2008 PLP 362 (CLC)

MRS. YASMEEN ABBASEY, J.

Facts in nutshell are that an ejectment application was filed by petitioner on the ground of personal bona fide use. It was allowed by the Rent Controller but in appeal it was set aside with the reasoning that:-- "I have also observed that respondent has failed to produce any medical certificate/slip of cardio vesicular to show that she and her husband are patients of heart and kidney and also are failed to produce any show-cause notice of her son of late coming to show that due to distance of premises and place of working her son reached the office in late. For the foregoing reasons I am of the view that respondent is residing with her husband in K.D.A. Overseas Bungalow, Gulistan Jauhar, Karachi which is sufficient therefore, I set aside the order of the learned Rent Controller, dated 17-1-2002 and allow the appeal of appellant, with no order as to cost." Being aggrieved with the judgment, this petition has been filed that the factual aspect as discussed by the learned trial Court is absolutely different to what has been pleaded by the petitioner, it is not a case of the petitioner that she or her husband are suffering from any diseases but it was stated by her that in this old age there is apprehension of any disease, which may cause to them at any time therefore, they need a premises where medical facilities in near vicinity are available at all time. That as her husband and son are also working in offices, which are at far distance to Gulistan-e-Jauhar, because of requirement of their jobs they have to sit at late hours, therefore, too it would be convenient for them to have a near residential place to their offices. These grounds taken by petitioner were adversely taken by the learned trial Court that she or her husband are suffering from any cardio vesicular disease or because of late going on the job any show-cause notice was issued to them. Learned counsel argued that considering the ground taken for personal use, petitioner needs to have a premises of her choice is her prerogative right of her easy and comfortable life. In view of the problems being faced now by petitioner she bonafidely requires the premises for her and her family use. Conversely it is argued by learned counsel for respondent that the ground of illness taken by the petitioner is presumed one. At present she is not suffering from any disease therefore, no bona fide is appearing on the record for having premises for her personal use. So far the ground of late coming is concerned no evidence has been produced on this point, mere requirement of the landlord is not sufficient to have the premises in question vacated. To support his arguments he has referred Mst. Noorunissa v. Qamarul Huda 1988 CLC 1833 wherein it is observed that:

"Under law the requirement should be bona fide. It should be in good faith. If the landlord merely requires a premises, which is tainted with mala fide ejectment will not be granted." Syed Muhammad Ali v. Mst. Aisha 1984 CLC 2332 ejectment on personal bona fide use was declined as the landlord was not able to prove that he was living in a tented house. Learned counsel further contended that in fact petitioner wants to enhance rent at the rate of Rs.7,000 per month but except her solitary statement no definite evidence has been produced to show that petitioner does not require the premises in question for her bona fide use but under the garb of personal bona fide use she wants to enhance the rent. In order to prove mala fide learned counsel has pointed out that in 1991 original rate of rent was Rs.5,300 in 1994 it was enhanced to Rs.5,

600. This enhancement of rent after about four years with a petty amount of Rs.300 cannot be said with mala fide intention. Even otherwise it is a settled principle of law that demand of higher rent by itself does not cast any doubt about the personal bona fide requirement, if the factum of bona fide requirement is independently found, 1980 SCMR 1772 be referred. From the evidence I have come to conclusion that petitioner has satisfactorily proved her case of bona fide use that because of old age possibility of suffering from diseases at any moment cannot be ruled out. Thus, they need a premises which has all such facilities near to it, coupled with the fact that both his husband as well as son are employee at Fortune Centre Nursery, Karachi and at Messrs Seedat, Hyder and Company Chartered Accountants, situated at progressive plaza, near P.I.D.C. House, Karachi and because of the requirements of their jobs they have to sit late in their offices therefore, demised premises in Civil Lines, Karachi is more suitable for their family as it will save them from traffic hazard as well as will be more economical to them because of short distance due to increase in patrol prices. Discussing that suitability of anyone of the available premises entirely depends upon the discretion of the landlord, referring a remand order of Honourable Supreme Court it is observed in 1996 SCMR 1178 that:-- "In any event, in the judgment dated 10-4-1988 by which remand order had been made, our learned brother Ajmal Mian, J. as he then was, had observed that "merely the fact that respondent's husband had 62 shops in Defence Society and 21 shops in Gulshan-a-Iqbal would not disentitle the respondent to apply for ejectment on the ground of personal requirement of her son, as it is for a landlord to select which of the buildings he wishes to use personally or to provide the same to his children". Therefore, this argument raised against is a closed chapter. The learned counsel for the appellant contended that the appellant has been a tenant from the year 1964 and has invested huge amounts on establishment of business, which has earned goodwill as well. That may be so, but the fact remains that these considerations are irrelevant if the ejectment case falls within the four corners of section 15 of the Sindh Rented Premises Ordinance. Ejectment of a tenant is regulated by statute, which provides specific grounds on which a landlord can seek ejectment. Once such ground is proved, the .contentions now raised become completely immaterial." Arguments advanced by learned counsel for the petitioner have not been specifically rebutted by the respondent as such I am of the view that petitioner has successfully proved her need of demised premises. Her statement on oath is consistent with ejectment application. The ground urged by her has not been shaken or rebutted by the respondent. Pleas as taken by the respondent and as discussed in the impugned judgment are absolutely beyond the record. Even otherwise if landlady possesses more than a house, it is her choice, in which she would like to live along with her family, surely a matter within her prerogative and discretion, and not for the Rent Controller or for the tenant to determine, which is suitable to landlady 2000 SCMR 1292 has referred observing that:-- "The statement of appellant-landlady on oath was thus, quite consistent with her averments made in the ejectment applications. Neither her statement was shaken nor anything was brought in evidence to contradict the said statement. The Rent Controller was, therefore, fully justified in accepting the evidence of the appellant-landlady and ordering the eviction of the tenant. Reference in this context, may be made to a recent case of Juma Sher v. Sabz Ali 1997 SCMR 1062." In view of foregoing reasons, the petition is allowed. 30 days' time is granted to the respondent to hand over vacant and peaceful possession of premises in question to the petitioner, failing which petitioner is entitled to have writ of possession without any notice to the respondent as the matter is pending since 2001 and in such circumstances to open new series of litigation through execution application would amount to prejudice the right of the appellant. H.B.T./F-23/K Petition allowed.