RASHID AHMED Versus AKHTARI JEHARN

This is an appeal under Section 21 of the Sind Rented Premises Ordinance, 1979, against the order dated 24‑7‑1984 passed by the learned IVth Senior Civil Judge and Rent Controller, Karachi in Rent Case No.1849 of 1981.

2. The facts giving rise to this appeal, briefly stated, are that the respondent is the tenant of the appellant in respect of a residential flat situated on lst floor of property bearing No.III‑A‑511, Nazimabad, Karachi. An application for ejectment was filed against the respondent on the grounds of default, sub‑letting and personal need for the appellant and his children. The learned Rent Controller framed the following issues in the matter:‑

(1) Whether the opponent sub‑let the case premises?

(2) Whether opponent has committed default in the payment of rent?

(3) Whether the applicant needs the case premises for his personal bona fide use?

(4) What should the order be?

The learned Rent Controller, after recording the evidence and hearing arguments, dismissed the said application on all the three grounds by his order dated 24‑7‑1984, which is challenged in this appeal.

3. As regards the first issue of sub‑letting, the appellant's attorney stated that the case premises was let out to the respondent, who has left it and is no more residing there and that the flat is ordinarily in occupation of respondent's sister and her family. On the other hand the respondent herself appeared in the witness‑box and stated that about 12 years ago she, alongwith her younger sister Mst. Anwar Jehan with a minor boy, had shifted to the flat in question and since then they have been residing in the flat in question. She denied sub‑letting of the flat to her sister. Mst. Anwar Jehan in her affidavit in evidence also stated the same thing. A nikahnama Mst. Anwar Jehan, which is of 1972 has also been produced on behalf of the respondent which shows the residence of Mst. Anwar Jehan in the same flat. It, therefore, appears that Mst. Anwar Jehan, the real sister of the respondent has been living in the same flat) with the respondent since the inception of the tenancy. This fact also finds support from four other witnesses produced by the respondent. In the face of this evidence the alleged sub‑letting has not been proved. The learned Controller's finding on this issue, is, therefore, maintained.

4. As regards issue No.2, there is a dispute about the rate of rent between the parties. The appellant has stated that the rent was Rs.600 per month, whereas according to the respondent the rate of rent is Rs.250 per month. The period of default is also disputed. According to the appellant the respondent is in arrears from 1‑4‑1980 to 31‑3‑1981, whereas it is alleged by the respondent that she has paid rent upto August, 1980. The appellant's attorney in his affidavit in evidence stated that the respondent was inducted in the flat in question about 7‑8 years ago at a lesser rate of rent, which was subsequently increased by consent of the parties to Rs.600 per month, which the respondent has paid upto 31‑3‑1980. In support of the proof of rate of rent at Rs.600 the appellant produced photocopy of counter‑foil of receipt No.33 alleged to be the last rent receipt for the month of March, 1980, showing the monthly rent at the rate of Rs.600. Admittedly there is no signature of the respondent on the said receipt nor any number of the flat is mentioned therein. Since the objection was taken by the learned counsel for the respondent about the said photostat copy of the counter‑foil, I ordered the learned counsel for the appellant to produce the counter‑foil of the receipt, by my order dated 27‑10‑1987. Today he has produced counter‑foils of the rent receipt Nos. 1 to 100. On examining the photostat copy of the receipt it transpired that receipt No.33 on the counter‑foil pertains to the month of January, 1980, whereas in the photostat copy it appears to be for the month of March, 1980. On further scrutiny it was found that the number of receipt for the month of March, 1980 is 39, so the photocopy produced in the lower Court does not appear to be the correct copy. The learned Rent Controller proceeded to decide the question of default without determining the rate of rent. It is submitted by the learned counsel for respondent that the appellant never issued any rent receipt to respondent. The rent, according to him, was paid upto August, 1980 at the rate of Rs.250 and thereafter the respondent started depositing rent in the Court of learned Rent Controller in Misc. Rent Application No.6925/80 because of the refusal of the appellant to accept the rent sent by money orders to him. The fact of refusal of the money order has been admitted by the appellant's attorney. The learned Rent Controller appears to have rightly disbelieved the version of the appellant and I am not persuaded by the counsel to upset the finding, of the learned Controller in the negative on this issue as well.

5. As regards the third issue on bona fide personal need of the appellant and his children, learned counsel for the appellant submitted that the appellant's family consists of 9 members, including his wife, three sons and five daughters, out of which seven children are grown up and the youngest daughter is a school going one. The appellant is in occupation of a flat consisting of two rooms on second floor. Learned counsel for the respondent concedes that the number of family to be nine including the appellant has not been challenged in the cross‑examination. It has, however, been disputed by the respondent that the flat on the second floor in occupation of the appellant consists of two rooms, which according to him, consists of four rooms. It is further submitted by the respondent's counsel that the respondent is in occupation of a flat consisting of two rooms on the first floor, whereas the other flat on the same floor consisting of two rooms is also in possession of the appellant, wherein he stores his commercial goods. The appellant has denied that he is in occupation of the other two‑room flat on first floor, which is in possession of his married daughter, who is residing there alongwith her husband and children. In support of his plea the Ration Card has been produced by the appellant's attorney. The ground floor as has come in the evidence, is in occupation of the other two tenants. It is, however, asserted by the learned counsel for the respondent that on the ground floor there is a Glass Company in which the appellant has a share, which has been denied by the appellant's attorney. The appellant examined his son and attorney on his behalf. It was deposed by the said son and attorney that the appellant is an old man of about 70 years. He is living on second floor in a two‑room flat with his wife, three sons and five daughters. It was further deposed that the appellant wanted to marry his son, Sarwar Inam, aged about 26 years, for whom the flat of the respondent is required, and that the appellant being an aged man of 70 years and feeling difficulty in climbing up two staircases will also reside with him. The respondent in her cross‑examination admitted that the appellant is residing on 2nd floor having two rooms and verandah with nine family members. The controversy as to the occupation of a two‑room flat on the first floor is to be resolved first. The appellant's case is that his married daughter with her husband and children is residing there, in support of this a Ration Card has been produced. On the other hand it is the case of the respondent that the said two rooms on the first floor are in occupation of the appellant, who stores his commercial articles there. The fact that me daughter of the appellant is residing in the said flat has been admitted in the cross‑examination by the respondent's witness Zahir Mirza. It, therefore, appears that the appellant is in possession of only two‑room flat on the second floor.

6. The learned counsel for respondent further submitted that the appellant failed to examine himself or produce any other witness in support of his need for personal use. The mere word of the appellant's attorney is not sufficient as, according to him, it is necessary for the person who requires the premises for his personal use to appear himself in the witness box for cross‑examination. Reliance is placed by him on the case reported as Mahmood Khan v. Nasima Khatoon 1982 C L C 1807, wherein it was held by Z. C. Valiani, J. (as he then was) that the plea of bona fide personal requirement was .not established as the landlady did not come to the witness‑box in support of the plea. The perusal of the whole judgment shows that this was not the sole ground for holding that the plea of bona fide requirement was not established. There were other reasons and circumstances also which are distinguishable to the facts of this case. Reliance is also placed on a decision in the case of Syed Abdul Rasheed v. Mst. Tajunnisa, of the same learned Single Judge, but the facts are quite distinguishable inasmuch as the need had ceased because the property was sold out during the pendency of the proceedings. Reliance is also placed on the case of Muhammad Asghar and 5 others v. Mst. Jamila Khatoon 1979 C L C 367. It is also distinguishable as the landlord was shown to be residing in a rented premises, which fact alone was not considered to be held as conclusive to prove the need.

7. On the other hand, Mr. Qaiser Qureshi, learned counsel for the appellant placed his reliance on a number of cases, namely, Raza Abu Bakar v. Mst. Sadaqat Begum P L D 1983 Lah. 320 and several others. In this case Special Attorney was examined and it was observed that "there is no merit in the objection as the husband and attorney of the landlady was aware of all the facts", which were known to the landlady. It was further observed that the mere fact that the landlady did not appear herself in the witness‑box "does not militate against her bona fide of personal requirement". Another case cited by the learned counsel is Arshad Umar and another v. Begum Nazrul Askari P L D 1985 S C 38. In this case personal need was also opposed on the ground that neither the landlady nor her son for whom the premises was required had appeared before the Court to give evidence and subject themselves to the test of cross‑examination. It was thus observed by the Honourable Supreme Court that the order of eviction of tenant cannot be challenged on the ground of failure of children to appear in Court for whom the eviction of the tenant is sought and his omission to appear is not fatal. In this case also the attorney of landlady, who was her son‑in‑law was examined. In the case of Zaheer Din v. Mirza Ayub Baig 1981 S C M R 1081, it was observed with regard to objection that the son who was to be married was not examined as a witness, it was held that it was not by itself fatal. In the case of Karim Bakhsh v. Haji Arthi Khan and another 1983 SCMR 178, it was observed by the Honourable Supreme Court that the evidence on record was sufficient to warrant the finding of fact and mere fact of landlord having not appeared in the witness‑box was not ground for rejecting the application. In this case also the attorney of the landlord had appeared. Reliance is also placed by the counsel on the base of Muhammad Ibrahim v. District Judge and 3 others (1984 C L C 77), which is a Division Bench judgment of this Court. In this case the judgment of the learned District Judge was set aside, who had dismissed the ejectment application on the ground that the landlord himself did not appear in the witness box to prove his personal requirement. It was held that the personal appearance of the landlord was not mandatory. In view of the above cases, particularly the two decisions of the Honourable Supreme Court and the Division Bench judgment of this Court, the conclusion of the learned Controller for non‑appearance of the landlord himself or non‑production of the son to be married seems to be erroneous.

8. Lastly, learned counsel for the respondent submitted that the building is of four storeys, comprising of one ground floor and three upper floors and that the appellant is also in occupation of the 3rd floor. The report of the Commissioner, appointed by me on his application, states that the building comprises of ground floor, first floor and second floor. However, there seems to be projection of the roof of the staircase tower on the 3rd floor of about 9 feet on both the sides under which there exists structure of two rooms of 8 x 10 feet. The structure on the roof of the second floor has been stated by the Commissioner "as incomplete, unmaintain and unclean". Learned counsel for the appellant, however, submits that some remporary structure has been raised on the 3rd floor for the purposes of goats. He also invited my attention to the cross‑examination of the respondent, wherein she appears to have admitted that she had seen the upper floor of the flat in occupation of the appellant and that the appellants' goats are on that floor. The submission of the counsel for the respondent that the appellant is also in occupation of "residential accommodation" on the top floor is baseless.

9. Now, adverting to the question of the bona fide personal requirement of the appellant himself and his eight members of the family, reliance is placed by the learned counsel for the appellant on the case of Munshi Sirajul Haque v. Nizamuddin 1981 C L C 864. In this case there were nine family members including a son who was going to be married. The landlord had three rooms and it was held that the requirement of the landlord is bona fide.

10. I am, therefore, of the view that there is sufficient evidence on record including admissions of the respondent and her witness in` D proof of personal requirement of the appellant. The finding on this issue is, therefore, reversed, and the appeal is allowed.

11. Mr. Farooq Hashim now requests that three months time may be given to the respondent to vacate the premises. The ejectment case was filed in 1981. It has already taken about 7 years. I, therefore, allow two months' time to the respondent to has over vacant and peaceful possession of the premises to the appellant, failing which writ of possession to be issued without notice.

M.Y.H./R‑34/K Appeal allowed.