P L D 1988 Quetta 38 (PLP)

This appeal is directed against order dated 29‑9‑1987 passed by learned Civil Judge‑II cum Controller, Quetta, whereby appellants have been directed to hand over vacant possession of shop No.2‑11/43 situated at Shar‑e‑Jamaluddin Afghani, Quetta:

2. Brief facts leading to present appeal are, that on 30‑9‑1980 respondent filed an application for eviction of appellants from shop bearing Municipal No.2‑11/43 situated at Sharah‑e‑Jamaluddin Afghani, Quetta on the grounds of (i) default in payment of rent from July 1980 onwards, (ii) subletting, (iii) damage to premises by impairing its value and utility, and (iv) personal bona fide requirement. Appellants filed written statement on 11‑2‑1980 wherein averments of eviction application were expressly repudiated. It was asserted that \respondent has been pressurizing appellants from time to time, for enhancing monthly rental and now was demanding exhorbitant amount of Rs.400 per month. According to appellants, on account of their refusal to increase the rent eviction proceedings were initiated. Keeping in view the pleadings, learned Controller on 29‑8‑1981 framed following 5 issues:‑ (1) Whether the respondent has failed to pay rent from July, 1980 and ownward and as such has committed wilful default? (2) Whether the premises in question is required by the applicant reasonably rid in good faith for her own use and occupation? (3) Whether the respondent No.l has sublet the premises in question to respondent No.2 without the prior permission and consent of the applicant? (4) Whether the respondents have committed such acts Which have materially impaired the value and utility of the shop in question? (5) Relief? Respondent in support of her claim examined one witness Muhammad Munir besides her attorney Muhammad Saeed. Whereas appellants to rebut the claim of respondent produced seven (7) witnesses namely R.W.1 Kafil Habib R.W.2 Sadiq Shah R.W.3 Nazeer Dad R.W.4 Haji Ali Asghar R.W.5 Abdul Shakoor R.W.6 Umar Hayat and R.W.7 Afsar Ali Baig apart from statement of appellant No.l (Mazhar Hussain). On appraisement of evidence so adduced by parties, trial Court accepted the application only on the ground of personal bona fide requirement and directed eviction of appellants by means of order dated 29‑9‑1987. This appeal was filed on 1‑11‑1987 challenging the same: Mr Moquim Ansari, Advocate, learned counsel for appellants has vehemently urged that (i) There is not an iota of evidence on record to show bona fide personal requirements, accordingly conclusions of trial Court relating to issue No.2 are highly 'arbitrary. (ii) Evidence led by respondent was beyond the scope of pleadings. (iii) Evidence adduced by appellants has been completely ignored. Inferences drawn in the matter are not borne out from record. (iv) Requirement of grandson is not covered by the provisions of ordinance VI of 1959. Moreover, it was proved that respondent landlady as Well as her grandson were residing at Lahore All these factors, which falsify claim of landlord were unjustifiably ignored by trial court . (v) There was no explanation for not examining respondent personally or her grandson. Inference ought to have been drawn lost landlord. Whereas Ch. Muhammad Iftikhar learned counsel for respondent convassed that‑‑ (i) even statement of attorney Saeed Ahmad was sufficient to establish bona fides in' the circumstances explained in his statement. Similarly use of shop by grandson was intended for improving economic resources of landlord/respondent and finally of her deceased son; (ii) therefore, there was no contradiction in stand taken in the application as well. as evidence adduced in the case; (iii) evidence of parties' has been properly and correctly appreciated by trial Court; (iv) respondent is parda nashin lady therefore, statement through attorney is quite legal and sufficient: Similarly non‑examination of grandson by itself is not fatal. I have considered arguments advanced by learned counsel for par ties and perused, the record. Trial Court has granted relief on the ground of personal bona fide requirements, whereas issues relating to subletting, impairing value or utility of property and default have been decided in ‑negative. Respondent has examined only one witness namely Muhammad Munir besides her attorney to substantiate her claim. According to his version shop in dispute was required by respondent for her grandson aged about 16117 years, who wants to do some business in it. This witness during cross‑examination unambiguously admitted that adjoining shop has been sold by respondent to Nazeer Halwai about three months prior to his statement recorded on 12‑5‑1982: Besides respondent undisputedly has property in the shape of shops and houses at Lahore as well. This witness did not know even the name of respondent's grandson for whom shop is allegedly required. He has vaguely mentioned about desire of respondent in that behalf. Similarly her attorney Muhammad Saeed, has deposed that grandson of respondent is jobless and wants to do business of General Merchant. According to his version, the respondent intended to provide livelihood for her daughter‑in‑law, and grand children. Whereas appellants through their witnesses have attempted to prove that grandson of, respondent is still getting his education and has recently passed Matriculation examination. It may be seen that shop was sold to Nazeer Halwai after getting its possession. Version of R.W.1 (Kafil Habib) asserting that respondent was living in Lahore for the last more than twelve years and she had sold adjoining shop to Nazeer Halwai after vacant possession was obtained, remained unchallenged during cross‑examination. This aspect is fully corroborated by the statement of other witnesses. Careful perusal of evidence on record discloses merely sportive desire of respondent to accommodate her grandson. Casual statement of attorney uncorroborated by independent evidence cannot be deemed sufficient. Law contemplates real and genuine intention of landlord for bona fide personal use of suit premises. The requirement in this behalf must be proved in an ordinary way like any other fact. Mere desire of landlord cannot be equated with bona fides. Details of his requirements A must be established to the satisfaction of Controller either through reliable evidence or by way of convincing and confidence inspiring version of landlord, as the case may be. In this view, I am supported by the observations in following reports. (i) Mali Din v . Manzoor Ali P L D 1985 Quetta. 142 (ii) Shaharyar Ali Patadi v. Messrs Decora Furnishery P L D 1985 Kar. 47. (iii) Gullah Jan v. Ghulam Habib 1983 C L C 1149. (iv) Gul Rahim Khan v. Muhammad Naeem 1984 C L C 521. (v) Ghulam Mohyuddin v. Muhammad Ishaq 1980 C L C

241. In the instant case trial Court without properly evaluating evidence available on record completely misinterpreting relevant provisions of law has decided issue No.2 in affirmative. Even reasons have not been assigned, therefore, conclusions arrived at by trial Court are apparently erroneous. Besides neither respondent/landlady nor her grandson for whom shop is claimed have been examined. Furthermore there is absolutely no explanation for their failure to appear as witness. No doubt, non appearance of the landlord or person for whose benefit premises is sought, by itself is not fatal and is relateable to facts in each case. However, taking into consideration peculiar situation in the instant case and attending circumstances obviously adverse inference can be legitimately drawn against respondent. For the aforesaid reasons am inclined to accept this appeal, consequently order dated 29‑9‑11987 passed by Civil Judge‑I, cum Rent Controller is set aside and application for eviction filed by respondent is directed to be dismissed. This appeal was decided by short order dated 7‑3‑1988 and these are reasons for the same. H.B.T./302/Q Appeal accepted.