ABDUL HAMEED Versus ABDUL AZIZ

The appellant has called in question the order passed by the learned Second Senior Civil Judge and Rent Controller, Karachi (South), dated 25‑5‑1988, dismissing his application under section 15 of the Sindh Rented Premises Ordinance.

2. The appellant filed an application against the respondent under the said provisions of law seeking the latter's eviction on the ground of default in payment of rent and bona fide requirement of the premises for personal use of the appellant. According to the appellant, the respondent had committed default in payment of rent from November, 1984 to September, 1986. The premises were also required by the appellant for his personal need as he was about 35 years of age and wanted to start his business in the demised shop.

3. The learned Controller was not impressed by any of the two grounds, and therefore, he dismissed the appellant's application as pointed out earlier.

4. So far as the first ground is concerned, it was established by the respondent that he had been depositing rent for the disputed period in the office of the learned Controller, although, in the name of the previous owner Mst. Khursheed Begum. Since the said evidence could not be rebutted, the learned Controller held that there was no default committed by the respondent as alleged. In fact, Mr. Dewan Bashir Ahmed, concedes that if any default was committed by the respondent, the same was of technical nature and the respondent could not be penalised on account of such default by passing of an order for his ejectment from the premises.

5. So far as the other ground of personal requirement is concerned, the appellant in his affidavit in evidence stated that he had no other shop in his possession and that he wanted the shop in question for his own use as he wanted to start his own business. The respondent, on the other hand, raised a plea that the appellant was the owner of two shops in another building called Hamid Manzil. He also produced a certified copy of Form PT‑1 issued by the Excise and Taxation Officer, A‑Division, Karachi. Although the appellant did admit in his cross‑examination that he was the owner of the said property but it was denied by the appellant that he had any shop in the said building or that any shop in the said building was lying vacant. The learned Controller, however, held that the appellant was guilty of suppression of material evidence and therefore, his claim in regard to the personal requirement was not bona fide.

6. After going through the evidence respectively adduced by the parties on the point, I agree with Mr. Dewan Bashir Ahmed, that the findings of the learned Controller in this regard are not based on correct appreciation of evidence. First of all, the author of PT‑1 was not examined by the respondent. The learned counsel for the respondent, however, contends that an application in this regard was made but the learned Controller did not find it necessary to call any witness from the Excise and Taxation Department on account of the fact that the document in question was a certified copy which, even otherwise, was admissible in evidence. I would like to point out that even if such was the case, the said document merely shows that there were two shops situated in the said building. No other evidence was, however, produced by the respondent from which it could be spelt out that the appellant was also in possession of the said shops. The mere fact that the appellant was owner of another building with two shops would not be sufficient to defeat the case of the appellant for personal requirement, unless it was shown that the appellant was in occupation of any such shop which was also suitable for his business. No such evidence is available on record. Consequently, in my view, the findings of the learned Controller that the appellant had failed to establish his bona fides are not correct.

7. In the result, this appeal is allowed and the findings of the learned Controller in respect of the second issue are reversed. The respondent is directed to put the appellant in possession of the premises within three months from today. The parties are left to bear their own costs.

QA./A‑1162/K Appeal accepted