P L D 1993 Karachi 502 (PLP)

This appeal is directed against the order dated 31-7-1988, passed by Ist Senior Civil Judge and Rent Controller, Karachi (South), whereby Rent Application No.994/1.987, was allowed and the appellant was directed to hand over the vacant possession of the property in dispute to the respondent. I have heard Mr. Maqbool Ahmed Khan, learned counsel for the appellant. Learned counsel for the respondent has sent an application for adjournment through Mr. Hayat Qureshi, Advocate but the same has been rejected on the ground that the learned counsel has been seeking adjournments on the ground of illness on various hearings and there has been no pFogress in the present appeal. Briefly stated the facts are that respondent Mst. Quresha Begum filed rent application under section 14 of the Sindh Rented Premises Ordinance, 1979, against the present appellant in respect of Flat No. 11-C, 142/1, Off 0.6/31, Swahni Nawaz Building, MA. Jinnah Road, Karachi, on the ground that the respondent had attained the age, of 60 years on 8th April 1987, and was retired from Government service. She alleged in the rent application that she was residing with her relatives, as such she required the premises for her personal use. She did not mention that she was the owner of any other residential premises. In the written statement, the present appellant challenged the owner ship of the respondent in respect of the disputed flat and stated that the flat originally belonged to the late mother of the present opponent, and that there were other co-sharers as well who have not been impleaded as party in the ejectment proceedings. It was further asserted that she had suppressed the tru facts inasmuch as she did not state in her application that she was also owner of an adjacent flat in the same building. It was also pleaded that the opponent had failed to give statutory notice in respect of the changing of the ownership after the death of her mother. It was further submitted that even prior to the present ejectment application, another Rent Case No. 2199/1981 for thc ejectment was ' filed in respect of the same flat against the present appellant b the mother of the present respondent, but the same was dismissed or 11-8-1983. That the appeal filed by the respondent and her brother Manzoo Ahmed Rizvi in respect of the aforesaid decision was also dismissed in limine by this Court on 4-12-1983. It was asserted by the appellant that the opponen did not require the flat in dispute bona fide, and in good faith for her persona use and that she had suppressed the fact of co-ownership of the disputed premises. On the pleadings of the parties, the learned lower Court framed the following issues:-- (1) Whether the respondent was served with notice under section 19 of the Sindh Rented Premises. Ordinance, 1979 after the death of mother of the applicant? (2) Whether the applicant is entitled for the possession of premises under section 14 of the Sindh Rented Premises Ordinance, 1979? (3) What should the order be? Opponent Quresha Begum riled her affidavit-in-evidence and was cross-examined on commission. She also filed affidavit-in-evidence of one Ali Khan purported to be- the tenant of opponent in the adjacent flat. Present appellant Muhammad Yousuf filed his affidavit in evidence and did not produce any other witness. After recording the evidence, the learned lower Court decided both the issues against the present appellant and ordered ejectment of the appellant from the premises in dispute. Hence the present appeal was filed. Mr. Maqbool Khan, learned counsel for, appellant based his arguments on the following points:-- (1) That the other co-sharers i.e., L.Rs. of the late mother of the opponent have not been impleaded as party in the present case, hence the same was bad for non-joinder of the proper and necessary party. (2) That there had been misreading of the evidence by the learned lower Court. (3) That there -has been suppression of ownership of the adjacent flat by the opponent in her main application, as well as in her affidavit-in evidence. (4) That the opponent nowhere pleaded in the main application that the adjacent premises has been rented out by her. She was precluded from producing any evidence on that point, and the affidavit of one Ali Jan purporting to be the tenant in the adjacent flat carried no evidentiary value. (5) That the appellant challenged in his affidavit-in-evidence that the alleged rent agreement between the opponent and the aforesaid Ali Jan was forged document, but the appellant was not cross-examined on that point. Persual of the main application and that of the affidavit-in-evidence of the respondent denotes that the respondent suppressed the fact that she was also co-owner of a flat adjacent to the flat in dispute. Such fact came into the light when the written statement and affidavit for, evidence of the present appellant was filed. Mr. Maqbool Ahmed Khan learned counsel for the appellant contended that the original owner of the two flats was the late mother of the present respondent. Mr. Maqbool Ahmed Khan pointed out that in the year 1983 the late mother of the present respondent had also filed ejectment application against the present appellant in respect of the same flat. But the ejectment application was dismissed, so also the consequent appeal bearing No. FRA-829/83 was dismissed in limine. Mr. Maqbool Ahmed Khan placed reliance on the aforesaid order of this Court, dated 4-12-1983 (page 51 of the original record) whereby the appeal of the late mother of the present respondent was dismissed in limine inter alia on the ground that she had suppressed the fact that she was the owner of two adjacent flats. Same thing has been repeated by the respondent in the present ejectment application. She suppressed the fact in the main application as well as in her affidavit-in- id evidence that she was also co-owner of the adjacent flat Mr. Maqbool Ahmed Khan submitted that the ejectment application was incompetent as the L.Rs. of the late mother of the respondent have not been joined as parties in the present, case. The respondent in her cross examination admitted that her mother besides herself had also left one son and one daughter. In this connection Mr. Maqbool Ahmed Khan placed reliance on 1986 CLC 1534 Mst. Syeda Hyderi Khatoon v. Aftab Ahmed and 8 others: "Ss. 14 & 21(l)--Entitlement of co-owner of property to press into. service. S. 14

Maintainability of application--Widow being co-owner of property held, was entitled to press into service S.14 provided other co owners/legal heirs supported her application or portion of building for which she had applied for ejectment had fallen to her share upon partition of property." The other point agitated by Mr. Maqbool Ahmed Khan was in respect of the bona fide personal use. He contended that the respondent in her cross -examination admitted that she was unable to climb stairs. As such the vacation of the flat would be of no use for her. Mr. Maqbool Ahmed further pointed out that the respondent did not come in the Court with clean hands as she suppressed the fact that she was also co-owner of adjacent flat. Accordingly the bona fide need of the respondent has not been established. Reliance was placed on 1983 CLC 468 Syed Israr Alam v. S.M. Hussain: - "Sindh Rented premises Ordinance (XVII of 1979), S. 14--Eviction proceedings

Relief has to be granted in accordance with circumstances as come to prevail on date of passing of order and not on date of institution of a case." Mr. Maqool further placed reliance on 1986 CLC 681 Ghulam Muhammad v. Zahir Ahmed Khan "Sindh Rented Premises Ordinance (XVII of 1979), Ss.14 & 21 (1)-- Ejectment application

Maintainability

Ejectment application filed after more than two months of issuance of notice under S. 14 which called upon tenant to vacate permises within two months--Held no doubt S. 14 required that at least two months should be allowed to 'tenant but mere mention of words "within period of two months from notice", in notice, held would not make ejectment application as not maintainable when ejectment application itself was filed after more than two months of issuance of said notice

Ejectment application therefore, was maintainable in circumstances." He placed reliance on 1987 SCMR 2051 Mrs. Shah Noor Fazal v. Ghulani Akbar Mangi: "Sindh Rented Premises Ordinance (XVII of 1979), Ss. 14 & 15- Constitution of Pakistan (1973), Art 185. (3)

Ejectment on ground of personal requirement of premises by landlady

Order of ejectment made by Rent Controller set aside by High Court--Petitioner's counsel unable to convince Court as to how in absence of a specific pleading as to vacant premises not being sufficient for her needs she could seek ejectment of respondent from the disputed premises

Order of High Court, held, was unexceptionable

Petition for leave to appeal dismissed." He also placed reliance on 1985 CLC 1943 Mst. Hajiani Ghulam Fatima v. Hajjani Allah Bachai: "Sindh Rented Premises Ordinance (XVII of 1979), S.15(2)(vii)-- Bona fides of landlady for single room tenement- -Landlady owning five buildings comprising 43 tenements but not producing counterfoils of rent receipts--Held: Bona fides stood belied by non-production of counterfoils would have shown that several tenants had changed hands during relevant period-- Tentant's appeal allowed and eviction order passed in such case set aside." He also placed reliance on 1987 MLD 255 Muhammad Ibrahim v. Mst. Nazeer Begum etc.: "Sindh Rented Premises Ordinance (XVII of 1979), S.15 (2) (vii) Bona fides of requirement of rented premises stand belied ' in presence of evidence showing landlord's flat adjacent to premises, subject matter of application under section 15(2) (vii), was lying vacant for 2-3 years--Eviction order passed in such case set aside with dismissal of eviction application." He also put reliance on 1988 CLC 1041 Noor Ahmed and others V. Khawaja Imran Ahmed: "Sindh Rented Premises Ordinance (XVII of 1979), Ss. 15 & 21-- Ejectment of tenant

Plea of personal bona fide requirement how to be established

Application for ejectment neither disclosed nor made out a case with regard to business sought to be carried on in demised premises, nor it specifically mentioned about availability of requisite funds to set up any new business

Landlord, held, was bound to plead and prove all necessary facts to establish his bona fide need-- Landlord has to provide tenant a fair and reasonable opportunity to meet the case of his personal requirement

Imperative for landlord to plead and prove, nature of business and financial ability or resources to set up the case in order to satisfy Rent Controller and the Appellate Court the genuineness and personal bona fide need

Failure to do so, in certain cases of landlords such as bankers, well established or reputed firms, companies or individuals, however, would not be of vital importance

Landlord having failed to prove that his requirement of demised premises was bona fide appeal against eviction of tenant on that ground, was allowed." Reliance was also aced on 1989 CLC 1009 Ahmed Saeed v. Karamat "Sindh Rented Premises Ordinance (XVII of 1979), S.15

Default-- Personal requirement

Misreading of evidence--Landlord's application for ejectment was allowed by Rent Controller on grounds of default in payment of rent and personal requirement

Tenant found to have paid rent for the disputed periods by depositing the property tax and municipal taxes of the landlord--No dates given in ejectment application to justify cause of action having arisen to landlord- Independent and reliable evidence not produced to prove bona fide requirement as claimed in ejectment application --Order of eviction was not sustainable." The consensus of the above mentioned authorities is that the personal need is to be scrutinized carefully. furthermore it is held that such need should not be unreasonable and fanciful. It should be ensured that such need was not just a mere wish or desire of the landlord. I have carefully gone through the evidence recorded by the learned lower Court and I find much force in the submissions made by Mr. Maqbool. The respondent suppressed the fact that she was the co-owner of the flat in dispute and the adjacent flat. Furthermore the L.Rs. of her late mother were not joined as party to the present ejectment application. It appears that the respondent and her late mother had been trying to get the appellant ejected from the flat in dispute since the year 1983. Under the circumstances I am of the view that respondent Mst. Quresha Beguin miserably failed to establish that she needed the flat in dispute bonafidely for her personal use. Accordingly the present appeal is allowed and the impugned order, dated 31-7-1988, is hereby set aside with no orders as to cost. H.B.T./M-1708/K Appeal allowed.