1988 PLP 540 (CLC)

The case of the respondent in the ejectment application was that the husband of the applicant /respondent is employed in Sharjah (UAE) and for quite sometime she had been staying with her husband there but education of her children and domestic reasons have necessitated their return to Karachi and to reside here permanently. It is further alleged in para. 5 of the application that the applicant has been temporarily putting up with her in‑laws who themselves are tenants and have been asked by their landlords to vacate the house in their occupation immediately. In pare‑6 of the application it was stated that the in‑laws of the applicant are old enough necessitating their housing in ground floor premises. In para‑7 it was stated that the applicant's requests for vacating the premises in question as she required the same for her personal, bona fide use of in‑laws and brothers and sisters of her husband had adverse reaction on the opponent and he had stopped and refused to pay the rent since July, 1980. In para. 9 of the application it was stated that the applicant and/or her family members do not own any house other than the one in dispute in either of the three Districts of Karachi. That the case of the appellant /opponent was of denial, and it was further alleged that the allegations made in paras. 4, 5, 6, 7 and 8 were false and baseless. They lack veracity and substance and same have been concocted with ulterior motives. It was further submitted that the alleged personal requirement is neither genuine nor bona fide and the opponent is not liable to be ejected on the grounds alleged or otherwise. As far as the default was concerned it was alleged that rent for the months of May to July, 1980 was paid by cheque to the brother‑in‑law of the applicant namely Mr. Tahir Hussain who received the same on 17‑7‑1980 and put his signature in token thereof on the counterfoil of the cheque. Rent for August, September and October, 1980 was deposited in the account of the applicant bearing S.B. Account No. 10065‑8 in Habib Bank Limited, Nazimabad, Karachi by transfer from opponent's account. Rent for November and December, 1980 was also paid by a bank transfer. It was further submitted that sum of Rs.2,500 was deposited by the opponent with the applicant by way of 9.dvance rent at the time of creation of tenancy which has not been adjusted against rent and is lying as an unadjusted credit in the hands of the applicant and has not been accounted for by the applicant. The allegation of default in payment of rent is therefore, absolutely false and baseless. On behalf of the applicant /respondent Syed Farrukh Raza son of the applicant and Special Attorney was examined. He produced Special Power of Attorney as Exh. 1/1, Rent Agreement Exh. 1/2. On the other hand, opponent Muhammad Arif filed his own affidavit and produced debit advice from the bank as Exh.2/1. A receipt dated 2‑4‑1971 regarding payment of Rs.2,500 as advance rent has also been produced. The learned Rent Controller after recording the evidence allowed the ejectment application on the ground of personal use. The present appeal is filed against the said order. I have heard Mr. Syed Inayat Ali learned counsel appearing for the appellant, and Mr. Abdul Qadir Jusbani Advocate for the respondent. It was contended by Mr. S. Inayat Ali learned counsel for the appellant that Syed Farrukh Raza son and Attorney of the applicant has stated in cross‑examination that "It is a fact that premises in question is not required for the personal use of our family, but that of the parents of his father". He has further contended that this statement was made by Farrukh Raza on 19‑11‑1983 and that it has not been withdrawn or proved to be erroneous. That the admission was unconditional, express and unqualified. In this connection he has relied upon A I R 1960 S C

100. He has further contended that the respondent herself did not come in the witness box while the affidavit of her son/attorney does not show the source of information regarding the facts mentioned in para. 5 of the affidavit. He has further relied upon section 2(g) of Sind Rented Premises Ordinance, 1979 and contended that ejectment cannot be granted for the personal bona fide use of in‑laws and brothers and sisters of the husband. On the other hand, Mr. Abdul Qadir Jusbani learned counsel appearing for the respondent has contended that the word personal use has to be construed liberally and it will include in‑laws as well as sisters and brothers of the husband. In this connection he has relied upon 1976 S C M R 52 and 1983 C L C

321. I have considered the contentions of the learned counsel and have gone through the R & P of the case. In the ejectment application the case of respondent /applicant was that she required the premises in question for her personal bona fide use and that of in‑laws and brothers and sisters of her husband but in the evidence of Farrukh Raza the only witness and attorney of the respondent has admitted that it is a fact that the premises in question is not required for the personal use of our family, but that of the parents of the father. Section 2(g) of the Sind Rented Premises Ordinance, 1979 defines "personal use" means the use of the premises by the owner thereof or his wife (or husband) son or daughter". It has been held by their Lordships of the Supreme Court in A I R 1960 S C 100. "The admission is best evidence that an opposing party can rely upon, and the matter, unless successfully withdrawn or proved erroneous." In the case of Abdul Salam v. Dr. Najam Pervaiz (1976 SCMR 52) relied upon by Mr. Abdul Qadir, Lordship of the Supreme Court that‑‑ "the personal needs of the landlord would include the need of those dependent upon him." In Wali Muhammad v. Zainab Khatoon (1983 C L C 321) it was observed by Mr. Saeeduzzaman Siddiqui, J. of this Court that‑‑ "while considering the personal and bona fide requirement of the landlord, the same cannot be confined strictly to the landlord's personal need only but such requirement is to be liberally construed so as to include the requirement of such other members of the family of landlord who were either dependent on the landlord for such accommodation or who under the circumstances have become part of his family and had depended for that purpose on him." In the present case the witness of the respondent having admitted that the house in question was not required for their personal bona fide need but it was required for the in‑laws of her mother and sisters and brothers of her husband. There is no evidence led to show that the in‑laws of the respondent and that the sisters and brothers of her husband were depended upon her or that they were living with them as members of the family. On the contrary it is stated in the application as well as in the affidavit that the applicant herself was living with her in‑laws temporarily and that the landlord of her in‑laws had asked them to vacate the premises, but no evidence has been led even on this point to show that actually the landlord of her in‑laws had asked them to vacate the premises. The decisions relied upon by the learned counsel for the respondent with utmost respect are distinguishable and are not applicable to the present case, inasmuch as the two cases cited above arose out of ejectment application filed under section 13 of Sind Urban Rent Restriction Ordinance, 1959 and there was no provision defining "personal use" and therefore, the same was being liberally construed. But section 2(g) of Sind Rented Premises Ordinance defines personal use and it does not include the use of premises for the in‑laws or brothers and sisters of the husband. In view of the above specific provision and the evidence brought on record I am of the considered view that on one hand it was not proved that the applicant /respondent required the premises in question for bona fide use of her in‑laws and brothers and sisters of her husband, and on the other hand they are not included in the list of persons for whose bona fide personal use ejectment could be ordered. In view of the above discussion the appeal is allowed, the order of the learned Controller is set aside and the application for ejectment filed by the respondent is hereby dismissed. H. B. T. /M‑361/K Appeal allowed.