RAZES ALI SHAH Versus HASSAMUL HAQUE

ORDER

1. C.MA. No.887/1989 is granted.

2. The facts involved in this First Rent Appeal are that Agha Hassamul Haque, respondent No.1, filed a Rent Case bearing No.253/1987 (renumbered as 515/1988) against the appellant and Ismat Ullah Khan, respondent No.2, on the grounds of default in rents, impairment in value or utility of the premises, personal bona fide need and sub‑letting to the present appellant. The defence in the Rent Case was that Ismat Ullah was not the tenant at all and that Raza Ali, appellant herein, was actually the tenant at Rs.400 per month. No agreement of tenancy was produced either by the landlord or by Raza Ali but a payment of Rs.12,000 was, admittedly, made by Ismat Ulah to the owner of the property, which is stated, at the Bar, to be a 120 yards' unit in Federal `B' Area, Karachi. The explanation, however, in respect of such payment was that it was a friendly loan, which was not accepted by the learned Controller and tenancy was found to subsist between Agha Hassamul Haque and Ismat Ullah. Several Issues in the case were framed, one of which about the relationship of landlord and tenant having been decided in favour of the landlord, the learned Controller, on evidence, proceeded to order ejectment in the case on other Issues as well but the Issue regarding impairment was held not to be proved.

It is pointed out by Mr. Abdul Rasheed for the appellant, that an earlier Rent Case, similarly filed, was dismissed for default and its restoration application was also dismissed whereas the present Rent case was filed on 1‑3‑1987. This is hardly material as the landlord has explained that, at the relevant time he had been gainfully employed outside Pakistan and could not pursue the proceedings adequately. The grounds of default, impairment, subletting and personal requirement in good faith: being accruing causes of action, fresh proceedings on such accruing causes, if any, would be competent. Nothing to the contrary is shown in this case. The subsequent Rent Case was, therefore, l maintainable. This is irrespective of the question whether principle of Res Judicata is or is not applicable to rent proceedings. On the other hand, learned counsel has further pointed out that the present appellant has deposited rent at the rate of Rs.400 per month from June, 1986 in M.R.C. No.i97/1986 in the Court of the IInd Rent Controller (West) Karachi and that upto date rent has been deposited by Raza Ali. Admittedly, therefore, tenancy is acknowledged on his part.

Even if grounds of default and subletting are decided in favour of the appellant and all the contentions of the learned counsel are accepted, which, on record, I am not inclined to do, the ground of personal requirement would still remain in the case and the order of ejectment would be sustainable on such ground alone, as the plea of the landlord in that context has not at all been questioned by any of the opponents in the Rent Case and the maximum which has been asked from the landlord, on such question, by the present appellant, is that he had projected a false case regarding personal requirement, in answer to which, the landlord said that, that was not correct. Learned counsel for the appellant has attempted to argue that when the landlord was addressed a communication on his given address the postal remark endorsed was that the address was incorrectly mentioned and the landlord, on confrontation, failed to give any explanation in that connection. This does not seem to be so. Mere inadequate address, if any, by itself means nothing. Even otherwise, the postman has not been examined. Besides, the landlord was not disputed to be putting up at such address nor was sufficiency or adequacy of accommodation questioned. The landlord having initially discharged the onus of proof the same had shifted to the tenant which remained un discharged. I say so, applying the provisions of Oanun‑e‑Shahadat, 1984, to these proceedings, on the language of Articles 1(2) and 2(1)(a) of that statute.

It is settled law that for the purposes of establishing personal requirement all that a landlord has to do is to make positive assertions in that behalf, has to step into the witness‑box to prove such assertions and if the same remain unshaken in cross‑examination the relevant ground of personal bona fide need stands established. All this has been duly done m this case. In the situation, relevant to this case, the dispute as regards relationship of landlord and tenant is not at all material between the present appellant and Agha Hassamul Haque, the purported landlord, because, in so far as the present appellant is concerned he admits the latter, as such. If, therefore, the landlord establishes a case of personal requirement in good faith an order of ejectment shall follow. This having been done here, I see no reason to interfere. As such, this appeal is dismissed in limine.

The learned Controller has granted 60 days' time for vacating of the premises which, according to the learned counsel for the appellant, expires on 30th of June, 1989. Learned counsel seeks some further time to vacate as the appellant has been in occupation for a substantially long time and would require adequate period to move elsewhere. In view of the request; which does not seem to be unreasonable, a further period of three months is allowed ending with the 30th of September, 1989, by which time the appellant shall vacate pursuant to the orders of the learned Controller. This, however, would be conditional upon and subject to his depositing all rental dues upto 30th September, 1989 in MRC No.197/1986 aforementioned in terms ordered in that M.R.C. failing which the order of the Controller would become executable forthwith.

3. In view of dismissal of the appeal C.M.A.,No.888/1989 is also dismissed.

H.B.T./R‑93/K Appeal dismissed.