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Civil Petition for Leave to Appeal No. 93‑K of 1985, decided on 27th May, 1985.

(On appeal from the judgment of the High Court of Sind, dated 20‑1‑1985, in F.R.A. 786 of 1983).

Constitution of Pakistan (1973)‑‑

‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss.14, a 21‑‑Ejectment‑‑Personal need of landlady aged 60 years‑‑Landlady living with her husband in a better house‑‑Ejectment sought for personal need of landlady‑‑Inference by Rent Controller that her plea of personal requirement was mala fide, held, palpably erroneous and unsustainable‑ Wife could independently hqf3property and there was no embargo against her assertion of right to live in her own house‑‑Ejectment order upheld.

Q.M. Rasheedi, Advocate Supreme Court and M.A.I. Qarni, Advocate‑on‑Record for Petitioner.

Akhtar Mehmood, Advocate‑on‑Record for Respondent.

Date of hearing: 27th May, 1985.

‑‑This petition for leave to appeal arises out of judgment dated 20th January, 1985, by a learned Single Judge of the Sind High Court dismissing the appeal of the petitioner under section 21 of the Sind Rented Premises Ordinance, 1979.

2. The petitioner was the tenant of the respondent at the rate of Rs.45 per month in respect of flat No.3, Rochi Ram Chandoo Mal Building, Lidgah, M.A. Jinnah Road, Karachi. The respondent filed an application under section 14 of the Sind Rented Premises Ordinance, 1979, against the petitioner for his summary eviction on the ground that the respondent had attained the age of 60 years and needs the demised premises for personal use. The petitioner resisted the application for his ejectment and denied that the premises were required by the respondent for her personal bona fide use and occupation. Upon the evidence adduced by the parties the learned Rent Controller held that the requirement of the respondent was not bona fide in view of the established fact that she was living with her husband in another house which had much better accommodation as compared with the disputed premises which consists of a flat. Learned Rent Controller accordingly dismissed the application of the respondent by his order dated, 24th September, 1983. On appeal by the respondent the learned Judge in the High court took the view that the Rent Controller while deciding an application under section 14 of the Sind Rented Premises Ordinance was not competent to enquire into the bona fide of the landlord's need. In this view of the matter the learned Single Judge set aside the order passed by the Rent Controller and allowed the application under section 14 ordering eviction of the petitioner.

3. The only contention advanced in support of this petition by the learned counsel is that the question whether the Rent Controller can enquire into the bona fide of the "need" of the landlord' under section 14 of the Sind Rented Premises Ordinance is a question of interpretation of the said provision of law which is already under consideration of this Court in several cases and therefore, leave may be granted in the present case also since, the decision of the High Court turns on the precise question raised in such other cases. After hearing the learned counsel, however, we are not inclined to agree with him. As pointed out above the Rent Controller's decision proceeds on the ground that since the respondent /landlady was living with her husband in his house which had better accommodation than in the disputed premises, her plea for personal requirement must be held to be mala fide. The process of reasoning and the inference drawn by the learned Rent Controller is palpably erroneous and unsustainable. From the bare fact that the respondent was living with her husband in a house owned by him no such inference could logically be drawn. It is well recognized that under the law of the land a wife can independently hold property and there is no embargo in law against her assertion of the right to live in her own house. The embargo contained in subsection (2) of section 14 of the Sind Rented Premises Ordinance, which disentitles a landlord to avail the benefit of subsection (1) of the said section stipulates that the landlord must be in occupation of the building owned him in any locality. The learned counsel that the house was not same did not deny it. The living belonged to her husband and. The question of better accommodation in such a house was, therefore, wholly irrelevant and did not in fact react upon her right to occupy her owned house. No other circumstances were pointed out by the learned counsel which in any way detract from respondent's assertion that she needed her house for her own occupation tier claim to occupy her own occupation reflecting adversely upon accommodation, the inference that her claim was mala fide is purely conjectural. It was submitted by the learned counsel that normally a wife lives with her husband who is bound to provide her with maintenance and shelter. But in this case if the wife has chosen to demand the right to occupy her own house, it cannot be rejected on mere general notions. The husband of the respondent had appeared as a witness in the proceedings and the learned Rent Controller has in his order reproduced the part of his evidence as under:

"According to him this premises is not comfortable for him because his relatives reside in the city. He is retired and required the premises for his use."

From the above quoted passage it can be said that there were certain advantages attaching to the disputed house which may have influenced the preference of the respondent to occupy the same.

4. For all these reasons, we are inclined to the view that on the merits of this case, it is not a fit case for leave to appeal on the questions raised by the learned counsel. Since no other point was raised, we find no merit in this petition which is accordingly dismissed.

5. At the conclusion of the hearing, learned counsel for the petitioner requested for time to vacate the premises. Mr. Akhtar Mahmood who is appearing for the caveator/respondent has given undertaking that the respondent will not apply for execution of the order of eviction until after the expiration of the month of Ramazan. Learned counsel for the petitioner is satisfied with this undertaking.

M . I Petition dismissed

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