1994 PLP 1887 (CLC)

The appellant filed written statement on 29‑7‑1989 and denied that the flat in dispute was required by appellant for her personal use. It was also averred that the building in which disputed flat is situated, has many other tenaments, some of which had fallen vacant after the death of respondent's husband, which were rented out to various new tenants, the details having been given in paragraph 12 of the written statement. It was also stated by appellant that a building known as Khurshid Centre with 5 stories constructed on Plot No. LY‑23/20/2, in Jamila Street, Karachi belonged to respondent in which many flats were lying vacant. Appellant also stated that respondent owned another Bungalow known as Qasr‑e‑Khurshid constructed on 1000 sq. yds, situated in Karachi, Administrative Cooperative Housing Society. Some other properties were also shown‑ as either owned or occupied by respondent. Appellant also stated that previously, Rent Case No. 2174/1978 was filed against him by the respondent on the ground of default, which allegation was not proved and her rent case was dismissed. Applicant filed 'her own affidavit‑in‑evidence and produced notice dated 18‑3‑1989 sent by her to appellant, reply dated 5‑2‑1989 to the said notice, and photo copy of receipt of rent issued by respondent to another tenant. These documents are Annexures A to A‑

4. Appellant filed his own affidavit‑in‑evidence and stated the facts as given in his written statement. On assessment of evidence the learned Rent Controller framed the following points for determination: (1) Whether the applicant is` entitled to get vacated the premises in question under section 14 of Sindh Rented Premises Ordinance, 1979? (2) What should the order be? On appraisal of evidence, the learned Rent Controller decided point No. 1 in affirmative and passed the impugned order, directing appellant's eviction from the disputed flat, which order is under appeal. The learned Advocate for appellant has contended that although in section 14 of the Ordinance, the word `bona fide' is not used, and the word `need' has been used, yet the landlord seeking eviction of a tenant under section 14 has to show by evidence, that the need of such landlord is bona fide also. He next contended that the respondent is residing in a Bungalow known as Qasr‑e‑Khurshid in KA.H.S., and it could not be believed that she would leave the same and occupy for her personal need the flat in dispute which is situated on IInd Floor of a building. He referred to CLC 1986, where it was observed that: "Of course, bona fide requirement is not required to be proved by the landlord under section 14, but at least he has to prove that he needs the building. Section 14 of the Sindh Rented Premises Ordinance, 1979 used the word `needs'. This word does indicate that the landlord has to establish that it is not his arbitrary desire to have a particular premises vacated but that he has a need for the same and the need has, therefore, to be proved and the proof of course would be different in the circumstance of each case but unless and until some prima facie need is established the landlord cannot insist that irrespective of his need he should be given the premises because he desires to have them." He also referred to 1983 CLC 468 where it was held: "The mere use of the word `need' would envelop the concept of bona fides. After all, it has to be established that a person needs the premises, and, in such enquiry, it can never be said that the word has to be interpreted as if it were divorced from the concept of bona fides, or mala fides. Taking that view would mean that even unreasonable and fanciful need will have to be met only if the landlord were to come and say that he needs the premises. Such an intention could never be attributed to the legislature because the Sindh Rented Premises Ordinance is enactment of a nature that is designed to protect the right of occupation of a tenant." Mr. Manohar Lal, the learned Advocate for the respondent contended that there are 24 flats in Rahim Manzil, one of which is occupied by appellant and is in dispute. None of the flats in the building had fallen vacant after the death of respondent's husband, nor any such flat was rented out by her to any other tenant. So far as the bungalow known as Oasr‑e‑Khurshid is concerned, the same is owned by the two sons of respondent who have named the bungalow after the name of their mother and is known as `Qasr‑e Khurshid'. The two sons and one daughter of the respondent with their family are living in the bungalow alongwith the respondent, but as the respondent wants to shift from the said bungalow, she had sought appellant's eviction from the disputed flat. He referred to 1988 SCMR 819, 1989 CLC 46, 1989 CLC 247, 1989 CLC 620, 1989 CLC 714 and 1989 CLC 1096 in support of his contention. I have considered the contentions of the learned Advocates, and perused impugned order with record of the trial Court and the case‑law referred the requirement of section 14 of the Ordinance is that the landlord of a building who is a widow or a minor whose both parents are dead, or a salaried employee due to retire within next six months or has retired or a person who is due to attain the age of 60 years, may, by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be‑ specified in the notice, not being earlier than two months from the receipt thereof. Subsection (2) of section 14 lays down that the landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of building owned by him in any locality. On having become widow, the appellant sent required notice under subsection (1) of section 14 to appellant duly served upon him. The respondent was, therefore, well within her rights to seek appellant's eviction under section 14 of the Ordinance. It was for the tenant/appellant to have proved that the respondent was not entitled to seek his eviction and that her case was hit by subsection (2) of section

14. All that has come in evidence is the oral assertion of the appellant that respondent owns other premises but neither any documentary evidence has been brought on record nor independent evidence to that effect is available. It has been explained by respondent that the other premises which are `Qasr‑e‑Khurshid' or Khurshid Centre' are not owned by her, but the same are owned by her sons namely Haroon Bux and Mohsin Karini. The respondent has also stated in her evidence that none of the flats in `Rahim Manzil' had fallen vacant after the death of her husband, nor such flat was rented out to any tenant. The appellant in his evidence admitted in cross -examination that "it is correct to suggest that after July, 1988 no new tenant has vacated nor any new tenant has been inducted". This admission of respondent falsified his assertion that after death of respondent's husband, some flats in the building had fallen vacant and were rented out by respondent to various tenants. The appellant failed to show that any other property in the locality was in occupation of respondent other than the one occupied by appellant. The 'case‑law referred by the learned advocate for the appellant is distinguishable in the circumstances and cannot be applied to the facts of this case. The case‑law referred by respondent's learned Advocate also does not in any way support his case. However, the evidence on record and the reasons given by the learned Rent Controller, warranted passing of impugned order which does not need any interference by this Court. Under the circumstances the appeal of appellant merits no consideration as no interference with the impugned order is called for and the same is dismissed with no orders as to costs. However, the appellant is allowed one month time from today to vacate the disputed flat. H.B.T./M‑1713/K Appeal dismissed.