MUHAMMAD HALEEM SIDDIQUI Versus HUMA KHUSRO

1. This is an appeal under section 25 of the Cantonments Rent Restriction Ordinance, 1963, directed against an order dated 29‑9‑1994 passed by Additional Controller of Rents, Karachi Cantonment in Rent Case No.34/91 Dr. Huma Khusro v. Muhammad Haleem Siddiqui and another whereby the application filed under section 17 of the Cantonments Rent Restriction Act, 1963 was allowed and the appellants/tenants were ordered to vacate the premises within three months.

2. Brief facts of the case are that respondent/landlady filed an application for ejectment against the appellants/tenants on the ground that she required the premises flat No.801, Block A, situated at Sea Breeze Plaza, Shahrah‑e‑Faisal, Karachi, for her personal need. The appellants/tenants filed written statement wherein they stated that alleged personal need is not based on good faith. Learned Rent Controller settled as many as five issues and the main issue was "whether the disputed property is required for personal bona fide use of the applicant".. In view of the findings on issue No.4, the eviction application of the respondent/landlady was allowed as per impugned judgment.

3. Applicant filed her affidavit‑in‑evidence and produced photocopy of tenancy agreement and photocopy of her passport. Appellant No. l Muhammad Haleem Siddiqui filed his own affidavit‑in‑evidence and also produced special power of attorney executed by Dr. Nadeem Siddiqui in favour of Muhammad Haleem Siddiqui who has also produced original tenancy agreement Exh.0/1. Both parties were cross‑examined by the respective counsel.

4. I have heard learned counsel Mr. Muhammad Afzal for appellants and learned counsel Mr. Shah Maqsood Ahmad for respondent and perused the record and proceedings of the case and the case‑law cited by the learned counsel,

5. The main contention of the learned counsel for appellant/tenant is that the respondent/landlady has failed to prove her requirement in respect of premises in good faith as she failed to examine her husband and her mother and could not prove that she was residing with her mother and further that her husband was outside the country therefore the finding ‑given by the Rent Controller was erroneous in law and is based on mis-appreciation of evidence.

6. Learned counsel for respondent/landlady has argued that contents of the ejectment application have been reiterated in the affidavit of the respondent/landlady and the contents of the same could not be challenged or disproved in the cross‑examination, therefore, the respondent/landlady has succeeded in proving her need in good faith. He has placed reliance upon Asif v. Mst. Raisa Khatoon Jafri PLD 1988 Kar.364 and M/s. Chaudhary Brothers v. Mst. Asma Irfan 1991 CLC 937 in support of his contentions.

7. The respondent/landlady in ejectment application has stated that she needed the flat premises in good faith for her personal use and she has no other immovable property of her own and was residing with her mother. The respondent/landlady in her affidavit‑in‑evidence has reiterated the contents of the application. The respondent/landlady has been cross‑examined at length by the learned counsel for appellant/tenant but her veracity in respect of her personal need could not be shaken. The only evidence which could be brought on record was that her husband has gone abroad for higher studies in U.S.A. A suggestion was also put to her that she had made demand of enhanced rate of rent and further that after getting the possession she would sell out the same and would not occupy the flat premises which suggestions were denied by the respondent/landlady. The appellant/tenant was also cross‑examined at length and stated that he could not say that the respondent/landlady has permanently settled abroad and could not infer whether respondent/landlady required the premises only for her own use. It is well settled legal position that the assertion or claim of the landlord/landlady on oath that he/she required the premises for his/her personal use should be accepted by the Controller as bona fide if such claim or assertion, although by itself may be insufficient, yet consistent with his/her averment in the ejectment application and is not shaken in the cross‑examination or disproved in rebuttal. In the instant case, the respondent/landlady on oath has stated that she required the premises for her personal use and she has no other property to live and presently was living with her mother has not been challenged by the appellant/tenant or rebutted by him. It was not necessary for the respondent/landlady to examine her mother or her husband to justify the fact that she was residing with her mother when the said fact was not challenged in the cross‑examination by the appellant/tenant. The respondent/landlady had to prove her personal bona fide need in good faith only and not the need of her mother or her husband though ‑their need would also be the personal need of the respondent/landlady under the law. Admittedly, there is no suggestion from the side of the appellant/tenant that she has any other property of her own use to reside. Mere fact that her husband has gone abroad for higher studies would not negate the personal requirement based on good faith. The evidence in this case would show that the respondent/landlady has proved her case that she needed the .flat premises for her own use and was not having any other house to reside therein. Learned counsel for appellant/tenant has failed to point out misreading of evidence by the learned Rent Controller. Even if the respondent/landlady was residing with her mother, the same would not disentitle her from praying for possession of her own premises in law. Reference is made to Nikhat Riaz v. Manzoor Hassan 1991 SCMR 1434. Even demand of enhanced rate of rent would not cause any doubt on the plea of landlord about his personal requirement. Reference is made to M/s. Chaudhary Brothers v. Mst. Asma Irfan 1991 CLC 937. In the instant case, there is no evidence that the respondent/landlady and her husband are permanently residing abroad but even if they would have been residing abroad the same would not have disentitled the respondent/landlady from seeking eviction of the appellant/tenant for her own use and occupation. Reference is made to Mst. Ahmad‑un‑Nisa v. Mst. Parveen Siraj 1985 SCMR 2012. In the instant case the appellant/tenant has failed to rebut the evidence of respondent/landlady and has failed to show that she was residing or was in occupation of any other house of her own therefore it stood proved that she needed flat premises for her own use. Reference is made to Abul Kalam v. Mst. Dilshad 1991 SCMR 1421.

8. The contentions raised by the learned counsel for appellant/tenant have no merits. In view of the abovesaid reasonings and case‑law cited, appeal has no merit which is hereby dismissed. The appellant/tenant is directed to hand over the vacant possession of the premises within a period of sixty days subject to condition that he would deposit the rent with the Rent Controller for the said period.

9. A.A./M‑145/K ???????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.