1995 PLP 452 (MLD)

(2) What should the order be? The learned Rent Controller decided the Issue No. 1 against the appellants/applicants, anal has dismissed the ejectment application. The appellants have therefore come in these appeals. I have heard Mr. N.M. Shaikh, Advocate for the appellants, and Mr. S. Mukhtar Hussain Naqvi for the respondent. The learned Advocate for the appellants contended that the appellants were originally residing at Karachi, but their ancestor Syed Aqil Hussain Jaffery had some business at Lahore, therefore, they shifted to Lahore. Now they have decided to settle at Karachi, and that they have no other house at Karachi in which they can reside. He has relied on PLD 1984 Karachi page 14, 1984 CLC page 2531. On the other hand Mr. S. Mukhtar Hussain, Advocate for the respondents contended that the appellants did not require the premises in good faith, and that they intend to sell the same to some one. He has also relied upon PLD 1984 Karachi page

14. I have considered the contentions of the learned counsel, and have gone through the record and proceedings of the case, and have also considered the case‑law cited by the learned counsel of the parties. On the side of the appellants Syed Babar Hussain Jaffery appellant No. 3 filed his own affidavit supporting the facts mentioned in the ejectment application. He has also produced Special Power of Attorney Exh. O/1. The respondents have also produced through him a post card Exh. O/2 and the Rent Agreement Exh. O/3. On the other hand respondent Shafi Ahmed has filed his own affidavit in Rent Case No. 1641 of 1984 and has also examined one Muhammad Aijaz Ali a property dealer Exh.4. This witness has also produced a photo copy of entry Exh.4. In Rent Case No.1642 of 1984 respondent K.M. Anwer has filed his own affidavit. He has also examined witness Muhammad Aijaz Exh. 5, this witness has produced the photo copy of the entry from his register as Exh. 5‑A. The evidence of appellant Babar Hussain shows that, their family consists of 13 members. That they want to settle in Karachi now, and the premises in question are required by them for their personal bona fide use. He has also stated that they do not own any other premises at Karachi. He has denied a suggestion that they want to sell the premises in dispute. In cross -examination in Ejectment Case No. 724 of 1985 a notice dated 3‑8‑1982 was got produced through hi in as Exh. O/4 which was sent by Mst. Nusrat to respondent Anwer asking him to vacate the premises, as the same were required by her bona fide for her occupation and that of her children. The appellant has further stated in cross‑examination that they have only one house at Lahore which is constructed on 400 sq. yards. The evidence of respondents shows that late Syed Aqil Hussain Jaffery intended to sell the above premises and had therefore written a post card Exh O/2 to respondent Shafi Ahmad. That on his death appellant Amir Azam had approached the respondents and one Muhammad Sadiq an Estate agent for the sale of the above premises before filing of the ejectment applications. In cross‑examination both the respondents have shown ignorance whether appellants own any other house at Karachi. One Muhammad Aijaz examined by the respondents have stated that he is a property dealer and runs Estate agency in the name of "New A Siddique Property Dealer". His office is situated at 3‑D‑8/39‑A, Nazimabad, Karachi. According to him one Amir Azam had contacted him in 1982 for selling his property bearing No. 4‑F, 11/14, Nazimabad, Karachi. He had made such entry in the register and has produced photo copy of such entry as Exh.5‑A. That Amir Azam had demanded Rs.4,00,000 for the above property. However so far evidence of witness Muhammad Aijaz is concerned, his evidence is of no help to the respondents inasmuch as the parentage and address of Amir Azam is not mentioned in the entry. He states that he had shown the premises in question to certain persons with great difficulty as the same were occupied by the tenants, but he does not say that the respondents were occupying the said premises as tenants. Moreover the name of Estate agent given. by respondents was Muhammad Siddique, while the a name of witness is Muhammad Aijaz, and according to him the name of his Estate agency is "New A. Siddique Property Dealer". Even no entry number is mentioned, nor date on which Amir Azam had contacted him is mentioned. In these circumstances the evidence of this witness could not he relied upon. Even otherwise merely because the ancestor of the appellants was interested to sell the premises in dispute at one stage, will not mean that the appellants still intended to sell the same. In Rajab Ali v. Darius Khandawala and another (PLD 1984 Karachi page 14) relied upon by the learned counsel appearing for both the parties, Mr. Justice Munawar Ali Khan, J. (as he then was) held:‑‑ "That the landlord is absolutely free to live in his own house, once he has elected to do so, his demand for eviction of his tenant tom the said house would be presumed to be bona fide and based on good faith, unless mala fides are alleged and proved against him by the tenant." In the above cited case it was further observed that: "Ejectment ‑‑‑Personal requirement‑‑‑Landlord succeeding in establishing his case on the ground of personal requirement‑Desire of landlord to sell disputed house, should not be permitted to come in his way in getting his tenant ejected." In Muhammad Ishaque v. Fateh Muhammad and others (1984 CLC page 2527) it was held by Fakhruddin H. Shaikh, J.: "The landlord's statement on Oath in conformity with the pleadings, if 'not shattered in cross‑examination, and if not disproved by evidence in rebuttal shall be sufficient for recording finding in favour of landlord". In this decision the learned Judge had relied upon 1981 CLC page 327 also. In view of the above discussion I have come to the conclusion that the appellants require the disputed premises bona fide for their personal use and not for sale. Therefore these appeals are allowed, the orders of the Rent Controller are set aside, with no orders as to costs. It is hereby ordered that the respondents should hand over vacant possession of the premises in question to the appellants within three months. AA./N‑538/K Appeals allowed.