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P L D 1984 Karachi 124
Before Nasir Aslam Zahid, J
Malik NOOR MUHAMMAD-Appellant
versus
Mst. TASNEEM-Respondent
First Rent Appeal No. 1234 of 1982, decided on 24th October, 1983.
(a) Sind Rented Premises Ordinance (XVII of 1979)-
-- S. 21-Ejectment-Premises required by landlord for his son-Rule that both landlord as well as his child for whom premises . required should appear as witness, held, not absolute-Facts and circum stances vary from case to case-In one matter evidence of landlord may be found sufficient to make out a case for ejectment and in another case it may be found that evidence of landlord as well as his child necessary-Similarly, where only child for whom premises required gives evidence, Rent Controller may lawfully come to conclusion that case has been made out for ejectment on ground of personal requirement but in another case it may be found necessary that in absence of landlord's evidence given by his child not sufficient to sustain an order of ejectment.
(b) Sind Rented Premises Ordinance (XVII of 1979)-
-- S: 21-Ejectment-Son of landlay for whom premises required appearing in witness-box and cross-examined by tenant-Failure of landlady to appear in witness-box, held, not fatal to case of landlady.
(c) Sind Rented Premises Ordinance (XVII of 1979)-
-- S. 21-Ejectment-Evidence on record showing that bona fides of landlady genuine for setting up her child in business in shop in ques tion-Ejectment order upheld. c
F. M. Piracha for. Appellant.
Hashmat A. Habib for Respondent.
Date of bearing : 24th October, 1983.
This first rent appeal has been filed by the appellant/tenant challeng ing the impugned order dated 1-12-1982, passed by the learned Rent Con troller allowing Ejectment Application No. 4304/78 filed by the respondent/ landlady for the eviction of the appellant from the shop in question ' on the ground that the shop wag required for setting up her son Sajjad Bashir in business. The ejectment application was filed on 20-9-1978. The appellant filed written statement denying, the allegation that tae shop was required bona fide as alleged by the respondent. On behalf of the landlady, her son Sajjad Bashir, for, whom. the shop was required and one friend Raza Islam gave evidence. The tenant examined him self. as the sole witness on his behalf. By the impugned order, dated 1-12-1982, 'the learned Rent Controller held that the landlady had proved her case that she required the disputed shop in good faith for her son, who would run his own business in the said shop and as a result ordered the eviction of the appellant. I have heard Mr. F. M. Piracha, learned counsel for the appellant and Mr. Hashmat A. Habib, learned counsel fvr the respondent.
2. In support of the present appeal, Mr. Piracha, learned counsel for the appellant, firstly contended that it was mandatcry under the law for the landlord to appear as a witness in a case where the premises are required for the personal requirement of his child. In support of this proposition learned counsel relied upon a judgment of Zakiuddin Pal, J. in the case of Ghulam Mohiuddin v. Suba Khan (P L D 1977 Lab. 1094). In that judgment it was observed that it is always the statement of a landlord as well as of the person for whose benefit the premises are required, which is most relevant to determine the question of personal bona fide requirement. No principle has beer" laid down to that Lahore case that if an ejectment application is made for ejectment of a tenant on the ground that the premises were required by the landlord for his child, the ejectment application cannot be granted unless both the landlord and his child appear and give evidence. In my view, it is not an absolute rule that in such cases both the landlord as well as the child for whom the premises are required should appear as witnesses. Facts and circumstances vary from case to case and in one matter the evidence of the landlord may be found to be sufficient to make out a case for ejectment and in another case it may be found that the evidence of the landlord as well as his child was necessary. Similarly, in the case where only the child, for whom the premises are required, gives evidence, the Rent Controller may lawfully come to the-, conclusion that a case has been made out for ejectment on the ground of personal requirement but in another case it may be found necessary that in the absence of the landlord, the evidence given by his child is not sufiicient to sustain an order of ejectment.
In the instant case the son of the respondent namely Sajjad Bashir, for whom the shop was required, had a peared in the witness-box and he was cross-examined on behalf of the appellant. In the facts of this case, I am of the view that the failure of the landlady to appear in the witness-box was not fatal to the case of the landlady. In the facts of this case, Sajjad Bashir gave evidence and he was available for cross-examination on behalf of the appellant, which opportunity was availed of and no prejudice has been caused to the tenant appellant on account of the failure of the landlady to appear as a witness in the case.
3. It was then contended by the learned counsel for the appellant that the ejectment application was premature, as at the time it was filed Sajjad Bashir was studying. From the evidence of Sajjad Bashir it appears that he had completed his studies and as he had grown up he wanted to set up a business for which the shop in question was required. In cross-examination be has stated that he had done his B.Sc. in 1976, and that he had discon tinued his further education since then. But at the time he was giving evidence he had restarted prosecuting his education and taken admission in M. A. in University of Karachi. In my view, from the evidence on record, it has not been established that the ejectment application was pre mature. The evidence given by Sajjad Bashir that he had done his gradua tion and be was ready to start the business has not been shaken in the cross examination.
4. Learned counsel for the appellant then point out what he termed as contradictions in the evidence of Sajjad Bashir and the other witness Raza Islam. It was argued that on account of these contradictions it was appa rent that the application for ejectment was mala fide in nature. In his evidence Sajjad Bashir stated that after doing B.Sc. in 1976 he remained jobless, although he had done a job for some time. Raza Islam in his affidavit in evidence had stated that Sajjad Bashir and his brother Javed Bashir had worked with him in the business of export for the last five-six years and that he had also trained Sajjad Bashir in the line of export business and that Sajjad Basbir was competent to carry on the business by virtue of experi ence he had gained. In his cross-examination, however, he stated that Sajjad Bashir was not an employee with Raza Islam, although he was dealing in export import business with him for about five years. In my view, there is no major contradiction in the evidence of the two witnesses. 1n his cross-examination, Raza Islam had stated that Sajjad Baahir was not his employee and this can be reconciled with the statement of Sajjad Bashir that he was jobless. In any case, on the basis of the evidence on record, the learned Rent Controller has reached the correct conclusion that the bona fides of the landlady were genuine for setting up her child Sajjad Bashir in business. I find no reason to upset this finding on the basis of the evidence on record.
5. As a result, First Rent Appeal No. 1234 of 1982 is dismissed with no order as to costs. The appellant is, however, granted four months' time L from today to vacate the premises subject, however, to payment/deposit
of rent.
M. Y. a. Appeal dismissed.
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