1993 PLP 404 (MLD)

This appeal calls in question the order passed by the learned Rent Controller, Karachi (Central) dated 8‑5‑1991 dismissing the application filed on behalf of the appellant under section 14 of the Sindh Rented Premises Ordinance, 1979. The case of the appellant before the learned Controller was that she had attained the age of 60 years and she needed the premises in question for her personal use. The appellant had also served a notice upon the respondent as required by section 14 of the Sindh Rented Premises Ordinance.

2. The case of the respondent, however, was that the appellant owned House No.919/9 situated in Federal `B' Area, Karachi which was in her occupation and therefore, she was not entitled to seek ejectment of the respondent from the demised premises.

3. Although it was denied by the appellant in the affidavit‑in‑evidence filed on her behalf that she was in occupation of the said house as alleged by the respondent, but during her cross‑examination it transpired that she had inherited the same property alongwith her children from her late husband.

4. The learned Controller after coming to a conclusion that the appellant had attained the age of 60 years at the time of filing of the eviction application further held that the appellant had made a false statement on oath before her as in the affidavit‑in‑evidence filed on her behalf she had stated that the said house was neither owned by her nor she was in possession of the same but during her cross‑ examination she admitted that she was the joint owner of the said house alongwith her children. The learned Controller also was of the opinion that the appellant had failed to discharge the burden by establishing that she was sharing a house with her brother as alleged by her. The learned Controller was, consequently, of the view that there was a doubt whether the premises were required by the appellant for her personal use.

5. I have had the advantage of hearing only Mr. Riazuddin, learned counsel for the respondent as the Advocate for the appellant has not appeared and argued the case. Although a request was received on his behalf for adjournment of the case but the request has been declined by me as not being justified. Be that as it may but after hearing Mr. Riazuddin and after going through the record of the case, I find that the order passed by the learned Controller cannot be sustained under the law. No doubt, according to subsection (2) of section 14 of the Sindh Rented Premises Ordinance, "The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality", but what is contemplated by the said subsection is "occupation" and not ownership. The said section contemplates actual physical occupation by the landlord and not merely his ownership. In the present case, no doubt, it was alleged by the respondent that the appellant was in occupation of a house owned by her but such allegation was denied by the appellant. However, the onus to establish that the appellant was in occupation of such premises was clearly upon the respondent and not upon the appellant. After the learned Controller had held that the appellant had attained the age of 60 years, a case for ejectment could only be defeated if it could be established by the respondent that the former was in actual physical occupation of a building owned by her in any locality. Since there was no definite evidence before the learned Controller except the word of the respondent against which there was word of the appellant, the respondent had clearly failed to discharge the burden which the law placed upon him to discharge. The learned Controller also appears to have proceeded upon an assumption that the appellant was obliged to establish her bona fides in the matter. The same is evident from the finding of the learned Controller viz. that the appellant had created a doubt in her mind about her need. It may be pointed out that it is only in case where the landlord seeks eviction of the tenant under section 15 that bona fides or good faith are 8 required to be established by the landlord in order to succeed in evicting his tenant from the demised premises. The law does not place such obligation upon the landlord in a case filed under section

14. For the aforesaid reasons, I am of the view that the view taken by the learned Controller is not correct. From the evidence on record the case of the appellant under section 14 of the Sindh Rented Premises Ordinance had been established which made the respondent liable for eviction from the demised premises and the learned Controller was clearly in error while dismissing the appellant's application for reasons which could not have defeated the case of the appellant before the learned Controller.

6. In the result, this appeal is allowed and the order passed by the learned Controller is set aside and the respondent is ordered to be ejected from the demised premises after expiry of two months. The parties are left to bear their own costs. H.B.T./R‑213/K Appeal allowed.