USMANI Versus BARKAT BIBI
The tenant of residential Premises No.2/46‑A, Block 2, P.E.C.H. Society, Karachi, Survey Sheet No.35‑B/1, Karachi (herein after called "the demised premises") has filed this appeal against the order of the learned 3rd Senior Civil Judge & Rent Controller, Karachi (East) dated 29‑7‑1987, whereby the ejectment application of the respondents has been allowed on the ground of personal need only and he has been directed to vacate the demised premises and hand over the same to the respondents within 60 days from the date of the order.
2. The respondents had filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") for eviction of Mr. Usmani s/o not known (opponent), the tenant of the demised premises, on the grounds of (1) default in .payment of rent for over two years (2) personal need and (3) subletting. The appellant filed written statement giving his name as Mohammad Younus Usmani in denial of all the three grounds taken in the ejectment application. The respondents Nos. 1, 3 and 4 filed their affidavits‑in‑evidence in support of their application whereas the remaining three respondents did not file any affidavits‑in‑evidence nor appeared in the witness box. On his behalf the appellant examined himself only.
3. The learned Rent Controller framed the issues regarding default, personal bona fide requirement and subletting. He answered the two issues relating to default and subletting against the respondents but allowed the application on the issue of personal bona fide need as stated above. Hence this appeal.
4. I have heard the learned counsel for the parties. Mr. M.A. Lakhani, learned counsel for the appellant, contended that Mst. Barkat Bibi and Mst. Sharifan Bi, respondents Nos. 1 and 2 respectively, are widows of Fazal Din who expired on 17‑11‑1967. The application was, according to him, filed by Mst. Barkat Bibi for her personal need as well as for the need of her children, whereas in fact it has come in evidence that she was issueless and the respondents Nos. 3,4,5 and 6 are in fact the sons and daughters of Mst. Sharifan Bi the respondent No.2. He then submitted that respondents Nos. 5 and 6 are married and they are out of country. No affidavits have been filed by other heirs nor they have verified the application although they had been shown as applicants. No power of attorney or letter of authority was filed by Mst. Barkat Bibi on their behalf. The counsel, therefore, contended that the application was bad in law and deserved to be dismissed on that account. He then maintained that the appellant is tenant of the demised premises since 1969. The respondents, the counsel so contended, are in fact not residing in the servant quarter as alleged in the application but in the main bungalow. The respondents Nos. 3 and 4 have admitted in their cross‑examination that they are getting rent from their employer: and hence they are genuinely not in need of the demised premises, but could have got any other accommodation for themselves since their employers are paying them house rent allowance. He referred to the reply made by Muhammad Hasan during the cross‑examination wherein he had admitted that their accommodation consists of three rooms. The evidence was thus sufficient to hold that the respondents had failed to establish good faith. The alleged bona fide need of the respondents thus remained unproved and consequently the application should have been dismissed on the score. He also emphasised that the fact that the application was filed in July, 1984 alleging that they were under threat of being evicted yet they are not evicted till today, on the contrary, shows their mala fides in filing the application for eviction against the appellant. In short, learned counsel submits that the evidence and the attending circumstances lead to no other conclusion but that the demand of the respondents was mala fide. Lastly, the counsel also invited my attention to para. 11 of the application wherein no cause of action has been shown to have arisen on the ground of personal need.
5. Mr. K.B. Bhutto, learned counsel for the respondents, on the other hand, supported the impugned order with vehemence. He stated that the verification of the application could be done by any of the respondents. The application, in his submission, could be filed under the signatures of any one of the respondents as well; whereas the application has in fact been signed by all the respondents and that all of them appointed the Advocate to represent them in the lower Court and so also in this Court. He submitted that as a matter of fact the evidence of even one respondent would have been sufficient for granting them the relief whereas in the instant case three co‑owners appeared as witnesses and made evidence available for cross examination. He urged that although they were thoroughly cross examined by the learned counsel for the appellant yet their evidence could not be shattered on any of the material aspects of the case. The counsel, therefore, submitted that since the averments made in the ejectment application and the evidence brought on behalf of the respondents were consistent in all material respects, hence the learned trial Court has rightly allowed the application on this ground. Making his submissions on the merits of the case the counsel further maintained that the relationship of landlord and tenant has been admitted. He referred to the impugned judgment and invited my attention to the fact that the learned trial Court has, on the basis of evidence available on record, rightly reached the conclusion that the respondents were residing in the servant quarters as Fazal Din, their predecessor‑in interest, was employed as cook in the said bungalow and it was in that capacity that servant quarter was given to him. This fact, the counsel further pointed out, is specifically mentioned in para. 6 of the application and also in the affidavits filed by the respondents in the Lower Court. He also invited my attention to the admission made by the appellant in para. 4 of the written statement when he stated:
"The applicants have been residing in servant quarters No.1R Abdullah Haroon Road, Karachi, for the last more than 15 years and are determined to stay there as there is nothing on record to show that there is immediate need for personal bon;_ fide use".
6. I have given my earnest consideration to the submissions made by the learned counsel for the parties. I have with their assistance also perused the depositions of the parties as well as the impugned order.
7. While allowing the application the learned Rent Controller has allowed his mind to be influenced by the fact and, in my opinion, rightly too, that the respondents were residing in servant quarter of Bungalow No.18, Abdullah Haroon Road, Karachi, where Fazal Din, their predecessor‑in‑interest, was employed as a cook. The denial of the appellant of this fact, without proof, was not enough and lastly that the averments made in the ejectment application regarding personal need were fully consistent with the averments made in the affidavit‑in evidence filed on behalf of the respondents and their version could not be shaken in cross‑examination. The mere fact that the respondents ~A were residing in the servant quarter for the last 15 years as alleged) in para. 4 of the written statement would not justify the throwing, out of their request for occupation of their own residential premises, more particularly when as per details available of the family members, their demand does not appear to be unjustified. On the factual aspect of the case, as already stated. 1 do not find any reason whatsoever to disagree with the learned trial Court‑
8.However, the legal pleas raised by the appellant have now to considered. There is no denying the fact that out of six respondents only three filed their affidavits‑in‑evidence and made them available for cross‑examination by the appellant whereas the other three only signed the application for ejectment but did not file any affidavits‑in Pvidence.The contention of the learned counsel for the appellant in so far as it gave me an impression that the application was only filed by Mst. Barkat Bibi, is factually not borne out from the record. As a matter of fact, as already pointed nut above, the application was presented by all the six respondents under their signatures and hence the only question that now remains to be considered is whether the failure of the three respondents to appear in the witness boy, resulted in causing a fatal blow to their case. In this connection the two following authorities have been brought to my notice by the learr,Pd counsel for the respondents.
(i) 1975 S C M R 517.
It seems appropriate if I reproduce the following ‑extract of the9‑ Lordships of the Supreme Court which is relevant to the issue in hand:
11 It will be seen that it is open to the landlord to apply for the possession of the building if he requires it in good faith for his own use or for the use of any of his male children. It is correct that under section 12(2) of the West Pakistan General Clauses Act the singular will include the plural, and for that reason the word 'he', wherever it occurs in clause (a), would be read as 'they' in the case of a plurality of landlords, but does it mean that in such a case the law contemplates that the requirement must be for the personal use of the entire body of landlords or the use of the male children of all the landlords taken together. It is clear that the Legislature could not have contemplated any such absurd situation. The intention of the law seems to us to be clear, namely, that a landlord is entitled to ask for possession of the property in case he bona fide requires it for his own use or for the use of any of his male children. In case there are more than one person, holding the property jointly, the requirement would be more than amply fulfilled if the property is needed by any one of them or for the use of the male children of any of them for in either case the object and the purpose is to enable the landlord, or all of them, or any of them to enjoy the use and occupation of his or their own property. It will be appreciated that since the law even recognizes the requirement of the male children of the landlord as a legitimate ground for asking for possession of the property, it could not have intended to place one or more of the joint body of landlords on a lower level than the male children of the landlord. We are, therefore, of the view that the submission made by the learned counsel for the petitioner is not borne out by either the language of the law or the purpose underlying 'it."
(ii) A single bench decision of this Court in the case of Muhammad Ahsan v. Mst. Nasim Khatoon and 8 others reported in 1988 C L C 121.6 wherein also it has been held that "even a. co‑owner can maintain an application for ejectment under section 15 of the Sind Rented Premises Ordinance, 1979". The learned counsel for the respondents unfortunately could not draw my attention to the case law which supports his contention. On the contrary, as already stated above, there are authorities taking a view contrary to what has been urged by the learned counsel for the respondent, namely, that an application for eviction of the. opponent can be filed by any one of the co‑owners B and it Is not 'necessary that all the co‑owners should join in making that request.
9.. For the foregoing reasons, I hold that the contention raised by the learned counsel for the appellant is without merits and it is accordingly repelled.
10. In the result, the appeal fails and is hereby dismissed with no orders as to costs.
H.B.T./U‑50/K Appeal dismissed