1988 PLP 984 (SCMR)

Date of hearing: 30th April, 1987. ABDUL KADIR SHAIKH, J.‑‑This appeal by leave is directed against the judgment of a learned Judge of Sind High Court dated 23‑2‑1984 allowing an appeal filed by respondent‑tenant, and thereby setting aside an order of his ejectment from the demised premises passed against him by the Rent Controller. The Rent Controller passed that order on an application by petitioner landlord that he required the demised premises bona fide for his personal use and respondent was also a defaulter in payment of rent and had caused damage to the property. Respondent contested the proceedings, and finally the Rent Controller, Karachi granted petitioner's request for respondent's eviction on the sole ground that he was satisfied that respondent had successfully proved that he required the premises for his use, in that, his wife suffered from epileptic fits, and according to medical advice she should reside in premises on ground floor. In this behalf, petitioner's case was that his wife suffers from "violent epileptic fits", and during these fits, he apprehended that "she may even jump from the second floor room where she resides," and there was thus danger of her life. Moreover she had grown so weak and could not climb the stairs. Respondent's challenge to this order in appeal to Sind High Court succeeded as the learned Judge who heard the appeal held that: "In the present case, the admitted position is that accommodation identical to the disputed premises in all respects on the ground floor, of which the respondent is a landlord, fell vacant during the pendency of this ejectment application but the same was rented out to a tenant at a higher rent. If the respondent was in such a desperate need as pleaded by him then he could have immediately occupied that house. The method chosen by the respondent was to let out at a much higher rent than the rent paid by the appellant. The respondent has not explained in his evidence that this house was not suitable, sufficient or proper to meet his requirements. This conduct of the respondent lends support to the appellant's plea that his main object to file ejectment application was to obtain higher rent" On this view of the case the appeal was allowed and the order of the Rent Controller was set aside.

5. Leave to appeal was granted by this Court to examine the plea raised by the appellant, with reference to evidence on record, that learned Judge in the High Court has unfortunately erred in reaching the conclusion that it was the admitted position that respondent had let out the premises on the ground floor during the pendency of the case. Learned counsel pointed out that it was not even the case of the respondent upto the time when he was examined In Court that the premises had fallen vacant during the pendency of the case.

6. After having' heard the learned counsel for the parties in tile light of the record before us we find that the plea raised by the learned counsel for the appellant is correct that the learned Judge unfortunately fell in error in holding that it was the admitted position of the parties that accommodation identical to the disputed premises in all respects on the ground floor had fallen vacant during the pendency of the ejectment application but the same was rented out to a tenant at higher rate. There was no suggestion to the above effect by the respondent in the written statement filed against the ejectment application nor was any suggestion of the kind made to the landlord in the cross‑examination. It is obvious ,that learned Judge in the High Court somehow totally misread the evidence and placed his findings thereon. In the circumstances we have no other option but to allow this appeal. Order accordingly and parties are left to bear their own costs.

7. At this stage learned counsel for the respondent prays that some time may be granted to the respondent to vacate the premises as he has to find out some alternate accommodation for his residence.

8. Learned counsel for the appellant has no objection provided respondent undertakes to vacate the premises and to hand over the same to the appellant without recourse to the execution proceedings.

9. The condition suggested by the learned counsel for the appellant is acceptable to the learned Advocate‑on‑Record and also the respondent who is present in Court in person. We, therefore, grant three months time to the respondent on his undertaking to vacate the premises and hand over the same to the appellant and we have explained to the respondent that the breach of the undertaking will be punishable in contempt. The respondent shall also deposit not only the past rents but the rent due for the period of three month hereby allowed to him by end of June, 1987. S. Q./M‑390/S Appeal allowed.