1986 PLP 869 (CLC)

(c) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 15‑‑Ejectment application‑‑Maintainability of‑‑Husband, letting out premises and collecting rent on behalf of wife/landlady‑‑Objection to maintainability of ejectment application by husband, held, would not hold ground especially where landlady gave evidence for seeking ejectment. Ismail Padhiar for Appellant. Syed Qutbuddin Ahmed for Respondent. Date of hearing: 1st January 1986. Appellant Haji Abdul Ghaffar is in occupation, as a tenant, of the ground floor of a residential premises on Plot No. 50, C.P. and Birar Housing Society, Block 3, Karachi 5, belonging to the wife of the respondent Abdul Rasool, since 1975. The landlady filed ejectment Case No. 5151/80, through her husband Abdul Rasool, on the grounds that the rented premises was needed by them for their personal use and also that the tenant /appellant had made default in payment of rent. The ejectment case was filed on 15‑9‑1980. The learned Controller allowed the application by order, dated 26‑7‑1983 and directed the appellant to vacate the premises within three months. This appeal is directed against that order. The ejectment application was filed by the respondent Abdul Rasool on behalf of his wife by name Mrs. Zubeda Akhtar. He contended that he and his wife, being aged persons, needed the rented premises for their own living as both were suffering from acute osteoarthritis and they could not go upstairs where they had been living. He alleged that the appellant had committed default in payment of rent as he had adopted paying rent after the expiry of the tenancy month against of the terms of the tenancy agreement that the rent was to be paid for each month in advance. The appellant contested the ejectment application. He contended that neither the landlady nor husband was suffering from such an ailment that they could not live upstairs and they did not bona fidely need the premises for their own use. As regards alleged default in payment of rent, he contended that it had been the practice between the parties that the rent was paid and accepted after the expiry of the tenancy month. He alleged that the ejectment case was filed mala fidely as he had declined to pay rent at enhanced rate. He also alleged that the respondent was annoyed with him as he had insisted upon repairs of the rented premises. The parties adduced evidence. On the side of the landlady, affidavits were filed by the applicant/ respondent Abdul Rasool, the landlady Mrs. Zubeda Akhtar and a Medical Practitioner Dr. A.G. Siddiqui. On the appellant's side, he filed only his own affidavit. The ground of default in payment of rent was abandoned during the course of the proceedings vide statement, dated 12‑2‑1983, while application was pressed on the ground of personal need. The learned Controller accepted the evidence of the applicant Abdul Rasool and his wife Mrs. Zubeda Akhtar and Dr. A.G. Siddiqui that the landlady bona fidely needed the rented premises for her living and that of her husband on the health ground and passed the ejectment order which has been impugned in this appeal. The learned counsel for the appellant has contended that the respondent has not proved that he and his wife are suffering from such an ailment that they need the premises on the ground floor for their own living. According to him, the learned Controller has given undue importance to the medical evidence in giving the findings that the respondent and his wife do need, the premises for their own living on the medical ground. He has alleged that the ejectment application is mala fide as the appellant had not acceded to the damand for enhanced rate. In this context, he has made reference to the statements of the respondent and his wife that they declined to exchange the premises with the appellant and put up the plea that they would accommodate their nephew in up stair unit where they have been living. He has al agitated a legal plea that the respondent is not the owner of tj rented premises and the ejectment application filed by him with authority from his wife could not be maintained under law. The learned counsel for the respondent has urged that t; respondent and his wife have proved by their evidence and that of the Medical Practitioner Dr. A.G. Siddiqui that they have been suffering from osteoarthritis and they cannot go upstairs and they need require accommodation on the ground floor. He has further urged that the respondent and his wife have further proved that they are aged person the respondent being more than 70 years old, and the landlady being more than 60 years old. In this respect, he has made reference National Identity Cards produced in evidence. He has made denial the allegations of mala fides attributed to the respondent and his wife. As regards the objection to the' maintainability of the ejectment application, he has contended that the respondent is the husband the landlady and he had let out the premises on her behalf to t respondent and used to collect the rent on her behalf and he was the landlord within the definition given in the Sind Urban Rent Restriction Ordinance 1959, whereunder the application was filed. He has place reliance on the cases reported in P L D 1979 Kar. 597 and PLD 1: Quetta

5. According to him, the statement of the respondent and I wife that they intended to accommodate their nephew in the upper‑stairs unit did not disentitle them from getting the ground floor unit vacated for their own living. He has further contended that the refusal of I respondent and his wife to exchange the premises with the appellant did not furnish evidence of mala fides. He has placed reliance on cases reported in 1970 S C M R 539 and 1983 S C M R

402. The order for ejectment of the appellant has been passed on ground that the respondent and his wife need the rented premix which is situated on the ground floor, for their own living as to have been living in the same building on the upper storey and have been suffering from osteoarthritis. Both have given evidence themselves that they are aged persons and both of them are more than 60 years old and they have been suffering from acute osteoarthritis has have examined a Medical Practititoner Dr. A .G. Siddiqui, who supported that they have been suffering from the said ailment osteoarthritis. He had issued such certificates which have been put in evidence. The respondent has also produced in evidence reports of the Radiologist confirming that he and his wife have been suffering from osteoarthritis. Dr. A.G. Siddiqui has stated that both the parties have been advised that they should not climb the stairs. The appellant has not laid evidence in rebuttal of the evidence adduced by the respondent on their health ground except bare denial by him in statement in evidence. It is evident that the respondent has established by evidence that he and his wife have been suffering from the ailment of osteoarthritis and considering the ailment and their age and the Medica advice, they need the ground floor premises for their own living. As regards upstair their refusal to accommodate the appellant in the unit and their statement that they would accommodate their nephew there they did not loose the protection of law that a landlord can seek possession of the rented premises for his personal bona fide use. The legal objection to the maintainability of the ejectment application also does not hold ground as the respondent is the husband of the landlady and he had let out the premises on her behalf to the appellant and he used to collect the rent on her behalf and the landlady joined him in giving evidence for seeking ejectment. For the reasons recorded above, there is no merit in the appeal and it is dismissed. The appellant is allowed three months time for vacating the rented premises. The parties shall bear their own costs. A.A. Appeal dismissed.