DILSHAD Versus ABUL KALAM

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is directed against the order dated 21‑7‑1986, passed by VIth Senior Civil Judge and Rent Controller (East), Karachi, whereby he dismissed the application for ejectment filed by the appellant against the respondent.

2. The appellant is the landlady of building bearing No.4‑F, Commercial Area, Muhammad Ali Housing Society, Karachi. The respondent is the tenant of Flat situated an the first floor of this building alongwith a garage at a monthly rent of Rs.450 since 1973. The appellant sought the ejectment of the respondent from the premises on the ground of personal requirement and use of the same for the purpose other than that for which it was let out.

3. The respondent has controverted the issues based on facts. According to him the appellant is a married lady and a permanent resident of Lahore. She is a business‑magnate having palatial houses all over the world. She is mostly on global tour in connection with her business and whenever she stops over at Karachi, she stays at her father's palatial house consisting of 28 rooms. The respondent also alleged payment of huge amount to the appellant as PAGRI. The respondent has further denied to have converted into a denting and painting workshop.

4. The parties went to trial on the following issues:‑-----

(1) Whether the rented premises is required by the applicant bona fide and in good faith for her own use and that of her family;

(2) Whether the opponent used the garage of rented premises for the purpose other than for which it was rented out to him?

5. The appellant has examined herself (P.W.1), while the respondent has examined himself (D.W.1) and Tehseen Ahmad (D.W.2).

6. On the assessment of the evidence adduced by the parties, the learned Rent Controller decided both the issues against the appellant, giving rise to the present appeal.

7. The appellant as her own witness (P.W.1) has testified that she is not in occupation of any building owned by her in Karachi and after the death of her father she is residing in the house of her mother alongwith her son, as her husband has divorced her during the pendency of these proceedings. She, therefore, claims the possession of the disputed premises in good faith for her own use and the use of her son. She was subjected to a searching cross-examination which had for its aim to condemn her as a woman of greedy nature who was simply interested in getting more PAGRI out of this premises. She has also been shown as business‑magnate and an owner of number of palatial houses in various important cities of the world, in the averments made in written statement. The affidavit -in‑evidence filed by the respondent is, however, silent about all these assertions. Paragraphs 4 and 5 of this affidavit are relevant:‑---

"(4) That I say that the ground formulated by the applicant for ejectment of the flat is not correct. The factual position is that the applicant has never lived neither she is going to live in the said house/flat and quarter. She has always lived in big house. She has left her husband and her only issue the son is in America. The house in which she is living with her mother is a big house. (Photo copy of the certificate Form PT‑I showing the rooms space in the house is attached herewith and marked R/1).

(5) That I say that the mother of the applicant is having number of houses in Karachi, one of the houses in KDA. I, Commercial Area, Photo copy of the Form PT‑I, is attached herewith marked R/2)."

8. It is, thus obvious that the respondent did not adduce any evidence in support of the case set up by him in his written statement. In Durga Nath Tarafdar and others v. Debendra Nath Tarafdar and others, reported in P L D 1951 Dacca 89, it was held that a case should be decided on evidence and not on a mere pleading in the defence, because the statement in the written statement is no evidence unless it is proved by evidence. This view was followed in Luqman v. Allah Diwaya, reported in P L D 1967 Pesh. 166, in which it was observed that decision must be based on evidence, oral and documentary, legally adduced in a case and mere pleadings in written statement cannot be treated as such. The following observations made in Muhammad Khan v. Mst. Hajran Khatoon, reported in 1984 C L C 3172, are again relevant:‑--

"I need not add that written statement is not a substantive evidence in a case and if the defendant does not appear to support the pleas raised in the written statement and offer himself for cross‑examination on facts stated in the written statement the contentions raised in the written statement cannot be relied upon."

9. A bare perusal of the impugned order shows that the learned' Rent Controller based his findings on the averments contained in the written statement. In dealing with the evidence the Rent Controller must, in the first place, be careful enough to see that only those facts are discussed in the order which can be found in the evidence; on record. He should not put down in the order anything that may not be traceable in the record.

10. The finding of the learned Rent Controller is again based on1 conjectures and surmises, inasmuch as he deduced that the appellant was residing in the house of her mother consisting of 28 rooms, hence she was not entitled to seek eviction of tenant for personal D use and occupation. The reasoning is contrary to the material on record as the respondent has himself not uttered a word about it, The PT‑I Form which is on record (Exh.R/1) shows that there are ten rooms in the house owned by Mst. Mehmooda Jan, the mother of the appellant.

11. On a careful examination of the evidence available on record the following facts emerge:‑---

(a) That the appellant does not own house in Karachi.

(b) That the appellant is presently residing in the house of her mother.

(c) That the appellant resides in the house of her mother alongwith her son.

(d) That the appellant has got brothers and sisters;

(e) That the disputed premises were rented out in the year 19731 at the rate o: Rs.450 p.m. And during this period of about 15~,, years the rent has not been enhanced.

(f) That the appellant has been divorced by her husband:

(g) That the amount of Rs.20,000 alleged to have been paid to the appellant as PAGRI was not disclosed 'in the written; statement.

12. In ejectment proceedings on ground of personal bona fide need of the landlady, the question of necessity has to be judged in context of the above circumstances. The case of Rajab Ali v . Darius B . Kandawalla and another, reported in P L D 1984 Kar. 14, serves as guideline in cases of this nature. In this case it was observed that once a landlord has elected to live in his own house his demand for eviction of his tenant would be presumed to be bona fide and based on good faith unless mala fides is alleged and proved by the tenant., The question of bona fides is a question of fact and the Court is entitled to look to every relevant fact and circumstance. The appellant wants to live independently in her house and her demand cannot bed defeated only because her mother owns a spacious house. In my opinion, the learned Rent Controller viewed this question in a wrong perspective He has clearly erred in advising the appellant to reside with her mother. Nobody can be compelled or forced to do so only to accommodate her tenant. The law also does not require the landlady, to have a large number of family members in order to seek ejectment on ground of personal requirement.

13. On overall appraisement of the entire evidence available on record and on considering all the surrounding circumstances, I am of the opinion that the appellant has successfully made out a case of ejectment of respondent on the ground of personal requirement. Issue No.l, is therefore, answered in affirmative. The finding of learned Rent Controller on this issue is set aside.

14. No exception can, however, be taken to the finding of the learned Rent Controller on issue No.2. The learned counsel for the appellant has, therefore, not pressed it very seriously.

15. In the light of the above discussion the appeal is allowed with no order as to costs. The respondent, is, however, allowed two months' time to vacate the demised premises.

M.Y.H./D‑43/K Appeal allowed.