2017 PLP 74 (YLRN)

MUHAMMAD IQBAL KALHORO, J.

Petitioner is aggrieved by the judgment dated 02.07.2002 passed by learned District Judge Karachi Central allowing FRA No.134/2001 filed by respondent No. 1 Muhammad Mirza against judgment dated 13.02.1999 whereby learned 1st Rent Controller Karachi Central had dismissed the Rent Case No.582/1990 filed by respondent No.1 against the petitioner.

2. The said rent case was filed in respect of Flat situated on 1st Floor in Zarrin Manzil, Commercial Area, III-F-5 Nazimabad No.3, near Gole Market Karachi on the grounds of its personal requirement and impairment to its value and utility by the petitioner. The petitioner denied the claim of respondent No.1 and took the plea that he had a number of other properties in his possession which were sufficient to cater to the need of his family members. In respect of the other ground, the petitioner's stance was that the construction was raised with the approval of the respondent from his own funds amounting to Rs.11350/- on his undertaking that the said amount would be treated as fixed deposit refundable at the time of vacation of the flat. The rent case was dismissed vide judgment dated 13.02.1999. However, the appeal preferred by the respondent against the same was allowed vide impugned judgment dated 02.07.2002 giving rise to this petition.

3. Learned counsel for the petitioner contended that impugned judgment suffered from legal infirmity inasmuch as the learned appellate court did not consider that respondent No.1 had failed to disclose about his other properties which he had admitted in the cross-examination; that respondent's concealment of his other properties in his rent application was deliberate and mala fide; that in the rent case filed on the ground of personal bona fide use, the landlord was required to establish his good faith and bona fide but in this case the respondent had completely failed in this regard, so much so he even failed to give names of his kids, their ages and their NICs to prove that he had such a large family for the requirement of which the flat was needed. He lastly relied upon the case laws reported in 1993 MLD 702, AIR 1985 SC 675, 1984 CLC 233, PLD 1999 Kar. 311, 2006 SCMR 152, 1996 SCMR 1260 and 1994 MLD 1026.

4. On the other hand, learned counsel for the respondent No.1 supported the impugned judgment and relied upon the case laws reported in 2010 SCMR 1925, 204 MLD 587 and PLD 1984 Kar. 14.

5. I have considered the submissions of the parties and perused the record and have taken guidance from the decisions cited at the bar. Entire emphasis of the petitioner is on the fact that the respondent has concealed about his other properties which are in his possession, and which are sufficient to accommodate his entire family. The record reflects that the respondent has admitted in his evidence to have only two bungalows one in North Nazimabad and the other in North Karachi, but his evidence also shows that these bungalows are not vacant but occupied by his family members. All the suggestions in his cross-examination that he owns other properties have been denied by him and there is nothing on record to establish that except those two houses he has any other property which he can use for his large family. Although learned counsel for the petitioner vehemently argued on the above point and drawn my attention to the portion of the evidence of the respondent disclosing about his other properties, but it was apparent that it was not his case that those properties were lying vacant and therefore could be used by the respondent, nor such material pointing to any such fact is available on record. In absence of such material being part of the record, mere non-mention of those properties by the respondent in his rent case cannot be treated to be influenced by some mala fide on his part. The respondent's assertion in evidence that he has a large family to look after has not been shattered, and in view of the dicta laid down by the Honourable Supreme Court in the case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCMR 1925), the respondent has satisfactorily discharged his burden. So long as the argument of learned counsel for the petitioner that failure of the respondent to mention names of his family members, their ages and his failure to produce their NICs in the rent case would reflect adversely on his claim, it may be observed that it is not the requirement of law that the landlord shall disclose all these facts in his pleadings in order to establish his case on personal bona fide need of the premises. 4(sic) As regards the ground of making addition and alteration in the said flat, it may be noted that the petitioner has not denied it but his plea is that it was done with consent of the respondent. Nothing in support of such plea is available on record; the petitioner has entirely failed to prove that the construction of additional room on the roof of the flat was carried out after obtaining necessary approval from the Building Department concerned. This fact alone is sufficient to denote impairment of the value of the flat. Learned appellate court has thoroughly and adroitly discussed all these factual and legal points in its findings and I see no reason to interfere in them. This petition was dismissed by the short order dated 01.06.2016 and above are the reasons in support whereof. WA/A-81/Sindh Petition dismisse