P L D 1993 Karachi 171 (PLP)

The appellant is aggrieved by the judgment/order, dated 7-4-1990 passed by the Additional Controller of Rent Cantonment, Karachi in Rent Case No.14 of 1988 under section 17 of the Cantonments Rent Restriction Act dismissing her rent application on the ground of personal bona fide requirement of Shop No.1, 22-C, Commercial Area, Defence Housing Authority, Karachi. Briefly stated the facts are that respondent is a tenant of the appellant in respect of the said shop at rent of Rs.300 per month exclusive of other charges. Her husband namely Lt.-Coloncl Retired Nazir Ahmed who is a retired Army Officer doing his business at 3rd floor, Al-Farid Centre, Karachi has been suffering from cardiac trouble since March, 1987. His doctor had advised him not to gel himself engaged in stress relating conditions and strenuous activities such as climbing of stairs, running etc. His office is on 3rd floor but the lift of the building remains out of order and at times does not work. Consequently her husband required office premises on ground floor for with reason she required the demised shop from the respondent. -The ejectment application was opposed vehemently by the respondent stating that he had paid Rs.60,000 to the appellant as Pugri for the shop and the earlier Rent Application No.10 of 1980 riled by the appellant on the grounds of default in payment of rent and subletting as well as appeal preferred for her was dismissed. He denied that the premises in good faith is required by her. It is also denied that the lift of the office premises of the applicant's husband remains out of order which according to him is in a perfect working order. It is asserted that the applicant's husband enjoys normal health. Other averments are also denied for want of knowledge. In support of her contention the applicant filed affidavit-in-evidence of her attorney and husband who was cross-examined at length by the respondent's counsel. The opponent produced himself and his witness Shouka Ali. The appellant's attorney reiterated the various averments made by the appellant in her ejectment application and stated that he was seventy years old and suffering from heart trouble. As per medical advice he should not involve himself in strenuous activities including climbing of stairs. The lift of the building where the office is located remains non-functional as a result of which he has to climb the stairs to reach his office. Giving details of his ailment he stated that he had cardiac attack and on 1-3-1987, he was admitted at National Institute of Cardio Vascular Diseases, Karachi. He had coronary artery disease. He was under the treatment of Dr. Muhammad M. Balouch. He had to go for further treatment to U.S.A, in July, 1987. The applicant has also filed ejectment application against tenant of the other shop. In fact both the premises are required for his office premises. He was cross-examined at length by the respondent's counsel. The area of the office presently in his possession and the area of other two shops is stated to be about the same. According to him he has proper staff in his office which comprises of a peon, secretary and two field workers. He had gone to United States on 7th February, 1979 for his medical check up but he failed to produce medical bills as the same was being paid by his son who is residing in U.S.A. Respondent produced his son and attorney Javaid Hussain who reiterated the various allegations made by the respondent against the appellant and stated that he had been visiting the office of the appellant's husband at Al Farid Centre with one of the relatives and friends Mr. Shoukat Ali for negotiation but each time he found the office closed. There was no staff as alleged in the office of the applicant's husband. It was stated that after unsuccessful round of previous litigation on the grounds of default and subletting, the applicant's husband started pressing hard for enhancement of rent which was refused by him. It was alleged by him that the applicant's attorney had appeared before. the Court of Cantonment at least twenty times and had also been visiting his lawyer's office. He however had never seen any visitor at the office of applicant's husband. The area in occupation of applicant's husband is hardly about 300 sq. feet, and there is no staff in his office. In cross-examination it was admitted by him that the office in Al-Farid Centre was in the name of the applicant's husband. He denied that load -shedding takes place in Al-Farid Centre. He also admitted that the applicant's attorney and husband is a retired army officer and is an old man. He also admitted that he had no knowledge of the function of heart. The other evidence adduced by the respondent is of Shoukat Ali who is a relation of respondent, who admitted that load-shedding takes place as a result of decision by the K. E. S. C. He also admitted that there is only one lift in the building which can go out of order. Supporting the respondent's version he stated that he visited the office of the applicant's attorney and found his office locked. According to him the respondent had no heart disease. When cross-examined on this point he conceded that he did not have any knowledge of heart disease and that since the applicant's attorney and husband was walking around his shop with his family, he got this impression. It appears that the learned Rent Controller Cantonment lost sight of some very material facts. He completely overlooked that it was not a case where the appellant's husband desired to start his new business at the demised premises, he rather wanted that he should shift his business and continue to' carry it there as after heart attack he was advised by the doctors not to engage himself in stress relating and strenuous activities such as climbing of stairs etc. It is an admitted position that the appellant's husband has an office at 3rd Floor, Al-Farid Centre, Karachi. The respondent and his witness. Themselves had gone there but they found the same locked each time. The fact however remains that this office belongs to the appellant's husband and is located on the 3rd Floor. Respondent's witness has also admitted that there is only one lift in the building which can go out of order. Respondent's deposition that no load-shedding of electricity takes place in the said building is rebutted by his own witness. The appellant has adduced satisfactory evidence as to her husband being a heart patient. This evidence has remained unshaken. The denial by the respondent and his witness has no basis. According to respondent's witness Shoukat Ali, since he used to see the appellant's husband walking around his shop with his family, he got the impression that the former had no heart disease. He also admitted that he has no knowledge of the function of the heart. The mere fact that the appellant earlier had a round of litigation with the respondent or that a few years earlier to the institution of the present ejectment application she had demanded increase in rent from the respondent will not demolish her ground for personal bona fide requirement nor any mala-fides shall be presumed against her. In the result I accept the appeal and set aside the impugned judgment, dated 7-4-1990 passed by the learned Additional Controller of Rent Cantonment, Karachi with direction to the respondent to hand over and vacate the shop in question to the appellant within four months hereof. - AA./W-80/K Appeal accepted