2005 PLP 461 (CLC)

5. Learned counsel for appellant contended that the trial Court erred in appreciating the evidence on record; the premises is not required by the applicant for her personal bona fide use; the respondent after getting vacant possession of adjacent Bungalow No.30‑B, D.H.A., Karachi for similar purpose sold the same and thereafter lodged the proceedings in respect of the premises; the respondent pressurized the appellant through the agencies to either purchase or to vacate the premises; the appellant approached the Court through the Writ Petition No.83 of 2000, which was dismissed as withdrawn and a Suit No.1124/99 which was disposed of on the undertaking of the respondent that she the appellant would not be evicted without due process of law; the actions of the respondents are colourfill in exercise and are based on mala fides. He urged that there is no evidence to show that the appellant used the said premises as an office; the diaries of the High Court Bar Association do not matter as they are printed every year in a stereotyped manner without ascertaining from lawyers of their latest addresses; publication in DAWN dated 14‑1‑1999 and visiting cards do not have any evidentiary value as the Advocates normally display their residential addresses on their visiting cards and the public notices in newspapers ‑the appellant and his family are using the premises as residential purpose. He relied upon the cases of Syed Israr Alam v. S.M. Hussain 1983 CLC 468; Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Kar. 624 and Agha Muhammad Ilyas v. Masjid Committee, Rahim Yar Khan PLD 1968 Lah. 863.

6. In reply learned counsel for the respondent urged that the appellant in 1995 required both the properties i.e. the premises and also the Property No.30‑B for personal requirement of her use and for the use of her son who wanted to settle in Karachi and start a business in Pakistan in partnership with his English friend; the respondent therefore, approached both the tenants for vacating the two properties; in 1997 through proceedings before the Federal Ombudsman, the respondent was able to get the vacant possession of the Property 30‑B, which was in occupation and use of N.D.F.C., a Federal Government Corporation; after getting vacant possession of this property it was kept vacant as the premises was not vacant by the appellant; due to delay in getting possession of the premises, the English partner of her son pulled out of the business deal and thus, her son returned back to England; the respondent kept the Property No.30‑B lying vacant by incurring expenses of Chowkidar etc. upto January, 1999 when it was sold by her only to clear her debts/loans and dues; she had no other source of income except the pension of her husband who retired from Pakistan Army as Brigadier; after selling the House No.30‑B in January,1999 the present application was moved against the appellant in April, 2000, however, the respondent also made efforts to get the vacant possession of the premises through various agencies but it is incorrect that the respondent was put under any threat or pressure; the respondent is 74 years of age and a heart patient and at present due to lack of any accommodation in Karachi, she is residing in Rawalpindi in her own house; neither she have relations in Rawalpindi to look after them; the respondent being a foreigner has no relations in Pakistan except her husband's brother and sisters at Karachi; the respondent has three sons and one daughter; one son and daughter are settled abroad, whereas the other two sons reside at Quetta and Lahore respectively. The premises was let out only for the residential purposes; however, the appellant violated the terms of agreement and used the portion of the premises as an office; this fact is proved from number of documents including the diaries of the High Court Bar, visiting cards, public notice and also appellant's admissions in cross‑examination. He relied upon the cases of. National Development Finance Corporation v. Shaikh Naseemuddin and 4 others PLD 1997 SC 564, United Bank Limited v. Mrs. Alafia Hussain 1999 SCMR 1796, Mst. Saira Bai v. Syed Anisur Rahrtian 1989 SCMR 1366, Muhammad Amin v. Mst. Nafeesa Khatoon PLD 1996 Kar. 340, Ch. Muhammad Din and others v. Malik Muhammad Din and others 1979 SCMR 243, Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SCMR 689, Raja Qurban Khan v. Begum M.M. Sharif and another 1980 SCMR 590, S. Pin Liu v. Mrs. Najma Kazmi 1980 SCMR 983, Muhammad Ishfaque v. Asghar Ali and others 1989 SCMR 1315, Taj Muhammad Abbasi v. Messrs Ferozesons (Rawalpindi) (Pvt.) Ltd. 1996 SCMR 97, S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119, Muhammad Ali Pinham v. Muhammad Idris 2002 SCMR 400, Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613, Syed Nisar Haider v. Mst. Razia Sultana 1990 SCMR 642 and Juma Sher v. Sabz Ali 1997 SCMR 1062.

7. Considered the submissions of the learned Counsel. The trial Court dealt with the Issue No.1 and additional issue together because their findings were to be common. The perusal of the trial Court's judgment on these issues show that it has discussed in full the evidence brought on record by the parties. For convenience para.(9) of affidavit in‑evidence of the respondent's attorney is referred wherein he stated reasons for acquiring the premises and House No.30‑B; and that House No.30‑B was vacated by the tenant in April, 1997 which the respondent kept lying vacant in the hope that the appellant would vacate the premises to enable the respondent and her family to occupy both the houses. In para. (19) he narrated the circumstances, which compelled the respondent to sell House No.30‑B in 1999. In para. (6) of the affidavit in evidence, he deposed as to their ages and health conditions. Details of diseases are also narrated (ibid) and number of medical certificates have been produced to that effect.

8. In para. (7) of the affidavit‑in‑evidence the respondent also narrated the reasons of their desire to settle in Karachi and occupy the premises.

9. In paras. (12) and (13) the attorney of the respondent deposed as to the facts about referring the matter to the Government Functionaries for getting .the vacant possession of the premises from the appellant and that how the respondent was put under pressure by the appellant to sell her property to him and that the appellant instead of purchasing the same rushed to the Courts for relief.

10. I perused the cross‑examination conducted by the appellant on the witness of the respondent. No damage is found to have caused to the case of the respondent during cross‑examination. In fact the attorney of the respondent very frankly and candidly responded to the questions put in cross‑examination and it cannot be gathered that the respondent had any mala fide intentions to get the possession of the premises or that she want vacant possession with the object other than the personal need. It would be advantageous to reproduce section 17 of Cantonment Rent Restriction Act, 1963: "Section 17 (1) . (2) (3) (4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession; (a) in case of residential building, if (i) if requires in good faith for his own occupation or for occupation of any member of his family. (ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at a time, in the cantonment area concerned or in any local area in the vicinity; thereof; and (iii) he or the said member has not vacated such a building in the said area` or the vicinity without sufficient cause after the commencement of this Act; and ..."

11. Intention can be judged from the evidence on record and the evidence of the respondent on the issue of requirement of the premises in case for personal use appears to be quite satisfactory. In this case the respondent has been able to establish through the evidence that she requires the premises in good faith for her occupation; and that she had sufficient cause to sell the adjacent Property No.30‑B in January, 1999. It is noted that the time difference between the selling of the Property No.30‑B and the present proceedings is about a year and three months. It cannot be said that the applicant immediately after selling the House No.30‑B filed the present proceedings. Findings of the trial Court on these issues are just and fair and need not to be upset.

12. Next point is the use of the premises by the appellant for the purpose other than it was let out to him. In para. (16) of the application and para (18) of the affidavit‑in‑evidence, the respondent has put up her case to that effect. In support of this contention, she has placed the documents Exhs.A‑24 to A‑25 on record. The respondent's witness was cross‑examined by the appellant but nothing material could be brought on record to that effect. The appellant who also filed affidavit‑in‑evidence and was cross‑examined on this point by the respondent. He was confronted with the High Court Bar Association Diary of 1987, Exh.A.36 and of 1992 as Exh.A/37 and 1999 as Exh.A

38. In Exh.A.‑37 i.e. directory of 1992 the premises in case has been shown in the column of office address, so is the case in Exh.A.38. The appellant admitted the same but stated that in the Diaries of 1992 and 1999 the High Court Bar Diary by mistake shown his residential address as office address. At page (5) of the cross‑examination, he stated that "it is partially correct that I am using the demised premises as my office and for the activity of political party to which I am affiliate. Voluntarily says that the President only allows the political activities in four wall or in residence so I am using the same, as I wish, as I am paying the rent to the applicant'. (Italic for emphasis). He was also confronted with Exhs.O/5, O/7 to O/11 which are his letter heads wherein his office address is shown as that of the premises in case. He also admitted in cross‑examination that in Suit No.114/99, R.C. Nos.145/98, 58/99 and 8/2000, address on Vakalatnamas is that of the premises. He voluntarily stated that he is using this address for his convenience. The sum up of the above is that it is proved beyond reasonable doubt that the appellant has been using the premises and or portion thereof as office as well and thus, was rightly found by the trial Court to have violated terms of tenancy agreement.

13. The upshot of the above discussion is that there is no substance in this appeal and the same is dismissed with no order as to costs.

14. The appellant to hand over the vacant possession of the premises to the respondent within a period of 60 days. M.B.A./M‑167/K Appeal dismissed.