1992MLD903 (PLP)

It is desirable to state briefly certain facts giving rise to this litigation.

2. The appellant is the owner/landlady of the premises bearing No.51/H, Block No.6, Nursery, P.E.C.H. Society, Karachi, having purchased the same from one Dr. Sultan Akhtar. through sale‑decd, dated 12‑8‑1978. Muhammad Siddique Manan, the predecessor of respondents Nos. 1 to 6 was the tenant in respect of commercial premises at the monthly rent of Rs.140 excluding the betterment tax and other charges. The said tenant was informed about the change of ownership through notice dated 22‑8‑1978. Akmal Sohail, the son of appellant who has passed his BA. examination is jobless and, therefore, the appellant needed the said premises for the use of her son who wants to start his business independently. On 23‑11‑1985 the appellant filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, agatnss Muhammad Siddique Marian. the predecessor of the respondents seeking his ejectment on the aforesaid ground. During the pendency of ejectment proceedings the said Muhammad Siddique Manan died and consequently the respondents who are his legal heirs were brought on record

3. Muhammad Siddique Marian, the original tenant who has filed the written statement resisted his eviction by stating that the possession of the disputed premises was obtained after payment of Pugree to the previous owner. The need of the appellant to use the disputed premises to adjust her son Akmal Sohail in business was also questioned.

4. The parties went to trial on the following issues:‑‑‑ (i) Whether the applicant requires the demised premises bona fidely, for the use of her son? (ii) What should the order be?

5. The appellant has examined herself (P.W.1), and her son Akmal Sohaii (P.W.2). To rebut this evidence the respondents examined Asif Marian (D.W.1), who is respondent No.2. On the assessment of evidence available on record the learned Vth Senior Civil Judge and Rent Controller (East) Karachi decided issue No.1 against the appellant and consequently dismissed the application for ejectment vide order, dated 3‑11‑19W. This order is the subject‑matter of the present appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979.

6. I have heard Mr. Khalid Riaz, learned counsel for the appellant and Mr Rehmat Elahi, learned counsel for the respondent. I have also gone through the record of this case carefully.

7. There are certain facts and circumstances in this case which arc either not in dispute or the same are proved. These are:‑‑‑ (i) That the appellant has got no other property except the building constructed on Plot No.51‑H, Block No.6, P.E.C.H. Society. Karachi, where the disputed premises is situated (ii) That Akmal Sohail, the son of appellant for whom the disputed premises is required does not own or possess any other commercial premises. (iii) That Akmal Sohail is a graduate who is presently jobless. (iv) That Muhammad Siddique Marian, the predecessor‑in‑interest of the respondents was an old tenant of the disputed premises which is situated in a predominantly commercial area. (v) That the disputed premises is situated in Pugree fetching locality. (vi) That there is nothing on record to prove that Muhammad Siddique Marian, the original tenant, had paid any Pugree to the previous owner of the building.

8. Appellant Mst. Sughra Kausar (P.W.1) as her own witness has testified the facts constituting the background of this litigation. She has made it clear that her son Akmal Sohial who is a graduate from University of Karcahi is jobless and, therefore, she wants the disputed premises for him so that he may start business therein. Akmal Sohail (P.W.2) for whom the disputed premises is required has fully supported the version of the appellant. Nothing is brought out in cross‑examination to shake their evidence. As observed in the case of Karimuddin Shad v. Mst. Fatima Mian Ahmad, reported in 1989 CLC 545, where assertions or claims made on oath by the landlady that she requires premises for her personal use are found to be consistent with her averments in the application for ejectment and are not shaken in the cross‑examination or disproved in rebuttal then the same are to be accepted by the Rent Controller as bona fide. Therefore, in the absence of anything to the contrary, the Rent Controller ought to have accepted the consistent statement by the appellant (P.W.1), and her son Akmal Sohail (P.W.2) about their personal need.

9. Mr. Rehmat Elahi, learned counsel for the respondents has touchingly pressed upon my attention to the fact that the disputed premises is situated in Pugree fetching area and since the predecessor‑in‑interest of the respondent. had paid Pugree amount to the previous owner the tenancy assumed the ' character of lease in perpetuity. There is, however, nothing on record to prove that any Pugree was paid by the original tenant to the previous owner. The term Pugree has not been defined anywhere. In common usage this term means a price paid or promised to be paid in consideration of the admittance of the lessee into the leased premises over and above the rent thereof. It is also called Salami at some places, and although such premium is too common, yet the law does not recognize it and such transactions are barred under section 23 of the Contract Act, 1872. The effect of receiving Pugree was considered by the Supreme Court in the case of Shaikh Muhammad Yousuf v. District Judge. Rawalpindi and 2 others, reported in 1987 SCMR 307, and it was observed:‑‑‑ "According to the lease agreement the shop had been Icy out to the tenant‑petitioner for a fixed period of ten years with a right of re‑entry reserved by the respondent‑landlord, but it is not mentioned in the lease decd that the respondent‑landlord had received Rs.11,0000 as Pugree from the petitioner‑tenant, although it is so stated by him in his statement before the Rent Controller (page 13.1 of the Paper Book). However, that being mutual agreement between the parties, would not debar the respondent‑landlord from instituting eviction proceedings on the ground of bona fide personal need."

11. This question was also considered by this Court in cases of Muhammad Ilyas v. Mst. Khursheed Begum, reported in 19239 CLC 506, Shahzada Sultan Humayun v. Mst. Zainab Bai, reported in 1989 CLC 1338, and Mst. Fatima 13ai v. Shaikh Muhammad Zaki and 6 others, reported in 1990 CLC 1064, and it was held that the plea of' personal requirement cannot. Be defeated even if it was accepted that the tenant had paid Pugree to the landlord at the time of obtaining lease over and above the rent thereof.

11. Admittedly there are two shops on the ground floor of the building belonging to the appellant, one being the disputed premises and the other in occupation of one Farooqui, which according to the respondents was leased out to him in the year 1985. Much capital was sought to be made from the following statement made by the appellant, although she has disowned it by making an application for the correction thereof:‑‑‑ "It is correct that the other tenant Farooqui is in the second shop from 1985." The appellant has placed on record the rent account in respect of the other shop which makes it clear that the tenant of that shop has been depositing the rent in the office of Rent Controller with effect from 4‑3‑1979. In such a situation the so said admission made by the appellant has hardly any bearing. Even otherwise it is not very difficult to elicit answer of this kind in cross- examination in the Base of a housewife.

12. Having regard to the above factual and legal position, I accept the appeal, set aside the impugned order and direct the ejectment of the respondents from the demised premises within a period of two months. The parties arc, however, left to bear their own costs. A.A./S‑848/K Appeal accepted.