2006 PLP 1853 (CLC)

MUNIB AHMED KHAN, J.

This petition has been filed against the order, dated 11-9-2003 passed by 3rd Additional District Judge, Hyderabad in F.R.A. No.450 of 2003 whereby he has maintained the order of the Rent Controller dated 29-8-2002 by which he has dismissed the ejectment application of the petitioner. Learned counsel for the petitioner has argued that the application under section 15 of Sindh Rented Premises Ordinance for ejectment of the respondent was filed from the premises bearing Survey No.1674, Ward "A", Salawat Muhalla, Hakim Habibullah Road near Police Station Market, Hyderabad on the ground of default in payment of rent, personal need and subletting but now he is pressing ground of personal need only in this petition. Learned counsel has submitted that the petitioner has specifically raised the ground of personal need in para.10 of the application as well as paras.16 and 17 of the affidavit in evidence and in cross-examination the petitioner has stood the test of cross-examination and nothing has been brought on record to show that there is mala fide on the part of the petitioner or she will let out the shop to other tenant. In support of his contention he has relied upon PLD 1981 SC 214; 1992 SCMR 1296; 1997 SCMR 1062; 2001 SCMR 1197; 2003 SCMR 1667; 2001 MLD 21 and 1219 and 2000 YLR .1575. On the other hand learned counsel for the respondent has contended that the premises is not required for personal need as the main purpose of the petitioner is to eject the respondent from the shop and that both the lower Courts have given concurrent findings, therefore, that finding may not be disturbed in constitutional jurisdiction. He has further submitted that during the evidence different versions have come on record as the petitioner has stated that her son is jobless while his son has admitted in cross-examination that he used to work on daily wages and is engaged with his master, therefore, he was employed. Learned counsel for the respondent has further submitted that petitioner has failed to prove bona fide, therefore, the ejectment application has rightly been dismissed. He has relied upon 2003 CLC 278; 1997 CLC 1085; PLD 1994 Kar. 219; 1999 CLC 470; 1989 SCMR 235; PLD 1981 SC 246; 2003 MLD 480 and 2004 YLR 3278. After hearing the arguments and perusal of the record. I have observed that the landlady/petitioner has specifically pleaded personal need in para.10 of the ejectment application. She has further stated on oath in her affidavit in evidence specifically in para. l6 and 17 that the premises is required for personal need of her son Muqadas alias Nadeem who wanted to start a business of paint shop. In para.17 she has stand that she will not rent out the said shop to anybody after obtaining the shop. In her cross-examination she has stated that her son Muqadas is jobless and use to work as painter on daily wages but now he is jobless. Maqadas, the son of the petitioner/lady has also been examined as a witness who in her affidavit in evidence has stated in para.14 and 15 of the affidavit in evidence that he is jobless and want to start a paint shop and that the said shop will not be rented out to anybody after it is obtained through rent proceedings. In cross-examination he has also stood the test of cross-examination and nothing has been brought on record to doubt the intention of the petitioner. The authorities relied upon by the petitioner are on the point that when the petitioner has entered in the witness-box and stating on oath that the premises is required for personal need, then until contrary is proved, the version of the landlady will be taken as correct. The authorities relied upon by the respondent are relevant to the issue only when the mala fide is reflected on the personal need. Keeping in view the only restriction imposed on the personal need by way of section 15-A of the SRPO as well as authorities quoted by the petitioner and the evidence brought on record the petitioner has proved that the shop is required for personal need to be used by her son and no doubt has been created in this respect. The apprehension of the respondent that the petitioner may let out the premises after obtaining the same to other tenant is covered by section 15-A of the SRPO which remove the above apprehension. These are the reasons of my short order passed on 25-5-2006 at the time of hearing this petition, which is as follows: "Learned counsel today has pressed only ground of personal need. Arguments heard on that and reasons to be recorded, this petition is allowed the tenant is directed to hand over vacant possession within a period of 30 days. H.B.T./D-37/K??????????????????????????????????????????????????????????????????????????????????? Petition allowed.