2001 PLP 1301 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑This appeal by leave of tie Court is directed against the order, dated 12‑1‑1998 of the Sindh High Court passed in F.R.A. No. 58 of 1997 whereby judgment dated 26‑3‑1997 passed by the Rent Controller dismissing the ejectment application of the appellant has been maintained.

2. Precisely stated facts giving rise to the instant case are that appellant is owner (landlady) of a premises bearing No.G‑15 constructed on Plot No.S.B.7/77, Stalker Street, Mochi Gali, Karachi. Respondent is her tenant at the rate of Rs.450 per month. On 30‑5‑1993 appellant instituted eviction application against the respondent that shop in dispute is required for her son to establish a business of ready made garments with a statement that neither she herself nor her son Muhammad Hanif is in possession of any other premises to carry on the business.

3. The respondent vehemently opposed his ejectment inter alia contending that he had taken the shop in his possession on rent about 27 years ago from Haji Ibrahim Janu Bai, father‑in‑law of the appellant against, payment of Rs.45,000 as Pugree and presently the shop can fetch a sum of Rs.25/30 lacs' as Pugree, therefore, it is for this reason the appellant has filed eviction application with mala fide intention. The claim of the appellant was also resisted on the ground that her son intends to run his business in this shop and the requirement is false and she is not entitled to its possession.

4. Learned Rent Controller settled the issues of controversy arisen out of the pleading of parties after recording evidence vide judgment dated 26‑3‑1997 dismissed the application. Appellant preferred' appeal before the Sindh High Court, Karachi which was also dismissed, as such, instant proceedings.

5. Leave was granted in view of the following three observations of the learned Rent Controller:‑‑ (1) Since subject property is not mutated in the name of the appellant to give her cover of law. (2) That Muhammad Hanif has failed to prove that he is jobless and is plying taxi through a driver. (3) That existence of shop with Bungalow was suppressed by the appellant.

6. Learned counsel for the respondent at the very outset stated that he is not relying on the observations of the Rent Controller enlisted at Serial Nos. l and 2 in para. 5 above to non‑suit the appellant: However, his main emphasis to defend the judgment of the Rent Controller and High Court would be on the 3rd observation noted above.

7. In view of the statement so made by the respondent counsel, learned counsel for the appellant has confined his arguments only to the extent of adverse observations recorded by Rent Controller mentioned at Serial No.3 in para. 5 hereinabove to non‑suit the appellant. Thus he contended that under the law appellant was not bound to disclose the details of the properties owned by her at the time of filing of eviction application except disclosing as to whether she is in possession of a premises or got vacated such premises but instead of occupying the same to cater her requirement has further let out the premises and only then such concealment can operate against her adversely. Reference in this behalf is trade to Qamar‑ud‑Din through his Legal Heirs v. Hakeem Muhammad Khan 1988 SCMR 819 as well as on the judgment in the case of Haroon Kasim and another v. Azam Suleman Madha PLD 1990 SC

394. He further stated that previously Muhammad Hanif son of appellant suffered loss in business, therefore, he started plying taxi through driver but now he intends to run another business of ready‑made garments, therefore, the appellant could not have been non- suited for the reason that her son is not jobless. In this behalf reliance was placed by him on Sheikh Muhammad Yousif v. District Judge, Rawalpindi and 2 others 1987 SCMR 307. 7‑A. Learned counsel for the respondent contended that learned High Court as well as learned Rent Controller has concurrently held that no case has been made out by the appellant to use the premises in question for her son, therefore, such findings admit no interference. He further argued that statement of facts made by appellant in eviction application that her son suffered loss in business has been disproved through evidence led by the respondent. Conversely it has been established that for the period in respect of which it was stated that he suffered loss, in fact he earned profit as per return filed before Income Tax Department. He also contended that appellant being landlady was legally bound to disclose the details of shops which are owned by her at the time of filing, of eviction application. As per his contention two shops owned by her exist adjacent to the Bungalow of the appellant but she did not disclose this fact in the application and sought ejectment of the respondent from the shop in respect of which more than 3 decades back a Pugree in a sum of Rs.45,000 was paid by him, therefore, claim being based on mala fide has rightly been rejected by the Rent Controller. Reliance in this behalf has been placed by him on the case reported as (Latif Ahmed v. Mst. Farrukh Sultana 1996 SCMR 1233), Muhammad Atiq v. Muhammad Hanif Khan 1996 SCMR 1260).

8. We have heard the learned counsel for the parties and have gone through the impugned judgment carefully. Learned Judge in the Chambers of the High Court non‑suited the appellant adopting the observations of the Rent Controller which have been enlisted in para.3 above. As far as the reasons of non‑suiting the appellant that the property has not been mutated in favour of the appellant is concerned, it cannot be considered a ground to deny relief to her in view of admitted fact that the respondent admits the appellant to be his landlady, therefore, notwithstanding the fact whether the property is mutated in her favour or not but the respondent cannot challenge her right to file eviction application on this ground.

9. As far as second reason that his son is plying taxi through driver is concerned, in our opinion even by adopting such profession appellant is not personally engaged in the business. Moreover, even otherwise it is not possible for a person seeking ejectment of his tenant from a premises to use it for his occupation to remain idle for a period of 4/5 years which is ordinarily consumed in final decision of ejectment matters up to the apex Court. In the instant case eviction application was filed on 30th May, 1993 and after about 8 years it has now come up for hearing finally before this Court after the decisions of Rent Controller and High Court.

10. Now turning to the crucial question involved in this case relating to non‑disclosure by the appellant details of the shops in eviction application owned by her at the commencement of eviction proceedings against respondent or got possession of such shops during the pendency of the proceedings. A perusal of section 15, subsection 2 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as Ordinance), reveals that there is no requirement to make such disclosure by the landlord in the eviction application whereas and section 13, subsection 3(ii‑C) of the West Pakistan Urban Rent Restriction Ordinance, 1959, a landlord/lady is required to make statement with reference to a non‑residential building or a scheduled building that he has not evicted such a building or rented land without sufficient cause after the commencement of the Ordinance and after the explanation drat the landlord had obtained possession of a residential scheduled or non‑residential building or rented land but such building is no longer suitable for his/her needs. Therefore, under section 15(2)(vii) of the Ordinance, 1979, the obligation upon the landlord is only to prove good faith for his own occupation or for the occupation or use of his spouse or children. Therefore, the argument prevailed upon learned High Court and which has also been reiterated by the learned counsel for respondent, merit no consideration. But to ascertain the good faith/bona fide of a landlord to occupy a premises through evidence, it can be asserted that a premises suitable for requirement of landlord/lady was available but it was let out immediately before filing of eviction proceedings or such premises has fallen vacant during pendency of the ejectment proceedings but the landlord instead of occupying the same had further leased it out. As far as being owner of number of properties but without its possession is concern it cannot be considered a ground for non‑suiting a landlord/lady. It seems that observations of the High Court in this behalf were not correct. Ps it has been observed hereinbefore that the landlady had no legal obligation to make such disclosure in the eviction application, therefore for such reason the appeal should not have been dismissed. In this behalf this Court in the case of Qamar Din through his Legal Heirs v Hakim Mehmood Khan 1988 SCMR 819 has held that only question which would disentitle a landlord to such a relief would be a case where he is in possession of other equally suitable shop in the same locality or had rented out a shop after institution of eviction case and has contumaciously concealed the fact in his application or statement at the trial, then adverse findings can be recorded against the landlord. Similarly, in the judgment relied upon by the learned counsel for the respondent in the case of Latif Ahmed v. Mst. Farrukh Sultana 1996 SCMR 1233 the appeal filed by the tenant was allowed setting aside the order of the High Court directing his ejectment because in eviction application landlord has not stated anything about obtaining the possession of a shop and changing the same into two shops and letting out the same to two persons and she has stated the reason as to why these two shops were not occupied by her for the use and occupation of her son etc. Likewise, appeal of the landlord, in the case of Muhammad Atiq v. Muhammad Hanif Khan 1996 SCMR 1260 was dismissed because the factum of his suppression of facts that in addition to premises in his occupation, he was also in possession of two rooms on the first floor and two rooms in the second floor was found to have reflected adversely on his bona fide. Whereas in the instant case it has not been established by the respondent that appellant was in possession of a shop adjacent to her Bungalow or two shops were in her possession in P. E. C. H. S. when she filed ejectment application against the respondent. In as much as the High Court in the impugned order has observed that entire evidence is silent to the effect that if the two shops in P.E.C.H.S. are vacant or have been given on rent further there is nothing on record to show as to when the shop attached to the Bungalow, was given on rent, therefore, in absence of such categoric proof it was contrary to the interest of justice to non‑suit the appellants by the Rent Controller as well as by High Court.

11. Undoubtedly, there is concurrent findings of facts by the Controller and the First Appellate Court but such findings are based on misreading of relevant provisions of law as well as misreading the evidence on record. If both the Courts had considered that under section 15, subsection (2) clause (vii), landlord is not required to disclose the existence of shops owned by him/her then perhaps ejectment application filed by appellant would not have been rejected for this reason. Be that as it may, in the interest of justice we have gone through the evidence available on record particularly the evidence led by appellant through her son as well as her attorney. He had supported the contents of her application on oath and has successfully established her requirement to occupy the premises in question.

12. So far the argument of the respondent counsel that as per the copies of statements submitted by Muhammad Hanif before Income Tax Department showing profit in the year 1992 is concerned it does not constitute a strong reason to disbelieve the plea of the appellant that the shop is not required to her for use and occupation of her son, therefore, argument in this behalf needs no further discussion.

13. In view of what has been stated above, appeal is allowed. Consequently, eviction application filed by appellant against respondent is accepted and he is directed to hand over the peaceful vacant possession of the premises to the appellant within a period of four months after passing of this Order. Parties are left to bear their own costs. Q.M.H./M.A.K./H‑32/S Appeal allowed.