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Civil Appeal No. 21‑Q of 1985, heard on 5th May, 1986.
(On appeal from the judgment and order of the High Court of Baluchistan, Quetta, dated 1‑4‑1984 passed in F.A.0. No. 51 of 1983).
‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(3)(a)(i)(a)‑‑Ejectment on ground of personal need‑‑Order set aside in appeal by High Court‑‑Reappraisal of evidence‑‑Interference with findings of fact recorded by Rent Controller‑‑Leave to appeal granted to reappraise evidence and see whether High Court had either overlooked or misread evidence and whether in doing so some principle of appreciation of evidence was not contravened.
‑‑‑S.13(3)(a)(i)(a)‑‑Ejectment on ground of personal need‑‑Order set aside in appeal‑‑Interference with finding of fact recorded by Rent Controller‑‑Reappraisal of evidence‑‑ Ejectment allowed on ground of personal need‑‑Order set aside in appeal‑‑High Court's finding that statement of landlady's attorney that her children were studying in a particular school to be disbelieved because no certificate from school was produced; and that question of bona fide could be established by landlady herself but she had not examined herself and mala fide could be spelt out of circumstances, held, was based on extraneous considerations and not in accord with accepted principles of appreciation of evidence‑‑Interference with finding of fact recorded in case by Rent Controller, not warranted‑‑Judgment of High Court set aside and ejectment order restored.
M.A. Rashid, Advocate Supreme Court for Appellant. S.A.M. Quadri, Advocate‑on‑Record for Respondent.
Date of hearing: 5th May, 1986.
‑‑This appeal is from the judgment of the learned Nigh Court of Baluchistan, dated 1‑4‑1984 whereby the First Appeal of the respondent challenging the order of eviction passed by the learned Rent Controller was allowed.
2. The dispute relates to House No. 8‑18/26‑27 situate at Baluchi Street, Kansi Road, Quetta which was purchased by the appellant on 18‑3‑1976. She made an application for ejectment of the respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of Senior Civil Judge/Rent Controller on 21‑5‑1978 on the ground of default in payment of rent and her personal bona fide requirement of the house. The application was resisted by the respondent and it was pleaded that since no notice regarding transfer of the house was ever served the respondent deposited rent in Court in the name of the previous owner and hence no default was committed. The plea of bona fide requirement of the house by the appellant was also denied. The learned Rent Controller framed the following two issues:‑
(1) Whether the respondent has committed the default in payment of rent
(2) Whether the applicant requires the premises in question bona fide and reasonably for her own use and occupation
3. The first issue was decided against the appellant while the second issue was decided in the affirmative and an order of ejectment was passed on 31‑7‑1983. The relevant finding of the learned Rent Controller, which is based on evidence, is as under:‑
"The evidence shows that the applicant is living in a congested house at the mercy of her brother while she has purchased the house in question for her personal use and occupation. The respondent has failed to produce such witness who may have deposed that the applicant has other house in this urban area in his vacant possession or she has got vacated any such property within last two years.
I have assessed the applicants requirement. The respondent has not proved any mala fide intention of the application. The plea of enhancement of rent or further sale of the property is not proved. As such I am satisfied on the applicant's evidence. The evidence of the respondent is not convincing, as such I decided this issue in affirmative."
4. The respondent filed an appeal in the High Court which was allowed as per impugned judgment and the ejectment application of the appellant was dismissed.
5. Leave to appeal was granted to reappraise the evidence and see whether the learned High Court had either overlooked or misread the evidence and whether in doing so some principle was not contravened.
6. We heard the learned counsel for the parties and have gone through the order of the learned Rent Controller and the impugned judgment. The ownership of the property is not denied. Admittedly the appellant had served the respondent with a notice, dated 18‑4‑1978 informing him that the premises was required by her for her personal bona fide use. It was not denied that the appellant has been residing with her brother(Abdul Latif who himself had a large family about 12 members. The appellant's case was supported by the statements of her witnesses Abdul Majeed and Muhammad Ahmed besides the statement of appellant's brother and attorney Abdul Latif. As against this evidence, the main defence set up by the respondent was that her application for eviction was not bona fide and it was filed because he had refused the request of the appellant for enhancement of rent. The learned Rent Controller found, and rightly so, that the respondent had failed to prove the said allegations. The learned Judge in the High Court, however, gave undue weight to the fact, which was not denied, that the appellant had been going to London to see her husband who lived there. Nowhere it was denied that the appellant is residing with her brother with her two children who are of school‑going age. The statement of the appellant's attorney that the children of the appellant are studying in Convent School was disbelieved on the ground that no certificates from the school were produced. As respects the allegation of mala fide, it was held that the question of bona fide could be established by the landlady herself but she had not examined herself and, in the circumstances, mala fides could be spelt out of the circumstances." The aforesaid, findings to say the least, are based on extraneous considerations and are not in accord with accepted principles of appreciation of evidence. In the circumstances, no interference with the findings of fact recorded in the case by the learned Rent Controller was warranted.
7. For the reasons mentioned above, the impugned judgment of the learned High Court is set aside and the order of ejectment passed by the learned Rent Controller is restored. However, by consent of the learned counsel for the parties, four months time is allowed to the respondent to vacate the premises. The appeal thus succeeds but there will be no order as to costs.
M. I. Appeal accepted.
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