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First Rent Appeal No. 911 of 1983, decided on 27th May, 1986.

‑‑S. 15(2)(ii)‑‑Bona fide need of landlord‑‑Requiring non‑residential buildings for residential purposes‑‑Premises in dispute proved to be non‑residential building‑‑Such non‑residential building, held, could not be directed‑to be given in possession of landlord for residential purposes of his own or his family.

Girdharilal v. Mst. Marzia Bano and another P L D 1963 Quetta 25 and Jamil Ahmed v. Mst. Sultana Jehan Begum P L D 1974 Kar. 319 ref.

‑‑‑S. 21‑‑Appellate jurisdiction, exercise of‑‑Misreading/non‑reading of evidence‑‑Effect‑‑Conclusions arrived at by Rent Controller by misreading and misappreciating evidence on record, being incorrect, High Court allowed appeal and set aside order passed by Rent Controller.

A.F.M. Mokaram for Appellant.

Syed Izhar Haider Rizvi for Respondent.

Date of hearing: 20th May, 1986.

This first rent appeal is directed against the order, dated 25‑10‑1983, passed by the IXth Senior Civil Judge/Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to hand over the vacant peaceful possession of the premises to the respondent within sixty days from the date of the order.

The facts giving rise to this appeal are that the respondent is the owner of the composite building on Flat No. 3/195, Commercial Area, Liaquatabad, Karachi and the appellant is tenant of the respondent in respect of the portion of a house on the ground floor at a monthly rental of Rs.325 excluding the electricity, water and conservancy charges. The respondent filed eviction Application No. 2747 of 1979 on the ground of materially changed the structures without consent or written permission of the respondent and also on the ground of personal requirement. The appellant resisted the eviction application. The respondent filed his own affidavit in evidence besides affidavit‑in evidence of Abdul Rahim, Yadullah Raza, Syed Shujahat Ali Hussain and Mst. Mariam. The appellant filed his own affidavit‑in‑evidence. They were cross‑examined by their respective counsel.

The learned Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No. 1 affirmative and issue No. 2 in the negative as not proved and allowed the eviction application on the ground of personal requirement, vide his order dated 25‑1.0‑1983.

The appellant abovenamed being aggrieved by the order, dated 25‑10‑1983 of the IXth Senior Civil Judge/Rent Controller, Karachi, has preferred the First Rent Appeal, on the grounds mentioned in the memo of Appeal.

Mr. A.F.M Mokaram, the learned counsel for the appellant has contended that the learned Rent Controller has totally misread and misappreciated the evidence on record and based his order on conjectures and surmises and ignoring documentary evidence.

On the other hand Mr. Syed Izhar Haider Rizvi, the learned counsel for the respondent has submitted that the order of the learned Rent Controller is in accordance with the evidence on record.

Reverting to the contention of the learned counsel for the appellant that the learned Rent Controller has misread and misappreciated the evidence on record and ignored the documentary evidence. The respondent averred in his eviction application that appellant has two rooms, bath, kitchen. He also averred that "the opponent without consent or written permission of the applicant, has materially charged the structure and thus has caused the damage to the property." The respondent also averred in his eviction application that the applicant alongwith his family members consisting of four sons, two daughters, and one wife is residing on the first floor of the said premises. The area of the entire house is only sixty‑five square yards on which there are two small rooms, bath, kitchen which is very insufficient for the requirement of the applicant. The appellant filed written statement wherein he stated that the entire area is commercial and "from the very outset has been manufacturing card board packages for shops and sweet meats". He also stated that the premises was neither let out for residential purposes nor any portion of the structure of the premises is altered or modified in any manner. He also denied the personal requirement. The respondent reiterated the same facts in his affidavit in‑evidence. It is pertinent to note that the respondent in his cross exmination admitted that the respondent used to reside in another house. The respondent also admitted in his cross‑examination that the appellant is residing in the same house in which he used to reside when he got the property in dispute on rent. The respondent also admitted that in the whole lane there are shops on the grounds floor and the residence is on the upper floor. P.W. Abdul Rahim is the son‑in‑law of the respondent. P. W. Yadullah a neighbour admitted that the appellant is residing after six/seven houses from the property in dispute. He stated in his affidavit‑in‑evidence that the appellant is running his business of manufacturing packages. He further stated that the premises let out to the appellant for residential but he is using the same as commercial. P.W. Syed Shujahat Ali also deposed to the same effect.

As against the above evidence, the appellant stated in his affidavit‑in‑evidence that the shops were taken on rent vide agreement, dated 27‑6‑1973. He also produced photostat copy thereof. He also produced photostat copy of agreement, dated 10‑2‑1975, wherein it was mentioned two shops, kitchen and bathroom.

I have perused the agreements, dated 27‑6‑1973 and 10‑2‑1975 and according to them the respondent rented out shops to the appellant and not rented for residential purposes. It is also an admitted position that on the whole of the lane, only shops are on the ground floor and the residence are on the upper floor.

It is an admitted position that the respondent filed an eviction application on the ground of personal requirement for residential purposes and not for commercial purposes. In the case of Seth Girdharilal v. Mst. Marzia Bano and another P L D 1963 Quetta 251, Mr. Nazir Ahmed Mahmood, J. , held at page 29. "It appears to me that what is contemplated in subsection (3)(a)(ii) is that non‑residential building can be claimed by the landlord in supersession to the right of the tenant to continue using it if the landlord require the building for the purpose of his business and not when he requires it for residential purposes. Since not only no evidence has been led by the respondents that they wanted the building in question for the purpose of their business but had not even averred that they required the building for their personal use in connection with their business. I hold that the learned Rent Controller and, for that matter, the lower Appellate Authority were right in recording their findings on issue No. 1 in favour of the respondent." In the case of Jamil Ahmed v. Mst. Sultana Jehan Begum P L D 1974 Kar. 319, Mr. Agha Ali Hyder, J. has come to the conclusion after giving cogent reasons that a non‑residential building cannot be directed to be given in the possession of the landlord for residential purposes of his own. I am in respectful agreement with these decisions of Mr. Nazeer Ahmed Mahmood and Agha Ali Hyder, JJ. for the reasons given by them in the above two decisions and as such I am of the opinion that the non‑residential buildings for shops cannot be directed to be given in the possession of the landlord, for residential purposes of his own, his wife or children.

In view of this the conclusions of the learned Rent Controller is not correct. It may be noted that the agreements are silent about letting out the premises for residential purpose. The evidence of the respondent and his witnesses do not inspire confidence and I cannot hold that the premises in question was rented out for residential purpose. I agree with the contention of the learned counsel for the appellant that the learned Rent Controller has misread and misappreciated the evidence on record, and arrived at the conclusions, which are not warranted by the said evidence, on this issue. In view of this in my opinion, the respondent has failed to prove, that the premises in occupation of the appellant are required for his bona fide and in good faith for his use and the use of his family.

Therefore, in view of my above conclusions and reasons I allow the appeal by a short order, dated 20‑5‑1986, and set aside the order, dated 25‑10‑1983 of the Rent Controller and dismiss the eviction application filed by the respondents.

H.B.T. Appeal allowed.

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