1988 PLP 881 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑The appellants are the heirs and successors of late Ghulam Hussain who was the owner/landlord of building consisting of several flats, out of which the respondent was the tenant in respect of flat No. C‑I . After the death of Ghulam Hussain on 3rd October, 1974, the appellants filed an eviction application under section 13 of the repealed Sind Urban Rented Restriction Ordinance, 1959, inter alia, on the ground of personal requirement of the premises in occupation of the‑respondent by Dost Muhammad appellant No.2 herein. The respondent contested the application repudiating the plea of personal requirement and contended that the premises were being secured in order to be rented out to some other tenants on receiving huge premiums. On the evidence adduced by the parties, the learned Rent Controller accepted the plea of the appellants and directed the respondent to hand over the demised premises to them. Respondent's appeal against the order of the Rent Controller was dismissed but on a second appeal the Sind High Court remanded the case to the Rent Controller to record further and additional evidence for which request was made by the tenant and turned down .by the first appellate Court. In this connection it will be useful to reproduce the operative part of the judgment of the High Court as under:' "For the foregoing reasons the appeal is accepted and the order of the learned Additional District Judge, dated 29th January, 1979 is set aside who is directed to either allow the appellant to adduce additional evidence before him, or in his discretion, remit the case back to the Rent Controller for doing the needful after setting aside his order. It is clarified that the additional evidence will be restricted on the point as to whether tenem9nts Nos. 2‑B, 7, S and 16 had fallen vacant after the filing of the rent application on 3‑10‑1974 and what was done to the same by the respondents."

2. In these circumstances the matter was remanded to the first appellate Court which in turn remanded the case to the Rent Controller. The learned Rent Controller recorded the evidence produced by the respondent and held that it was not proved that flats Nos.7, 8 and 16 fell vacant during the proceedings and as regards tenement No. 2‑B, he observed that "it is admitted fact that it consists of one room. So, this premises is totally useless for the bona fide requirement of applicant No.2." For these reasons, the learned Rent Controller allowed the ejectment application of the appellants vide order, dated 30th August, 1981.

3. Being aggrieved the respondent went up in appeal before the Sind High Court and 4 learned Single Judge of that Court, took the view that the plea of the respondent that the premises were required in good faith was not reasonable. The substance of the reasons that prevailed with the learned Single Judge is contained in the last portion of his judgment, dated 12th April, 1983, which is in the following terms; "Mt. Syed Inayat Ali, the learned counsel for the respondent has contended that the flat is required for the family members of respondent No.? which consists of six persons including major sons and daughters and the marriage of two sons is held up for want of accommodation. The respondents could have occupied the flat No.5 and are occupying flat No.2/B. It has not been even suggested that the flat in dispute is bigger than flat No.5, and that it would have been more suitable to the 'respondents. Flats Nos.5 and 2/B could have satisfied the needs of the respondents and as they have thought it fit to let out flat No.5 to keep on flat No.2/B for other purpose they are not entitled to get the possession of the flat in dispute."

4. Being dissatisfied with the judgment of the High Court allowing the appeal of the tenant, the appellants came up before this Court and leave was granted in order to examine the contention of the appellants that the learned Judge in the nigh Court has erred and misread the evidence, particularly regarding flat No.5, and with regard to flat &o.2/B he has failed to appreciate that the family of the second respondent consists of six persons, including major sons and daughters and the marriage of his two sons is held up for want of accommodation, and the flat No.2/B which consists of one room is not, sufficient for his requirement.

5. Mr. Abdul Hafeez Memon learned counsel for the appellants has re-urged the aforementioned contentions and in this connection pointed out that the learned Judge in the High Court was not justified in considering anything in the evidence relating to flat No.5 and in doing so had travelled beyond the scope of the remand order. He further submitted that the learned Judge also erred in ignoring the evidence .on record which showed that flat No.2/B consisting of one room was insufficient for the needs of appellant No.2. In this connection he referred to the bold stand taken by the appellants in admitting that flat No.2‑B had fallen vacant during the proceedings and was in their possession but it was emphatically stated that the same comprised of only one room which was hardly sufficient to accommodate the large family of Dost Muhammad, appellant No.2. This fact is mentioned in the judgment of High Court, dated 2nd January, 1980, by which the case was remanded for fresh decision. On this submission learned counsel for the appellants urged that the judgment of the. High Court was not sustainable.

6. On the other hand Mr. A. Lateef Shakoor learned Advocate for the respondent submitted that on remand the whole case was reopened and therefore evidence relating to flat No.5 which was recorded before the remand could also be considered and made the basis of final decision. In this connection learned counsel invited attention to the evidence of Mossa witness No.2 for the respondent. He further referred to the cross‑examination of appellant Dost .Muhammad in regard to an admission that one Raza was occupying flat No.5 without the permission of the appellants, and therefore, he was a tenant under protest. Finally reference was also made to paras. 8 and 9 of the affidavit of respondent.

7. After hearing the learned counsel at length we find that the learned Rent Controller in his order assessed the additional evidence produced by, the respondent and made the following observations: "From the very beginning the applicants have denied these contentions raised by the opponent. It was the bounden duty of the opponent to have examined any of the previous, tenants, who have vacated the premises Nos.2/B, 7, 8 and 16 and to prove that applicants have actually acquired the same. The opponents have failed to examine them excepting Muhammad Younus. He has deposed that he was the tenant of the applicants in respect of the tenement No.2/B and in October 1979, it was got vacated from him through process of law. The applicants have denied that he was their tenant at any time. In that g case witness should have produced receipts issued by the applicants or any agreement with them, which he has failed to do. Besides, this witness is not trustworthy as he has admitted in his cross‑examination that after his ejectment, his relations with the applicants had become strained. He has also admitted in his cross‑examination that rent receipts were not in his name. His interest in the case is also apparent that he has appeared in the Court without summons from the side of the Court. The opponent has examined witness Haji Abdul Aziz Kaya who has deposed that several tenements have been vacated in the disputed building, which belongs to the applicants. He not named any of the tenants having vacated the premises and has only stated that previously tenements Nos.2/B, 7. 8 and 16 were occupied by the other tenants. His evidence is not authentic and trustworthy. He being the Councillor of the area must be knowing people of the locality but he has kept himself aloof regarding such knowledge. Besides, he has disclosed in his cross‑examination that an enquiry was conducted by him from the neighbourhood and thereafter he came to know about the vacation of the abovementioned premises. Although, he had gone to such an extent of conducting of enquiry but he failed to gather the names of those previous tenants during the conduct of enquiry." From his order it appears that the respondent had given further evidence and produced two witnesses, namely, Muhammad Younus and Haji Aziz Kaya. This evidence was found by the learned Rent Controller for very tenable reasons to be insufficient to prove that any of the tenements mentioned in the remand order except No.2‑B was vacated during the pendency of the proceedings. As regards tenement No. 2‑B, as already observed he came to the conclusion that as the number of family members for whom the premises was required was not disputed, one room would not be sufficient to accommodate such family consisting or six members. The learned Judge in the High Court was mainly influenced in his decision by the consideration that the appellants had not explained that the accommodation comprised in flats Nos.5 and 2‑B was not sufficient for their need. So far as flat No.5 is concerned we find force in the contention that the case having been remanded with a specific direction to determine whether the flats Nos. 2‑B , 7 , 8 and 16 came into possession of the appellants the learned Judge could not import considerations relating to flat No.5. It is well‑established that proceedings pursuant to an order of remand are regulated by the directions contained in the remand order. From the remand order of the High Court it appears to us that fresh decision was confined to the question whether the specified accommodation had fallen vacant during the proceedings and if so to what effect as to the plea of the landlords that they require the premises reasonably and in good faith. It is, therefore, that the additional evidence produced by the tenant was also confined to the specified accommodation and had no reference to flat No.5. In any case the so‑called admission of Dost Muhammad in his evidence recorded prior to the remand order was of denial in the following terms; "Raza is residing in flat No.5 since one year, prior to that Latif was residing there. It is not correct that one year ago Latif gave us possession of this flat No. 5, and we gave it, to Raza. Raza is residing there not with our permission. He is tenant under protest, therefore, we issued a receipt to him," Even otherwise if this was sufficient evidence to arrive at a conclusion regarding the mala fide of appellants' plea, the respondent could have pressed the same and not asked for remand of proceedings in the first round of litigation. If this evidence could be considered sufficient to rebut the good faith of the requirement of the landlords, the whole object of the remand order would be rendered redundant and it is not proper for the party who himself sought remand to attribute redundancy to the order of the High. Court in this manner. From the impugned judgment we feel that the learned Judge in the High Court was otherwise satisfied that there were six members of the family of appellant No.2 out of whom the marriage of two was held up. This aspect of the matter has not been disputed even before us. The order of eviction was set aside only because the learned Judge thought that the landlords had not explained why they disposed of the accommodation consisting of flat No.5 which came into their possession during the proceedings, as that would have been sufficient for their need. But as discussed above, this consideration was not relevant and the tenement No.2‑B is obviously insufficient for the aforesaid needs of the landlords. We are, therefore, unable to agree with the learned Judge in the High Court that the appellants are not entitled to the possession of the disputed premises on the I ground of personal requirement.

8. For the foregoing reasons this appeal is allowed, with the result that the judgment of the High Court, dated 12th April, 1983, is set aside, with no order as to costs. M.I. /S‑113/S Appeal allowed.