MUKHTIAR KHAN Versus MUHAMMAD SABIR
1. This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is directed against the Order dated 16-8-1984, of IXth Senior Civil Judge and Rent Controller, Karachi whereby the Rent Case No. 2213 of 1976, of appellant/landlord was dismissed.
2. The facts are that Syed Musharraf Ali is landlord in respect of premises situated on Plot No. 772/2, Federal `B' Area, Karachi, consisting of two rooms and the respondent is the tenant of the appellant at the monthly rent of Rs.90 excluding the electricity and other charges. In the rent application, it is averred that the appellant was living with his wife and children at the house of his father which is constructed on the plot of 120 Sq. yds. having three rooms at Federal `B' Area, Karachi, bearing i;u. 561/15. It is stated that, accommodation is not sufficient to meet the requirement of the family of the appellant as two brothers, one sister, father and mother are also living in the same house and as the brothers and sister are adult, they also need separate rooms for their livings and studies as one brother is a student of Intermediate and the sister has appeared in the Matric Examination in that year. It is also stated that the premises had been occupied by the respondent which has not been fully constructed as per the approved plan by the authorities and that presently there are only two rooms, whereas the appellant has also borrowed the loan for the construction from the bank where he is working which could not be utilised due to non-vacation of the house. The plot on which the respondent is residing is a temporary construction and required bona fide in good faith for the purpose of his accommodation as well .as his own family and also for the construction. Respondent filed preliminary objections in which it is stated that appellant has not produced the plan which has been approved for construction and the application is premature. It is also stated that appellant has not served any notice as required under section 13-A of the said Ordinance.
3. With regard to the members of the family in para No.7 of the Objections, respondent denied for want of personal knowledge stated that rent case was filed lust to increase the rent. The Rent Controller on the pleadings of the parties framed only one issue of personal bona fide requirement and dismissed the rent application. Before the Rent Controller, appellant Syed Musharraf Ali examined himself and he has corroborated the contents of the rent application. He produced photo copies of National Identity Card of all the members of the family as Exhs. A-7, A-8, A-9, A-10, A-11 and A-12. He stated that accommodation where he is living is insufficient and he has no other house in Karachi or anywhere in Pakistan. Respondent, Muhammad Sabir, in his affidavit-in-evidence stated that present application is not maintainable as notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, has not been served by the appellant. He has stated that appellant has purchased the house knowing fully well that it is occupied by the tenant and appellant is not in need of the premises in good faith and as a matter of fact, he is interested in the increase of rent. He stated that appellant cannot take up the new construction unless he obtains permission and gets the permission from the competent authority which he failed to do so.
4. I have heard Mr. Shaikh Abdul Majid for the appellant. It is contended that the appellant is living in the house of his father and he purchased the premises where he has got the right to live. It is argued that the Rent Controller has wrongly dismissed the rent application on the grounds that notice was not served and photo copies of the National Identity Cards do not disclose the number of his dependant family members.
5. MA.R. Mirza appearing for the respondent submitted that the appellant has not proved the case of personal bona fide requirement and reconstruction as no approved plan, has been produced by him. It is argued that in this case provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, will attract; therefore, in view of section 13(3) proviso 2, in the changed circumstances, the appellant is not entitled to possession of the house. It is argued that on this, they made an application alongwith photostat copies of the documents showing that the appellant is residing in the house that has been changed in his own name by way of inheritance. Therefore, in view of cases reported m P L D 1981 Kar. 67, 1980 C L C 1082, this case be remanded to the Rent Controller to ascertain the facts. Mr. Mirza has also cited P L J 1982 532, P L D 1986 Kar. 16, P L D 1983 S C 21, and submitted that in this case provisions of West Pakistan Rent Restriction Ordinance, 1959, will apply.
6. The relationship and the rate of rent are not disputed. The rent case was filed in the year 1976 and before the Rent Controller there was nothing on record that appellant owns any house or building in Karachi. He in his rent application and affidavit-in-evidence has stated that he is living with his father in House No. 561/15, Federal `B' Area, Karachi. The appellant in his affidavit-in-evidence has given the number of his family members including brothers sisters etc. This has not been controverted. I have no reason to disbelieve the statement of the landlord about the family members when no other evidence has come on record. It is the choice of every person to live in his own house. The appellant purchased this house and he in my view can live in his own house if so desire, when it is an admitted position that he is living with his father.
7. Now I come to the impugned order. The Rent Controller has dismissed the application on the analogy that there is non-compliance of section 18 of the Sind Rented Premises Ordinance, as no notice was given to the respondent. This is hardly acceptable. This provision relates to the payment of rent which is not a. disputed matter before me and the Rent Controller. That he dismissed the application stating therein that photostat copies of Identity Card produced by the appellant do not disclose particulars of any of his dependent family members, and therefore, he has not believed the same. The documents were produced with the affidavit. From the very face of it the reasons given in the impugned order are contrary to the provisions of Act and facts. In my view case for bona fide request has been proved. It is an admitted position that it is a house where respondent is living though it may be Kutcha or Pucca construction which is irrelevant. The appellant wants for residential as well as for construction therefore the point of reconstruction was rightly not considered by the Rent Controller. Now I come to an application filed during the pendency of appeal by respondent. This application was made by the respondent on 17-1-1988, i.e. 4 years after the First Rent Appeal was filed and this application is under section 151, C.P.C., and no request has been made in the application to summon any additional evidence so as to prove the genuineness of the documents or to come to the conclusion that thus house where the appellant was originally residing has been mutated in the name of the appellant. Therefore, these two photo copies of the documents have no evidentiary value, and no inference can be taken against the appellant that he has sufficient accommodation.
8. For the reasons stated above, I set aside the impugned order of the Rent Controller and have come to the conclusion; that personal bona fide requirement has been proved. The respondent is directed to hand over the vacant possession of premises to appellant within three months from the impugned order.
9. H.B.T./M-551/x.
10. Appeal allowed.