MUHAMMAD ABDUL LATEEF vs Shaikh EJAZ AHMAD

S.A. NUSRAT, J.--This appeal by special leave of this Court has been brought from the judgment of the Sind High Court, dated 27-11-1983 consequent upon of the acceptance of the First Rent Appeal of the respondent/ tenant.

2. The dispute in this appeal' relates to a portion of the ground floor in a Building No. 12/14, Firdous Co-operative Housing Society, Nazimabad, Karachi. The said premises was let out to the respondent under an agreement, dated 25-10-1971 at monthly rent of Rs.400. The appellant filed application under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 for ejectment of the respondent from the disputed premises in July, 1977 on the grounds of default, damage to the premises, subletting, violation of the terms and conditions of tenancy and personal bona fide requirement. The respondent denied the allegations and contested the application.

However, at the trial only two issues with regard to default and personal requirement were framed by the Rent Controller and the application was allowed on the ground of personal requirement only. The said order of the Rent Controller was challenged in First Rent Appeal which was accepted as per impugned judgment and the order of the Rent Controller was set aside.

3. Leave to appeal in this case was granted to examine the question whether on the facts and circumstances of the case the High Court was1 justified in holding that the requirement of the appellant was not bona .Fide and in good faith.

4. The plea of the appellant on the question of bona fide requirement of the premises was that he required the same for himself and his family members. The appellant examined himself in support of his case and stated in cross-examination that his two relatives were already residing in the building on the first floor to whom he had recently rented out the two flats. The learned High Court having taken notice of this fact came to hold that in view of such admission on the part of the appellant no case of bona fide personal requirement was made out. In the opinion of the learned Judge it was the bounden duty of the landlord to have explained in his evidence why the two flats which fell in his hands during the proceedings were not- suitable for his requirement, and thus the requirement of clause (c) of section 13(3)(i) was not fulfilled.

5. At the hearing of the appeal both the learned counsel agreed that the rent application, which was filed under 1959 Ordinance, was to be decided in accordance with the provisions of the said Ordinance alone. It was, however, contended by the learned counsel for the appellant that it was no where alleged by the respondent in his written statement that the appellant had vacated any accommodation during the pendency of the proceedings which was sufficient for his need. On the contrary his plea was that the bungalow, where the appellant was residing at the time of filing of the case, was owned by him. This plea was found to be incorrect and it was held by the learned Rent Controller that the bungalow in question factually belonged to the father of the appellant. It was complained by the learned counsel that it was neither proved that the two flats were available, vacant and/or in occupation of the appellant at the time of the filing of the application or any question with regard to such letting out was at all put to the appellant during his cross- examination.

6. The above contentions of the learned counsel appear to be correct. The appellant was indeed pot afforded any opportunity to rebut the allegation of letting out the two flats and to show that he had not vacated any rented premises without sufficient cause within the meaning of clause (c) of section 13(3)(a)(i) of the 1979 Ordinance.

7.In the circumstances the impugned judgment of the learned High Court is set aside and the case is remanded to the leaned Rent Controller with the direction shat the same may be decided, after giving necessary opportunity to the parties according to the provisions of section 13(3) (a)(i) of the West Pakistan Urban Rent restriction Ordinance 1959.

The rent case will be disposed of at an early date. The appeal is thus, allowed with no order as to costs.