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Civil Petition for Special Leave to Appeal No. 298‑K of 1985, decided on 3rd February, 1986.
Constitution of Pakistan (1973)‑‑
‑‑Art. 1.85(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.21‑‑Misreading of evidence‑‑ Ejectment ordered by Rent Controller on ground of default and bona fide personal need of landlord‑‑High Court taking contrary view on both points‑‑Leave to appeal granted to consider plea about misreading of evidence and whether view taken by High Court was erroneous.
Abul Khair, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 3rd February, 1986.
This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court, dated 25‑4‑1985 allowing an appeal filed by respondent and in result setting aside the order of eviction passed against him by the Rent Controller on an ejectment application filed by petitioner landlord.
Learned Rent Controller passed the aforesaid order as he, after recording evidence produced by the parties, reached the conclusion that respondent‑tenant was proved to be a defaulter in payment of electric charges and the petitioner also bona fide required the demised premises for his personal use. In regard to the later view, this is what the learned Rent Controller observed in his order:
"It is not disputed that the applicant, has 12 members of the family, out of them 4 are sons and 4 are daughters. Out of them, two sons of the applicant are married. The premises in occupation of the applicant consists of 3 bed rooms. Two sons of the applicant are married, therefore, naturally they need two rooms for their living. There remains one bed room for two sons and 4 daughters of the applicant including the applicant himself. It will be very difficult for the applicant to keep his remaining children in one bed room. Naturally the applicant requires more accommodation to keep his children ................ . . . . . . . .. . Considering the large family of the applicant I am satisfied that the accommodation available with the applicant is insufficient for his family. The applicant requires the premises in question for keeping his family members in good faith and bona fidely. I am of the view that the premises in question is required by the applicant for his personal use and for the use of his family members.
On appeal at respondent's instance, learned Judge in the High Court, however, took the contrary view on both the points that prevailed with the learned Rent Controller. With regard to petitioner's assertion as to requirement of the demised premises for his personal use, learned Judge held that the plea was not bona fide for the reason that one of the petitioner's sons on his own admission, was occupying two rooms on the ground floor which fell vacant during the proceeding of the case, and another portion on the ground floor got vacated by the petitioner was utilised by him for running a hosiery factory. In the opinion of the learned Judge "had he (petitioner) been in a need of accommodation for family he could not have started the factory."
It is submitted in support of the petition for leave to appeal from the judgment of the High Court, that it is clear in evidence that petitioner had installed the hosiery factory on the ground floor premises before he even filed the ejectment application before the Rent Controller, for, he had asserted in the ejectment application itself that he had established the said factory for his livelihood. It is, therefore, submitted that the learned Judge in the High Court was in error in taking the view that the hosiery factory was set up on the ground floor premises during the pendency of the proceedings before the Rent Controller, and this erroneous view has influenced his entire judgment. It is further submitted that even if a small portion of the ground floor fell vacant during the proceedings and was occupied by one of the petitioner's sons, then also the residential accommodation available with the petitioner is not sufficient for his need.
The submission made in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition. Security Rs.1,000.
Appeal to be heard on the present record at an early date. It is, however, open to the parties to file additional documents, if any.
M. I. Leave granted.
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