MUHAMMAD AHMAD KHAN Versus ZAINAB JABEEN

This appeal is directed against the order dated 26‑5‑1987 of the learned III Senior Civil Judge/ASJ/Rent Controller (West) Karachi, passed in Rent Case No.5476 of 1983 whereby the appellant has been directed to vacate the House No.l‑B‑161, Block‑W, Allama lqbal Town, North Nazimabad, Karachi (hereinafter called the demised premises) and handover its vacant possession to the respondent within 60 days from the date of order.

2. The respondent is the landlady of the demised premises, whereby the appellant is her tenant in respect thereof on monthly rent of Rs.352. On 22‑12‑1983 the respondent filed the ejectment case against the appellant, which has given rise to this appeal, for eviction of the appellant on the grounds of (1) damaging the property, (2) conversion of demised premises to commercial use and (3) for her personal use.

3. The appellant contested the said application by filing the written statement. His case as set up in the written statement was the respondent has been harrasing him since about 1973 onwards. She refused to accept the rent which compelled the appellant to file Misc. Rent Case No. 391 of 1973 for depositing the rent. The respondent also made efforts to evict the appellant from the demised premises through the Sind Government Authorities as . well as through Martial Law Authorities unlawfully. The other two grounds taken in the ejectment application, i.e. the damage done to the property and its conversion to commercial use were also denied.

4. The learned Rent Controller formulated the following points out of the pleadings of the parties for adjudication:‑

(1) Whether the applicant requires the premises for her own use and the use of her family, bona fide?

(2) Whether the opponent has converted the use of the premises to commercial?

(3) Whether the opponent has damaged the premises, which has diminished its value and utility materially?

5. After recording the evidence of the parties, learned Rent Controller answered the point No.l in the affirmative and the point No.2 in the negative. Point No.3 was not pressed by the respondent.

6. I have heard Mr. Shamim, learned counsel for the appellant, as well as Mr. S . Zaki Mohammad on behalf of the respondent, with the assistance of the learned counsel for the parties I have also perused some of the evidence prevalent on record. The learned counsel for the appellant raised same contentions before me which were taken in the written statement filed on behalf of the appellant, namely, that the alleged personal need of the respondent was wholly fictitious and that she has been harassing the appellant since about 1973 in order to get possession of the premises in question. The learned counsel submitted that in fact the tenancy in this case had started in the year 1967 and the trouble developed since 1973. He also invited my attention to the fact that the husband of the respondent resides in Saudi Arabia and that it has come in evidence that the respondent and so also her children go to Saudi Arabia of and on. The learned counsel also submitted that the accommodation available in the premises presently occupied by the respondent is sufficient for her and her family s need and on this score too the relief for eviction of the appellant should not have been allowed by the learned trial Court.

7. Mr. S. Zaki Mohammad, learned counsel for the respondent, on the other hand, submitted that the constant effort on the part of the respondent to evict the appellant itself clearly shows that she is genuinely in dire need of the demised premises. Having failed in her efforts to get possession through agency other than Court of law she filed the ejectment application on the aforesaid grounds. The learned counsel submitted that no doubt the respondent s husband is the owner of the house where she is presently residing, but even if she would have been its owner then too it was for her to decide as to where she should. reside. In the instant case, the counsel so urged the house where she is presently residing is constructed on a plot of land measuring 200 sq. yds. whereas the demised premises are constructed on 400 sq. yds. plot. The demised premises have better accommodation and the respondent being a lady of status would like to move into her own house. In support of his contention the learned counsel placed reliance on a decision of the Supreme Court in Sabumal v. Kaikaram alias Heman Das (SCMR 1973 185). The counsel particularly drew my attention to the following observations appearing at page 189 of the report.

If a landlord possesses more than one house in the same urban area, the choice as to the house in which he would like to live himself is surely a matter within his precogative and discretion, and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside. The law, however, provides an adequate safeguard by stipulating in subsection (4) of section 13 of the Ordinance, that the tenant may be put back in possession if the landlord does not occupy the premises himself after getting them vacated on the ground of personal need.

8. I have given my earnest consideration to the submissions made by the learned counsel for the parties and have also perused the relevant record as well as the authority cited by the learned counsel for the respondent which, in my opinion, lends full support to her case.

9. The mere fact that the respondent had been trying through agencies other than Court of law to get the appellant evicted from the demised premises would not disentitle her to seek eviction of the appellant from the Court of law. The learned trial Court has. I find, rightly scrutinized the evidence that has come on the record and his conclusion to the effect that the requirement of the appellant of the IC demised premises was genuine and bona fide is based on proper appreciation of evidence, I, therefore, uphold his finding on this point.

10. In the result, the appeal is held to be devoid of force and dismissed accordingly. The parties are, however, left to bear their own costs.

M.Y.H./M‑592/x. Appeal dismissed.