1988 PLP 919 (MLD)

This appeal under Section 24 of the Cantonments Rent Restriction Act, 1963, has been filed against the judgment dated 22‑5‑1985, of Additional Rent Controller of lands, Clifton Cantonment, Karachi, whereby the Rent Application No. 49/84, has been allowed and appellant has been directed to vacate the disputed premises. The Rent Case No. 49/84, under section 17, subsection (4) and (2), of Cantonments Rent Restriction Act, 1963, was filed by Dr. Mohammad Iqba1; Malik against Mrs. Yasmeen Katchi, on the ground of personal bona fide need. Appellant is a tenant in respect of house bearing No. 25/R, 10th East Street, Phase 1, Defence Housing Society Authority, while respondent is owner. In the rent application, the respondent stated that he was in service in Saudi Arabia and during his absence, portion of the bungalow was give, on rent to the appellant by an agreement dated 24‑2‑1980. The tenancy was extended upto 29th February, 1984. He has stated that respondent has now permanently come back to Pakistan and started his practice as a Surgeon and Consultant. He intimated the appellant by letter dated 17‑3‑1984, about his arrival and requirement of the house. The tenancy has not been extended beyond 29‑2‑1984. He has taken temporary shelter alongwith his parents, grandmother and uncle which caused him great inconvenience. In the rent application, he has stated that appellant started harassing him and lodged false and frivolous complaints before the Martial Law Authorities in respect of dispute over water, gas and electric supply, though they were getting regularly. Appellant in her written statement, stated that premises were taken on rent through the father of the respondent as an attorney and not directly from him. The father of the respondent assured the appellant as whenever the respondent comes back from Saudi Arabia, would reside in Unit No. 25/R‑1, and would not require the premises in occupation of the appellant. 1t is stated that after the expiry of the agreement, she is statutory tenant ',v, respondent accepted the rent from her for the months of March and April, 1984, after expiry of the lease and presently the rent is being paid in the Court of Additional Rent Controller, Clifton Cantonment, Karachi, in Miscellaneous Case No. 43/84. She has stated that she has filed application against the respondent for restoration of amenities and parents of the respondent are residing in House No. 25,/R‑1, and they used to look after those premises while respondent was abroad. In para. No.10, appellant stated that respondent is living in spacious bungalow which provides more than sufficient accommodation for his family and they are living comfortably in house No.25/R‑

1. Before the Rent Controller, appellant was examined and she has repeated the contents of the written statement as stated above. She has stated that on plot No. 25/R, phase 1, Defence Housing Society, there are two independent residential units built and have been numbered as 25/ R‑1 and 25/11‑Il. She states the house, was built for the purpose of letting out one portion on rent. Respondent does not intend to occupy the same after it is vacated. Her evidence further goes to say that ejectment application has been filed by the applicant with mala fide intention arid ulterior motive on false and fabricated grounds. She has admitted in the cross‑examination that when sh6 moved into the disputed premises, the parents of the respondent were living in the portion of the house and tenancy agreement was signed by her. She has also admitted that. at that time respondent, his wife and children were abroad. The second lease agreement of May, 1982, was also signed by her and she never received any letter from the respondent from Mecca. She has admitted that respondent has returned to Pakistan and asked her to vacate the disputed premises. She does not know how many members of the respondent are living with him. Respondent, Dr. M. Iqbal Malik in his evidence corroborated the version given in the rent application and stated that his father as an attorney was in occupation of the portion of the house and remaining part which was supposed to be for his use was let‑out on rent temporarily as he was working in Saudi Arabia. On expiry of the first agreement, it was renewed for two years only with the clear understanding that it shall not be renewed or extended. He stated that from time to time, he requested the appellant to vacate the premises and he wrote such letters from Mecca in 1983, for personal requirement and again in March, 1984. On his return, he asked the appellant to vacate. He has stated that house is required for his family members including wife, four own‑up children, father, mother, grandmother, niece, uncle and his brother s family as well. They are in need of nine rooms whereas presently they have got four rooms only, I have heard Mr. Mohammad Ibrahim Memon. It is submitted that respondent disconnected the amenities of appellant and harassed him from time to time. It is argued that there are two independent houses on the same plot and there is sufficient accommodation in possession of the respondent. It is argued that two separate numbers 25/R‑I and 25 R‑I1 are given to both the houses, therefore, the rent case was filed with mala fides. The learned counsel for the Respondent, Mr. Malik M. Saeed, argued that respondent is a Surgeon and on his return from Saudi Arabia, he needs his own accommodation for his family. It is argued that he is not in possession of any other house in Karachi and his entire family has to live in the house, therefore, personal bona fide requirement has been proved. It is an admitted position that respondent has permanently returned from Saudi Arabia and settled in Karachi. The half portion of the house is already in occupation of his parents and these facts are not denied by the appellant. The disputed premises were given to the appellant during the absence of respondent. Photo copy of the lease agreement has been produced and this agreement has not by the appellant. One of the clauses of the agreement is that on expiry of the lease, appellant has to handover the vacant possession peacefully to the lessor including fittings, fixtures and amenities therein m good condition. In case of termination of the lease, two months notice is required. The respondent has given the notice and written the letter to the appellant from time to time and demanded the vacant possession for the personal use. The only argument that the house is separately numbered, is of no consequence as both the portions are on the same plot and in one portion, the parents of the respondent are living since 1980. It is vehemently argued that respondent accepted the rent which amounts to waiver. It is the duty of the appellant to tender rent till respondent gets the vacant possession. The appellant was not inclined to hand over the possession, therefore, the respondent has no other alternative but filed the rent case in the month of June, 1984. From the evidence of the respondent, it is proved that he has been able to prove the personal bona fide requirement. Therefore, the Rent Controller, has rightly allowed the application of respondent with detailed judgment. I do not find any merit in the appeal. Therefore, dismiss the same. However, I allow three months' time to the appellant to hand Ever the vacant possession to the respondent. Before parting with this order, it may be mentioned that there was another rent case filed by the appellant against the respondent for restoration of amenities which has been dealt with independently and Rent Controller has passed a separate order. Therefore, that appeal is being decided independently by a separate judgment. H.B.T./Y‑20/K. Appeal dismissed.