Find a Lawyer

First Rent Appeal No.606 of 1986, decided on 7th May, 1987.

--Ss.15(2)(vii) & 21(1)--Bona fide personal requirement Proof- Landlady by producing unrebutted and confidence inspiring evidence on record established that premises in dispute was required by her for establishing clinic for her son--Bona fide personal requirement of landlady having been conclusively proved, Rent Controller, held, rightly allowed application for ejectment on ground of personal bona fide requirement in circumstances.

1985 C L C 2455; P L D 1984 S C 200 and Mohammad Hanif v. Sara P L D 1982 Kar. 182 ref.

---Ss.15(2)(vii) & 21(1)--Ejectment of tenant on ground of personal need--Compromise in previous rent case--Effect on subsequent case- Compromise brought about between landlord and tenant in rent case filed by landlord about 4 years prior to filing of subsequent case, held, would not reflect upon plea of bona fide personal need raised B-y landlord in subsequent case, when at time of filing earlier case landlord had no personal need' in respect of premises in question.

Muneer A.Malik for Appellant.

S.Zaki Muhammad for Respondent.

Date of hearing: 17th February, 1987.

This appeal is directed against the order of the learned IVth senior Civil Judge and Rent Controller, Karachi (West) whereby he allowed the application under section 15 of the Sind Rented Premises Ordinance 1979 (for short the Ordinance) filed by the respondent against the appellant on the ground of personal need. The application, it may be noted, was presented for seeking ejectment on three grounds, namely the default in payment of .rent material damage to property and bona fide need. The ground of default was given up during the trial whereas the finding on the issue of material damage to the property has been recorded against the respondent. No cross-appeal has been filed by the respondent. The solitary question, therefore, to be considered in this appeal is whether the Rent Controller has rightly decided the issue of personal need in favour of the respondent.

2. The facts in brief are that Mr.Amina Bai, the respondent landlady, is the owner of the disputed premises constructed on an area of 200 sq. yds. on plot bearing No.13/D, Rizvia Co-Operative Housing Society, Nazimabad, Karachi, measuring in all 600 sq. yards. She let out the said premises to the appellant, Mohammad Hussain, at monthly rent of Rs.300 only in the year 1971. The rent was subsequently enhanced in 1975 to Rs.525 through a duly executed agreement of lease dated 30-1-1975. Later on, in 1979 it was further enhanced to Rs.1,000 per month. It was on 13-12-1984 that the present rent application out of which this appeal has arisen was filed on the grounds as stated above. In para 4 of the application it was mentioned that the premises in question are required for the bona fide use of the respondent's son, Dr. Nafis Hasni, who is a registered medical practitioner and required it for opening and establishing a clinic in the said premises after his release from Pakistan Army in January 1985. as per release order issued by the Army.

3. The written statement was filed by the appellant denying the allegations made in the application. With regard to the issue in hand it was pleaded by him that the requirement of the respondent was not bona fide and that the premises in question were not suitable for opening or establishing a clinic. The area demised to the appellant, it was so claimed, was too large for the requirement of the respondent's son. It was further specifically .pleaded that the respondent or her son did not have requisite finances to establish a clinic. The application was made mala fidely consequent to the refusal of the appellant to submit to the respondent's demand for an exorbitant increase in rent. It was further pleaded that no new circumstances had arisen since 9th May, 1981. Previous rent case filed by the respondent was compromised and she decided to allow him to continue as her tenant despite fully knowing that her son was going to be a qualified doctor.

4. The respondent in support of her application filed affidavit-in- evidence of her husband Mohammad Hussain (Ex.4), her son Dr.Capt. Nafis Hasni (Ex.6) and one Dr.Saleh Mohammad Shahrani (Ex.5); whereas the appellant filed his own affidavit-in-evidence (Ex.7) and that of his son Shabbir Hussain (Ex.8). The witnesses were cross- examined by the respective parties.

5. After hearing the arguments of the parties' counsel and upon perusal of the evidence brought on record, the Rent Controller allowed the application on the ground of personal need only and dismissed it on other two grounds, as already stated, vide his impugned order dated 12th July, 1986. Hence the appellant-tenant has preferred this appeal against the order of ejectment.

6. The learned counsel for the appellant strongly urged that the respondent had failed to establish bona fide need of the premises for her son. In his submission, she could only establish a desire to have the premises without proving her need thereof. He emphasised that what the law requires is that the landlady should establish her bona fide need of the premises in dispute and the mere proof of desire was of no avail. He sought to support his contention by a decision of this Court reported in 1985 C L C 2455 wherein it is held that, "under the provisions of law a landlord has to establish that he requires the premises in -good- faith for his n occupation. The burden is upon the landlord to prove the good faith and good faith is to be spelt out from the circumstances. Moreso that he requires premises for his own use is not sufficient".

7. It was next contended by the learned counsel that from the evidence brought on record by the respondent herself it is manifestly established that Dr. Capt . (Retd.) Nafiz Hasni was selected by the Ministry of Health, Iran as General Practitioner vide Ex.6-A and that he was proceeding to Iran and hence the alleged need of the demised premises for him was not genuine. He further urged that the evidence of Dr. Saleh Shakrani was not reliable inasmuch as in cross-examination he clearly admitted that he had 'put his signatures on the affidavit-in -evidence at the house of Dr. Nafis Hasni and that he could not say whether any other Oath Commissioner was also present there. The learned counsel further urged with vehemence that the previous rent 'case of ejectment filed against the appellant was compromised in 1980 on appellant's agreement to say higher rent although at that time too it was known to the applicant that her son was going to be a qualified doctor in 1982. If there was actually any desire on the part of the appellant to get the premises in question for her son she could have not 'agreed to-the enhancement of rent and allow the appellant to remain in possession of the disputed premises. Moreover, the further increase in rent in May 1981 also adversely reflects upon the bona fides of the landlady/ respondent. The counsel further contended that in the written statement it was specifically pleaded by the appellant that the respondent was not financially in a position to establish a clinic yet no evidence to prove her financial stability was led. No building plan for the proposed Maternity Home was got prepared. Lastly, the counsel emphasised upon the fact that the application was moved with a mala fide intention to make the appellant to agree to the payment of exorbitant rent of Rs.4,000 per month.

8. The learned counsel for the respondent, on the other hand, submitted that at the time when the previous application for ejectment was compromised the respondent did not require the demised premises for her personal bona fide need and hence no adverse inference could on that score be drawn against her. He further submitted that after doing his M . B. B . S. in 1982 the son of the respondent, Capt. (Retd.) Dr.Nafis Hasni had to do the compulsory service in military and hence the demised premises were not then required by her for her son when the respondent compromised in the earlier case. Dealing with the contention of the appellant's counsel with regard to the non-production of the agreement of service, the counsel contended that there was actually no written agreement made between him and his employer and hence the question of its production does not arise. He submitted that the premises in question could with a little alteration be made fit for establishing a clinic and it did not require much investment. The plea of the appellant in this behalf, was thus of no importance. The allegation regarding enhancement of rent at Rs.4,000 per month was an afterthought inasmuch as it was neither pleaded in the written statement nor any such suggestion was 'made to the respondent's witnesses in their cross-examination. The son of respondent had gone to Iran only for two years on contract as deposed by him during his examination in Court.

9. The learned counsel sought to place reliance on a decision of the Supreme Court reported in P L D 1984 S C 200 and another judgment of this Court in Mohammad Hanif v. Sara P L D 1982 Kar. 182.

10. I have given due consideration to the submissions made before me and have also carefully perused the impugned order as well as the evidence led by the parties in support of their respective pleas and I am convinced that the learned Rent Controller has rightly allowed the application for ejectment. The case as originally set up by the respondent in the application for ejectment has been consistently adhered to and proved through the evidence of the witnesses examined on her behalf. I would, however, like to point out that in so far as the evidence of Dr. Saleh Shakrani is concerned, it is of no value whatsoever firstly in view of the explicit admission made by this witness in his cross-examination that he had put his signatures on his affidavit-in-evidence at the house of Dr. Nafis Hasni and that, he could not say whether any Oath Commissioner was also present there. Even otherwise his statement with regard to the issue in question is nothing more than that of hearsay inasmuch as he has stated:----

"I was informed by Dr. Nafis Hasni that he was to run a clinic in the premises in dispute."

However, the evidence of the other two witnesses produced on behalf of the respondent is sufficient to conclusively prove that the premises in case were required by the respondent for establishing the clinic for her son, Dr.Nafis Hasni. Both the witnesses, namely Mohammad Hussain and Dr. Capt. (Retd.) Nafis Hasni have been consistent of their respective deposition regarding the issue in hand. Both the witnesses, it is apparent from the tenor of their deposition, are truthful and I find that their evidence is confidence inspiring. The learned Rent Controller has dealt with evidence-on-record at length and in doing so he does not seem to have fallen into any error. The appellant, as has been rightly noticed by the Rent Controller, has shown his readiness and willingness to offer a part of the premises to the respondent for the use of clinic. In cross-examination he has deposed:----

"It is fact, the applicant has required the tenement in question for the purpose of clinic for his son .........

It is fact the applicant has also stated that her son will return when tenement shall be got vacated."

The respondent's witness Mohammad Hussain categorically denied the suggestion made to him in cross-examination that the premises-in- dispute could not be converted into a clinic due to unhygienic surroundings circumstances. A successful effect was also made on behalf of the respondent while cross-examining the appellant that there were other clinics situated in the same locality where the disputed premises are situated. The burden of proof which admittedly lay on the respondent has been satisfactorily and successfully discharged by her. No adverse inference could be drawn from the fact that an earlier filed rent case was compromised in 1980 i.e. about 4 years before the filing of the present rent case as at that time admittedly the son of the respondent was a student and there was thus no personal need of the respondent for the premises in question at that time. I do not, therefore, find any substance in the contention of the learned counsel for the appellant that the compromise brought about in a rent case between the parties in 1980 reflected upon the bona fides of the respondent.

11. Although I do not agree with the learned counsel for the respondent that the plea regarding enhancement of Rent of Rs.4,000 per month was an afterthought inasmuch it was so specifically pleaded by the appellant in his written statement, yet looking to the nature of the evidence that has come on record I find that the appellant could not substantiate this contention. It is usually so pleaded by the tenants when they are faced with an application for eviction by their landlords. However, in the instant case there is a mere word of the appellant to that effect which cannot be accepted in the absence of supporting evidence of convincing nature.

12. As a result of the above discussion the appeal stands dismissed with no order as to costs. The appellant, however, is allowed two months time from today to hand over the vacant possession of the disputed premises to the respondent subject to the condition of his paying the monthly rent regularly to the respondent. Failure to do so shall result in his immediate eviction without notice.

H . B . T . /M-220/ K Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.