Mst. SAFDARI BEGUM and 2 others vs AMIR ALI TABREZI

1. ' The respondent filed an ejectment application against Abdul Hafeez Khan the predecessor of the appellant, on the ground that he requires the premises for his bona fide use and occupation in good faith. During the pendency of the case Abdul Hafeez Khan died and his legal heirs now the appellants were brought on record. The main ground for seeking ejectment was that the respondent is residing on the first floor in one room which is insufficient for proper and convenient living. It was alleged that he is a heart patient and an old man of about 75 years. It was further stated that his wife is also an old woman suffering from various diseases. The appellant denied these allegations and pleaded that the requirement is not bona fide and in good faith as the respondent has been litigating since 1972 and during the pendency of this ejectment application the front portion of the house having identical accommodation was vacated and let out by the respondent on higher rent. The learned Controller by the impugned order granted the application.

2. ' Mr. Sheikh has assailed the finding of the learned Controller and contended that the front portion of the house which was vacated has been let out by the respondent and therefore, the respondent's claim is not bona fide. From the evidence it is clear that the respondent is suffering from diseases mentioned in the application. To prove this fact he has not only so stated on oath but also produced medical certificate and prescription of the doctor. Although the medical certificate has been challenged by the appellant, in my view the statement made by the respondent is sufficient to establish his old age and the disease from which he is suffering. In this view of the matter it is to be considered whether the requirement of the respondent ,is bona fide.

3. The main ground of attack by the learned counsel for the appellant is that during the pendency of the case the front portion of the house having accommodation identical to the premises in possession of the appellant has been let out. The respondent has not denied letting out but he has explained that the said ground floor portion is not identical to the disputed premises and secondly he has given certain reasons for his preference and choice for the disputed premises. The accommodation in both the front and disputed premises consist of two bedrooms each. The extra advantage as explained by the respondent is that in the disputed premises there is a separate entrance with open space in which the lawn has been laid. The reasons for his preference have been set out in respondent's affidavit of evidence be as follows: "That the accommodation of rented premises is suitable to me for my requirements and needs because it is on the ground floor and moreover it is comprised of two bedrooms with attached bath one drawing-dining and one kitchen together with lawn and in order to lead my happy and comfortable life it is sufficient for my personal bona fide use in good faith alongwith my wife there.

4. Apart from above the rented premises accommodation has separate and independent gate while the front one which is in occupation of my another tenant who is K.E.S.C. Engineer so it has got common entrance gate which cannot create peaceful atmosphere for me. However the premises in question required by me are having its south and west open with doors and windows allowing the natural pleasant breeze. The premises in question are having also good lawn for my use to maintain my health whereas it is also free from the nuisance of traffic noise as it is away from the public road."

5. ' This statement has not been challenged in cross-examination. In fact the reasons for preference have gone unchallenged.

6. ' The learned Controller while deciding this issue has observed that it is the prerogative of the landlord to choose the house in which he wants to reside and further that the question should have been asked from the respondent that the front portion was not suitable for his residence and that as such question was not asked inference is to be drawn in favour of the respondent. In the facts and circumstances, the first observation made by the learned Controller is not correct. The legal position is that a landlord has a prerogative to choose any one of the house he owns for his bona fide need and occupation provided none of them is in his occupation. But if the landlord is in possession of a premises or obtains possession of any premises during the pendency of his case for ejectment filed on ground of bona fide personal requirement, then he cannot pursue his remedy merely on the ground of exercise of prerogative. He should explain the reasons for acquiring the disputed premises in preference to the house in his possession.

7. Unless the landlord satisfactorily proves these facts, possession of one premises of acquiring possession of any premises during pendency of the case will militate against his bona fides. Mr. Shaikh has referred to Haji Manzoor v. Anwar 1984 CLC 2714 where it was held that as during the pendency of ejectment proceeding the landlord obtained possession of premises identical to the disputed premises and let it out, he has failed to establish his bona fide requirement. In the present case the respondent has established that the premises required by him is more suitable for his occupation than the premises he has let out during the pendency of the case.

8. ' The learned counsel for the appellant then contended that the present action lacks bona fides as the respondent has been litigating since long and after his appeal has been dismissed he has filed this ejectment case on the ground of his bona fide use. The earlier ejectment application was filed by the respondent on the ground of default and merely because he has not succeeded in that action it does not mean that he does not bona fide require the premises. It is a completely independent claim. The appellant can succeed if it is established that the ground of bona fide use and occupation is a colourable device and a house for obtaining ejectment order. In the present case the respondent has fully established that he requires the premises for his bona fide use and occupation. Mr. Sheikh the learned counsel for the appellant has referred to 1984 CLC 1964 in which apart from other considerations the fact that as the landlord instituted proceedings after 15 months of service of notice it was held that the premises was not bona fide required by the landlord. On the basis of this authority the learned counsel argued that the respondent has claimed that he has remained sick from 1972 and therefore, if he required the premises bona fide for his own use he should have filed ejectment application much earlier. From the fact that the application has been filed in the year 1981 the learned counsel wants to infer that the application is not bona fide. The respondent's illness started in 1972-73 and it seems that his health has continued to fail. His wife is also suffering from diabetes. During these eight years both have grown old and feel difficulty in climbing the staircase. The appellant is a heart patient as well. For some years he may not have felt the necessity of shifting to the ground floor but with passage of time with the advancing age and ill-health he decided to shift to the ground floor. In the circumstances there is no unreason- able delay which may defeat his bona fides.

9. ' Mr. Manohar Lal the learned counsel for the respondent has contended that the appeal is barred by time. The order was passed on 9-6-1983. The appellant applied for certified copy on 11-6-1983, cost was estimated and paid on 9-8-1983, the copy was made ready on 11-8-1983, stamp was supplied on 13-9-1983 and on that date the copy was delivered. The appeal was filed on 14-9-1983.

10. Mr. Sheikh has pointed out that the counsel who was appearing before the Controller has filed her affidavit that she was not intimated about the date when copy was made ready and was to be delivered. Mr. Manohar Lal also states that there is no practice to issue notice or affix it on the notice board intimating the date of delivery. He states that the practice is that when cost is deposited the copyist informs the appellant about the date of delivery. The copying agency is a department of the Court and its procedure is governed by the provisions of rule 331 of Sind Civil Court Rules which provides that the party should be intimated of the date of delivery. The practice of informing the party at the time of depositing cost cannot be ascertained. I have examined the application and did not find any noting or endorsement of the copyist showing that any date of delivery or preparation was fixed and intimated to the appellant. The learned counsel for the appellant has referred to 1980 CLC 1972; 1981 CLC 797; PLD 1981 Kar. 52; 1983 CLC 1231 and 1983 CLC 522. In all these cases reliance has been placed on 1973 SCMR 222 and PLD 1960 Lah.

443. The settled law is that the office has to notify the party about the date when copy would be ready. If such notice is not given then time requisite for obtaining the copy shall start when the application for copy was made and end when the copy was delivered. A party cannot be penalised for the negligence or non performance of duty by the Court Officers. As no notice intimating the date when copy Would have been ready was given, the time from 11-6-1983 to 13-9-1983 will be excluded from computing the period of thirty days. The appeal is therefore within time. The appeal is however dismissed. Six months' time is granted to the appellant to hand over vacant possession of the disputed premises to the respondent.