1998 PLP 1050 (CLC)

This First Rent Appeal has been filed against the judgment, dated 2‑5‑1989 passed by the learned Court of IInd Senior Civil Judge/Rent Controller, Karachi (South) in Rent Case No.774 of 1987, dismissing ejectment application under section 15 Sindh Rented Premises Ordinance, 1979 filed by the present appellant/landlord. The brief facts are that the appellant/applicant Abdul Jabbar Khan is one of the legal heir of late Muhammad Yousuf Khan, who owned a building situated on Plot No.5/84, Jane Road, Karachi. The Respondent/opponent is the tenant in respect of flat/room No.4 on the ground floor of the said building. Earlier in the year 1974 the appellant/applicant had filed a Rent Case No.2050 of 1974 and subsequently against the dismissal order passed in the said Rent Case had filed First Rent Appeal No. 727 of 1983 which was disposed off on 4‑3‑1987, on the ground that the appellant/applicant had retired during the pendency of the proceedings and wanted to amend the application to take the ground provided under section 14 of Sindh Rented Premises Ordinance, 1979. However instead of amendment fresh ejectment application being Rent Case No.774 of 1987 was filed. The Appellant has been a Government servant but now retired from service and as such could not continue to live in the accommodation bearing No.F‑56'PT Colony Gizri Road, Karachi provided by the Government, and was also receiving notices to vacate the said accommodation. The subject building consists of ground plus two floors, each having four tenements of one room each plus a small varanda, kitchen, .W.C. and bath room. The building is owned by four brothers and one sister, all legal heirs of Muhammad Yousuf Khan, each room is of the size of 10/8 sq. ft. The appellant's family consists of his wife two married sons and two unmarried sons and thus, require more accommodation. Out of the four tenements on the ground floor one flat is being occupied by the sister and no flat is occupied by the present opponent while the two flats are occupied by the tenants. First floor also consist of four flats out of which two flats are occupied by one of the brothers family and two are with the appellant. Two flats of second floor are occupied by one of the brother and the other two flats with broken roofs are with one of the sister and the brother. The contention of the appellant who appeared in person is that since each flat consists of one room only he needs all the three flats for the use of his family. He admitted that one of the flats was vacated during the previous proceedings. Mr. Muhammad Sadiq, learned counsel for the respondent contended that the appellant/applicant had not come to the Court with clean hands as in his previous application he had stated that he had no accommodation while during the proceedings he had admitted that he had one flat in the building which is in his possession. Further, that the appellant/applicant received one more room about two years back which was vacated by one of the tenant as such he has no bona fide need of the flat occupied by the Opponent/respondent but just wants to vacate the premises. His further contention is that the applicant/appellant's case is not that the accommodation is insufficient but that he has no other accommodation. I have heard the parties and perused the relevant record. In the Rent Case No.774 of 1994 three issues were formulated and findings given. First, whether the applicant required the demised premises for his personal bona fide use in good faith, second whether present ejectment application is not maintainable. In regard to the first issue the learned Judge after discussing the entire evidence has given the finding in negative although he has come to the conclusion that House No.F‑56, P & T Colony, belongs to the Government. The Court's finding is based on the fact that as no amendment was made in the previous Rent Appeal and the same was dismissed by the High Court it amounted to discarding of evidence on the point of retirement by the High Court. It is correct that while disposing of the First Rent Appeal No.727 of 1983 it was observed that "the evidence adduced by the appellant, therefore, fails to establish the bona fides of his needs at the time when the application for ejectment was filed by him". The retirement of the appellant has been admitted by the opponent/respondent in his written statement. The present Rent Application, though has been filed under section 15 of the Sindh Rented Premises Ordinance, 1979, but the contents of the application indicate that the applicant having retired from Government Service has lost right to live in the Government premises and is being pressed to vacate the same and that the flats are needed by him for his and his family's personal bona fide use. The only contention raised in the written statement is that four flats are lying vacant and are in occupation of the applicant/appellant. The appellant in his affidavit in evidence as well as in cross‑examination has deposed that he is occupying Government quarter and that the other rooms/flats which are vacant/occupied by the tenants are the property of his brothers and sisters who are the co‑owners. It has further been established by the said deposition that the other flats are occupied by the other family members. The learned Trial Court has also rejected the plea of the appellant on the ground that the applicant has concealed the material fact that one of the tenants had vacated the flat during the pending proceeding and further that the case of the appellant is not that the accommodation is insufficient for the use of his family. Laws and rules are legislated and formulated and procedure laid down to facilitate the litigants/public at large and as such should be construed liberally. The Court's functions are to dispense justice under the circumstances of each case and not to hinder on mere technicalities. In the present case the contents of the application clearly spell out that the application has been made as the appellant has to vacate the accommodation provided by the Government. The appellant admitted as is evident from the judgment that one of the flats was handed over to him through the Court during the proceedings. It also indicates the efforts of the appellant in trying to get all the flats/rooms which is his share in the property vacated for his and his family's bona fide use. It is not the case of the respondent that the two flats which are already in the possession of the appellant are sufficient for appellant and his family's bona fide use. Looking at the number of appellant's family members and the accommodation which is already in his possession it can be made out that the same is insufficient for his personal use and he needs further accommodation to enable him to shift from the Government quarter. In the light of the above circumstances the judgment, dated 2‑5‑1989 passed by the learned Court of IInd Senior Civil Judge/Rent Controller, Karachi (South) is set aside and appeal is allowed. However, the respondent is allowed 60 days time from the date of this order to vacate the premises, subject to the deposit of monthly rent. H.B.T./A‑167/K????????????????????????????????????????????????????????? Appeal dismissed.