FAIYAZ HUSSAIN Versus MUHAMMAD IKRAM
This appeal is directed against the order of 1st S.C.J. and R.C. Karachi East, dated 20th July, 1986, whereby the appellant was directed to be ejected from first floor premises of building on Plot No.739‑C, Block‑2, PECHS, Karachi.
2. The admitted position is that the premises in dispute were rented out to the appellant in 1964. The rent is not in dispute. In 1983, the respondent applied for ejectment of the appellant on the ground that his family had so far been living in the adjacent flat built on Plot No.738‑C belonging to his brother, Salahuddin; but Salahuddin's family haw come back to Pakistan and they have been accommodated in their flat and the family of respondent had to be shifted on top floor of Plot No.738‑C in one room. It was averred that the accommodation in which respondent's family was living was very small and uncomfortable and that his first floor flat on Plot No.739‑C, which is built on 107 square yards, should be vacated by the appellant. It was asserted that Ikram does not own any other house.
3. The appellant denied the need of the respondent and asserted that the respondent and his brother are living as joint family and that the appellant had been continuously harassed and maltreated by the respondent.
4. The respondent filed the affidavit of Dr. Abdul Rauf Sheikh, his attorney and the affidavits of Raffia Ikram wife of Muhammad Ikram and Mst. Firdous wife of Salahuddin, brother of respondent. They were duly cross‑examined.
5. In rebuttal Fayyaz Hussain put in his own affidavit and also the affidavit of Muhammad Bashir, who was a tenant of one of the shops of respondent on ground floor on Plot No.739‑C. The Rent Controller allowed the ejectment application and hence this appeal.
6. Mr. Rehanul Hassan Farooqui, learned counsel for the appellant has made several submissions. He submitted that there was a variance in respect of family members of the respondent and there were no detail of accommodation given and hence the bona fide need is not established. Apart from the fact that Mrs. Rafia Warn. has given the number of her family members in her affidavit in para.5 consisting of 7 members and she had not been cross‑examined on that aspect of the case at all, I find from the cross‑examination of Faiyaz himself that he admits that there are 6 family members of the applicant Ikram excluding his mother and, therefore, it is sufficiently established that the respondent has 6 family members. Therefore, the variance, which is brought out in the cross‑examination of Dr. Abdul Rauf that family members of Ikram are Chiragh Bibi, Salahuddin, Sajida Parveen and Abida loses its significance in view of the fact that the name of even Mst. Raffia Ikram, who is admittedly the wife of Ikram, is not mentioned. Moreover, Chiragh Bibi, the mother, is mentioned by Abdul Rauf as the family member of Ikram while Faiyaz Hussain, the appellant, has himself excluded the mother of Ikram from his family when he has given their number as 6.
7. As far as the accommodation is concerned, i find from the cross -examination of Faiyaz that he claims to be having accommodation of 3 rooms. He is in occupation of first floor on Plot No.739.
8. Mr. Mubarak drawn my attention to the approved plan of Plots Nos.738 and 739, which shows that both that both plots are 107 square yards in measure t and there are .3 bed‑rooms in each plot alongwith one dining room and one drawing room. It is, therefore, obvious that the accommodation in both plots or premises is the same. Considering the position that Plot No.738 is evidently owned by Salahuddin and Plot No.739 is owned by 1kram, it appears that these are separate properties owned by different persons. The staircases are also shown for each building.
9. That being the position, the families of Ikram and Salahuddin are entitled to live in their own houses and on this ground alone the respondent is entitled to get his premises vacated.
10. The contention of Mr. Rehan that they were living as joint family and hence they should be made to live in Plot No.738 does not appear to be correct because what I find is that the family of respondent was living to Plot No.738 till 6 months before filing of this application when family of Salahuddin came back in 1983. Even if the two families of the two brothers have accommodated each other to a certain extent in living together they cannot be forced to go on living in the same accommodation for all the time.
11. It has come on record that the family of Salahuddin apart from himself, consists of his wife Firdous, his two sons Khalid and Rahman aged 19 and 16 years respectively and two daughters Sofia and Saima aged 18 and 13 years respectively. It is reasonable that 3 bed rooms should be required by the family of Salahuddin and there are only 3 bed‑rooms in Plot No.738 on the first floor and of course there is one bed‑room on the top floor of Plot No. 738, which has been given allegedly to the respondent's family for the moment. The photo copies of passport of the family of Salahuddin are on record and, therefore, the statement of Frrdous that she has 7 members of family, cannot be doubted as she has 4 children and her husband and herself plus mother of Ikram. Therefore, it is obvious that the family of the respondent has to have separate accommodation for 6 members of their family, as admitted by the appellant, and, therefore, they cannot be accommodated in one room which is on the top floor of Plot No.738. Apart from the fact that on the top floor of Plot No.738 one room cannot be sufficient for a family of 5 members excluding Ikram, who is at present in Kuwait, the landlord of Plot No.739‑C, namely, Ikram and his family cannot be forced to continue to live in the accommodation provided by his brother Salahuddin. An owner is entitled to live in his own house and, therefore, Plot No.739‑C, first floor has to be made available to them namely Ikram's family. I do not find any cross examination directed against Raffia and Firdous in respect of their family members or in respect of their assertion that family of Ikram is not properly accommodated. Similarly, I do not find any serious challenge to the position that Plots Nos.738 and 739 are belonging to the two brothers and they are independent and separate units.
12. Mr. Rehan had asserted that respondent, Ikram, was living in Kuwait as permanent Government employee and, therefore, his family should live with him. I do not find any justification for this assertion because a male member of the family may live in Kuwait for the purpose of earning, but his family can decide to come back to Pakistan. In fact, the appellant has admitted that the family of the respondent has been living in Pakistan and he has further admitted that the family of Salahuddin has come to Karachi and their arrival is proved by the copies of their passports.
Mr. Rehan further contended that the ejectment application. was the result of enmity between Abdul Rauf and the appellant. However, I find that Faiyaz, appellant, has stated that he has no enmity with Mr. Abdul Rauf although he had further stated that he had dispute with the brother‑in‑law of the respondent. Even if there was a dispute and misunderstanding between Dr. Abdul Rauf and the appellant, the question of requirement of a house has to be considered on the basis of established material on record and I find the same reasonably proved. The family of Salahuddin with 7 members has to be accommodated on Plot No.738 and similarly the family of respondent has to be accommodated in their own flat on first floor on Plot No.739.
13. Accordingly, I do not find any justification for this appeal, which is hereby dismissed.
Mr. Rehan requested for 8 months' time for vacating the premises. The request is tenable in view of the fact that it is difficult to obtain accommodation in Karachi.
Mr. Mubarak and his client Muhammad Ikram, who was present in person asserted that the respondent's family has been undergoing a great strain. This again appears to be true as 1 have found above, but I find a justification for allowing 6 months' time to the appellant to vacate the premises as there is difficulty on either side in seeking or finding accommodation. This would be subject to the regular deposit of rent in Court. Writ of possession without notice would be issued against the appellant after 6 months from today, but it may be I issued earlier in case of failure of deposit of rent.
The appellant is restrained from transferring the possession of the premises to anyone else other than the respondent or his attorney.
H.B.T./F‑47/K Appeal dismissed.