1986 PLP 685 (CLC)

5. I heard the learned counsel for the parties and they also took me through the evidence of all the witnesses produced on behalf of the appellant as well as respondent in support of their respective stand.

6. Respondent filed his own affidavit (Exh.3) and the affidavits of his son Sayed Muhammad Tariq (Exh.4) son‑in‑law namely, Muzafar Ahsan (Exh.5) and another son namely, Sayed Nadeem Ahmed (Exh.6). They were cross‑examined by the counsel for the appellant. On behalf of the appellant, he filed his own affidavit (Exh.7) and the affidavits of Umar Zakaria (Exh.8) and Muhammad Ahmed (Eich.9).

7. So far as the bona fide requirement of two premises is concerned, the respondent in paragraph 4 of the application has stated that he had asked the appellant to vacate the house and shop as per oral agreement, but the appellant refused to vacate the same and kept him on false promises. He has further stated that the house and the shop are required by the appellant for use of his grown up children and a married daughter. He has also stated that one daughter Mst. Talat Fatima who is married is residing with him as she has no accommodation and one son S.M. Tariq aged about 24 years is going to be married in a short time and that the applicant requires the separate accommodation for him as well. He has further stated that his family consists of nine members including six children and son‑in‑law and they are living with him in one room including one store and one small hall on the upper floor of the building.

8. As regards the personal requirement, the respondent in paragraph 5 of the application has stated that his two sons namely, S.M. Tariq and Nadeem Ahmed are out of job and he needs the shop for their bona fide use in good faith to start the business for his two sons who are jobless.

9. In reply to these averments the appellant, in paragraphs 4 and 5 of his written statement, has stated as follows:‑‑-- "That as regards para. 4 of the application, it is submitted that the opponent never promised to vacate the said house and shop at the time of taking it on rent and the applicant promised the opponent not to vacate the rented portion of the said house and shop because at that time it was a very handsome and attractive rent. The married daughter Mst. Talat Fatima may live in any other place; it is not her property and she is not entitled to claim to reside in the rented portion of the opponent. As regards his son S.M. Tariq he has not been married as yet and according to law he also not claim for the occupation of the rented portion for his personal use because he is not the owner of the property in the life of the applicant. It is a matter of great astonishment that the applicant has taken the responsibility for the accommodation of the married daughter, son‑in‑law etc. etc. and thus created a handsome plea for taking the occupation of rented portion of the house and shop by disturbing the 7 brothers, 3 sisters and mother and destroying the running business of the opponent. It is not out of place to mention here that the applicant has sufficient accommodation on the 1st Floor of the house consisting of two big rooms, one big hall, store, etc., etc. which is quite sufficient for the applicant and his family members to reside therein. In the beginning of this paragraph the applicant himself admitted that the house and the shop is required for his personal bona fide use which is crystal clear that he wants to snatch the ruining business of the opponent for earning more money by running the opponent and his business and has not come with clean hand in this Hon'ble Court." "

5. That as regards para. 4 the opponent has shown his bad intention to snatch business of the opponent by taking vacant possession of the shop. The applicant is not responsible that the opponent's sons are jobless. It is against the justice, fair play and equity that the applicant's sons began to snatch business of the opponent who has established his business after facing great struggle of 3 years. The opponent's sons may seek any job to any establishment or start their business in any other locality by taking shop on rent which is not herculean task for them but how far it is justified that the opponent's sons start their business by destroying the opponent and his dependants family members by snatching his means of income and taking vacant possession of the attached shop of the house."

10. Respondent and his two sons and son‑in‑law in their affidavits have supported the case stated in the application and nothing had teen brought out in their cross‑examination which should be construed adverse to the respondent.

11. The appellant in his affidavit in evidence has stated that the parried daughter Mst. Talat Fatima may live at any other place as it is not her property and she is not entitled to reside in the house. As regards S.M. Tariq, he has stated that 'he was not then married and according to law he also could not claim the rented portion in his possession for his personal use, for the reasons, as stated, that he could not be the owner of the property in the lifetime of the respondent. He claimed that the respondent has sufficient accommodation on the first floor of the house consisting of two big rooms, one big hall, store, etc. As regards the requirement of the shop he stated that the respondent wanted to snatch away his running business by obtaining' vacant possession of the shop in his possession and claimed that the respondent and his sons might start business by taking any shop on rent in the locality which was not a herculean task.

12. His witness Umar Zakaria has stated that the respondent has sufficient accommodation on the first floor and he wants to snatch the running business of the appellant. The other witness Muhammad Ahmed has not said more in his affidavit than what is stated by Umar Zakaraya.

13. Now, it is admitted fact that the respondent is residing on the first floor of the house with his eight family members i.e. his wife, three daughters, three sons and son‑in‑law, all of whom are adults. It is also in evidence that the two sons of the respondent namely, S.M. Tariq and Syed Nadeem Ahmed are adults and are of marriageable ages, being of 25 years and 23 years respectively on the date when the respondent had filed his affidavit.

14. It is, therefore, clear that the accommodation of the first floor whether it is one room and the small hall or two big rooms and a big hall could not be considered to be sufficient for nine persons, all of whom are adults and out of whom two are married couples.

15. So far as the requirement of the shop is concerned it is admitted position that both the sons of the respondent are jobless. I have already quoted the paragraphs 4 and 5 of the written statement, in which the bona fide requirement of the shop for the sons of the respondent has been almost conceded, which is even otherwise proved.

16. Mr. Nazir Ahmed Siddiqui learned counsel for the appellant however, submitted that the Controller by his order, dated 15‑3‑1980, had determined the rent for residence as well as shop premises at the rate of Rs.700 per month, while respondent had claimed at the rate of Rs.900 per month and the appellant had submitted that the rent was Rs.475 per month. He, therefore, submitted that the case may be remanded to finally determine the amount of rent due. However, Mr. Muhammad Jamil, learned counsel for the respondent conceded that the rent at the rate of Rs.475 per month, which the respondent has already withdrawn from the Court be considered to be the rent of both the premises and the balance amount could be returned to the appellant subject to any adjustment of the rent which has become due for any subsequent months. In view of the above concession it is now not necessary to remand the case for this purpose.

17. I, therefore, do not find any infirmity in the order of the Controller so far as the issue of bona fide requirement of the accommodation is concerned and accordingly dismiss this appeal with costs.

18. Mr. Muhammad Jamil learned counsel for the respondent stated that, if the appeal filed by the appellant is dismissed, he would not press the other appeal filed by the respondent against the finding on issue of default in payment of rent. I have, therefore, not considered it necessary to discuss the evidence on the issue of default or to narrate the facts relevant to that issue.

19. Mr. Nazir Ahmed Siddiqui learned counsel for the appellant requests for time to vacate both the premises. The appellant has already got 11 months time as the impugned order was passed on 28th November, 1984. However, I allow him two months more time to vacate both the premises, but on the condition that in case the appellant fails to vacate the premises within time allowed hereby, the respondent shall be entitled to apply for execution of the order without notice to the appellant. H . B . T Appeal dismissed