1988 PLP 1346 (MLD)

This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979. The facts arising out of the appeal, briefly stated, are that the appellant is a tenant of the respondent in respect of tenement on the ground floor of Qasre Mariam, Guali Lane No.3, Ratan Talao, Karachi by virtue of rent agreement dated 4‑12-1981 the respondent on 23‑9‑1981 filed an application for ejectment of the appellant on the grounds of (i) conversion of use and (ii) bona fide personal need of the applicant and his son Anwar Khan Ghori, Advocate for his professional office. The appellant filed written statement. Issues were framed and after recording the evidence, as produced by the parties, the learned Rent Controller decided both the issues in favour of the respondent/applicant by his judgment dated 8‑10‑1985, appealed against.

2. Mr.Abdul Naseer Khan, learned counsel for the appellant submitted that earlier to the passing of the final order dated 8‑10‑1985 of ejectment of the appellant, the learned Rent Controller had been pleased to pass the orders dated 19‑7‑1983 and 4‑2‑1984 whereby the appellant's applications were dismissed for reasons stated therein. It was further submitted by the learned counsel that the finding on issue No.1 regarding unauthorised conversion of use is wrong. In this respect he invited my attention to the agreement of tenancy. Clause 8 of the said agreement stipulates that "the tenant can use the said flat either for business purpose or for residential purpose". In view of this clause the contention of the learned counsel carries weight and the finding on issue No.1 on conversion of use is reversed. It is, however, noticeable that the learned counsel for the respondent in his written argument submitted before the learned Rent Controller had also not pressed the issue of conversion and, therefore, the finding of the learned Rent Controller on the said issue was uncall for.

3. As regards Issue No.2 regarding personal bona fide need it was submitted by the learned counsel that the same has not been proved. To support his submission, learned counsel read out pages 30 to 33 of the appellant's affidavit‑in‑evidence. On the other hank Mr.Aftab A.Khan, learned counsel for the respondent referred to para 7 of the affidavit‑in‑evidence of the respondent's son Mr.Anwar Khan Ghauri Advocate for whom the premises was required. It is difficult to agree with the learned counsel for the appellant that the need of the respondent's son has not been established. It is, inter alia, stated in the said paragraph that the premises is required for establishing a professional office of the respondent's son who was practising as an Advocate having no office of his own. The Identity Card issued by Karachi Bar Association to the applicant's son and certificate of enrolment issued by the Sind Bar Council were placed on record. I am, therefore, satisfied that the need of the applicant's son as bona fide has been established and the finding of the learned Rent Controller is maintained.

4. Before parting with the case, it may be added that orders dated 19‑7‑1983 and 4‑2‑1984 are unexceptional. It appears that the appellant on 19‑7‑1983 filed an application for adjournment on the ground stated therein and the same was dismissed for non‑prosecution. Since there was none present for cross‑examination‑ of the respondent's son and respondent's attorney, his cross -examination was closed and the matter was adjourned to 4‑8‑1983 for the evidence of the appellant. On 4‑8‑1983 an application was filed by the appellant for recalling the said order dated 19‑7‑1983. This application was dismissed by order dated 4‑2‑1984. As a ground for recalling the order dated 19‑7‑1983 it was submitted that the appellant had gone to deposit the rent in the office of the Nazir where there being a long queue he could not attend the case. The conduct of the appellant seems to be that of playing delay tactics inasmuch as the affidavit of evidence was filed by respondent's son as long back as 22‑3‑1982 and adjournments were being sought by the appellant on one ground or the other and mostly by making frivolous applications just to postpone the cross‑examination, in fact the case was adjourned to 5‑2‑1983 as last chance but it was got adjourned on one pretext or the other and on 19‑7‑1983 the opponent just moved an application for adjournment leaving it with the Reader and did not turn up till 1.45 p.m. It is evident from the order passed on application and the order sheet. If he was busy in depositing the rent and he had seen that there was a big queue he should have attended the case because the rent could be deposited on the following or any other day. Furthermore, an application for recalling the said order was made on 4‑8‑1983 when the case was fixed for filing his affidavit‑in‑evidence. Furthermore, the learned Rent Controller seems to be included to allow the appellant to cross- examine the attorney of the applicant, as is evident from his order dated 4‑2‑1984 but the appellant insisted on calling the applicant/landlord in person for the purpose of cross‑examination. The learned Rent Controller was justified in rejecting that request as the applicant/landlord had not filed his affidavit‑in -evidence. I have gone through the entire case diary of the learned Rent Controller's Court with the help of the learned counsel for the respondent and it appears that the learned Rent Controller has shown maximum accommodation to the appellant and the orders dated 19‑7‑1983 and 4‑2‑1984 are unassailable both ~` in equity and law.

5. For reasons discussed above, the appeal stands dismissed, however, there will be no order as to costs. H.B.T./M‑422/K Appeal dismissed.