Mst. NIGHAT BASHIR vs SHOUKAT FAIZI through his Legal Heirs

' SAAD SAOOD JAN, J.---This is an appeal by special leave from the judgment dated 31-3-1992 of the High Court of Sindh, whereby the order of eviction made against Mr. Shoukat Faizi, predecessor- in-interest of the respondents, by the Rent Controller (West), Karachi was set aside and the application for eviction filed by the appellant was dismissed.

2. The appellant is the owner of a house situate in K.D.A. Scheme No,16, Federal 'B' Area, Karachi, by virtue of a gift made in her favor by her mother on 16-3-1986. It was under the occupation of the respondent as a tenant under her. In October, 1986 she filed an application under section 15, Sindh Rented Premises Ordinance, 1979, against the respondent seeking the latter's eviction on the ground that she needed the house for her personal use. The application was resisted by the respondent. After considering the evidence led by the parties, the learned Rent Controller upheld the plea of personal need set up by the appellant and directed the respondent to vacate the house within 90 days and deliver the possession thereof to the appellant. From the judgment of the learned Rent Controller the respondent filed an appeal before the High Court. A learned Single Judge reappraised the evidence and came to the conclusion that the appellant could not be said to have come to the Court 'bona fidely' ; accordingly, he accepted the appeal, set aside the order of eviction and dismissed the application for eviction filed by the appellant. From the judgment of the learned Single Judge the appellant has come in appeal to this Court.

3. Admittedly, the appellant is a married woman and has two children. She is at present living with her parents in a house which formerly belonged to her mother and is, now, stated to be the property of her brother. Her husband was employed in Saudi Arabia. She says that he has now returned to Pakistan on the expiry of his contract of employment and has taken a job with NESPAK in Karachi. It has never been the case of the respondent that apart from the house in dispute the appellant owns another house in Karachi.

4. In coming to the conclusion that the appellant had not been able to establish her plea of personal requirement the learned Single Judge took notice of an earlier application for eviction brought by her mother against the respondent in 1982. It is not disputed that in that application to the appellant's mother had taken the plea that she needed the house for the personal use, inter alia, of the appellant. The appellant appeared as a witness in that case. The application was dismissed with the finding, amongst others, that the said plea had not been established. In coining to that conclusion the Rent Controller took notice of an understanding between the appellant and her husband that they would both live in the house of her parents. The learned Single Judge in this case was of the view that since the dismissal of the earlier application there had been no significant change in the circumstances of the appellant so as to permit her to successfully canvass the plea of personal need.

5. It is difficult to support the order of the learned Single Judge for he has not taken notice of certain material facts appearing in the evidence. The house where the appellant is at present residing has been, as noticed above, gifted by her father to her brother. Consequently, it cannot be said that the appellant is now living with her children in her parent's house. At the time when the previous application was brought by her mother the appellant's husband was out of the country. He has now come back on the conclusion of his contract of employment abroad. The assertion of the appellant that she and her husband want now to live in their own house in preference to that of her brother's cannot be summarily rejected. In the circumstances, the view taken by the High Court that since the dismissal of the application preferred by the appellant's mother there has been no change of circumstances or that the plea now being set up by the appellant was not bona fide is insupportable. As already noticed, it has never been the case of the respondent that the appellant owned another house which was more suitable for her needs. Accordingly, we would hold that the High Court erred in setting aside the finding of the learned Rent Controller on the question of personal need. We would, therefore, accept this appeal, set aside the order of the learned Single Judge and restore that of the learned Rent Controller with the modification that the legal representatives of the respondent are allowed one year's time to vacate the premises on the condition of paying the rent regularly. On the expiry of this period the legal representative shall voluntarily hand over vacant possession of the house to the appellant. We may add that we have fixed the period within which the legal representatives will vacate the house with the concurrence of the learned counsel for the appellant. There will be no order as to costs in this appeal.