MA.H. SIDDIQUI vs Sh. FAZLUR REHMAN and others
This appeal, granted leave by the Supreme Court, challenged a Sindh High Court judgment that dismissed a First Rent Appeal, confirming an ejectment order based on personal requirement while setting aside a finding of default. The respondents had sought ejectment for a portion of a tenement, claiming bona fide requirement for their business. The appellant contended that the respondents had sufficient accommodation, including premises recently acquired from another tenant (EBCO), and were demolishing parts of the property for new construction. The Supreme Court observed that the respondents failed to effectively cross-examine the appellant regarding the sufficiency of their existing and newly acquired accommodation (approximately 700 sq. yds. from EBCO) for their personal requirements. Finding conflicting statements and a lack of substantive proof to conclusively establish bona fide personal requirement, the Court set aside the judgments of both the High Court and the Controller. The case was remanded to the Controller for a fresh hearing on the issue of personal requirement, with directions to record further evidence if produced by the parties and then decide the case according to law.
- Can a case be remanded to the Controller for further evidence when there is insufficient proof of bona fide personal requirement?
- Does the acquisition of additional premises by a landlord impact the assessment of their bona fide personal requirement for ejectment?
- What is the effect of conflicting statements and lack of substantive proof on a finding of bona fide personal requirement in an ejectment case?
' SALEEM AKHTAR, J.---This appeal, with the leave of the Court, challenges the judgment passed by the learned Judge in Chamber of the High Court of Sindh whereby the F.RA. Filed by the appellant was dismissed and the order of the Controller granting ejectment on ground of personal requirement was confirmed while the finding of the Controller on the ground of default was set aside.
2. The respondents had filed a case for ejectment in respect of a portion of tenement No,G-1 on Plot No,R-2/33, situated at Sir Agha Khan Soyem Road, Karachi on ground of default and bona fide requirement in good faith for their own business which is being run under the name and style of Snowhite in a portion of the building. The appellant contested the said case and filed written statement denying that any default has been committed or that the premises is bona fide required in good faith. It was pleaded that the respondents have more than sufficient accommodation for its occupation. Besides they have also obtained possession from EBCO and as such they are not entitled to continue' the present ejectment proceeding. It was further pleaded that the respondents have demolished the portion of the property and started making construction thereon. In such circumstances, according to the appellant, the ejectment, application was filed to harass him. The same facts were reiterated in the affidavit-in-evidence and there does not seem to be any effective cross-examination in this regard. Respondent No,1 in his cross-examination admitted that the appellant has vacated the shop and the same was in his possession but he stated that it was insufficient. He denied that the area in respondents' possession was sufficient or that the area vacated by EBCO was 700 sq. Yds. It was also stated that respondents have agreed to hand over the premises after re-construction to EBCO but they were unable to produce any agreement. The appellant in affidavit-in-evidence stated as follows:-- "The applicants have more than sufficient accommodation in their occupation. Besides they have recently obtained possession of the premises from EBCO and as such they are not entitled to continue the present ejectment proceedings. I may further submit that the applicants have demolished the front portion of the property and are intending to raise construction of a new building. The present application has been filed by the applicants in order to harass the opponents and bring undue pressures upon them so that they may accede to the illegal and mala fide demand of the applicants. I say the applicants are in occupation of the entire premises G/1 alongwith the open space measuring 709 sq. Yards except the small area measuring about 50 sq.
Yds. Occupied by the opponents."
' As observed earlier the respondents did not effectively cross-examine the appellant on this aspect of the statement. The position emerging from the statements of the parties referred above seems to be that the respondents have a space in which they are running their business. They have additionally acquired about 700 sq. Yds. From EBCO but they have not been able to prove that how this additional space is insufficient for their personal requirements.
3. Mr. Khalilur Rehman, the learned counsel for the respondents, contended that the respondents are reconstructing for their own personal requirement and there is sufficient material to establish that the respondents require more space. In view of the conflicting statement made by the parties and the lack of substantive proof which may lead to a conclusive finding on the question of personal bona fide requirement of the respondents we are of the view that the case may be remanded to the Controller. We, therefore, set aside the judgment of the learned Judge in Chamber and the Controller and remand the case to the Controller for hearing the same on issue relating to personal requirement and record evidence if produced by the parties. The Controller shall then decide the case according to law. The appeal is allowed and the case is remanded to the learned Controller.