EBRAHIM REHMAN Versus Mst. SAIFIYA BAI

1. This first rent appeal is directed against the Judgment passed on 16‑2‑1986 by the learned IInd Senior Civil Judge and Rent Controller Karachi (South).

2. The brief facts giving rise to the present appeal are that the respondents filed an application under section 15 of Sind Rented Premises Ordinance, 1979 seeking ejectment of the appellant on the ground of personal bona fide use. It was staled in para‑3 of the application that the shop premises is bona fide and in good faith required by the applicant No. 4 Nasir Hussain s/o late Fazal Abbas Bhai Antria for his personal and bona fide business requirement".

3. The opponent was served with notice, and he filed his written statement in which he denied assertion of the applicant and stated that the premises in question were not required by the applicant for the personal bona fide use of applicant/respondent No. 4.

4. The learned Rent Controller after recording the evidence of the parties ordered ejectment of the appellant on the ground of personal bona fide requirement of applicant /respondent No. 4.

5. I have heard Mr. Azizul Hasan learned counsel appearing for the appellant and Mr. Badrudduja Khan, learned counsel appearing for the respondents and have also gone through the R & P of the case.

6. It was contended by Mr. Azizul Hasan learned counsel appearing for the appellant that the learned Rent Controller has not applied his mind to the facts of the present case while deciding the matter inasmuch as the point No. 2 for determination as framed by him shows "whether the applicant No. 2 Masood Hussain requires the disputed shop in good faith for his personal bona fide use. fie has further contended that at page 12 of the judgment it has been observed by the learned Rent Controller that the applicant No. 4 has stated in hi‑ affidavit in evidence that he requires disputed premises for setting up a General Store, supply‑business for his personal bona fide use. Whereas it was not the case of the applicant/respondent No. 4 in his affidavit. The affidavit filed by the applicant /respondent No. 4 shows that the applicant/respondent No. 4, requires the case premises for setting up a domestic utensils and Hardware shop for his personal bona fide need and requires the same in good faith. The learned Counsel has further contended that the order passed by the learned Rent Controller was based on mis appreciation of facts and, misreading of evidence.

7. Mr. Badrudduja Khan learned counsel appearing for the respondents has contended that it appears to be a mistake through oversight on the part of the learned Rent Controller that he has considered the facts of the case of Masood Hussain in the present case, otherwise the order did not suffer from any illegality or infirmity.

8. In view of the order which I propose to pass in this matter it is not necessary to go into details of evidence produced. It will suffice to say that the Judgment of the learned Judge in view of the contentions raised by Mr. Azizul Hasan learned counsel appearing for the appellant clearly shows that the learned Rent Controller did not apply his mind to the facts of the case which has occasioned miscarriage of justice. The case pertains to the requirement of applicant/respondent No. 4 Nasir Hussain, while the point No. 2 framed by the learned Rent Controller was in respect of the requirement of applicant/respondent No. 2 Masood Hussain. Even at page 12 of the judgment it has been observed by the learned Rent Controller that the applicant No. 4 has stated in his affidavit in evidence that he requires disputed premises for setting up General Store, supply‑business for his personal bona fide use, which was not the case in the application nor in the affidavit fled by applicant/respondent No. 4 in his evidence.

9. In view of the above discussion I set, aside the order passed by the learned IInd Senior Civil Judge and Rent Controller on 16‑2‑1986, and remand 1 the matter back to him to decide the same after hearing the parties and applying his mind to the facts of the case.

10. M.Y.H./E‑15/K Case remanded.