ASIF Versus RAISA KHATOON JAFRI
By this common, judgment I intend to dispose of the above 3 appeals, which are directed against the common order dated 19‑1I‑1986 passed by the learned IVth Senior Civil Judge and Rent Controller Karachi West, in Rent Case Na.2I2 of 1985, which is covered by First Rent Appeal 140.99 of 198?, Rent Case Na.2I3 of 1985, which m covered by First Rent Appeal No.II51 of 1986 and Rent Case No.214 of 1985, which is covered by First Rent Appeal No100 of 1987. whereby the learned Rent Controller has directed the present appellants to vacate the 3 shops, which are in their possession.
2 The brief facts leading to the filing of the shave appeals are that the respondent filed aforesaid 3 rent cases far ejectment on the ground of personal requirement. The shave applications were resisted by the present appellants. The learned Rent Controller an the basis of the pleadings of the parties, framed the following 3 issues: ‑ '
(1) Whether the present application is not maintainable in law as alleged?
. (2) Whether the tenement in question is bona fide required by the applicant far the use and occupation of herself, her son and other dependants?
(3) 'what should the order be?
3; In support of the rent cases, the respondent filed her affidavit‑in‑evidence, whereas all the 3 appellants/ tenants filed their affidavits‑in‑ evidence The learned counsel for the parties cross -examined the appellant and the respondent. The learned Rent Controller after hearing the parties allowed the above rent cages by the aforesaid order. The appellants being aggrieved by the above order leave filed tie present appeals.
4, In support of tire above appeals t/s. Khalid Javed and Khalid Dawood Pota, learned counsel for the appellants, have urged as follow
That the respondent has not approached the court with clean hands inasmuch as she made mispresentation and suppressed material facts from the Court and, therefore, her applications were liable to be dismissed on that account
(ii) That even otherwise the personal requirement has not been proved.
( iii) That the nephews and the nieces are not covered by the provision namely, section 15(2)(vii) of the Sind Rented Premises Ordinance, 1979, and, therefore, the learned Rent Controller erred while considering their personal requirement.
(iv) That admittedly the premises were let out as shops and, therefore, they were commercial building of which ejectment could not have been sought on the ground of personal requirement for residential purpose.
On the other hand Mr. S.Qutbuddin Ahmed, learned counsel for the respondent, has submitted as under:‑
(i) That factually there is no misrepresentation or suppression of facts and that if any it is not proved.
(ii) That there is ample evidence on record to sustain the finding of the learned Rent Controller on the question of personal requirement.
(iii) That since the nephews and nieces had been living with . the respondent after the death of their father, they are part of the members of the family of the respondent and hence the learned Rent Controller was justified in taking into consideration their presence in the house.
(iv) That after the enforcement of the Sind Rented Premises Ordinance, the distinction between the residential and non‑residential premises has been done away and, therefore, the factum that the premises in question were let out as shops would not debar the respondent from applying for personal requirement for residential purpose.
5. Adverting to the first submission of the learned counsel for the appellants, it may be observed that Mr. Khalid Javed, learned counsel for the appellant in F.R.A:No.1151 of 1986, has invited my attention to the following facts:‑
(i) That in the rent applications, the respondent gave the impression that she was a widow as it has been stated that she is wife of Hasan Abbas Jafri in the title of the application, and in the body of the application, it has been stated that her husband had expired, whereas in the cross‑examination she and her son admitted the fact that she was re‑married with one Abid Hussain after 4‑5 years from the date of the death of her previous husband.
(ii) That in para 7 of the rent application as well as in the affidavit‑in‑evidence, it has been averred that respondent's eldest son Ahsan Abbas was living with his wife on the first submitted for the respondent, 'misrepresentation or suppression of facts as admittedly the respondent in her application had not stated that she was not married or she was a widow and that Ahsan Abbas was in Pakistan living with the respondent when the above rent cases were filed as admitted by one of the appellants in his cross‑examination. It will suffice to observe that there is no doubt that the respondent had attempted to give the impression that she was a widow and that her eldest son was living with her. The question arises, as to whether the above lapse on the part of the respondent should entail dismissal of the application or, , should the Court examine the case on merits. In my view any " misstatement or suppression of fact on the part of an applicant will not entail consequence of dismissal of this application, but the Court will be on guard and would examine the case of such an applicant with care and caution and in case of any doubt, the benefit of doubt will be extended to the opposite party.
Mr. Khalid Javed, learned counsel for the appellant‑, has referred the case of Province of Sind through Secretary, Education Sind Secretariat, Karachi and 2 others v. Nisar Ahmed, reported it! 1983 C L C 1905, in which I while dealing with the rent appeal allowed the appeal inter alia on the ground that the respondent /landlord in rent application suppressed the material fact that his two sons had . two separate shops in their possession. In the case of Mst. Begum Jan v. Abdul Rasool, reported in 1984 C L C 755 I while dealing with a rent appeal observed that if a landlady had not come to Court with clean hands and had suppressed material fact in rent application, which was filed on the ground of personal requirement, it puts the Court on guard and the Court may in such cases would appraise the evidence of landlady more cautiously or with suspicion that landlady is capable of misleading the Court. In the above case the order of the dismissal of the rent application passed by the learned Rent Controller was maintained.
I have already observed hereinabove that the effect of misstatement of a fact or suppression of a material fact in a rent case filed on the ground of personal requirement would be that the Court would scrutinize the evidence of landlord /landlady with more care and caution than it would have done if the misrepresentation or the suppression of fact would not have been there. The basic point for consideration is, whether from the evidence on record, the respondent was able to prove her personal bona fide requirement in respect of I which the learned Rent Controller has recorded finding in her favour.
6. As regards the above 2nd and 3rd submissions of the learned counsel for the appellants, it may be observed that it has been proved from the evidence on record which fact is also mentioned in the inspection report of the learned Rent Controller that there are two bedrooms on the ground floor, the dining tables and the dining chairs were found by the learned Rent Controller in the verandah on the back side, there is no drawing or dining room on the ground floor. It is the case of the respondent that the 3 shops in question were carved out from the drawing room in 1966 in order to supplement the income of the family as her husband had expired in 1965. However, there is no controversy as to the time of conversion of the drawing room into 3 shops as in the cross‑examination of the respondent the year of construction of the shops is mentioned as 1966. According to the learned counsel for the respondent, it seems to be a clerical error. I cannot infer from the record that there was any such error in recording of the cross‑examination. The learned Rent Controller has recorded the cross‑examination in his own handwriting. But even if I were to presume that the shops were carved out in 1956 and not in 1966 as averred by the respondent in her rent application and the affidavit‑in‑evidence, the fact remained that the shops were carved out from the drawing room and factually this portion was a part of the house. It has also come on record and which fact has not been denied by the appellants in their cross‑examinations but on the contrary they have admitted that after the death of the respondent's brother his two sons and 3 daughters had been living with the respondent so much so even her nieces after the marriage are putting up with her. It has also been proved that her two sons are married, one is living with his wife with the respondent and the eldest son with his wife is living in Canada but has been visiting Karachi after every 2 or 3 years with his family. In my view, the factum of personal requirement of the respondent stands proved though unfortunately there had been misstatement of fact and suppression the fact of remarriage. The learned Rent Controller has relied upon the Supreme Court case, namely, Mst. Ahmedunnisa and others v. Mst. Parveen Siraj, reporter in 1985 SCMR 2012, in which it has been held that a landlady who resides permanently abroad but visits Pakistan occasionally is entitled ‑to apply for ejectment on the ground of personal requirement.
7. Adverting to the question, whether the respondent was entitled to include the need of his 3 nieces and nephews, it may be observed that Mr. Khalid Javed has invited my attention to clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance , 1979, which speaks of the requirement of the landlord for his occupation or for the use of his spouse or any of his children. It is true that the above clause does not mention any other close relation than the spouse and the children, the effect of the above omission would be that a landlord will not be entitled to apply for ejectment on the ground of personal requirement of any other relations than those mentioned in the above clause independently but if the other close relations have been living as members of the family, the personal requirement of the landlord or the landlady would include the provision for the above close relation. It is not uncommon that the married' sons keep their parents with them. In my view, it cannot be urged that a married son is not entitled to include in his personal requirement a provision for his parents. A distinction is to be drawn between relations mentioned in the above clause and the relations, who are not covered by the above clause. In the case of former a landlord may apply for ejectment on the ground of independent persona requirement of his spouse or for anyone of his children, but in the latter case the landlord cannot seek ejectment on the ground of independent personal requirement of any of his relations not covered by the above clause. However, a landlord's personal requirement may include the requirement of his any close relation, who has been residing with him as a member of his family. If any authority is needed reference to the case of Wali Muhammad v. Zainab Khatoon, reported in 1983 C L C 321 and the case of Messrs Tiger Wire Product Ltd. v. S. Abrar Hussain, reported in 1983 S C M R 402 may be made.
8. Reverting to the last submission that the house was let out as shops, the respondent was not entitled to apply for ejectment on the ground of personal requirement for residential purpose, it may be observed that Mr. Khalid Dawood Pots has referred to the case of Ulfat Hameed v. Mst. Birjis Khatoon, reported in P L D 1982 Kar. 823 and the case of Sabir Hasan v. Munir Malik, reported in P L D 1983 Kar.414, in which the learned Single Judges of this Court have taken the view, which has been canvassed by Mr. Khalid Dawood Pota. However, reference may also be made to the case of the Darul Uloom Naieemia Trust v. Munir Ahmad, reported in 1984 C L C 3483, in which Naimuddin, J. (as he then was) has pointed out the distinction between the provisions of the late West Pakistan Rent Restriction Ordinance, 1959 and the Sind Rented Premises Ordinance, 1979, which is now in force, and has pointed out that the distinction between the residential and non‑residential premises has been done away under the new Ordinance. The present applications were filed after the enforcement of new Ordinance and, therefore, the judgments relied upon by the learned counsel for the appellants Mr. Khalid Dawood Pota, are not relevant as they relate to the provisions as were contained in the late West Pakistan Rent Restriction Ordinance, 1959.
9. For the aforesaid reasons I maintain the finding of the learned Rent Controller on the question of personal requirement and the appeals are dismissed with no order as to costs but since the appellants are in occupation of commercial shops, it will be difficult for them to obtain alternate shops immediately. I allow one year period to the appellants on the condition that they shall continue to pay the renter. in terms of the Rent Controller's order, failing which the respondent shall be at liberty to file execution application before the expiry of the above one year period. Furthermore, if the appellants fail to hand over the vacant possession after the expiry of the above period of one year, the learned Rent Controller shall issue ejectment order without any notice to the appellants.
A.A. /A‑293/K. Appeals dismissed.