1983 PLP 1623 (CLC)

We have been retained by our client namely Syed Intekhab Haider Abedi of 168-D Ammer Khusro Road, K. D. A. Scheme No. 1, to address you as under :- That you have been in occupation of the premises addressed above as a tenant at a monthly rate of Rs. 1,400 since July, 1975. That you have intentionally and wilfully defaulted in the payment of rent, at the above rate, since June 1977.till todate. That our client is an employee of a Scheduled Bank and is in occupation of the Bank's leased out premises. The Bank has now asked our client to vacate the premises and, therefore, the house in your occupation is needed by our client and his family for his personal bona fide use. That it has also transpired that the house has been used and occupied in a manner whereby its utility has been impaired. Therefore, it is requested that house be vacated within a period of seven days from the receipt of this notice on account of default and for personal use, etc. alongwith the accrued rent be also paid, failing we have instructions to proceed against you for the ejectment and pos session of the premises, at your risk and costs." On the failure of the appellant to vacate the premises the respondent filed an application under section 13 of the repealed Sind Urban Rent Restriction Ordfp4nce, 1959 on the ground of default in payment of rent and on bona fide requirement of the house for personal use and occupation. In this application also the appellant stated in paragraph 4 as follows (4) That the applicant required the suit premises for his personal bona fide need, use and occupation as the applicant being the Scheduled Bank employee has been asked to vacate the leased premises in his occupation, for which a legal Notice dated 5th February, 1979 was also issued to the opponent but the opponent as usual paid no heed to the same, hence this case. In the written statement filed, in reply to this paragraph the appellant stated that the respondent did not require the premises for his personal bona fide need. He further stated that the respondent wanted to require the possession of the house in order to let it out at a higher rate of rent. But the allegation that the respondent being a scheduled bank employee had been asked to vacate the premises in his occupation made in the application was not specifically or otherwise traversed in the written statement. On the pleadings of the parties the Controller framed the following two issues : (1) Whether the opponent has committed default in payment of rent from June, 1977 ? (2) Whether the premises in question is required in good faith for per sonal and bona fide need of the applicant ? On the first issue the Controller found in favour of the appellant. However, on the second issue the Controller found against him and con sequently, ordered the appellant to vacate the premises and put the respon dent into possession thereof by the order impugned in this appeal. In the proceedings in support of the plea of bona fide requirement a photostat copy of the letter of the Habib Bank Limited dated 31st January, 1979 asking the respondent to vacate the premises occupied by him on behalf of the Bank, was produced and marked as Exh. 5, subject however, to objection of the appellant. I have heard Mr. Ismail Padhiar learned counsel for the appellant and Mr. Habib-ur-Rehman, learned counsel for the respondent. The learned counsel for the appellant has submitted that the letter (Exh. 5) was illegally admitted into evidence and exhibited in spite of counsel's objection as the same was a photostat copy, the original whereof was not produced and proved through the author or otherwise according to Evidence Act. He further submitted that the appellant had failed to prove the bona fide requirement and mere expression of the desire was not sufficient. In support of this submission he relied on Haji Ghulam Muhammad v. Abdul Qadir (P L D 1975 Lah. 200) and Barkat Ali v. Sughra and others (P L D 1980 Kar. 223). Now, so far as the first submission is concerned it is true that Exh. 5 was unduly admitted into evidence without original being produced and proved. However, even if it is excluded from consideration still there is enough material on record to sustain the finding. The plea of the respon dent-contained in paragraph 4 and quoted in extenso verbatim hereinabove that he being an employee of the Bank had been asked to vacate the premises in his occupation was not specifically or otherwise traversed in the written statement. Therefore, this fact did not require further proof. Although Code of Civil Procedure as a whole is not made applicable to the rent pro ceedings under the Sind Urban Rent Restriction Ordinance yet the broad principles contained therein unless in conflict with the provisions of the Ordinance or otherwise are against the spirit of the Ordinance, can usefully be pressed into service and therefore, the fact which was specifically pleaded in the application and was not specifically or by necessary implication, traversed according to the rules of pleading in the absence of any direction by the Controller to the contrary, is deemed to have been admitted and thus it need not have been proved particularly in view of the provisions of section 58 of the Evidence Act, which provides : "S.

58. No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings : Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions." I have already quoted the letter dated 5th February, 1979 wherein also it was stated that the Bank had asked the respondent to vacate the premises which was not replied in any manner. I, therefore, find no substance in the first submission. As regards the submission that the respondent had failed to prove bon fide requirement it would suffice to say that in view the facts that the res pondent is residing in a premises provided to him by the Habib Bank of which he is an employee and the Bank has asked him to vacate the premises the requirement of the respondent to reside in his own house, cannot but be bona fide and he seems to have fully satisfied the requirement of law. Now, taking up the case of Haji Ghulam Muhammad cited by the learned counsel for the appellant, it may be stated that it was held therein that ejectment of tenant not to be ordered by the Controller merely on expression of landlord's desire even though made in good faith and that the Controller's satisfaction with regard to the bona fide of the claim of the landlord is a must. But in the present case it is not only the desire of the landlord but bona fide need which arose out of the demand of Habib Bank to vacate the house and the same has been taken into consideration by the Controller, which has satisfied him. In Barkat Ali's case it was ruled that the landlords had failed to prove that they required the premises for their own use and that burden could not be said to have been discharged by their bare and bald statement in evidence that some of the landlords were unemployed and they wanted to start some unspecified business. However, in the present case it is not only a mere statement of the respondent that he required the premises for his personal use and occupation. The requirement is based on the fact that the respon dent is presently occupying a premises provided to him by his employer the Habib Bank and they wanted him to vacate the same and, therefore, the need for occupying his own house by the respondent has arisen on that account. Moreover, I have observed in a number of cases that where a land lord is residing in a rented premises or has to reside with some friend or relation and he wants to reside in his own house then in the absence of any special reasons, his requirement should be considered to be bona fide. Reference is made by Mr. Habibur Rehman to one of such cases, namely, Muhammad Hanif v. Mst. Sara (P L D 1982 Kar. 181). I, therefore, find no force in this appeal and dismiss it with costs. Mr. Ismail Padhiar requests to allow the appellant 4 months time to vacate the premises and hand over its possession to the respondent. By the order impugned in this appeal the Controller allowed 2 months time which expired on 31st July, 1981. However, I allow two months more time to vacate the premises provided the appellant continue to deposit rent in accordance with the order of the Controller. otherwise he will be liable to be evicted forthwith notwithstanding the time hereby allowed. M. Y. H. Appeal dismissed.