required the shop in good faith for the use and occupation of her son". (c) Zahoor Din. v. Mirza Ayub Baig (1981 SCMR 1081). In this appeal a similar argument was raised before the Supreme Court as in the earlier cases. It was held in this case as under: "As to the objection raised on behalf of the respondent that the son for whose marriage the extra accommodation was needed, was not examined as a witness, suffice it to say that there is no such requirement in law, and the effect of the omission will have to be determined in the facts and circumstances of each case. The burden on the landlord is to prove his bona fides, and this burden he can discharge by leading evidence, which need not necessarily include the son concerned as witness".

17. Mr. Akhtar Mahmood, learned counsel for the respondents then strenuously contended that no doubt the learned Rent Controller in his impugned order has observed that if the premises occupied by landlord are rented then no details of the accommodation in occupation to be given, yet in the instant case such information had been duly given by the respondents' witness in his affidavit‑in‑evidence. He, therefore, submitted that the grievance of the appellants' counsel in this behalf is without substance.

18. A perusal of the impugned order clearly indicates that the learned Rent Controller was fully alive of the legal preposition that it was primarily for the applicants/ landlords to establish their personal bona fide need of the premises in question. It was in this context that he proceeded to examine whether the averments made in the ejectment application are duly supported by the evidence given by applicant No.2 for self and as attorney of the other applicants. The learned counsel for the appellants has carried me through the entire evidence of the parties and I find that the learned Rent Controller, upon proper appraisal of the respondents' evidence, has correctly recorded the finding that looking to the number of their family members, the accommodation available to them individually in the different rented tenements occupied by them, there is no escape from the conclusion that they (respondents) had established their need for the demised premises for their joint use and occupation. The case as pleaded in the ejectment application and deposed by Jamal Musharraf, respondent No.2 in his affidavit‑in‑evidence filed on behalf of the appellants, 1 find, could not be shattered during the unduly long cross‑examination of the said witness. I do not, therefore, find any substance in the first abovenoted contention of the learned counsel for the appellants.

19. The second abovenoted contention of the learned counsel for the appellants is equally without force. The averments made in para. 9 of his affidavit, the witness examined on behalf of the respondents to the effect that "the whole family is united and that there is no dispute amongst them and that they enjoy the most cordial of relations amongst themselves" could not be shattered or weakened during his cross‑examination. He has further deposed that "the applicants have lived together jointly in Iqbal Manzil itself as well as House No.41!J, Block 2, P.E.C.H.S., Karachi, at 306, Bahadurabad, Karachi, at 288, Sharfabad, Karachi and at 253‑E, Block 6, P.E.C.H.S., Karachi. No evidence could be led by the appellants to controvert the above factual statement made by Jamal Musharraf. From the material available on record the contention of the learned counsel for the appellants to the effect that the demised premises is an out house (servant quarter) is equally fallacious and contrary to the record. The witness abovenamed of the respondents has deposed, without being controverted, that the appellants are in occupation of the tenement on first floor of the out house which consists of 3 rooms, one kitchen, two baths and/or W.C.

20. The abovenamed witness of the respondents has also in his affidavit‑in‑evidence , given full particulars of the present accommodations in occupation of each of the respondents Nos.2 to

5. There is no legal requirement that the details of the accommodation in their occupation should have been given in the ejectment application and that failure to do so would render the application to be rejected. The learned Rent Controller has for cogent reasons as already observed above held that the respondents have succeeded in establishing their bona fide requirement of the demised premises. The contention of the learned counsel for the appellants to the effect that the mere fact that the landlords were residing, in rented premises could not give them a cause to obtain ejectment unless they show their bona fide requirement is equally falacious and deserved to be repelled as such.

21. Under the aforesaid facts and circumstances of the case, I do not find any justification to interfere with the findings recorded by the learned Rent Controller in this behalf. Consequently, the appeal fails in respect of this issue as well.

22. The respondents have also filed cross objections assailing the impugned order of the learned Rent Controller on issue No. 2 which has been decided against them and in favour of the appellants. Before recording the contentions of the learned counsel for the appellants in that behalf and my decision thereon, I would like to add that while attacking the judgment of the learned Rent Controller on issue No.2, Mr. M.A.Kazi, the learned counsel for the appellants also urged that the respondent No.l was not the co‑owner of the property and the ejectment application was made by misjoinder of necessary party. I, however, do not find any infirmity in the reasons given by the learned Rent Controller in repelling this contention. More particularly in view of the admission made by Muhammad Saleem, appellant No.l in para. 31 of his affidavit‑in‑evidence which reads as under:‑ "

31. The applicants Nos.2 to 5 have also filed ejectment case against Abu Bakar Ratra, the tenant of the first floor of the main building of property in the case, on the ground of alleged personal need' of the applicants Nos.2 to 5, which was finally decided in favour of the applicants Nos.2 to

5. The applicant No.l was not a party to the said litigation upto the Hon'ble Supreme Court of Pakistan. The applicants have taken over the possession of the first floor and presently the applicants Nos.l and 2 are occupying the same." Reverting to the objection of Mr.M.A. Kazi against the maintainability of the counter objections I do not feel hesitant to repel it as being untenable in view of the latest decision of the Supreme Court in the case of Ismail v,. Mst. Sher Bano through Legal Heirs (1988 SCMR 772). At page 775 of the report it is held as under:‑ "We have carefully considered the arguments of the learned counsel for the parties. Apparently the finding on the issue of default of payment of rent arrived at by the Rent Controller was based on misreading of evidence on record. However, he had decided the eviction petition in favour of the landlady Mst. Sher Bano respondent on another ground namely the premises being required for her bona fide personal use. Therefore, there was no question of her filing cross‑objections or cross‑appeal in the instant case. The appeal in this case was filed by the tenant i.e. Ismail appellant and the learned Single Judge while hearing the same under section 21(3) of the Sind Rented Premises Ordinance was empowered to reverse the finding of the Rent Controller on the issue regarding default in payment of rent decided in favour of the appellant even in the absence of any cross‑appeal/objections by the landlady i.e. Mst. Sher Bano respondent." I, therefore, now proceed to consider the arguments of Mr. Akhtar Mahmood, the learned counsel for the respondents who assailed the judgment of the learned Rent Controller on issue No.2 concerning the alleged wilful default in payment of water tax/or charges for the period from Ist July, 1984 to 30th January, 1985, by contending:‑ (i) that the definition of word 'rent' as given in section 2(i) includes water charges. The respondents required the appellants to pay and/or remit the said dues vide their letter dated 9‑6‑1984 as mentioned in paragraph 5 of the application; (ii) that Jamal Musharraf, respondent No.2 in his affidavit‑in- evidence has deposed as under:‑ "I say that the opponents have once again committed wilful default in payment and/or tender of water tax and/or charges for the period from 1‑7‑1984 to 30‑6‑1985 of Rs.276.92 and 1‑7‑1985 to 30‑6‑1986 of Rs.276.92 which ought to have been paid/remitted by the opponents by 30‑6‑1984 and 30‑6‑1985 respectively. The opponents have defaulted in the payment of the same in spite of four registered letters dated 9‑6‑1984, 29‑10‑1984, 5‑11‑1984 and 27‑6‑1985," (Exhibits A/6 to A/9) the posting of these letters was also proved through postal receipts (Exhibits A/6/1 to A/8/1). Developing his arguments with reference to section 27 of the General Clauses Act, Mr. Akhtar Mahmood submitted that since no question about these letters having been sent on wrong address was put to the respondents' witness during his cross‑examination, the learned Rent Controller should have drawn the usual legal presumption of the service of these letters having been duly effected on the appellant No.

1. In support of his contention he referred to the following observations from A.I.R.1918 P.C. 102:‑ "If a letter properly directed, containing a notice to quit is proved to have been put into the Post Office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register, and is . not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the address himself." The learned counsel for the respondent, therefore, emphasised that it lay on the appellants to rebut the legal presumption which they failed to do and hence the issue No.2 should have been decided in favour of the respondents. Mr. M.A.Kazi, on the other hand, supported the impugned order on this issue for the same reasons as are given by the learned Rent Controller. I have given my earnest consideration to the submissions made at the bar and have also perused the impugned order on this issue and I find that the learned Rent Controller has not fallen into an error in deciding this issue. It is further pertinent to rote that the postal receipts upon which Mr. Akhtar Mahmood has heavily placed reliance do not contain the full particulars and hence the question of the legal inference having been drawn from them does not arise. Moreover, the learned Rent Controller has rightly taken note of the fact that in the ejectment application which was presented on 29‑5‑1985 there was mentioned only one letter of 9‑6‑1984, whereas in the affidavit‑in‑evidence of the respondent No. 2 four letters have been referred. This subsequent improvement in the case itself makes the entire case of the appellants on this issue doubtful. Even otherwise the copy of the letter dated 9‑6‑1984 which has been mentioned in the ejectment application was not filed alongwith it. Under the aforesaid facts and circumstances of the case I do not find any justification to interfere with the impugned order of the learned Rent Controller on this issue as well. Consequently, the cross‑objections filed by the respondents are held to be devoid of merits. In the result, both the appeal as well as the cross‑objections are disposed of in the manner indicated above. M.Z.S./M‑641/K Order accordingly.