1998 PLP 983 (CLC)

This appeal, under section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the Order, dated 10‑3‑1996, passed by the then, learned VIth Rent Controller, Karachi, East, whereby the appellant's application for eviction of the respondent from the premises in question was dismissed. The facts relevant for decision of this appeal are as follows:

Appellant Mst, Naheed Parveen purchased the Quarter No.R‑281, Sector 32‑B, Korangi 1‑1/2, Karachi measuring 120 sq. yds from Mst. Amina Khatoon wife of late Muhammad Afzal through registered sale‑deed, dated 5‑5‑1991 and her name was mutated in the records of Karachi Development Authority (KDA) as lease holder of the said property. Five (5) shops were carved out from said quarter towards the road side and its back portion is in possession of the appellant, where her husband is running business of leather garments. Those shops were privately numbered as 1, 2, 3, 4 and 5 and the Shops Nos.4 and 5, hereinafter referred to as said premises, are in possession of respondent Mehfooz, who is running a Kiryana Store therein. It is the case of the appellant that she needs said premises for the bona fide use of her husband, as he requires additional space for office, consultation, and for keeping records etc. The respondent resisted the claim of the appellant and maintained that .the sole object of filing the application was to pressurise him to enhance the rent. He maintained that initially the rent was Rs.100 per month per shop, but due to intervention of the Councillor of the area, it was enhanced to Rs.200 per shop. Further it is alleged that, in spite of said enhancement, the appellant was not satisfied and insisted that it should be at least Rs.400 per month per shop. A plea has also been taken that said premises, in fact, belongs to the father of the appellant, who is a property dealer and wants to let it out at higher rent besides pagree. Also it is alleged that said premises is in residential area, and the same could not be used by the appellant for running the business of ready‑made garments. At trial, the appellant filed her affidavit‑in‑evidence and that of her father Shahabuddin, her husband Muhammad Ahmed, and of Abdul Aziz, Nazakat Ali, Chand Muhammad, Shabir, Ronaq Ali, and Mirza Ali Nawaz Baig. Of them, Chand Muhammad and Ronaq Ali were not produced in Court for their cross‑examination and the rest were cross examined. The respondent filed the affidavits‑in‑evidence of Shafiq Ahmed, Abdul Majeed and Muhammad Akhter. They were cross‑examined. Initially, eviction application was filed against Abdul Majeed and after his death learned Rent Controller, by order, dated 11‑4‑1994, joined the son of the deceased namely Mehfooz as the respondent. From the pleadings of the parties, learned Rent Controller settled the following issues: (1) Whether the demised shops are situated in the residential area? (2) Whether the demised shops are required by the applicant for personal bona fide use? (3) What should the order be? On assessment of the evidence brought on record, learned Rent Controller held that said premises was situated in a residential area, and the appellant had not obtained any permission from the relevant authorities for running a garments factory therein. Consequently, he dismissed the eviction application by the order, which has been impugned in this appeal. It is contended on behalf of the appellant that learned Rent Controller has failed to appreciate the evidence available on record and reached wrong conclusion. Learned counsel also argued that Karachi Development Authority (KDA) being the Lessor could only object and seek their remedy for alleged breach of terms of the lease, if any, and the respondent had no legal right to raise any such objection. As against above, learned counsel for the respondent argued that, in any case, the plea of personal use was not established. The evidence available on record reveals that so many persons of said locality have constructed shops in their quarters, which were given to them for residential purposes only. Even this fact has been admitted by the respondent in para. 5 of his written‑statement. The respondent, in fact, has tried to blow hot and cold at the same time. He himself is running a shop in said area, but objects the appellant from doing so. Since admittedly so many persons are running their shops in said vicinity, it is for the relevant authorities to take action against them for the alleged violation of the terms of lease. The finding of the Rent Controller on this point is not sustainable. As regards the personal bona fide use, it is noted that all the witnesses of the appellant have supported her and stated that the husband of the appellant is engaged in readymade garments business since long. They have also stated that in the remaining portion of the said quarter he is running said business. The respondent's witness namely Shafiq Ahmed, in para. 7 of his affidavit‑in‑evidence, stated that the husband of the appellant was doing work in said house and it was sufficient for his requirements. Similar type of admission appears in the affidavit‑in‑evidence of respondent's witness Abdul Majeed. Irrefutable evidence is available on record to show that the husband of the appellant is doing business of garments in a portion of said quarter and 12 knitting machines are at his disposal. Under the circumstances, the demand of the appellant for said premises for using it as Office and for other allied purposes, is justified. The finding of learned Rent Controller on this point is also not correct. In consequence, I allow this appeal, set aside the impugned order, and direct the respondent to hand over vacant possession of said premises to the appellant within four (4) months from now. A.A./N‑59/K Appeal allowed