1994 PLP 551 (CLC)

S.M. Akhtar Rizvi for Respondents. Date of hearing: 21st April, 1993. This appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979, is directed against the order dated 3‑11‑1992, passed by Ms. Nuzhat Ara Alvi, VIth Rent Controller, Karachi, East, in Rent Case No. 207/90, whereby she allowed the eviction application and directed the appellant to vacate the premises in question within 30 days from the date of said order. The facts relevant for decision of this appeal are as follows:‑ One Noor Khan, who was the father of the respondents, on 21‑3‑1990 filed eviction application against appellant Dr. Abdul Aziz Burney and during the pendency of proceedings he expired on 12‑8‑1990. Thereafter, present 4 respondents and his widow namely Aisha Begum were brought on record as his legal heirs. Before the conclusion of proceedings said Aisha Begum had also expired on 4‑3‑1991. The case of respondents is that their father was the owner of Quarter No. 90/7, Sector 5‑D, Landhi, Karachi. From said quarter two shops were carved out. One shop was given to appellant hereinafter referred to as the premises in question, on monthly rent of Rs.150, which gradually was enhanced to Rs.800 P.M. and the other was rented out to one Ashiq Ali. It is their case that the appellant did not pay rent from January, 1989 onward. The respondents have claimed that they required the premises in question for their personal use for residential purposes. The appellant resisted the claim of the respondents and maintained that he is the tenant in the premises in question since September, 1960, and had constructed a room in year 1960 in said quarter by spending an amount of Rs.915. He denied to have committed any default in payment of rent, and also the alleged gradual increase in rent from Rs.150 to Rs.800. He also disputed the respondents' plea that they required the premises in question for their personal bona fide use. At trial the respondent No.l filed his affidavit‑in‑evidence and that of Saeed Ahmed and Shaikh Haider. Last two named persons were not produced in Court for cross‑examination, as such, their affidavits were struck down. The appellant filed his affidavit‑in‑evidence and that of his witnesses Anwar Ahmed Khan and Shahid Ali Khan. The respondent No.l was cross‑examined and so the appellant and his witnesses. From the pleadings of the parties, learned Rent Controller settled the following issues:‑ (1)??????? What is the rate of rent of Shop No.l, situate in Quarter No.90/7, Sector 5‑D, Landhi, Karachi? (2)??????? Whether opponent committed default in payment of rent from January, 1989 till March., 1990? (3)??????? Whether the applicants require Shop No.l for their personal use and occupation? (4)??????? What should the order be? For issue No.l, the learned Rent Controller held that the rent of the premises in question was Rs. 150 and not Rs. 800. For issue No.2, she recorded finding that no default was committed by the appellant. Issue No.3 was decided in affirmative, and consequently she allowed the eviction application by the order, which has been impugned in this appeal. Learned counsel for the parties confined their arguments on the point of personal bona fide use only. It is contended on behalf of the appellant that personal use means the use of the premises by the owner thereof, or his wife (or husband), son, or daughter and the phrase `personal use' does not include brothers and sisters. Elaborating it, learned counsel for appellant submitted that in the case in hand only respondent Muhammad Ayub has filed his affidavit in evidence and the other respondents neither filed their affidavits‑in‑ evidence nor authorised him (Muhammad Ayub) to act on their behalf, as such, it cannot be said that bona fide personal requirement was proved. The contention is devoid of any force. It is not the legal requirement that all the respondents should have filed their affidavits. Affidavit by one of them was sufficient to establish the facts stated therein. The appellant, who is a homoeopathic, in his cross‑examination, clearly admitted that the respondents do not have any other property except the quarter in question. He also conceded that the premises in question initially was a room of said quarter. It is also an admitted fact that respondent Muhammad Umar presently is residing in a rented house. Thus, there is irrefutable evidence on record to show that the respondents do require the premises in question for their personal use and their requirement is bona fide. They require it for the marriage of respondent No.l and also for providing accommodation to respondent Muhammad Umar. Both Muhammad Ayub and Muhammad Umar, being sons of Noor Khan, in their own rights are entitled to the possession of the premises in question. Once it is established that landlord requires the premises for his personal bona fide use, the tenant cannot suggest him in any way otherwise. Accordingly, I hold that the respondents require the premises in question for their personal bona fide use. Mr. A.S. Pinger learned counsel for the appellant next argued that presently premises in question is being used as commercial, as such, the respondents cannot claim it for residential purposes. It is noted that initially the premises in question was residential and the appellant started using it for commercial purposes. Said premises admittedly is in residential area and by using it for commercial purposes, it does not change its original characteristic. On this point reliance is placed on the case reported in 1986 CLC 1572 Mst. Kaneez Fatima v. Naseer, wherein it was held that "mere use of residential premises for non‑residential purposes would not make it commercial premises, particularly when such premises were part of residential unit and were originally constructed for residential purposes". ,This contention is also of no use for the appellant. On 21‑4‑1993 by short order the appeal was dismissed with no order as to costs, and the appellant was directed to hand over the vacant possession of the premises in question to the respondents within four months from the date of said order. These are the reasons for the same. H.B.T./A‑1412/K??????????????????????????????????????????????????????????????????? Appeal dismissed.