1996 PLP 806 (MLD)

Nisar Ali for Respondent. Date of hearing: 20th April, 1995. This appeal has been filed challenging the orders passed by Ist Senior Civil Judge/Rent Controller, Karachi (East) in Rent Case No.284 of 1987 whereby the present appellant was directed to hand over the vacant possession of the premises in dispute to the respondent/landlady.

2. Briefly the facts of the case are that the present respondent, who is the landlady of premises Flat No.3, situate on the first floor of Al‑Karim Building, Garden East, Shivaratan Street, Karachi had instituted the said rent case seeking ejectment of the appellant on the grounds of having caused damage to the premises, impairing its value and utility and secondly, that the premises were required by the respondent for her personal use and use of her son and children in good faith. The first point was not pressed at the time of arguments but the second point was pressed.

3. The case of the landlady is that she at that time was aged 61 years and her husband was aged 67 years, who had recently undergone an operation for hernia and could not climb the staircase to third floor in the said building where the landlady was residing at that time alongwith her family.

4. The parties had filed their affidavits‑in‑evidence and were cross‑ examined. The Rent Controller after hearing the arguments of the Advocate, came to the conclusion that the premises were required by the landlady in good faith for her own use and the use of her son Wazeer Ali and his family. Being aggrieved the present appellant has preferred this appeal.

5. During the pendency of the appeal, the learned counsel for the appellant has moved two Miscellaneous Applications being C.M.A. No. 147 of 1993 and C.M. No.490 of 1994. The main contention raised by the learned counsel for the appellant is that during the pendency of the present matter, the respondent has got Flats Nos. 8 and 9 in the same building on second floor vacated from the tenants and have shifted to these flats from Flat No. 12 wherein the landlady was residing and which is at third floor of the same building. He has also pointed out that there were other premises on the ground floor of the same building in occupation of the other tenants and the respondent but no prayer was made for ejectment thereof. He has also pointed' out that subsequently almost all the family members of the landlady have migrated to U.S.A. and are no more living in Pakistan. From this the learned counsel for the appellant has submitted that the ground of personal requirement of the appellant no more exists.

6. Mr. Nisar Ali, the learned counsel for the respondent/landlady has vehemently opposed the above contentions of the learned counsel for appellant. He has submitted that the landlady and her husband have presently gone to U.S.A. to visit their children and would return. He has further argued that the son of the respondent, namely, Wazeer Ali is suffering from a cardiac problem and under medical advice he cannot claim the staircase to second floor but he has been permitted to claim the staircase upon first floor.

7. I have given anxious consideration to the submissions made by the learned counsel for the parties. All these points passed in this appeal require determination of facts. The respondents have also not brought on record any medical evidence to show if the husband of the respondent and son of the respondent who are both ailing persons can or cannot climb the staircase and in either case up to what extent. Similarly, it has also to be determined through evidence of facts if the family of the respondent has migrated to U.S.A. and in such circumstances, what would be the need and requirement of the respondent for her personal rise or use of her family. Since all these matters require determination of facts, I am of the view that the same can best be done through evidence to be led by the parties on this aspect. Accordingly, I accept this appeal, set aside the judgment passed by the Rent Controller and remand the case to the Rent Controller to give opportunity to both the parties to lead further evidence in accordance with law and then given a fresh finding. The Rent Controller may dispose of the matter within a period of six months from the date of this judgment. The miscellaneous applications are also disposed of. The parties are left to bear their own costs. H.B.T./S.4./K Order accordingly.