MUHAMMAD BUX Versus MST RAFIQUAN

1. Two appeals bearing Nos. FRA‑272/81 and FRA‑273/81 filed by appellant Muhammad Din against Respondent Nazeer Ahmad in respect of the same residential building on Plot No. 2402, Coala Godown, United Bank Gali, Liyari Quarters, Karachi, are being disposed by this order.

2. The factual background of the appeals, briefly stated, is as follows:‑

3. There exists a relationship of landlord and tenant between the parties in respect of the premises involved in the appeals. The Respondent is said to be occupying the tenement which is owned by the appellant on monthly rent of Rs.

80. Although the Respondent claims that this amount includes even electricity charges, the appellant has categorically denied this claim. On 19‑1‑79 the appellant instituted ejectment proceedings under section 13 of the Sind Urban Rent Restriction Ordinance, 1959, seeking ejectment of the respondent from the aforesaid premises chiefly on two grounds firstly that he needs the house for his personal use and secondly that the respondent has proved nuisance to the inhabitants of the locality. The application was resisted by the Respondent who repudiated both the grounds.

4. In the meantime on 29‑11‑1979, the Respondent too moved the same Court of the learned Controller by separate application praying therein for restoration of supply of electricity which, he alleged, had been disconnected by the appellant. The application was contested on the ground that the supply of electricity was stopped owing to the respondent's failure to clear the electricity charges.

5. After taking into consideration the evidence produced by the parties the learned Controller decided both the cases against the appellant by separate judgments, each dated 22‑4‑1981. The present two appeals are directed against these judgments.

6. The parties were represented at the time of hearing of these appeals end their learned counsel submitted their arguments in support of their respective contentions. The target at attack launched by the learned counsel for the appellant was the finding of the learned Controller on the issue: "whether applicant requires the disputed premises for his personal bona fide use of his daughter?" It would appear that this issue was decided by the learned Controller against the appellant. The reasoning adopted by him in support of his finding however does not appear to be convincing. His argument is that the appellant's daughter has not come forward to support his plea that he needed the house for her use. He further observed that instead appellant's son‑in‑law has made a statement that the house is needed for his use, which, in the opinion of the learned Controller, is inconsistent with the appellant's pleadings. In support of his observations the learned Controller has reproduced the relevant portion of the statement of the appellant's son‑in‑law. It is in these words :‑

7. "I am married to the daughter of applicant, namely, Shahnaz and presently I have shifted with my father‑in‑law alongwith my family members and quarter in possession of the opponent is required bona fidely to me."

8. From this statement the learned Controller has come to the conclusion that it is for the appellant's son‑in‑law that the house in dispute is being secured and this, according to his findings, is not permissible under the law. To appreciate the findings arrived at by the learned Controller in this regard, reference may be made to the relevant plea raised by the appellant in his ejectement application. It reads as follows :‑

9. "That the applicant in good faith requires the premises in question for the bona fide personal use to settle his daughter, who is coming from Mirpur Khas to settle at Karachi as her husband has taken job at Karachi "

10. This clearly shows that the appellant's intention is to accommodate his daughter alongwith her husband in the house in question. The statement of his son‑in7law referred to above goes to support his version. It is immaterial that the appellant's daughter has not been examined to corroborate the plea. Notwithstanding the language employed by the appellant's son‑in law in his affidavit, the fact remains that the appellant needs the house for settlement of his daughter who, for obvious reasons, cannot be consi dered to be separate from her husband at least for residential purposes. If her hubsband has stated that the house is needed for his use, it only means for the use of his entire family including his wife. In this connection I have been referred to the case of Khuda Bux v. S. M. Habib Shah Hashmi (1978SCMR89) wherein the Supreme Court was pleased to observe "as the respondent had proved that the two houses were required for his own occupation and that of his children, it is immaterial as to which member or members of the respondent's family will shift to the house in dispute". In view of this authority it is immaterial as to whether the appellant's daughter or her husband has made the statement in support of the appellant's plea that the house is needed for settlement of his daughter and her husband. Accordingly the learned Controller's finding on the above issue is mani festly erroneous.

11. The other reason advanced by the learned Controller for disbelieving the plea of requirement of the house for personal use is that according to the appellant's son‑in‑law he had notified his intention to shift to Karachi only six months prior to his affidavit sworn on 4‑11‑80, which shows that the house was not required for personal use at least at the time of filing ejectment application (i.e. 19‑2‑1979). The learned Controller seems to have laid unnecessary emphasis on what the appellant's son‑in‑law has actually stated in his affidavit. It is in the affidavit that he had shifted to Karachi six months before the date of the affidavit, and had indicated his intention to settle at Karachi six months prior to that. Thus he had made it known about his intention some time in November, 1979. However, the ejectment application was filed in February, 1979. The time gap between the ejectment application and the declaration of his intention should not have been unduly played upon, so as to made it the ground for dismissing the appellants' application. After all when the son‑in‑law of the appellant swore this affidavit, his statement with regard to time of declaring his intention was only approximate. It may be six months or even more before he actually conveyed his intention to the appellant. May be the move for settlement of the appellant's daughter alongwith her husband at Karachi was initiated earlier and it took them quite some time to finalise the plans. Thus the discrepancy referred to above was not so material as to have influenced the learned Controller to dismiss the appellant's case. The real point for consideration was whether the appellant bona fide required the house for accommodating his daughter and her husband. As stated above, the appellant finds support on this point from his son‑in‑law. Apart from this, there is no evidence worthy of mention to rebut this plea. The Respondent's solitary word in rebuttal of the appellant's plea is of no help to him. Thus mate fide intention attributed to the appellant for filing the ejectment application has not been proved.

12. In view of the above, the order of the learned Controller whereby he dismissed the ejectment application of the appellant is set aside and the appeal preferred against the order is accepted with no order as to costs.

13. As for the appeal No. F. R. A. 272/1981, the appellant has, no doubt, admitted having disconnected the supply of electricity but his explanation for the disconnection is that the Respondent failed to pay the electricity charges. This started controversy between the parties as to whether the monthly rent of Rs. 80 paid by the Respondent included the electricity charges. According to the appellant, this amount was exclusive of the electricity charges whereas the stand taken by the respondent was that it was inclusive of these charges. The learned Controller after taking into consideration the material placed before him decided the point against the appellant. He further held that the supply was disconnected without sufficient cause. However in view of the decision taken in appeal No. F. R. A 273/81 that the appellant has established his case of requiring the house for his bona fide personal use and consequently the order passed. by the learned Controller has been set aside, it may not be necessary to go into the correctness or otherwise of the findings of the learned Controller in appeal No. F. R. A. 272/81 which has obviously become infructuous and is hereby dismissed with no order as to costs.

14. K.M.A.