Find a Lawyer

First Rent Appeal No. 266 of 1980, decided on 18th May, 1981.

‑‑ S. 13 (aXi)‑Eviction of tenant sought on ground of landlord having been ailing since last 1i years hospitalized several times on account of heart attack and advised to take up residence on ground floor and totally avoid going up or climbing down stairs‑Fact of landlord being a heart patient proved by his evidence, discharge slip, Doctor's certificate and prescription slip and such facts not disproved‑Suggestion made in cross‑examination of landlord as to his having let out one portion on ground floor to another tenant some years earlier neither pleaded in written statement nor raised by tenant in his deposition Name of such lessee also not disclosed‑Landlord, held, not proved to have been occupying any other premises suitable for his needs at time of making application and his desire to obtain premises in dispute genuine‑Appeal against order of eviction dismissed in

circumstances.

Farooq H. Naek for Appellant.

S. Sami Ahmed for Respondent.

Dates of hearing: 17th and 18th May, 1981.

This first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) is directed against the order dated 28‑2‑1980 passed by IInd Rent Controller, Karachi in Rent Case No. 399 of 1976, whereby he has allowed the application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called (the 1959‑Ordinance) filed by the respondent on the ground of requirement of the premises for his own personal bona fide use and non‑payment of the rent of the premises.

2. It is stated by the respondent in the application that be has been ailing since last 1 years prior to the making of the application and he was hospitalized several times on account of heart attack and that the doctor has advised him to take up residence on the ground floor and totally avoid going up stairs and coming down stairs. He therefore, sought the eviction of the appellant from the premises for his own personal bona fide use for the reason of sickness.

3. In defence it was stated that the appellant had not committed any default in payment of rent and that the respondent was in sound health and was capable of climbing the stairs. It was further pleaded that the applica tion was filed with ulterior motives.

4. On the pleadings of the parties the Controller framed the following issues :---

"(1) Whether the opponent has committed default in payment of rent

(2) Whether the applicant requires the premises in Case for his own use bona fide and in good faith

(3) What should the decree be

5. In support of his claim the respondent examined himself and produced discharge certificate from the hospital (Exh. A/3) and a certificate from Dr. Khurshid, Senior Registrar, Cardiology Unit, Civil Hospital, Karachi (Exh. A/4) which reads as follows :‑--

"This is to certify that Mr. Syed Zafar Ahmed son of late S. Basheer Ahmed is suffering from Ischalmic heart dihat. He is not lalowed to climb the stairs, to avoid the cardiac complications. It is must to stay at ground floor to safe living."

He also produced a treatment slip (Exh. A/5). He also deposed that he has been advised not to climb up stairs.

6. After recording evidence of the respondent and the appellant the Controller decided the issue of default in favour of the appellant, but decided issue of personal requirement in favour of the respondent by the order now impugned in this appeal.

7. I have heard Mr. Farooq H. Naek Advocate for the appellant and Mr. Syed Sami Ahmed, Advocate for the respondent and have also gone through the evidence. Photostat copies of the certified copies of the, deposi tions recorded by the Controller in the case have been placed on record of this appeal by the learned counsel for the appellant. The finding on the issue of the default has not been challenged before me. The fact that the respondent is a heart patient is proved by his evidence, discharge slip (Exh. A/3), doctor's certificate (Exh. A/4) and the prescription slip (Exh. A/5). Nothing substantial has been brought out in cross‑examination of the respondent. It was however, suggested to him that he had let out a portion of the ground floor to another tenant in the year 1977 but he could not say if he had rented out the premises in that year. He further stated in cross‑examination that since 26‑6‑1975 he was not climbing upstairs but was being taken up in a Chair by his son‑in‑law.

8. The appellant in his deposition stated that the health of the respon dent was good and that he had seen the respondent climbing upstairs. He however, in his deposition has not stated about the letting out of a portion of the ground floor premises to another tenant in the year 1977.

9. It is submitted by the learned counsel for the appellant that the respondent is not so sick that he could not reside in premises on the upper door. Mr. Farooq H. Naek further submitted that although the respondent has produced evidence that he was sick in the year 1975 but he did not produce any evidence regarding the sickness in September 1976 when he mad application for eviction and according to the provisions of section 13 sub section (3)(a)(i) of the Ordinance a landlord could require the premises only if he was not occupping any other premises suitable for his need at that time. The learned counsel emphasised the expression 'at the time' and argued that the expression "at the time" means the time of making application. The learned counsel however ignored the fact that the respondent in hi deposition has clearly stated that he was taking medicine and further proved it by Exh. A/5. It is not disputed that the respondent is 65 years old and ha suffered heart attack which is otherwise proved by Exhs. A/3 A/4, and A/5. Therefore, this argument has no substance. Further, on examination of the evidence I am satisfied that the need of the respondent for the premises in occupation of the appellant is genuine.

9‑A. As regards the suggestion made in cross‑examination that the respon‑1 dent had let out a portion of the ground floor premises to another tenant in the year 1977, neither there is any plea to that effect in the written statement nor has the appellant said a word about it in his deposition. If there was any truth in the plea the appellant could have easily summoned the person to whom a portion of the ground was allegedly let out (as he must be his neighbour to support the plea. But mere inability on the part of the respon dent to deny suggestion that he had let out a portion of the ground floor to another tenant in the year 1977, in my opinion, is not sufficient to establish such a plea when looked in the condition of heath in which the respondent was. If the allegation was true then the appellant would have known the a name of the person to whom it was let out and would have put it to the respondent. But no name was put to the respondent.

10. I therefore, find no substance in this appeal and dismiss it, leaving the parties to bear their own costs.

11. Mr. Farooq H. Naek Advocate requests that the appellant may be allowed four months more time to vacate the premises. Since the premises is requir6d by the respondent for his own use and occupation and he is a heart patient and since the Controller has already allowed 119 days I allow the appellant three months more time provided the appellant continues to deposit the rent in accordance with the order of the Controller.

S. A. H. Appeal dismissed.