1999 PLP 505 (CLC)

F.R.A. No. 145 of 1995. Appellant Muhammad Yousuf is tenant in respect of Shop No.4 on the monthly rent of Rs.260 excluding other charges and is carrying on business. F.R.A. No. 149 of 1995. Appellant Bashir Ahmed is tenant in respect of Shop No. l at the monthly rent of Rs.360 excluding other charges. F. R.A. No.151 of 1995. Appellant Muhammad Naeem is a tenant in Shop No.6 at the monthly rent of Rs.510 excluding electricity charges. F.R.A. No 151 of 1995. Appellant Ateela is occupant of flat No.2 as tenant of the respondent at the monthly rent of Rs.625 excluding other charges. F.R.A. No.176 of 1995. Appellant Mrs. Jillani is occupant of Flat No.l on 1st Floor at the monthly rent of Rs.1100 excluding other charges. F.R.A. No .193 of 1995. Appellant Badaruddin is tenant in respect of shop No. 7 at the monthly rent of Rs.710 excluding other charges. All the above rental properties which are in occupation of the appellants are situate on Plots Nos.171, 173, 174, E‑2, Central Commercial area which is owned by the respondent. Ejectment was sought mainly on the ground of personal bona fide requirement as according to respondent No. l she is qualified M.B.,B.S. Physician while respondent No.2 is also a Science graduate and they want to start maternity home/hospital on the ground and first floor of the demised premises on "no profit no loss basis". The appellants resisted the applications and in their written statement they denied the claim of the respondent and also averred that the rent applications were not maintainable in law. It was also stated that no notice under section 18 of the Ordinance XVII of 1979 was served on the appellants after the death of Mian Muzaffar who was the original landlord since 1964 and was father of the respondent No.l. After his death some time in 1992 the husband of respondent No.l and son‑in‑law of deceased Mian Muzaffar started collecting rent from the appellants. Both the parties filed their affidavits in evidence. Respondents Nos.l and 2 as well as attorney of respondent No. l Major Farooque Hassan filed their affidavits in evidence. The appellants/opponents filed their affidavits in evidence. In F.R.A. No.144 of 1995 respondent No.l and her attorney Major Farooque were cross‑examined, while respondent No.2 was not cross‑examined. In F.R.A. No.145 of 1995 Major Farooque was cross‑examined, while respondents Nos.l and 2 were not cross‑examined. In F.R.A. No.149 of 1995, both the respondents were cross‑examined, while Major Farooque was not cross?-examined. In F.R.A. No.151 of 1995, only Major Farooque was cross?examined, while the two respondents were not cross‑examined. Similarly in F.R.A. No.152 of 1995 and 176 of 1995 only Major Farooque was cross?examined, while the respondents were not cross‑examined and in F.R.A. No. 193 of 1995 only respondent No.2 was examined, but she was also not cross‑examined, by the learned counsel for the appellants. The learned Rent Controller framed the following points:‑‑ "(1) Whether the applicants required the demised premises in good faith and for their own use and occupation? (2) What should the order be?" After perusal of the record and hearing the learned counsel for the parties, the learned Rent Controller allowed the applications as mentioned above. ???????? I have heard the learned counsel for the parties and perused the record. Learned counsel for the appellants contended that, (a) the impugned judgments are based on misreading of evidence; (b) Major Farooque Hassan being attorney of the respondent No.l had no power to file affidavit in evidence and such objection was raised before the learned Rent Controller; (c) after the death of Mian Muzaffar, no notice under section 18 of the Ordinance XVII of 1979 was served on the appellants. Regarding claim of the respondent No. l that she wants to start a maternity home/hospital on no profit no loss basis, it was submitted that this plea is not covered by the provisions of personal bona fide requirement. In support of his submission, the learned counsel for the appellants cited Sirajuddin v. Suba 1984 SCMR

722. Mr. Shaikh Ahmed learned counsel for appellant in F.R.A. No.152 of 1995 submitted that the hospital/maternity home cannot be established in a residential area. Learned counsel for the respondents supported the impugned judgment and stated that the respondents through their evidence have proved their bona fide personal requirement. The burden to prove this issue was on the respondents. The facts mentioned in the ejectment application find corroboration from the evidence furnished by A. W. Major Farooque Hassan, attorney of the respondents as well as other witnesses to the effect that the proposed hospital/maternity home will be established to serve the mankind on no profit no loss basis and this evidence has remained unshaken in cross‑examination. There is also nothing in the statements of the appellants to rebut the claim of the respondents. Likewise, in the absence of any cogent evidence I do not find any force in the submission of Mr. Shaikh Ahmed, Advocate that maternity home/hospital cannot be established in residential area. The main submission of Mr. Muhammad Amin. I. Lakhani, learned counsel for the appellants, which was vehemently urged by him was that establishment of a hospital/maternity home is not covered by the provisions contained in subsection (vii) to section 15(2) of the Ordinance XVII of 1979. In support of his submission he cited the judgment reported as Sirajuddin v. Suba 1984 SCMR 722 wherein it was held by the Honourable Supreme Court that the opening of a free dispensary is neither such an occupation nor involves personal occupation of the property, since admittedly the respondent in that case did not belong to the medical profession. Opening of a Free Dispensary is really a charitable object which involves the use of the premises for the benefit of the landlord though the ultimate object of the charity may be his spiritual and isement. It was also held that, however, laudable the object with which the respondent had submitted the application for ejectment, that did not fall within the scope of section 13 of Act VI of 1959. After having gone through the entire evidence which has also been discussed properly by the learned Rent Controller, in my humble view the respondents have discharged the burden to prove their personal bona fide requirement. There is no denial of the fact that respondent No. l is a qualified medical practitioner having worked in many hospitals and the respondent No.2 is also a Science graduate. They want possession of the demised premises for opening the hospital on no profit no loss basis. Now the crucial question is whether the establishment of such a hospital/maternity home is a ground recognized for eviction under section 15(2)(vii) of the Ordinance XVII of ]979, when the institutions are run on the basis of no profit no loss. It is fundamental principle that the persons who are taking advantage of the institution may A contribute to the extent as to make the expenditure, necessary for the maintenance of the institution i.e. income of the institution must never be raised over and above the expenditure required to be spent for maintenance. In the instant case, the applicant/respondent No. l who wants to run the hospital/maternity home and intend to occupy and establish such an institution, shall be personally connected with the institution in so far as she is going to run the institution herself being a qualified and experienced doctor. In other words she will be not only in charge of but personally and physically in occupation of the premises in question. To that extent she is bona fidely entitled to the need of the demised premises for which she has applied and proved. The judgment reported in the case of Sirajuddin v. Suba (supra) is distinguishable on facts and law. The findings of the learned Rent Controller on the sole point involved in the matter is, in my humble view unexceptionable. Therefore, these appeals having no merits are dismissed. Q.M.H./M.A.K./M‑373/K?????????????????????????????????????????? ??????????????????????? Appeals dismissed