ABDUL MAJID Versus MOHSIN ALI SYED
This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is filed against the order dated 10‑5‑1987 passed by Miss Anis Tahir Hussain, Vth Senior Civil Judge and Rent Controller (East) Karachi, by which she directed the eviction of appellant from disputed promises.
2. The respondent is the owner/landlord of a double‑storeyed building bearing No.3‑P, Street No.l/1, Block No.6 situated in P.E.C.H. Society, Karachi. The appellant is a tenant in respect of a portion of first floor of this building at a monthly rent of Rs.3,000 excluding electricity and gas charges. The respondent who was working as Assistant General Manager T & T was transferred to Karachi from Islamabad and he had to stay in a rented premises. He was on cave preparatory to retirement and was in need of this portion of building for his own occupation. On 25‑1‑1979 the respondent filed an application for ejectment against the appellant under section 13 of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed), on the grounds of default in payment of rent and personal requirement.
3. The appellant resisted the application for ejectment on various grounds. According to him the respondent resided in his own house No.B/528/13, Federal `B' Area, Karachi, which he has sold during the pendency of these proceedings. The bona fide need of respondent to occupy the disputed premises was seriously contested by the appellant.
4. The parties went to trial on the following issues:‑
(i) Whether the applicant requires the premises in question for his personal bona fide use?
(ii) Whether the opponent has committed default in payment of rent from January 1978?
(iii) What should the order be?
5.. The respondent examined himself (P.W. 1) and Azmat Ali Khan (P.W. 2), while the appellant examined himself (D.W‑1), Muhammad Akhtar (D.W. 2) M. Jehangir (D.W. 3) and Mirza Ali Khan Durrani (D.W.4).
6. On the assessment of evidence, both oral and documentary, available on record the learned Rent Controller (Miss Yasmin Abbasey) dismissed the application of ejectment vide order dated 30‑9‑1984. The respondent challenged this order before this Court in F.R.A. No.982 of 1984, which was allowed on 23‑9 1986, with the following order:‑
"The appeal is accordingly allowed and the case is remitted to the Controller No. V (West) Karachi, for disposal in accordance with law and the parties are at liberty to produce additional evidence, if they so desire. I direct that the parties will appear before the learned Controller on 13‑10‑1986. Mr. Pirzada has submitted at the Bar that the case is pretty old and is on the ground of personal requirement. I direct that case shall be accorded priority by the learned Controller and shall be disposed of within a period of six months from the date of this judgment."
6. On remand the respondent examined himself and his son Dr. S. Asif Ali, while the appellant examined himself and Ismail. The Rent Controller reconstituted the issues, which are as follows:
(i) Whether opponent committed default in payment of rent from January, 1978 and in payment of electricity and gas charges from 13 8‑1975, as alleged by the applicant?
(ii) Whether applicant requires the premises in question for his personal use and for use of his family members?
(iii) What should the order be?
7. On the assessment of evidence the learned Rent Controller decided issue No.1 against the respondent. Issue No.2 was, however, decided in favour of respondent, giving rise to this appeal.
8. 1 have heard Mr. Shamshad Alam Lari, learned counsel for appellant and Mr. Abdul Mujib Pirzada, learned counsel for respondent. I have also gone through the record of the case carefully.
9. The perusal of the record shows that the respondent, an old retired Government servant of about 70 years of age is badly in need of his own premises for his own occupation and occupation of his family members. The record further shows that the respondent owned building bearing No.3‑P, Street No.l/l, Block No.6, situated in P.E.C.H. Society, Karachi, where the disputed premises is situated, and House No.B/528/13, Federal `B' Area, Karachi, which he sold prior to the institution of present ejectment application to meet marriage expenses of his three daughters. Ex. A/6 which is a certificate issued by Sub‑Registrar, `T' Division makes it clear that the house situated in Federal `B' area was sold before the institution of present ejectment case. The photo copies of nikahnama of three daughters of respondent are on record (Exs.A/7 to A/9) which confirm that the marriages of Mst. Munwawar Sultana, Mst Farzana Mahjabcen, and Mst. Fouzia Mohsin daughters of respondent were solemnised on 5‑7‑1979, 30‑10‑1980 and 23‑3‑1981, respectively. The plea of the respondent that the above house was sold to meet marriage expenses of his three daughters is, therefore, borne out from the record.
10. The record also shows that during this period of about ten years the g respondent has stayed in a rented house. He, however, got possession of the ground floor of the building where the disputed premises is situated during this period which has been converted into a clinic run by his son Dr. Asif Ali. The relevant documents (Exs. 10 to 13) which are on record fully establish this position. The report of the Commissioner appointed by this Court is on record, which confirms the assertions made by respondent. The rclcvant extract of this report is as follows:‑
" CLINIC AT GROUND FLOOR .
Room 10 x 14 used as ladies waiting room and injection room.,
Room 10 x 14 used as male observation room . Room 10 x 10 used as female observation room. Store Room 6 x 8.
Bath Room.
Room 12 x 18 used as Doctor's Chamber; Male Waiting Room and dispensary, all separated through wooden partition, with one examination room, measuring 6 x 10.
Covered passage 6 x 12."
The plea of the appellant that the ground floor of the building is not being used as clinic, therefore, stands falsified from the report of Commissioner who had personally inspected the site.
11. The report of the Commissioner further shows that the portion in possession of the respondent where he is presently residing is not sufficient to cater the needs of respondent. The respondent who is used to a better standard of living should not be refused to enjoy his own property just for the sake of accommodating a person who was inducted as tenant at a time when he (respondent) was staying at Islamabad.
12. The record also shows that the appellant‑ owns a premises in "Gulnar Apartments". According to the version of appellant only few members of his p family reside in Gulnar Apartments, while the rest reside with him in disputed premises. The appellant has, however, admitted in clear terms that his servant Muhammad Akhtar also resides with him in the disputed premises. Admittedly the appellant is a man of means. He has got flourishing carpet business with his show room in `Hotel Metropole'. The appellant further admits‑ in cross examination:‑
"It is correct to say that there are two telephone connections in 19 Gulnar Apartments in my name. It is correct to say that water, electric and sui gas connections are therein in Gulnar Apartments in my name. It is correct to say that I have good business and am financially sound. It is correct to say that I have a carpet shop in Metropole Hotel. It is correct to say that in this shop too I have two telephone connections. It is correct to say that there is no telephone connection in disputed premises. It is correct to say that I also do not have sui gas and electric connection in disputed premises in my name."
13. The above admissions when read together alongwith the assertions made by respondent that the appellant was not residing in the disputed premises and only his servants stay there during night time, appear to be correct. It may be L noted that in (Exs.A/5 and 0/2) the address of appellant was given at 19‑Gulnar Apartments, Choudhry Khaliquzzaman Road, Karachi (Ex. A/5) is a copy of notice sent by Mr. Pervaiz Ahmad Advocate on behalf of appellant. The accommodation available in the disputed premises to the appellant is not such, where a servant can be accommodated with the family of appellant consisting of six members including four daughters. All these factors when combined together lead to a conclusion that the disputed premises is being used by the servants of the appellant. The appellant who has got his own house has adopted a sadistic attitude to deny an old person a comfortable living.
14. Mr. Shamshad Alam Lari, learned counsel for appellant has invited my attention to the following authorities in support of his case;‑
(i) Mirza Farooq Beg v. Muhammad Arif (P L D 1981 Karachi 67).
(ii) Mst. Farrukh Nisa v. Safdar Ahmad and 6 others (P L D 1985 Karachi 6,39).
(iii) Noor Muhammad v. Iqbal Ahmad (1985 C L C 1007).
(iv) last Shirinbai v. Messrs Habib Bank Ltd. (1985 C L C 2455).
(v) Riyaz Khan v. Sodagar Khan 1983 C L C 1343.
(vi) Mst. Hashmi Bcgum v. Mst. Alva Zohra Begum 1985 M L D 1514.
(vii) Manzoor Ahmad and others v. Karim Bux and others (P L D 1986 Karachi 637).
(viii) Abdul Ghani v. Ismail Ibrahim Lakhani through Legal Heirs (1986 C L C 696).
(ix) Syed Ashraf Ali v. Ali Muhammad Khan (1986 C L C 735), and
(x) Gul Khan v. Gharibullah Khan (1987 C L C 736).
All these cases are distinguishable. I also do not find it necessary to discuss these authorities in detail, because it is 0 question of fact in each particular case, whether the evidence available on record can or cannot be considered to be sufficient to make out a case of‑personal requirement. The Sindh Rented Premises Ordinance, 1979, and the earlier Ordinance on this subject have taken the place of the general law on this subject, viz. the Transfer of Property Act, 1882, whereunder only a. simple notice of ejectment was sufficient to terminate the tenancy and to get possession. The intention of this Ordinance is not to deprive the owners to use their own‑ properties. If the ejectment of the r tenants even where there is genuine cause for the same is made difficult then such an attitude is bound. to produce a sense of despair and frustration.' It is unfortunate that it took about 11 years to respondent to get an order in his favour at the first appellate stage.
15. The appeal has got no merits and is dismissed with costs. The appellant, is, however, allowed two months' time to vacate the demised premises.
H.B.T./A‑758/K Appeal dismissed.