1988 PLP 1166 (MLD)

The appellant who is tenant in respect of Flat No. B-20, Ground Floor, Federal B area (hearinafter called the demised premises) at a monthly rent of Rs.800 has filed this appeal against the order of the learned IVth Senior Civil Judge and Rent Controller, Karachi (West) whereby he has directed the appellant to vacate the demised premises. The respondent had filed an application 6 ruction of the appellant from the demised premises on the grounds of default in payment of rent, damaging the property by carrying out additions and alterations, subletting and personal bona fide requirement. The appellant contested the said application by filing her written statement wherein she denied the various allegations made m the apphcafcil2 1: was further pleaded on her behalf that a sum of Rs.8,000 was paid to the respondent by way of fixed deposit at the time of the execution of the lease agreement dated ?.8th February, 1983. It was further averred that the demised premises had been taken by the appellant for running the clinic and that she had spent approximately a sum of Rs.35,000 to Rs.40,000 on the setting up of the clinic. The application was claimed to have been made with mala fide intention inasmuch as the respondent wanted to enhance the rent. As to the personal requirement of the respondent, it was averred in the written statement that she is unmarried girl and it was impossible for her to live in the flat alone. The allegation of subletting to Dr. Fauzia Tehsin was also denied. It was claimed that Dr. Fauzia Tehsin was an employee of the appellant. It was also averred that notices were published in newspapers for the sale of furniture and almirahs of the clinic which the respondent had wrongly assumed to be for sale of flat. After recording the evidence of the parties and bearing their respective counsel, the learned Rent Controller allowed the application on two grounds as stated, hence this appeal. I have heard the learned counsel for the parties and which their assistance perused the impugned order as well as the lower Court record. The learned counsel for the appellant made the following submissions before me. [Words missing] the demised premises for personal residential use when it had as per tenancy agreement been given for a clinic purpose or for commercial use, was not maintainable in law. In support of this contention he has placed reliance on a decision reported in 1987 C L C 472. (ii) That the personal need is to be proved affirmatively whereas it could not be done so in the instant case. The counsel further urged that since the respondent was at the time of making the application not married, her statement in the application to the effect that the accommodation in her possession was not sufficient due to increase in grown up members of the family was factually incorrect. In this connection the counsel submitted that neither the number of family members are given in the application nor the particulars of the accommodation in possession of the respondent are mentioned'. therein. Relying upon the decision reported in 1984 C L C 755, the learned counsel submitted that if the facts are not correctly recorded in the application then the applicant becomes disentitled to get the relief of eviction of the tenant. (iii) The learned counsel submitted that in the application it was specifically pleaded that the demised premises had been sublet to Dr. Fauzia Tehsin whereas the learned Rent Controller has recorded his finding that the premises in question had been let out to Syed Akhtar Hussain, the brother of the appellant who is running the clinic in the tenement in question through some doctors. The respondent thus failed to establish the case of subletting as pleaded and moreover there could be no letting out of the premises by the appellant to her own real brother. Mr. Azeez Oureshi, learned counsel for the respondent, on the other hand, supported the impugned order. He urged that the appellant had parted with the possession of the demised ‑premises and was thus liable to be evicted from the demised premises on that ground. According to him, the general power of attorney given by the appellant to her real brother, who is a non‑medical man clearly establishes that she has abandoned her interest in the demised premises. It is, the counsel so urged, evidently clear from the power of attorney dated 7th April, 1985 given by the appellant to her brother that she was not interested in keeping the demised premises to her self and for her own use. Moreover there is enough evidence on record to establish that the respondent had gone to Multan but there is nothing on record to show that she had gone there for further studies and was likely to come back. He also invited my attention to the advertisement published in the press to contend that the intention of the appellant to dispose of the demised premises is dearly borne out therefrom. The learned counsel further contended that the respondent is now duly married lady and hence the demised premises is required by her for her personal bona fide use. Lastly, the counsel urged that the nature of property is admittedly residential and hence the mere fact that it had been given for the purpose of establishing a clinic would not deprive the respondent to ask for its possession for her residence. ' I have given due consideration to the submissions made at the Bar and after careful perusal of the impugned order I am clearly of the opinion that this appeal must succeed. In so far as the first above‑noted contention of the learned counsel fiat the appellant is concerned, it has, in my opinion, no substance and it is repelled accordingly more particularly in the light of the decision of the Hon'ble Supreme Court in the case reported as 1980 S C M R 590, wherein it is held as under:‑ "It is common ground between the parties that the suit house was indeed being used by the petitioner as an hotel, but that would not mean to change the character of the house which was originally constructed as a house for residential purposes:' The evidence on record is sufficient to hold the second above‑noted contention in favour of the appellant. It is an admitted fact that the respondent was unmarried at the time when application for eviction was presented. The personal requirement was based on vague allegations made in the application. No particulars of the family members of the respondent were given in the application nor was it specifically pleaded that as to why despite being an unmarried woman, she wanted to live separately from her other members of the family. The case for personal requirement was based on the ground of the present accommodation in possession of the respondent being insufficient to her requirements but it has not been successfully proved on record. On this ground the application was liable to be dismissed. It is now a well‑established proposition by authorities, as rightly pleaded by the learned counsel for the appellant, that if the facts are not properly recorded in the application then the applicant/landlady becomes disentitled to get the relief. The next contention of the learned counsel for the appellant is equally well‑placed. The case of the respondent in the application for eviction was that the demised premises had been sublet to Dr. Fauzia Tehsin. It was however, not so adhered to during the ejectment proceedings. The learned trial Court has also not held that the plea as raised in the application with regard to the demised premises having been let out to Dr. Fauzia Tehsin was successfully proved. On the contrary he has held that the premises in question had been let out to Syed Akhtar Hussain, the brother of the appellant. Here it is pertinent to note that the learned trial Court has not disbelieved the fact that the appellant had gone for further studies to Multan and that she had appointed the said Syed Akhtar Hussain, her real brother, as her attorney for the purpose of managing and running the clinic on her behalf. Without holding the power of attorney as a device for subletting the premises to the said attorney, the finding of the learned trial Court cannot be sustained. Considering therefore, the relevant facts and circumstances of the case in the context of the evidence brought by the parties on record, there is no escape from the conclusion that the respondent failed to prove the case as originally pleaded in the application. In this view of the matter the impugned order of the learned Rent Controller cannot be upheld. In the result the appeal is allowed and the impugned order is set aside with no order as to costs. AA./N‑104/K Appeal accepted.