2015 PLP 293 (CLC)

ABDUL MAALIK GADDI J.

The petitioner is aggrieved by the judgment dated 11-9-2009 passed by the learned IInd Additional District and Sessions Judge, Karachi South, whereby he dismissed the F.R.A. No.31 of 2008 filed by the petitioner against the order dated 26-2-2008 passed by the learned VIIth Senior Civil Judge/Rent Controller, Karachi South, allowing the ejectment application filed by respondent No.3 and ordering ejectment of the petitioner from the demised premises.

2. Brief facts of the case relevant for the purpose of disposing of this petition are that the petitioner is tenant of respondent No.3 in respect of commercial premises on Plot No.SR-9/68, Morr Street, Outram Road, Pakistan Chowk, Karachi, at monthly rent of Rs.600 per month. The respondent No.3 filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979, for ejectment of petitioner/tenant on three grounds viz: (i) petitioner has made addition and alteration in the shop unauthorizedly, (ii) default in payment of rent and (iii) personal bona fide requirement of the sons of landlady.

3. The petitioner filed written statement denying the averments made in the ejectment application.

4. On the basis of pleadings of the parties, the following issues were framed by the learned trial Court:

(1) Whether the opponent has installed heavy machinery and made addition and alternation un-authorizedly thereby impaired the value and utility of the case premises? (2) Whether opponent committed default in payment of rent from July, 2001? (3) Whether the applicants require the case premises for personal use of their two sons in good faith? (4) What should the order be?

5. After hearing the learned counsel for the parties, the learned VIIth Rent Controller, Karachi South, allowed the ejectment application vide order dated 26-2-2008 only on the ground of that the premises in possession of petitioner is required to the respondent No.3 for her sons. Whereas, ground of default in payment of rent, and ground of addition and alteration in the demised premises by petitioner were not proved.

6. The petitioner challenged the ejectment order through F.R.A. No.31 of 2008, which was dismissed by the learned IInd Additional District and Sessions Judge, Karachi South.

7. I have heard the learned counsel for the parties at a considerable length and have gone through the pleadings of the parties, documents and evidence on record with their able assistance.

8. Mr. Ahmed Zameer Khan, in support of this petition has submitted that respondent No.3/landlady has not been able to prove that she needed the shop in dispute in good faith for her sons namely Abdul Wahab and Abdul Jabbar. He has further submitted that neither the landlady nor her sons appeared as witnesses in Court in support of her assertions that the premises in question was required to her for her sons. The learned counsel contended that the petitioner was thus deprived of the opportunity of testing the truth of the aforementioned assertions. He has further submitted that in fact the landlady does not require the premises for her children but intend to let out the premises to some other person on huge rent, therefore, he has prayed for allowing the petition. In support of his arguments, he has relied upon the following judgments. (1) Naeem Ahmed v. Mrs. Mariam (2000 MLD 442), (2) Mst. Shamim Akhtar v. Zakaria Yousuf and others (1998 CLC 410), (3) A&B Oil Industries Ltd. v. Abbas (1993 CLC 1815), (4) Abdul Rehman and others v. Pakistan State Oil Company Ltd. and others (1997 CLC 1085), (5) Noor Ali v. Saleem (1996 MLD 71), (6) Mehboob Alam v. Miss Tehseen Shafqat Khan and others (PLD 2001 Kar.238),

9. On the other hand, learned counsel for the respondent No.3 has fully supported the impugned judgments/orders of two Courts below on the findings of personal bona fide need of respondent No.3 and stated that since there are concurrent findings of two Courts below. It has not been shown that finding on the point of personal need in favour of respondent No.3 is against the evidence on record. He has further submitted that the trial Court as well as the appellate Court have given cogent reasons in support of their findings and the impugned order do not call for any interference from this Court and prayed that the petition may be dismissed. In support of his contention, he has relied upon the following case-law. (1) M. Muhammad Sharif v. M.S. Sultan (1981 SCMR 844) (2) Dilshad Muhammad v. Mst. Zuhaida Begum (1981 SCMR 895) (3) Sheikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others (1987 SCMR 307).

10. I have considered the arguments of learned counsel for the petitioner and say that the contention of learned counsel for the petitioner is devoid of force. There is no requirement of law that the person for whose benefit the premises are required to be vacated must be produced in support of the ejectment application. All that has to be seen in the present case is whether enough evidence has been brought on record by the respondent No.3 to sustain a finding of requirement of the premises for the personal use of her sons. In this regard I have gone through the para.6 of the ejectment application in which landlady has stated in clear terms that the premises in possession of the petitioner is required to her for her sons namely Abdul Wahab and Abdul Jabbar. The attorney of landlady namely Abdul Shakoor has affirmed the requirement of the shop in question in his affidavit-in-evidence but surprisingly the petitioner has not challenged/confronted this aspect of the case in cross-examination, thus it appears that this aspect of the case goes to unrebutted.

11. On the point involved in this case I have gone through the case of Arshad Umar and another v. Begum Nazrul Askari (PLD 1985 SC 38) in which it has been held as under:

"Ss.13 &

15. Ejectment sought on grounds of bona fide personal use of landlady and her children. Failure of landlady and her son to appear before Rent Controller and offer themselves for cross-examination, held, not fatal to their plea that they required premises in good faith for their personal occupation and use."

12. Even the petitioner in support of her case had filed affidavit-in-evidence of Umer Hayat, Qazi Raza-ur-Rehman and Kalimullah Alvi but none of them in their affidavit-in-evidence has challenged the requirements of the landlady.

13. Perusal of ejectment application and affidavit-in-evidence of attorney of landlady on oath appears quite consistent with each other on the point of requirement of the premises for the personal use of the landlady's sons. Statement on oath of the attorney of the landlady on the ground of personal need has not been challenged. Therefore, in my view such statement on oath is sufficient for acceptance to prove the plea of landlady. In this regard I am supported with the case of Muhammad Akhtar v. Mst. Manna and 3 others (2001 SCMR 1157).

14. Perusal of record shows that since the sufficient evidence is on record to prove the requirement of the premises for her sons. The learned Rent Controller as well as the Appellate Court have found the requirement in question to have been proved. The matter, therefore, stands concluded by concurrent findings on a question of fact. No good ground has been urged to warrant interference with that findings.

15. Resultantly this petition stands dismissed with all listed applications with no order as to costs.

16. The case-law cited by the learned counsel for the petitioner has been perused and considered by me but did not find applicable to the facts of the present case.

17. Since the petitioner is old tenant, therefore, petitioner is granted sixty (60) days' time to vacate the premises in question and handover its physical and peaceful vacant possession to landlady subject to regular payment of rent. AG/F-3/Sindh Petition dismissed.