MUHAMMAD ILYAS Versus KHURSHID BEGUM

By this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, the appellant has challenged the order dated 7‑2‑1987, passed by learned IIIrd Senior Civil Judge and Rent Controller (West), Karachi, whereby he had allowed the application for ejectment filed by the respondent against the appellant.

2. The appellant is tenant of the respondent in respect of commercial premises situated on Plot No.t1‑B/49, Commercial Area, Nazimabad, Karachi, at a monthly rent of Rs.110 excluding electricity, water and conservency charges. The respondent had purchased this property with the sole object to utilize it for the benefit of her husband who is an Auto‑electrician and is running his workshop in a rented premises. The respondent also wanted to adjust her son with his father. She, therefore, asked the appellant to vacate the above premises. The refusal of the appellant to do so led the parties to this litigation.

3. The appellant contested the requirement of the respondent to get the disputed premises for the use of her son and husband. According to him, the husband of respondent owns the adjoining building consisting of one shop on the ground‑floor. The defence of the appellant as unfolded by him in the written statement is as follows:‑‑

"3. That with regard to the contents of para. 3 of the main application, it is submitted that in about the year 1978, this opponent took the premises in his possession from its original owner Zamiruddin, by paying him huge amount of Pugree and advance rent of Rs.1,500. Unfortunately the said Zamiruddin died and one Muhammad Ishaq Khokhar informed this opponent that the said property was inherited by him. The opponent, believing the version of the said Muhammad Ishaq Khokhar, started paying him rent due. In or about the month of December, 1984, the said Muhammad Ishaq Khokhar informed this opponent that vide a sale agreement, he had transferred the ownership of the said property to the applicant. Since then the opponent has been paying rent regularly. It is also submitted that the said Muhammad Ishaq Khokhar in view of the fact that the shop was let out to this opponent on Pugree basis, had sold his rights in respect thereto on a nominal price, with a clear understanding that the applicant will not disturb the opponent's possession in any way except in case of default in paying the rent due."

4. The respondent has examined herself (P.W.1) and her husband Muhammad Naseer (P.W.2), while the appellant has examined himself (D.W.1) and his cousin Muhammad Younus (D.W.2).

5. On the assessment of the evidence available on record, the learned Rent Controller decided the issue of personal requirement of the respondent against the appellant and consequently directed his ejectment from the demised premises, hence the present appeal.

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6. I have heard learned counsel for the parties and perused the record carefully.

7. The respondent requires the disputed shop in possession of the appellant for the use of her husband and son. This fact was made known to the appellant in the notice dated 4‑7‑1985, sent on her behalf by Mr.S.A. Ghaffar Advocate (Annexure 'A'). The respondent has spelt out her requirement in paras. Nos.5 to 7 of the application for ejectment. She has testified the same facts m paras. Nos.4 to 6 of her affidavit‑in‑evidence. She has been fully supported by her husband Muhammad Naseer (P.W.2). Nothing has been brought out m the cross?examination which would shake the veracity of these witnesses or establish that the disputed premises is not required by the respondent in good faith. The assertion of landlady on oath as to requirement of premises for the use of her husband and son is to be accepted as bona ride, if consistent with her averments in the application for ejectment and not shaken in cross‑examination or disproved in rebuttal. Reliance may be placed upon the cases of Hassan Khan v. Mrs. Munawwar Begum, reported in P L D 1976 Kar. 832, Mst. Tauheed Khanum v. Muhammad Shamshad, reported in 1980 S C M R 593 and M/s. Everready Pictures Ltd. v. Chaman Begum, reported in P L D 1982 Kar. 770.

8. Admittedly Muhammad Naseer, husband of respondent runs his workshop in rented premises. Muhammad Younus (D.W.2) admits this position in the following words:‑‑

"It is correct that the applicant's husband works in a rented shop as Auto?electrician."

9. Appellant Muhammad Ilyas (D.W.1) and his witness Muhammad Younus (D.W.2) also admit the need of the son of respondent. Muhammad Ilyas states:‑‑

"It is incorrect to suggest that the applicant's son works with his father in that rented shop. Voluntarily says that he is still a school‑going boy and only sits on the shoes "

Muhammad Younus (D.W.2) says:‑‑

"I had never seen the son of Naseer working with him. Voluntarily states that his sons are school‑going and after the school hours a boy sits with him in the shop ."

10. The appellant has challenged the bona fides of the respondent on the grounds that her husband owns the adjoining shop, which can serve the required purpose, and secondly the shop having obtained by him from the previous owner on payment of Rs.20,000 as `PUGREE', it was a lease in perpetuity and he cannot be ejected on the ground of personal requirement. As to the first of his contentions, I have carefully read the evidence of all the witnesses and I think there is no evidence on record to prove that the possession of the adjoining shop is with respondent or her husband. A suggestion was put to Muhammad Naseer (P.W.2) to show that he was running a printing press in the said shop, which suggestion was denied by him. As to the second contention about payment of `PUGREE' there is no foundation whatever for it. Even otherwise section 23 of I the Contract Act, 1872, makes any such agreement void. The weighty observations made in Shaikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others, reported in 1987 S C M R 307, may be usefully borrowed here:‑‑

"According to the lease agreement the shop had been let out to the tenant‑‑Petitioner for a fixed period of ten years with a right of re‑entry reserved by the respondent‑landlord, but it is not mentioned in the lease?deed that the respondent landlord had received Rs.11,000 as `Pugree' from petitioner ‑ tenant, although it is so stated by him in his statement before the Rent Controller (page 134 of the Paper‑Book). However. that being mutual arrangement between the parties would not debar the respondent ‑ landlord from instituting eviction proceedings on the ground of bona fide personal need. "

11. Having regard to the above factual and legal position, I see no merits in the present appeal which is dismissed with no order as to costs. The appellant is, however, allowed two months' time to vacate the demised premises.

H.B.T./M‑656/K ???????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.