2006 PLP 2194 (YLR)

AZIZULLAH M. MEMON, J.--Heard learned counsel for contesting parties. Vide order, dated 16th December, 2002 these three Constitutional Petitions were admitted for regular heating with the observation as under:-- "Learned counsel, inter' alia, contends that the. judgment of the District Judge, Karachi Central in F.R.A. 382 of 2001 is contrary to the principle laid down in 2001 SCMR 1676, wherein the Hoii'ble Supreme Court has held that the evidence of the landlord/landlady can be recorded through his/her 'attorney contention raised requires consideration. Admit notice. " Admittedly, Mst. Asma Usman is owner of three shops involved in these three constitutional petitions, situated on the ground floor of building constructed on Plot bearingNo.A-1, Block 18, F.B. Area, Karachi-38. So also, it is admitted that the private respondent in these constitutional petitions are tenants in the said three shops, and further that the landlady, through her husband and attorney namely Muhammad Usman, filed three separate rent cases against the private respondents/tenants for their ejectment from the said shops respectively, asserting, therein that her daughter was to acquire proficiency to work as Beautician, and that one of her sons was very shortly to complete education/training to run the business of bio medical equipment in the second shop, and her second son (who was to pass-intermediate examination in Commerce subject) the third shop was required by him,F$o run business of stationery. Learned IIIrd Senior Civil Judge/Rent Controller, Karachi Central, vide Orders, respectively passed in the said three ejectment cases on 21-2-2001 allowed the same and directed the ejectment of the tenants/private respondents from three shops, respectively who filed their separate rent appeals bearing F.R.A. No.380 of 2001, F.R.A. No.381 of 2001 and F.R.A. No. 382 of 2001, which were heard by learned District 'and Sessions Judge, Karachi Central 2nd'.' vide consolidated order, dated 29th November, 2001, allowed all the said appeals and set aside the said orders of the ejectment, passed by the learned Rent Controller and dismissed the ejectment applications, with his following observations:-- "(9) I have carefully considered the above arguments. The facts of the present case are similar to the facts reported in the_ case of Mahboob Alain, ibid of Sindh High Court ejectment was filed for personal requirement of the premises through ' the 'attorney of the landlady and' she did not appear before the Rent Controller for her cross-examination on account of the fact that she filed the affidavit of evidence of her attorney. In the said case it has been held by the Honourable High Court that the attorney's examination before the Rent Controller is only evidence of a witness which could only be used .for corroboration of a version of ' the landlady, had there been one. Since the landlady had not directly informed the Court of Rent Controller in any manner, about her intention to use premises, i.e. by filing rent application herself or by filing her affidavit, there is no occasion for use of the evidence of the attorney for corroboration. It has also been held that it may not be necessary for landlord to appear for evidence to assert his plea of bona fide requirement but is necessary for him, at least, to approach the Rent Controller through his rent application and put, before him, the plea that he requires the premises for personal use. In the present case also the respondent through her attorney without any plausible reason filed applications and no affidavit-in?evidence was filed either by the respondent herself or any her children for whom the shops in question are required. Mere assertion of the attorney of the respondent that his children have grown up and wanted to start their own business in these shops is not sufficient to prove the contentions for the respondents that these shops are required for their personal needs in good faith, specially in the circumstances when none of the children has appeared for the purpose of their cross-examination to answer the questions raised during the cross-examination of the attorney of the respondent with regard to permanent settlement of her daughter in Canada after marriage and the business which is being allegedly done by her sons and other questions of similar nature. (10) The case of Arshad Umer, ibid of Honourable Supreme Court relied upon by the learned counsel for the respondent is altogether on different facts and circumstances because in that case it is not clear that the landlady had filed the applications herself or through her attorney and that the landlady was living at Quetta whereas her attorney/son-in-law was living at Karachi where the cases were filed and it was easier for him to pursue the cases and to appear for evidence. Moreover, the rent applications were for portions of residential accommodation and there was no dispute that the landlady had no residential accommodation at Karachi; whereas in this ease appellant's plea was that the respondent wanted to let out the shops on higher pugree because her husband is admittedly occupying a shop in the same building where he is doing the business along with his sons and her daughter is going to shift to Canada after marriage as her fiancee is living at Canada. Hence this case is on different footings and cannot be relied upon to discard the principle laid down by the Honourable High Court Sindh in the above mentioned case. (11) In view of the above facts and circumstances and the law laid down by the Honourable Sindh High Court I hold that impugned orders cannot be sustained under the law and therefore, they are set aside. The respondent has failed to prove her case according to law. Hence the applications are dismissed. Consequently, the appeals are allowed as prayed." Hence the landlady/owner has filed the present Constitutional Petitions bearing Nos. S-592 of 2002, 593 of 2002 and 594 of 2002 against the consolidated judgment of the learned Appellate Judge. On a query, learned counsel for petitioner/landlady has stated at the bar that he does not know as to whether or not daughter of the landlady has got married and if she is still residing with the landlady; learned counsel for respondents/tenants also stated that "it is not in his knowledge as whether or not she has got married till date." Only point involved in this case is as to whether landlady/landlord competent, or not, to file ejectment case against the tenants through her attorney, and if she has necessarily to appear in person as a witness before Rent Controller to assert the, very same facts stated by her in the ejectment application, and further if the daughter and the sons for whom she stated in the ejectment case that they require the shops in question to run business of their own, respectively, have also to appear in the respective cases as witnesses of their own to support the stand taken by their mother/landlady that the shops are actually so required for their respective purposes separately (for the daughter and the two sons). Suffice it to say that Honourable Supreme Court in a recent pronouncement Mrs. Mariam v. Naeed Ahmed (2001 SCMR 1676) held that the landlady is competent to file ejectment case against the tenant through her attorney without herself making appearance in the witness-box in person (to depose to the effect as asserted by her in the contents the ejectment application) and that her husband would be competent to depose so on her behalf in the witness-box before the Rent Controller. For the reasons that the husband himself is father of the daughter and sons-for whom the landlady seeks the ejectment of tenants respectively, so that they (daughter and sons) may be facilitated for running of business therein of their own, separately, the present case is even on better footings, and the father of children (husband of the landlady) had competently pursued the proceedings on behalf of his wife. It is also by now a settled principle that if the landlady/landlord seeks the ejectment of tenant from the rented premises on the ground that same is required for personal bona fide use of his/her sons/daughter then such son or daughter may not appear in person in the witness-box before the Rent Controller and that the deposition made by his/her father or mother in the witness-box would suffice to prove such a demand of requirement of the demised premises as bona fide, to use the same for their respective personal use. Reference may be made to the case of Muhammad Bashir v. Venismal and others (PLD 1980 Karachi 409). It is by now settled principle of law that no unreasonable restriction can be placed against the owner of rented premises while he/she seeks ejectment of the tenant from the same on the plea that the same is required by him/her or for bona fide personal use of their children. Reference may be made to the case of Jehangir Rusam Kakalia v. Hashwani Sales and Services (Pvt.) ltd. (2002 SCMR 241). Suffice it to say that section 15-A of Sindh Rented Premises Ordinance, 1979 directs that where the landlord/landlady has obtained the possession of a building/ premises and re-lets to any person other than previous tenant, or puts it to use other than personal use within-one year of getting the tenant dispossessed from the same, he/she shall be punished with the fine and further that tenant who has been so evicted from such premises may apply to the Controller of the competent jurisdiction for an order directing that he shall be restored to possession of the premises so involved in the case and the Rent Controller shall make an order accordingly. Apprehensions shown from the side of the tenants to the effect that landlady intends to re-let the shops in question to some body else by having huge amounts of Pagri for such a purpose cannot be entertained before any such event is actually proved to have occurred/taken place and further suffice to say that rights of the tenant stand protected/safeguarded in the above-quoted provision of law and no observation need be recorded at this stage on the apprehensions so shown by the tenants, respectively. Consequently, these three Constitutional Petitions are hereby allowed and the judgment passed by learned Appellate Court is hereby set aside and ejectment orders passed by learned Rent Controller are hereby restored and, consequently, all the three tenants/private respondents in these constitutional petitions are hereby directed to be ejected from the respective shops. They are given a time of 90 (Ninety) days from this date to vacate the shops in question, and to hand over the possession thereof peacefully to the petitioner/landlady, provided that they shall continue to pay the monthly rent. In the circumstances of the case, parties are left to. bear their own costs. H.B.T./A-68/K??????????????????????????????????????????????????????????????????????????????????? Petitions allowed.