2010 PLP 837 (SCMR)

KHILJI ARIF HUSSAIN, J.

This appeal, by leave of the Court dated 29-7-2008, has been filed by the appellant being aggrieved by the judgment dated 26-5-2008 passed by the High Court of Sindh, Karachi in F.R.A. No.7 of 2007. The judgment dated 13-2-2007, passed by learned Additional Rent Controller, Karachi Cantonment Board, Karachi, allowing ejectment of the appellant from the premises in question has been maintained with direction to the appellant to hand over vacant physical possession of the tenement to respondent No.1 within sixty days and also to pay monthly rent and utility bills regularly.

2. Leave was granted to consider the following questions of law: (i) Whether it is essential requirement of law to disclose in the ejectment petition the three requirements as provided in section 17(4)(a) which are as under:

(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:

(a) in the case of a residential building if

he requires it in good faith for his own occupation or for the occupation of any member of his family; and (i) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in any local area in the vicinity thereof; and (ii) he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the Commencement of this Act (iii) Whether non-disclosure of aforementioned three requirements in the ejectment petition would be fatal to the ejectment petition? (ii) Whether suppression of the fact of occupying any other residential property in the cantonment area by the landlady, would indicate want of good faith? (iii) Whether the tenant-petitioner (appellant) was able to demonstrate that the need of the landlady was not bona fide and ejectment petition of the landlady was liable to be dismissed?

3. Brief facts necessary to decide the appeal are that respondent No.1, landlady, had filed application under section 17 of the Cantonments Rent Restriction Act, 1963, bearing Rent Case No.15 of 2004 for ejectment of the appellant from the tenement on the grounds of personal use and default. The appellant filed written statement averring that the respondent did not need the premises for bona fide personal use.

4. After recording the evidence, learned Rent Controller allowed the ejectment application filed by the respondent and directed the appellant/opponent to hand over vacant and physical possession of the tenement to the respondent/applicant within 60 days. The appellant filed appeal under section 24 of the Cantonments Rent Restriction Act, 1963, before the High Court. The appeal was dismissed vide impugned order dated 26-5-2008.

5. Heard Mr. Khalid Anwar, Senior Advocate Supreme Court for the appellant and Mr. M. Tasnim, Advocate Supreme Court for respondent No.1.

6. Learned Senior Advocate Supreme Court for the appellant vehemently argued that under section 17(4)(a) of the Cantonments Rent Restriction Act, 1963, the respondent/applicant/landlady ought to have disclosed that she or any member of her family were not in occupation of any other residential building suitable for her need at the time, in the Cantonment area concerned or in any local area in the vicinity.

7. Mr. Khalid Anwar, learned Senior counsel, after taking us through the evidence on record argued that the respondent had failed to prove that she needed the tenement for her personal bona fide use and that she had no other residential premises in the vicinity of the tenement in question.

8. We have heard the arguments of learned counsel for the parties and scanned the record minutely. It appears from the record that the respondent in her application under section 17(4)(a) of the Cantonments Rent Restriction Act, 1963, specifically stated "that the present house under occupation of the respondent/applicant is neither sufficient nor suitable for use in future nor the applicant owns any other property in any other vicinity at Karachi, hence she requires the premises for her own personal bona fide need, hence this application."

9. We are of the view that requirements of section 17(4)(a) of the Cantonments Rent Restriction Act, 1963, have been sufficiently complied with by the respondent by stating that she is in occupation of a house which is not suitable for her use in future and that no other property is owned by her. In the affidavit in evidence filed by the respondent, she again reiterated that the present house under her occupation neither sufficient nor suitable for her use in future nor she owned any other property in any other vicinity at Karachi, hence she required the premises for her own personal bona fide need and for the use of her family members.

10. We are of the view that an ejectment application, filed under section 17 of the Cantonments Rent Restriction Act, 1963, cannot be dismissed merely because the landlord has not mentioned that he or any member of his family is not in occupation of any other residential building suitable for his need. Even if, the landlord or any member of his family is in occupation of a premises, landlord can file an application for ejectment of the tenant on the ground of his personal bona fide use in good faith, if he can prove that the premises in his occupation is not suitable for his need, order of ejectment can be passed by the Rent Controller. However, it is desirable that all necessary facts in respect of personal requirement be sufficiently stated in the ejectment application.

11. We have gone through the record and find that the High Court, having properly attended to the questions relating to the application filed by the respondent in the light of evidence, has dismissed the appeal and conclusion drawn thereon, being not suffered from the defect of misreading or non-reading of the evidence, hardly calls for interference by this Court.

12. In this view of the matter, there is no merit in this appeal. The same is accordingly dismissed. No order as to cost. M.H./C-1/SC Appeal dismissed.