1986 PLP 1509 (CLC)

The respondent filed his own affidavit‑in‑evidence in support of the application. The appellant filed his own affidavit‑in‑evidence. The parties were cross‑examined by their respective counsel. The learned Rent Controller, on the basis of evidence produced by the parties and after taking into consideration the arguments of the learned counsel for the parties, decided issue No. 2 in the affirmative, vide order, dated 11‑4‑1985. The appellant being aggrieved against the order, dated 11‑4‑1985 has preferred this First Rent Appeal on the grounds disclosed in the memo of appeal. Mr. Farman A. Hashmi, the learned counsel for the appellant has raised the following contentions:‑‑ (i) The learned lower Court has erred in not holding that the rent application of the respondent was not maintainable and was liable 'to be dismissed. (ii) The respondent has failed to establish that he gave the required notice to the appellant. (iii) The respondent has not established bona fide requirement. On the other hand Mr. Muhammad Yaseen Azad, the learned counsel for the respondent, has submitted that the finding of learned Rent Controller is in accord with evidence on record. The respondent has established that he gave the required notice. The respondent has established bona fide requirement. Reverting to the first contention of the learned counsel for the appellant that the learned lower Court has erred in holding that the eviction application was not maintainable. The appellant has stated in his written statement that the Rent Application No. 5088 of 1980 filed by the respondent was dismissed on 30‑7‑1981. The learned Rent Controller by order, dated 11‑6‑1983 dismissed the eviction application on the ground that after the dismissal of the first eviction application under section 14, no notice under section 14(1) of Sind Rented Premises Ordinance, 1979 had been given by the respondent to the appellant. The respondent filed appeal against that order. The case was remanded by my learned brother Nasir Aslam Zahid, J. It is pertinent to reproduce the relevant part of the order which reads as under:‑‑ "Both the learned counsel agree that the matter may be remanded to the learned Rent Controller for disposal of the ejectment application on merits. Order, dated 11‑6‑1983 .of the learned Rent Controller dismissing ejectment Case No. 5244/81 is set aside and the matter is remanded to the learned Rent Controller for fresh disposal in accordance with law. The learned Rent Controller will decide whether a notice under section 14(1) had in fact been served as alleged by the appellant and will decide the case on merits after recording of the evidence led on behalf of the parties." In view of the remand order the learned counsel for the appellant is estopped from challenging that the eviction application is not maintainable. In these circumstances the first contention of the learned counsel has no force and the same is rejected. Reverting to the second contention of the learned counsel for the appellant that the respondent has failed to establish that he gave required notice, dated 21‑5‑1980 to the appellant. The respondent in para. 6 of the eviction application has stated that he requested the appellant several times to vacate the premises but refused to vacate and, therefore, he had given a legal notice under section 14 of Sind Rented Premises Ordinance, 1979 requesting the appellant to vacate the premises within sixty days from receipt of the notice. The appellant in his cross‑examination admitted that "he filed written statement. It is correct to suggest that legal notice, dated 21‑5‑1980 was in my knowledge as the same was attached as one of the annexures alongwith the eviction application". It is an admitted position that the respondent filed eviction application No. 5088 of 1980 in the Court of XIth Senior Civil Judge and Rent Controller, Karachi. It is also an admitted position that the appellant was not only served in that case but he filed written statement, It is an admitted position that the present eviction application was filed on 1‑12‑1980. According to section 14(1) of the Ordinance two months time is required before filing eviction application. It is clear that section 14 of the Ordinance seems to provide an expeditious summary remedy to a widow/orphan, to a person, who has retired from the service. If technicalities are to be strictly enforced, the very object of the above provision will be frustrated. The spirit of section 14 seems to be that a tenant is to be provided two months prior to ordering of ejectment summarily under the above provision. In the instant case the notice, dated 21‑5‑1980 was given and whereas eviction application was filed on or about 1‑12‑1981 and the eviction order was passed on 11‑4‑1985. In these circumstances I find no force in the contention of the learned counsel for the appellant and it seems that the order of the learned Rent Controller is in accord with law Reverting to the last contention of the learned counsel for the appellant that the respondent has not established bona fide requirement. The respondent in his eviction application has stated that he retired from Government service and required the shop in question for his personal bona fide use for the business as the shop in question is situated on the main road and also corner one which is very suitable for the purpose of his business after his retirement. The respondent filed affidavit‑in‑evidence and reiterated the same facts. The respondent in his cross‑examination has admitted that "I am presently working in Bahrain temporarily on contract basis, with naval authorities of the Government of Bahrain. I do not have any letter of contract or appointment from the Government of Bahrain with regard to my service. It is incorrect to suggest that I am permanently employed with Defence Services of Bahrain". As against the above evidence, the appellant in his affidavit‑in -evidence has stated that during November, 1984 after getting vacated from tenants Anwar and Malik Muhammad Ramzan rented out his business tenement Nos. 3, 4 and 5 to new tenants. It is pertinent to note that no question to this effect were put in cross‑examination to the respondent. The plea about getting possession from tenants and, thereafter, reletting to others is an afterthought. It is apparent that the statement in the eviction application about personal requirement of the respondent has been fully supported in his deposition and nothing has been brought out in his cross- examination which could show the claim to be false or based on wrong statements. It is well‑settled legal position that assertion of the respondent on oath as to requirement of the premises for his personal use have to be accepted as bona fide if consistent with his averment in his application and not shaken in cross‑examination or disproved in rebuttal. With regard to the allegation that he is permanently employed by the Government of Bahrain, the respondent had totally denied the same in his deposition and has stated that he is temporarily working on contract basis. In the case of Fazal Azim and another v. Tariq Mahmood and others P L D 1982 S C 218, the Hon'ble Supreme Court laid down the following dictum: "Although there was concurrent findings of fact by the learned Courts below on lack of bona fides regarding personal requirement of respondent No. 1, yet after hearing the learned counsel, we find that there was misreading of evidence in this behalf. The High Court was thus justified in correcting the error so made by them. The admitted fact that respondent No. 1 went abroad cannot by itself be considered as showing lack of bona fides. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time during the pendency of eviction proceedings. If during such a period he employs himself in a gainful occupation, that as a general proposition, would not negate the assertion of bona fide on his part." The dictum laid down in the above case is fully applicable to the facts of this case. Moreover the safeguard against letting the premises to someone else after getting the tenant evicted was provided by section 15‑A of the Sind Rented Premises Ordinance, 1979 that the tenant could be put back in possession if the landlord does not occupy the premises himself after getting him evicted on the ground of personal occupation and use. In view of the circumstances stated and the reasons given above, I do not find any weight in this appeal which is dismissed, however, with no order as to costs. The appellant is hereby directed to hand over vacant possession of the shop in dispute to the respondent on or before 30‑11‑1985. H . B . T . Appeal dismissed.