1994 PLP 485 (MLD)

The respondent instituted eviction proceedings against the appellant before the VIIth Senior Civil Judge and Rent Controller, Karachi (South), alleging that she required the premises in possession of the appellant for her own personal use. The case of the respondent was that she was residing with her five family members with her father-in-law who had entered into an agreement for sale of the house where the respondent had been residing and the sale transaction was going to be finalized on 23-3-1988. According to the respondent, she and her husband had been asked by her father-in-law to vacate the premises as the possession of the same was to be handed over to the purchaser in order to enable her father-in-law to receive the balance amount of the sale consideration of the house. Since the respondent had no other house of her own she required the premises bona fide for her personal use. The application was resisted by the respondent, according to whom, the applicant had other flats bearing No.B-6 and A-10, in the same building which were already in occupation of the respondent. However, at the time of filing of eviction application, the respondent's brother had been permitted to stay in the said flats. Before the learned Controller, the attorney/husband of the respondent gave evidence in support of the case. The appellant filed affidavit of her husband Roshan Ali, who contended in para. 4 of the affidavit-in-evidence filed on his behalf that the respondent had made false allegations in the eviction application as well as her affidavit-in-evidence. It was also denied that the respondent's father-in-law had entered into an agreement of sale of the house wherein the respondent was residing. As is clear from the uncontroverted position in the case no documentary evidence could be produced on behalf of the respondent to establish that her father-in-law had entered into an agreement of sale with any other person. Not only that no such written agreement was produced but even the name of the proposed purchaser did not transpire in the evidence adduced on behalf of the respondent. He was also not examined as a witness in the case. There was, therefore, apart from the verbal assertions made by the respondent's witnesses on the point, no reliable evidence to establish that such sale agreement had been entered into by the respondent's father-in-law with the proposed buyer of the property. On the basis of the said evidence, although the learned Controller found that the respondent had failed to clearly establish that an agreement for sale of the property where the respondent was residing had been executed by her father-in-law as alleged by the respondent, nevertheless the learned Controller found that the onus to establish that the respondent was in possession of Flats Nos. B-6 and A-10 was on the appellant and since no reliable evidence could be produced by the appellant in support of the same, the case of the appellant in respect of her personal requirement was fully established and, therefore, he ordered the appellant to vacate the demised premises vide order dated 15-9-1991. After going through the record of the case and hearing the learned counsel on behalf of the appellant as well as on the respondent, I find that the learned Controller was not justified in ordering the appellant's eviction from the demised premises. The entire cause of action in the case was linked with the fact that the respondent's father-in-law had entered into an agreement for sale of the house where the respondent was residing at the time of filing of her eviction application and the possession of the premises was to be handed over to the purchaser and the sale transaction was to be finalized upto 23-3-1988. Even, according to the learned Controller, the claim of the respondent in regard to the sale agreement could not be established as no reliable evidence could be produced by the respondent to establish her bona fides or good faith. No doubt, the fact that the respondent was residing with her father-in-law was not controverted by the appellant but in order to prove her bona fides the respondent had to establish the entire case before the learned Controller. Since the cause of action to seek eviction of the appellant from the demised premises was based on the fact that the property had been agreed to be sold by the respondent's father-in-law and it could not be fully established by her by reliable evidence, there appears to be no justification for ordering the ejectment of the appellant from the demised premises. The learned Controller was of the view that the onus was on the appellant to establish that the respondent owned two flats reference to which has also been made in this judgment, and no doubt, the learned Controller to a great extent was right in making the said observations but he appears to have completely overlooked the fact that in the first instance the onus to prove his good faith or bona fides was on the respondent. Since the respondent had failed to establish her case fully as pointed out earlier, the learned Controller was not right in ordering eviction of the appellant simply because she had failed to adduced reliable proof in respects of her allegation that the respondent had owned the said two flats. In the result, I accept this appeal and set aside the order passed by the learned Controller. The parties are left to bear their own costs. H.B.T./D-105/K Appeal accepted.