1994 PLP 1864 (CLC)

Khalid Riaz for Appellant. S.M. Abbas for Respondent. Date of hearing: 11th January, 1994. This appeal has been filed, challenging the order passed by the learned VI Senior Civil Judge and Rent Controller, Karachi East, in Rent Case No. 185 of 1990, whereby the rent case filed by the present appellant/landlady, was dismissed. .

2. Briefly the facts are that the landlady owns premises No. 51/Y/6., Nursery, P.E.C.H. Society, Karachi, and that the present respondent is a tenant in one q4 the shops on the ground floor of the said premises which he is occupying at the rate of Rs.350 per month vide agreement dated 1;10‑1988. The appellant had filed this rent case for ejectment of the respondent on the ground of bona fide personal requirement for her son Akbar Ali, who is said to be jobless since 1/1‑2 years prier to the filing of the rent case and intends to open a general store therein. The respondent contested the rent case and filed his written objection, wherein it was categorically stated that a shop adjacent to the shop in dispute and owned by the present landlady in the same premises is lying vacant and is under lock. This second shop is said to have been got vacated from the tenant in a rent case on the ground of personal requirement for residential/commercial purposes. The appellant had got the affidavit‑in‑evidence of her son and attorney Akbar Ali, filed, while the respondent filed his own affidavit‑in‑evidence. The Rent Controller after hearing the arguments v0as pleaded to dismiss the rent case on the ground that adjacent shop was got vacated earlier through a rent case, but the same was kept under lock and was not used by the appellant for the purpose of starting business for her son Akbar Ali and, therefore, "good faith" does not stand proved as required under section 15(2)(vii) of the Sindh Rented Premises Ordinance, 1979. Being aggrieved the present appellant has preferred this appeal.

3. I have heard the learned counsel for the parties. The learned counsel for the appellant has pointed out that the said second shop which was got vacated from the tenant in another rent case, is being used for residential purposes as the same is converted into a drawing‑room. He has further submitted that the said shop was got vacated for residential/commercial purposes and, therefore, it is properly utilized. He has also referred to the cross‑examination of the attorney of the appellant, namely, Akbar Ali, who in his cross‑examination (last fine) has stated "I have not started any business in that shop. Voluntarily says that we are residing there. It is locked". The learned counsel has submitted that mere words "It is locked" cannot be read in isolation with the other parts of evidence, but the evidence of the witness should be read as a whole in order to construe the meaning thereof. He has further pointed out that this shop has a door opening on the road side, which is locked from outside as the same is being used as a drawing‑room. It has also been pointed out that in the present case the appellant had moved an application before the Rent Controller, under section 20 of the Sindh Rented Premises Ordinance, 1979, on 5‑1‑1991, wherein he had prayed for, inspection of the said shops. An affidavit of said Akbar was filed in support of the above application, wherein it has been categorically stated that this shop is being used for residential purposes as a drawing‑room of the appellant. On this application the Rent Controller had passed an order on 13‑8‑1991 directing that this application is kept pending which will be heard after the Advocates have made their arguments before the Court. However, this application was never disposed of as no order has been passed on this application.. In these circumstances, as discussed above, it was necessary for the Rent Controller to have determined the actual situation with regard to the other shop for which a site inspection could have been necessary. However, I leave it to the Rent Controller and these observations will not affect the decision to be taken by the Rent Controller on this application.

4. In this view of the matter Mr. S.M. Abbas has consented for remand of the case to the Rent Controller with direction that the Rent Controller should first decide this application for site inspection after hearing the advocates of the parties and then pass the necessary and proper order in the case. Accordingly, the appeal is allowed, the impugned order is set aside and the case is remanded to the Rent Controller who shall pass a proper order on the application for site inspection after hearing the learned counsel for the parties, and then give the judgment accordingly. However, there will be no order as to costs. H.B.T./Z‑225/K Appeal allowed.