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Civil Petition for Special Leave to Appeal No. K‑277 of 1979 decided on 15th January 1980.

(On appeal from the judgment and order of the High Court of Sind, Karachi, dated 17‑9‑1979 in 11 Appeal No. 141 of 1973).

Constitution of Pakistan (1973)‑

‑‑ Art. 185 (3) read with West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑High Court and first appellate Court, upon appraisal of statement (of landlord) and attending circum stances, concurrently holding that landlord's requirement was genuine‑No reason shown to disturb such, finding:

Mohsin Tayebaly, Advocate and M. Shabbir Ghaury, Advocate‑on- Record for Petitioner.

Nemo for Respondent.

Date of hearing :15th January, 1980.

J,‑The petitioner seeks special leave to appeal against the order of the High Court of Sind, Karachi, dated 17th of September, 1979, by which Second Appeal No. 141 of 1973 was dismissed.

Upon transfer of the property bearing No. 1‑A‑763, O, T. 8/‑54‑55, G2, G3 and G4 by the settlement authorities to the respondent, he served notice on the petitioner under section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, for the payment of rent to him which was settled at Rs. 100 p. m. In March, 1968, he filed an ejectment application on the ground that as he had been retired compulsorily from service and his income from service in Liaquat Medical Hospital was not sufficient to meet his "growing liabilities", he wanted to start his own business and for this purpose he required the possession of the shops. By order dated 24th of March, 1972, the Rent Controller dismissed the application principally on the ground that the evidence of the petitioner had gone unchallenged as he was not cross‑examined by the respondent who was absent on that date. In first appeal this conclusion was reversed as the appellate Court felt that there was no reason to disbelieve the respondent on the question of his need as he was without a job and to earn his livelihood, he wanted to install a printing press in the disputed shops with the assistance of his brother who had a printing press. It further held that it was not necessary to examine his brother to corrobo rate his assertion.

In second appeal this conclusion was upheld as the High Court was of the opinion that "no hard and fast rule can be laid down as to the quantum of evidence required to prove a fact issue" and "each case would depend upon its own circumstances in this regard and it is for the Court to judge whether the evidence produced sufficiently establishes the fact alleged by applying the well‑recognized rule of preponderance of evidence. Applying this rule to the evidence in the case the High Court held :‑

It is well recognized that to occupy his own premises is the prerogative of the landlord. Since it is not disputed that the respondent is not engaged in any gainful pursuit for living, there is no reason to disbelieve his present intention to occupy the premises for setting up a business."

In the result it dismissed the appeal holding that the respondent had discharged the onus in establishing his bona fide need for setting up a business.

In seeking leave to appeal the learned counsel relied on Barkat Ali v. Sughra and others (P L D 1980 Kar. 223 ) to contend that the burden is not discharged by the bare and bald statement" of, the landlord that he was unemployed and had wanted to start a business to earn his livelihood. Having examined the decision, we are of the view that the observation is too widely stated, which cannot be pressed into service in each and every case ; and for that matter we would approve the view of Mahmud, J. in Hassan Khan v. Munawar Begum (P L D 1976 Kar. 832), which was followed by the High Court. Accordingly, as the High Court and the first appellate Court had concurrently held upon the appraisal of the statement and the attending circumstances that hits requirement was genuine, we see no reason to disturb this finding.

The petition is without substance and is hereby dismissed.

Petition dismissed.

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