P L D 1984 Karachi 143 (PLP)

This First Rent Appeal is filed by the appellant (hereinafter to be refer red as tenant) against the impugned order of ejectment dated 8-11-1980 passed by Senior Civil Judge/ Rent Controller No. VIII, Karachi in favour of respondent (hereinafter to be referred as landlord) on the ground that the premises in question are required for personal use.

2. Briefly stated the relevant facts giving rise to this appeal are that the tenement in question is a godown bearing No. N. P. 3/28-G/5, Kamil Gali, P. S. Napier, Karachi and the agreed rental is Rs.

65. Landlord filed application for ejectment on 27-3-1979 on the grounds that the pre mises were required for personal use of one of his sons, who wanted to open a shop therein and that the tenant has committed acts which have impaired materially the value and utility of the building. Tenant con tested the proceedings before the learn. -d Rent Controller and filed a written statement in which preliminary objection was taken that the ejectment applica tion was barred by the principle of res judicata under section 14 of the Urban Rent Restriction Ordinance, 1959 as previously application filed by the landlord on the same ground has been dismissed. Apart from this, the tenant took up the plea that the landlord was in the habit of demand ing enhanced rent and making frivolous application for ejectment. With regard to the acts of the tenant impairing materially the utility of the building the allegation was denied and in the same way allegation that the premises were required for personal use of one of the sons of landlord was also denied.

3. In the evidence before the Rent Controller, landlord examined him self and his son Sajjad Hyder. On behalf of tenant Nooruddin was examined, who is Director of the tenant's Company. A number of documents were produced by both sides.

4. I have heard both the learned counsel appearing for both the parties. So far the question of res judicata is concerned, the learned Rent Controller in his impugned judgment has dealt with it in an appropriate manner while discussing Issue No.

1. Previous ejectment application was filed way back in 1967 in which the landlord merely expressed his desire that he required the premises in question for his own use and further produced no other evidence in support of his claim. In these circumstances, previous ejectment application was dismissed by the learned Rent Controller vide his order, dated 31-8-1967. Now in the impugned order under consideration in this appeal the Rent Controller has rightly held that the bar will not be. attracted for the reason that now the landlord has demanded possession on the ground that the premises are required for his son, who is a grownup young man and wants to open a shop. It may It mentioned here that the learned Rent Controller has granted ejectment. only, on the ground of per sonal need and the other issue with regard to alteration in the demised premises has been held to be not proved.

5. In the evidence before the Rent Controller on this point the landlord has examined himself and stated that the premises in question were required for his son Sajjad Hyder, a student of B. Com, who was complet ing his education in that year and wanted to open a Stationery shop. Further the landlord has examined his son Sajjad Hyder, who deposed. before the Rent Controller that he was 17 years old and a student and wanted to open Stationery shop in the disputed premises. In cross- examination this witness stated that he was studying in B. Corn. Part-I. He further stated that his father had never done any business and he has no experience of business, He would keep books of School and Colleges in his shop. Tenant's witness Nooruddin has filed affidavit in his evidence and was cross-examined. -He has denied . the allegation of the landlord about requirement of premises for his son.

6. During the pendency of the appeal an application was filed under section 21(3) of the Sind Rented Premises Ordinance, 1979 in this Court by appellant and his counsel in which it is stated that they had heard that the landlord in another Rent Case bearing . No. ' 3515/76 pending in the Court of III-Rent Controller applied for ejectment on ground that he wanted the premises of similar as in this case and in the same area for one of his sons, who wanted to open a Book and Stationery shop. In that other rent case appeal was filed which was disposed off by the Additional District Judge, Karachi under the old law and Second Appeal No. 39/1980 is pending in the High Court. It is further stated by Mr. I. M. Patel, Advocate for the tenant that the landlord has concealed these facts from the Court and has been using this ground of requiring the premises for personal need mala fidely. Hence in the instant case also this ground does not appear to be bona fide but mala fide. According to Mr. Patel, be has made this application under section 21 (3) of the Sind Rented Premises Ordinance, 1979 for additional evidence. The provision noted above envisages further enquiry by the Appellate Authority or by the Controller. In the instant case, it would be more appropriate and i the interest of parties that both parties should be given equal opportunities to produce evidence for or against the proposition. I, therefore, set aside the impugned order and remand the case to the learned Rent Con troller to record further evidence of the parties on the question whether the need is bona fide or mala fide. After the recording of further evidence the learned Rent Controller may hear. the arguments and write fresh order strictly according to law and merits. In consequence, the appeal is allowed with no order as to costs. The learned scent Controller is also directed to complete the proceedings expeditiously within 2 months from today. Case remanded.