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First Rent Appeal No. 1032 of 1982, decided on 22nd March,1984.

‑‑‑Ss.15 & 21‑‑Ejectment application‑‑Landlord, held not obliged to unfold details of his. case in ejectment application‑‑Landlord if came out with necessary details supporting his case in course of evidence, its omission from ejectment application could not be taken to have adversely affected his case and all missing links necessary for proof of his case could be supplied in course of evidence.

Malik Nisar Muhammad and another v. Abdul Rauf 1972 S C M R 561; Subah Sadiq etc. v. Mistry Taj Din etc. 1979 S C M R 297 and Zahoor Din v. Mirza Ayub Baig 1981 S C M R 1081 rel..

‑‑‑Ss.15 & 21‑‑Ejectment‑‑Personal bona fide requirement Landlady examining her two sons and omitting to examine herself and one of her ;one for whom premises required‑‑Two of her sons examined being part and parcel of her family, held, could be believed to have first‑hand knowledge about needs of landlady and her family and non‑examination of landlady and her son would be of no consequence.

‑‑‑Ss.15 & 21‑‑Ejectment‑‑Personal requirement‑‑Landlady seeking possession f tenanted premises for establishing her two sons one unemployed and other getting periodical illness‑‑Sickness not of incapacitating nature, held, would not disqualify her son from doing business in disputed premises and similarly temporary acceptance of job by unemployed son of landlady would not come in his way or adversely affect issue of bona fide personal requirement.

Fazal Azim and another v. Tariq Mahmood and another P L 0 1982 S C 218 rel.

‑‑‑Ss.15 & Z1‑‑Ejectment‑‑Personal requirement‑‑Landlady succeeding to prove that she required shop for establishing her sons in business‑‑Order of Rent Controller dismissing ejectment application, held, erroneous.

Husain Adil Khatri for Appellant.

Ikram Ahmed Ansari for Respondent.

Date of hearing: 19th March,1984.

This appeal has arisen from the Rent Case No. 390 of 1979 filed by appellant Mst. Maryam seeking ejectment of respondent Haji Ahmed from the premises constructed on Plot No.59, N.P‑14, Old Market, Karachi.

The facts relevant for disposal of the appeal are that the respondent is occupying the disputed premises which is a trunk shop, as a tenant of the appellant on monthly rent of Rs.350. Or 15th January, 1978 the appellant filed an ejectment application for eviction of the respondent from the said shop on the ground of personal requirement. The application was resisted by the respondent who denied the allegation that the appellant needed the premises for her own use and requirement. After considering the evidence led by the parties in support of their respective case, the learned Rent Controller by order, dated 26th September,1982 dismissed the ejectment application, holding that the appellant has failed to prove that the premises in dispute are required by her for her own use and for the use of her sons. Aggrieved by this Order appellant has come in this appeal.

The learned counsel for the parties were heard at some length and with their assistance I also went through the. written material available on the record. The appeal was allowed by short order dated 19th March, 1984, for reasons to be recorded separately. In the said order it was further directed that respondent would hand over vacant possession of the disputed premises to the appellant within three months subject to regular payment of monthly rent by him during the intervening period and in the event of default made by him in this behalf he would be liable to eviction without further notice. Following are the reasons in support of the short order referred to above.

Perusal of the impugned order shows that the reasoning that prevailed with the learned Rent Controller for dismissing the ejectment application is: firstly, that the ejectment application does not disclose the names of the appellant's sons for whom the demised premises are required or the nature of business to be started in the said premises: secondly, that in the said application the case of the appellant has not been stated in specific terms but it has been mentioned only generally: thirdly, that the appellant has neither examined herself nor her son Iqbal Ahmed for whom the premises are needed: fourthly, that both the appellant and her son Iqbal Ahmed are shown to be sick and hence incapable of doing any business; fifthly, that the appellant's son Altaf Ahmed is admittedly employed in K.D.A.' and hence the premises cannot be said to be required for his use in absence of evidence that he would resign from service, and lastly, that the appellant had refused to accept the rent, seeking to create ground of default for the purpose of ousting the respondent from the disputed premises.

The learned counsel for the appellant has attacked the above reasoning of the learned Rent Controller in seriatim and has cited case law in support of his arguments almost on each point. As regards the first point it was submitted by the learned counsel that the principles of Civil Procedure Code governing the pleadings are not applicable in rent cases. According to him since the names of the appellant's sons for whom the disputed premises are required and the nature of business to be started in the said premises are disclosed in the evidence adduced in support of the appellant's case the omission to mention the same in the ejectment application would not adversely affect the case of the appellant. In this connection he placed reliance on:

1. Malik Nisar Muhammad and another v. Abdul Rauf 1972 S C M R 561.

2. Subah Sadia etc v. Mistry Taj Din etc. 1979 S C M R 297.

3. Zahoor Din v. Mirza Ayub Baiq 1981 S C M R 1081.

In the case of Malik Nisar Muhammad, it was observed by the Supreme Court.

"In the application for ejectment the respondent was not required to spell out all the evidence or factors in support of his personal requirement and these things had to be stated only during the course of evidence."

In the case of Subah Sadiq, the eviction application was based on the ground of the respondent's personal requirement of the shop but when he was examined in the Court 7/8 years later the tenant's ejectment was sought for running business by his son. It was held that the discrepancy between the respondent's pleadings and evidence was entitled to evict the tenant even for use of any of his male children. In the case of Zahoor Din it was held:

"It is true. that in the ejectment application the landlord had not mentioned that he needed the disputed portion of the house for the residence of his son, who war to be married soon, but this omission by itself would not tie fatal to his case."

In view of the above authorities it is not obligatory for the applicant/landlord to unfold the details of his case in the ejectment application. If he has come out with the necessary material supporting' his case in course of the evidence, its omission from the ejectment application would not be taken to have adversely affected his case. Therefore it would make no difference if the names of the appellant's sons and the nature of business they want to establish in the disputed shop do not find mention in the ejectment application. It would appear all such missing links necessary for proof of the appellant's case have been supplied in course of the evidence.

The above discussion would also dispose the objection taken by the learned Rent Controller that the appellant has not stated her case in specific terms in the ejectment application. All that the appellant is required to do is to give line of his or her case in the ejectment application leaving supporting details to be brought out in evidence. This is more so because the principles governing the pleadings covered by the Civil Procedure Code are not applicable in rent cases.

The next argument that influenced the learned Controller was that the appellant has neither examined herself nor her son Iqbal for whom the premises in dispute are needed. In reply to this objection reference may be made to the above reported case of Zahoordin wherein the Supreme Court was pleased to observe:‑

"As to the objection raised on behalf of the respondent that the son for whose marriage the extra accommodation was needed, was not examined as a witness, suffice it to say that there is no such requirement in law, and the effect of the omission will have to be determined in the facts and circumstances of each case. The burden on the landlord is to prove his bona fide requirement and this burden he can discharge by leading evidence, which need not necessarily include the son concerned as a witness."

In another case of Muhammad Ali v. Mst. Hameeda Begum, the landlady being old and Pardanashin lady did not offer herself in evidence. It was held that no prejudice was caused to her case if she did not enter the witness‑box.

In the instant case the appellant has examined her two sons namely Aftab Ahmed as to the bona fides of her need. They being the part and parcel of the appellant s family can be safely believed to have first hand knowledge about the needs of the appellant and her family. It is amply proved from their evidence that the premises are required by the appellant to establish two of her sons namely Altaf Ahmed and Iqbal Ahmed. In presence of their evidence, it is hardly necessary to examine any other member of the same family. As such non‑examination of the appellant or her son Iqbal Ahmed would be of no consequence.

The other argument that both the appellant and her son Iqbal who are shown to be leading a sick life are incapable of doing any business is also without force. No doubt it is admitted by Aftab Ahmed son of the appellant that the latter is mostly sick and is suffering from blood pressure. Although her sickness by itself is not reason to make her incapable of doing business, it appears to me that the appellant is seeking possession of the disputed premises for establishing her sons in business. It is an admitted position that her son Iqbal Ahmed is jobless. Her another son Altaf Ahmed who was also unemployed at the time of filing of the eject1hent application was appointed in the K.D.A. on temporary basis. According to the statement made by the learned counsel for the appellant in Court, Altaf Ahmed has resigned from the said job and is once again without any employment. As regards the sickness of Iqbal Ahmed, his brothers Altaf Ahmed and Aftab Ahmed have vehemently denied the allegation. Even according to the respondent's own admission he gets ill periodically. Surely his periodical ailment would not have the affect of disqualifying him from doing any business. It is a fact of life that even ailing persons are found engaged in jobs which are very taxing. Thus by reasons of sickness, of course not of incapacitating nature, Iqbal Ahmed cannot be held as incapable of doing any business.

Similarly it cannot be held that the premises are not needed for another brother Altaf Ahmed because he is employed in the K.D.A. As stated above he is reported to have already resigned from the said service. Assuming that he is still in the service, it cannot be held in absence of reliable evidence that he has no intention of leaving the said job and availing the disputed premises when it is vacated. It has come on record that he has accepted the K.D.A's service only on temporary basis. May be he could not afford to remain unemployed and keep waiting until vacation of the disputed premises. His temporary acceptance of the job should not come in his way.

In this connection reliance has been placed on Fazal Azim and another v. Tariq Mahmood and another, P L D 1982 S C 218 wherein it was held:

"It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time during the pendency of eviction proceedings. If during such a period he employs himself in a gainful occupation, that as a general proposition, would not negate the assertion of bona fide on his part."

Viewing the instant case in the light of the above authority, the temporary appointment of Altaf Ahmed in the service K.D.A. cannot be allowed to reflect adversely on the bona fide of the appellant's personal requirement.

The last ground related upon by the learned Rent Controller in support of the impugned judgment is that the appellant had refused to accept rent in order to create the reason of default for ousting the respondent from the demised premises is obviously irrelevant. It would be noted. that right from the commencement of the litigation between the parties the appellant based her application on the ground of personal requirement even though nothing prevented her from managing the ground of default and base her case also on that ground.

The upshot of the above discussion is that the appellant has established her case of bona fide personal requirement inasmuch as that she needs the demised premises to establish her two sons namely Altaf Ahmed and Iqbal Ahmed in business as the latter is jobless and the former who was employed in temporary service has resigned from that service. For the foregoing reasons the conclusions reached by the learned Controller are erroneous. Accordingly as mentioned above the appeal was allowed.

M.Y.H. Appeal allowed.

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