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First Rent Appeal No. 509 of 1982, decided on 15th September, 1983.

---No. 20, para. 3--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 14--Sind Rented Premises Ordinance (XVII of 1979), S.21--Ejectment application filed before Summary Military Court by husband of landlady and tenant raising no objection to that--Case remanded to Rent Controller where landlady also filing regular proceeding and Rent Controller starting proceeding as one case but holding that application filed by husband of landlady not maintainable--Finding of Rent Controller, held, contrary to facts and law.

--Ss. 15(2)(i) & 6--Martial Law Order (M.L.A Zone 'C') No. 20, para. --Ejectment--Expiry of lease--Agreement of lease between parties expiring before Sind Rented Premises Ordinance, 1979 came into force--Contention that landlord on expiry of tenancy could not evict tenant in view of S.6 read with S. 15(2)(i) of Ordinance of 1979, as no valid agreement existed between parties at time of promulgation of Ordinance of 1979, held, had no force.

Jalmaluddin v. Hamida Begum 1984 C L C 1158rel.

---S. 15 (2)(i)--Ejectment--Personal requirement--Husband of landlady a heart patient and remaining in Cardiovascular Institute and seeking retirement after putting in 32 years of service--Children studying and landlady having no other accommodation--Husband of landlady examined before Rent Controller fully corroborating statement of landlady--Bona fide personal requirement of landlady, held, stood proved--Ejectment of tenant ordered in circumstances.

Najamuddin v. Zamir Ahmad P L D 1982 Kar. 188; Muhammad Din v. Nazir Ahmed 1982 C L C 173 and Khuda Bux v. Habib Shah Hashim 1978 S C M R 89 rel.

Farhat Ali Khan for Appellant.

Munawwar Malik for Respondent.

Date of hearing: 30th August, 1983.

This appeal is directed against the order dated 27-3-1982 passed by the learned Rent Controller XVI, Karachi in R.C. No. 97/82, whereby he dismissed the prayer of Mst. Noor Jehan Kirmani (hereinafter referred to as appellant) for handing over the possession of her premises.

The brief facts leading to this rent case are that house on plot No. G-19/3, Block 9, K.D.A. Scheme Karachi, is property of appellant which was leased out to Main Bashir Hyder (hereinafter referred to as respondent) and such agreement was executed on 30th August, 1976 and in terms of agreement lease commenced from 6th June, 1976 and expired on 5-6-1977. Mr. W.A. Kirmani, husband of appellant moved application before Martial Law Authorities under M.L.O. 20 on 7-9-197, and sent reminder on 11-10-1977. Respondent filed his objections on 18-11-1977. President Summary Military on 19th November, 1977 passed an order that respondent to hand over vacant possession to appellant by 19th May, 1978. Respondent filed Constitution Petition against the order of Summary Military Court, while the Constitution Petition was pending the Military Court (Validation Orders) Ordinance No. 1 of 1980 was promulgated by the Martial Law Administrator Zone 'C' on 19-1-1980, by which all orders passed by Martial Law Courts were treated as orders made by Rent Controller, therefore, all such Constitution Petitions became infructuous, therefore respondent filed appeal (F.R.A. No. 131/80) in High Court against the order of ejectment. Mr. Justice Zaffar Hussain Mirza on 4-6-1981, passed following orders on F.R.A. No. 131/80 (Mirza Bashir Haider v. Mst. Noor Jehan):

"Counsel for the parties agree that the impugned order be set aside and case remanded to the Rent Controller for fresh decision within two months from the date of receipt of the record. This appeal is disposed of in terms of the consent statement of the counsel with a direction that the learned Rent Controller will give opportunity to the parties to produce evidence in respect of their respective cases before deciding the case."

It appears from the impugned order of Rent Controller and there was another Rent Case No. 3939/78 pending between the parties and that case was also remanded for fresh trial. Anyway, the Rent Controller decided the issues and started the proceedings as one case and marked it as R.C.. No. 97/82.

Mst. Noor Jehan now appellant and Mr. Wahajuddin Ahmad Kirmani (A.W. Kirmani) filed affidavits in evidence on 28-11-1981 and were cross-examined on 1-2-1982. On behalf of respondent affidavit in evidence was filed on 18-2-1982 and after his cross-examination his evidence was complete on 21-2-1982.

According to the case of appellant /landlady, the period of tenancy expired on 5th June, 1977 and she required house for personal use as her husband is due to retire and he will not be entitled to get official residence. The contentions of the respondent, are that application for ejectment is not maintainable, a copy of application was not supplied to him, the requirements for personal use are not bona fide, he is not defaulter and demand for enhanced rent is illegal.

I have heard Mr. Farhat Ali Khan, the learned counsel for appellant and Mr. Munawwar Malik for respondent.

Mr. Farhat Ali Khan the learned counsel for the appellant has raised the following grounds in support of his appeal:---

(1) That Rent Controller has erred in deciding that application of Mr. W.A. Kirmani, husband of appellant /landlady is not maintain able.

(2) That after remand of the case a fresh application was also filed by appellant herself.

(3) That on expiry of tenancy in terms of agreement the appellant is entitled to get vacant possession for personal use.

(4) Premises are required for personal use.

Mr. Munawar Malik, the learned counsel for respondent contended that rent application is not maintainable, respondent was not supplied copies of application and appellant has failed to prove bona fide requirement. He has prayed that this rent case be remanded.

Now I will take up the first ground. It is admitted that Mr. Kirmani sent two letters to Martial Law Authorities on 7-9-1977 and 11-10-1977 wherein he stated that agreement of tenancy has expired and he wants to shift in his own house. The Summary Military Court passed an order of eviction on 19-11-1977. This application was entertained under M.L.O. 20. No procedure about enquiries was laid down in that Martial Law Order Under section 3, of M.L.O. the husband of petitioner as a "person concerned" was competent to file an application. M.L.O. 20 section 3 reads as under:----

"M.L.O. 20, section 3.-- A petition in respect of the above cases shall be submitted by the person concerned to the Martial Law Administrator."

Moreover, respondent in his reply/objection submitted before Summary Military Court had not raised this plea that husband of appellant was not competent to file petition. Appellant on 16-9-1981 also filed regular rent application before the proceeding started. A copy of which was supplied to respondent on 19-9-1981. The application was fixed on 3-10-1981 but in spite of that no counter-affidavits or objections were filed on that application till proceedings terminated before Rent Controller. Moreover the learned Rent Controller, has also not rejected that application. Further, respondent in his affidavit filed on 18-2-1982 which has been treated as evidence has said that "Appellant filed ejectment application on the same ground before the Summary Military Court," and recognised Mst. Noor Jehan the present appellant as applicant in Military Court. Therefore, I hold that rent application of appellant is maintainable. The contentions of respondent and findings of learned Rent Controller that appeal is not maintainable are contrary to facts and law.

The second point that appellant on expiry of tenancy cannot evict the respondent in view of section 6 read with section 15(2)(i) of Sind Rented Premises Ordinance, 1979. It is relevant to say that M.L.0, 20 was issued on 16th August, 1977 and Sind Rented Premises Ordinance was enforced from 14-11-1979. The agreement between the parties expired on 5-6-1977. Therefore, there was no valid agreement in existence between the parties at the time of promulgation of Sind Rented Premises Ordinance, 1979 and there was no such clause like section 6 in M.L.O. 20. Therefore, in my view the contention of learned Rent Controller is not correct. However, Mr. Justice Ajmal Mian, in a first Appeal No. 862/82, dated 12-12-1982 Jamaluddin. v. Hamida Begum 1984 C L C 1158 held that under section 15 of the Sind Rented Premises Ordinance, 1979, a landlord is entitled to seek ejectment of a tenant who fails to hand over the tenement after the expiry of the tenancy period.

As regards the ground of personal requirement appellant in her affidavit in evidence stated that her husband has completed 32 years of service, is heart-patient and remained in cardiovascular Institute, now wants retirement but they have no other accommodation. She has further stated that they have four children who are studying. Mr. W.A. Kirmani, was examined before Rent Controller, where he fully corroborated the statement of appellant.

Respondent in his evidence has stated that application is not maintainable and requirements are not bona fide as appellant wants enahancement of rent. He has not examined any witnesses in his support. Before this Court, appellant with C.M.A. 2002/82, filed an affidavit of her husband Mr. A.W. Kirmani wherein she stated that he is due to retire in December, 1983 on attaining age of 60 years. He has produced service record where his birth date is shown as 25-12-1923. Another application C.M.A. No. 261/83 was filed alongwith notification of transfer of her husband from Karachi to Islamabad. That application was allowed in view of reasons mentioned in paras. 6 and 7 of the affidavit which say that appellant's husband has been transferred to Islamabad and Government house in which the family was living has been allotted to another Provincial Secretary. Although this application C . M . A . No. 261 of 1983 was for early hearing of appeal but no counter-affidavit or objection was filed by respondent. Therefore, appellant has proved the case of requiring the house for her bona fide personal use. On this point I refer to Najmuddin v. Zamir Ahmad P L D 1982 Kar. 188. In this case Mr. Justice Naimuddin has held that:----

"A landlord's desire to live in his or her own house is natural moreso when he or she, as in this case, will monetarily be benefited therefrom."

In another case 1982 C L C 173 Muhammad Din v. Nazir Ahmed it has been held that if husband has stated that house is needed for his use, it only means for the use of his entire family including his wife.

In case of Khuda Bux v. Habib Shah Hashim 1978 S C M R 89 wherein Supreme Court was pleased to observe:

"As the respondent had proved that the two houses were required for his own occupation and that of his children, it is immaterial as to which member of the respondent's family will shift to the house in dispute."

Accordingly for the reasons stated above, I allow the appeal and set aside the impugned order of learned Rent Controller XVI, dated 27th March, 1982. I order respondent, to hand over vacant possession of House No. G-19/3, Block 9, Kahkeshan, Clifton Karachi to appellant. The litigation is pending since ' 1977. However, I grant four months time to respondent from today for vacating the premises in question. Furthermore, in case the respondent fails to hand over the vacant possession to appellant on the expiry of above-said period, the learned Rent Controller shall issue a writ of ejectment without further notice to respondent.

First Rent Appeal is allowed.

M.Y.H. Appeal allowed.

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