1994 PLP 26 (MLD)

(i) Whether applicant requires the premises in question for her personal bona fide use and for her family? (ii) Whether opponent has sublet the premises as alleged? (iii) What should be the order? The respondent tendered the evidence of Hashmat Ali Khan, her husband and attorney (P.W.1), who has produced the relevant record to make out a case of personal need. To rebut this evidence the appellant examined Muhammad Ismail (D.W.1), his brother and attorney.

7. On the assessment of evidence available on record the learned Rent Controller decided issue No.1 against the appellant directing him to vacate the demised premises within 60 days. This order, dated 20-10-1987 is the subject matter of the present appeal.

8. I have heard Mr. Usman Ghani Rashid, learned counsel for the appellant and Mr. Abdul Majeed Khan, learned counsel for the respondent. I have also gone through the record of this case carefully.

9. Before examining the evidence adduced by the parties, I propose to examine- a legal point that has been urged by the learned counsel for appellant on the question of doctrine of res judicata. Admittedly there was litigation between the previous landlord and the appellant and the appeal filed by the previous landlord was pending before this Court when the respondent had purchased the disputed premises and consequently her name was substituted in place of Dr. Shahid Hamid, the previous landlord. The respondent had sought the eviction of the appellant by filing separate case during the pendency of the appeal and this fact was brought to the notice of my learned brother Abdul Qadeer Chaudhry, J. (as he then was), who made relevant observations reproduced in para. 2 ante. The case of Muhammad Aslam v. Fazal Karim, reported in 1980 CLC 1189, is the nearest parallel to the present case, wherein following observations were made:-- "It can hardly be disputed that if a landlord fails to oust a tenant from any property by raising the plea of personal requirement and thereafter transfers the property to another person, the transferee is not debarred from seeking his ejectment on the ground of his own need because the needs differ from individual to individual. Therefore, the plea of personal need advanced by the appellant has to be considered on its own merits and cannot be rejected just for the reason that a similar plea raised by his grandfather had not been upheld." There is, therefore, an air of utter unreality about this legal objection.

10. I now address myself to the main controversy between the parties which centres round the personal requirement of the respondent for the use of the disputed premises by her son and husband. Initially the commercial premises was required for the business to be carried out by the son of the respondent, but later on `the eviction application was amended and it was pleaded that the husband of the respondent who had returned from Saudi Arabia permanently required this premises to set up his business. Hashmat Ali Khan (P.W.1), the husband of respondent has given the details of proposed business and his compelling needs to occupy/use the premises owned by the respondent. I have considered his evidence in the light of arguments and the criticism to which it has been subjected by learned counsel for the appellant, and to my mind the evidence establishes the following facts:-- (i) That Hashmat Khan who was working in Saudi Arabia at the time when the case was filed has returned permanently to Karachi on 22-2-1986, which is proved from the Passport (Exh.0./1), and Employer's certificate (Exh.0/2). (ii) That Hashmat Ali Khan who is an expert in his field has purchased three machines, namely, Wheel Balancer, Wheel Alignment and Wheel Changer, which is proved from receipts of payment, Bank Draft, P-Form etc. (Exhs. O/4 to 0/12). (iii) That in order to earn his livelihood Hashmat Ali Khan hired a shop bearing No.1-C, Hassan Mansion, Federal `B' Area, Karachi, on a monthly rent of Rs.1,000 against a deposit of Rs.40,000 where he has started wheel balancing and other allied work, which is proved from (EXhs.0/13 to 0/14). (iv) That the business set up by Hashmat Ali Khan in Federal `B' Area, Karachi, did not flourish for the reasons disclosed by him in para. 5 of the affidavit-in-evidence, which is reproduced below:-- "I say that in spite of heavy investment being made I am not in a position to fetch such an amount to maintain my family properly. The business of Wheel Balancing etc. in Federal `B' Area is not proved to be fruitful and profitable for the reasons that Car Show Rooms are not there and people of locality also do not keep Cars in comparison to PECH Society which is known as Posh Locality of Karachi arid about 250 Car Show Rooms and repairing workshops are working there and this figure is being increased day by day. It is, therefore, I want to start business of Wheel Balancing etc. in the demised premises with the help of my son. That the rented premises occupied by me is measuring 30' x 11' (less 10' x 7 space of staircase) which is quite insufficient while the disputed shop is measuring 32' x 28' with additional capacity that I can raise a temporary loft to use as godown. Moreover, in front of rented premises there is very busy road of only 15' wide, therefore, we cannot park cars on road in comparison to disputed shop in front of which there is road of about 40' wide and flow of traffic is very low and we can work on road also. It is, therefore, the demised premises is more suitable for our needs. I produce site plan of disputed shop as Exh.0/14-A." (v) That Shafqat Ali Khan the son of respondent is also trained in the same field and he had been working in Saudi Arabia in the same field, which is proved from Training Completion Certificate (Exhs.0/15 to 0/16). The evidence adduced on behalf of the respondent is not voluminous, but it seems straightforward and reliable, which has not been shaken in cross -examination.

12. Mr. Usman Ghani Rashid, learned counsel for the appellant has endeavoured to combat this manifest conclusion by contending that the respondent should not have purchased this property which was under litigation when her needs were so compelling. The answer to this contention is provided in the case of Mst. Rahila Kausar and another v. Additional District Judge/Appellate Authority etc. reported in 1987 CLC 1239.

13. The respondent needs the disputed premises urgently for the use of her son and husband. The record makes it clear that the husband of respondent is compelled to occupy a rented premises not suitable to his needs on a rent which is much higher than the rent of the disputed shop. In my view there can be no better case of eviction on the ground of personal requirement than the one under consideration and the order passed by learned Rent Controller is not open to any exception. In the result the appeal fails and is dismissed with costs. Two months' time is, however, allowed to appellant to vacate the demised premises. H.B.T./G-337/K Appeal dismissed.