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First Rent Appeal No. 1028 of 1984, decided on 21st May, 1987.
---O.VIII, Rr.1, 2 & 9--Evidence on facts not averred in written statement--Effect--Fact which has not been pleaded in written statement, no amount of evidence in support of same, held, could be looked into.
---Ss. 15(2)(vii) & 15-A--Personal bona fide requirement--Safeguard against false plea of bona fide--Landlord asserted that he wanted premises in dispute for his personal bona fide requirement, while tenant alleged that landlord wanted premises simply to relet the same on Pagri and higher rent--Assertion of landlord, held, should be determined in context of provisions contained in S.15-A of Ordinance which was a safeguard for tenant against being evicted on false plea of bona fide requirement by landlord--Evidence on record fully justified claim of landlord that he required shop in dispute for his son's use who admittedly had no other accommodation of his own--Dismissal of plea of landlord by Rent Controller merely on conjectural grounds, that son of landlord had two offices or that shop in dispute was situated in market not suitable for business of son of landlord, held further, was arbitrary and contrary to law and evidence on record.
Syed Ishtiaq Ali for Appellant.
Fariduddin for Respondent.
Date of hearing: 10th March, 1987.
This First Rent Appeal is directed against the order dated 4th October, 1984 passed by the XVth Senior Civil Judge/Rent Controller, Karachi, whereby he dismissed the eviction application filed by the appellant.-
The facts leading to the filing of the above appeal are that the appellant is the landlord and the respondent is her tenant in respect of shop No. 213, Sadar Co-operative Market Ltd., Karachi at the monthly rental of Rs.650. The appellant4 filed eviction application No.5394 of 1984 against the respondent on the ground that the respondent had committed default in payment of rent for the period commencing from. November 1982 to November 1983 amounting to Rs.8,450 and also on the ground of personal requirement for her son. The respondent resisted the application and denied both the grounds in his written statement. The appellant filed her own affidavit-in-evidence in support of the eviction application besides affidavits-in-evidence of her son Zahid and one Ali Muhammad. The respondent filed his own affidavit-in-evidence in rebuttal besides affidavit-in-evidence of one Syed Taqi Husain. They were cross- examined by the learned counsel for the respective parties.
The Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided issues Nos. 1 and 2 in the negative and dismissed the eviction application vide order dated 4-10-1984.
The appellant being aggrieved against the order dated 4-10-1984 of the XVIth Senior Civil Judge/Rent Controller Karachi has preferred this appeal on the grounds mentioned in the memo of appeal.
Mr. Syed Ishtiaq Ali learned counsel for the appellant has contended that the learned Controller has misread the evidence on record. The learned counsel for the appellant has not pressed the issue of default in this appeal and has confined his arguments only in respect of personal requirements.
On the other hand Mr. Fariduddin learned counsel for the respondent has -submitted that the order is in accordance with the evidence on record.
The appellant averred in para 4 of her eviction application that "she belongs to a business community and her-late husband and her forefathers used to do business". The appellant further averred in para 5 of her eviction application that "the appellant has two sons and one daughter and one of her sons, Zahid has fully grown up and has passed B. Com. examination in 1983 and as such he is fully competent to run his business in the said shop and as such the appellant and her above-named son have decided to carry on/start the business in the said shop". In para 6 of the eviction application the appellant stated that the appellant required the shop in dispute in good faith for the use and occupation of her elder son Zahid. She also averred in her eviction application that the appellant through her son asked the respondent to vacate the premises in dispute as the same was required by her in good faith for the use and occupation of her son but the respondent bluntly refused to vacate the said shop premises.
The respondent filed his written statement wherein he denied that the applicant's belongs to a business community. The respondent stated in para 5 of the written statement that "para 5 of the application is not totally correct and it is denied that the applicant's son Zahid wants to run business in the said shop as Zahid has been contacting other shopkeepers for offering them the said shop on 'Pugri' of Rs.2 lacs and they with ulterior motives and mala fide intention want ejectment of the opponent from the said shop". The respondent also denied contents of para 6 of the eviction application. It was contended by the respondent in his written statement that "it is denied that the applicant wants the said shop in good faith for the use and occupation of her elder son Zahid as Zahid has been contacting the shop-keepers of the market and offering the said shop on Pagri of Rs. two lacs".
The appellant repeated the same facts in her affidavit-in evidence and she further asserted that she has sufficient means to provide him finance for the start of his business. The appellant admitted in her cross-examination that her husband used to do business at tea, as well as export-import. She admitted in her cross-examination that he had his office in Jodia Bazar. The appellant also admitted in her cross-examination that her son has resigned from that office after the death of her husband. She replied to a question in cross examination that "now that is not our office". She also denied the suggestion that the office is still with them. She admitted in her cross-examination that her son now sits on the shop of her brother-in law in Mateen Centre. The appellant to a question in cross-examination replied that her son was not sitting/working with her late husband for the purpose of his business in the above said office. To a question in cross-examination she replied that her sons look after the business of his brother-in-law in Mateen Centre. She also denied the suggestion that her son is serving. She also denied the suggestion in cross examination that she had asked Farasat Ali that she will give the shop on Pagri of Rs. two lacs. The appellant denied the suggestion that she filed this case to earn Pagri. To a suggestion in cross examination she replied that "her son has matured and I want for his personal need".
The appellant's son filed his affidavit-in-evidence wherein he repeated the same facts and fully supported the assertion of the appellant. He stated in his affidavit that he is competent to start his own business in the said shop. Zahid had shown his ignorance about the rate of Pagri of the disputed shop. He also denied the suggestion that he or his mother had gone to respondent in October 1983 and asked him to give them Rs.1,000 rent and execute fresh agreement and pay Pagri of Rs.2 lacs. Zahid admitted in cross-examination that there is handicraft bazar where the disputed shop is situated. This witness also admitted in cross-examination that his father's office was not in their possession. To a suggestion in cross-examination he replied that he left that office after the death of his father. To a further suggestion he replied that he is learning the business of ready-made garments. To another question he replied that he does not get pay for that work. To another suggestion in cross-examination he was unable to tell the names of the owners of the nearby shops where he works. He also denied the suggestion that the eviction application was filed only just to earn Pagri.
Ali Muhammad father of the appellant filed his affidavit-in evidence wherein he stated that his grandson Zahid has been fully grown up and he is in a position to start his own business. He further stated in his affidavit-in-evidence that Zahid belongs to business community and desires io start his own business in the shop in possession of the respondent. This witness also stated in his affidavit "the applicant requires the said shop for the accommodation of her son Zahid and she has means to provide financial help to her son to start his own business". To a suggestion in cross-examination, this witness replied "I do not know if Zahid has office in Aadmar House, on 1st Floor in Jodia Bazar where his father was a wholesale dealer in Tea business and also selling cloths". He denied the suggestion in cross-examination that Razak father of Zahid at the time of his death left behind so many buildings. He also showed his ignorance where he was running his business and in which shop Razak had his office near Mere weather Tower near A1-Farooq Masjid.
As against the above evidence, the respondent stated in his affidavit-in-evidence, that the landlady again insisted for the enhancement of the rent under the threat of ejectment proceedings. The respondent denied in his affidavit-in-evidence that the landlady's son Zahid wanted to carry on any business in the said shop as in the month of November, 1982 after the refusal of the rent he contacted Haji Akhtar Hussain and Farasat and several other shop-keepers for giving the said shop on Pagri. He also denied that the landlady required the said shop for the use and occupation of her son Zahid. The respondent stated in his affidavit-in-evidence that the landlady possesses two offices for business purpose at Aadmar House, Rehman Street, Jodia Bazar, Karachi and also possesses several shops. He stated in his affidavit-in-evidence that the market where the said shop is situated is a handicraft market and it is not the market of garments. The respondent admitted in his affidavit-in-evidence that at present the age of Zahid might be 16/li years. To a suggestion in cross-examination he replied "I myself have seen both the offices where the applicants run their business, one is at Jodia Bazar and Boulton Market where his father had the office". To another suggestion in cross-examination he replied "I myself have seen him doing the business at both places". To yet another suggestion in cross examination he replied "I have not seen the documents of ownership both the offices".
Farasat Ali stated in his affidavit-in-evidence that in the month of November 1982 the appellant's son Zahid informed him that his mother wanted to give the shop in dispute on Pagri as the appellant was in need of money. This witness to a suggestion in cross-examination replied that he has seen the place where Zahid's mother is residing but he never met her. To another suggestion he replied that Zahid had told about Pagri in his presence and one Shabbir. This witness admitted in cross-examination that he is supplying the goods to respondent and other shop-keepers since last 17, or 14 years. To another suggestion in cross-examination he replied that "I have not seen, if Zahid has his office". Syed Taqi Husain stated in his affidavit-in-evidence that he is doing the business in a shop No. 128 in the Saddar Co-operative Market. This witness stated in para 3 of his affidavit-in-evidence that "in the last week of November, 1982 at about 4 p.m. there were persons gathered at the shop of Mr. Saeed Ahmed, I enquired from Mr. Farasat who was there, he (Farasat) informed me that the son of the landlady of Mr. Saeed Ahmad was demanding enhanced rent and giving threat that otherwise he would eject Saeed Ahmed". This witness admitted in his cross-examination that "I have stated the factum of Pagri and enhancement of rent, on the basis of statements of Saeed and Farasat". To another question in cross-examination he replied that his shop is 3 shops away from the shop in dispute.
The Controller dismissed the eviction application on the following three factors:-
(i) It is fairly established that the appellant is in possession of
two offices.
(ii) That the locality where the shop is situated, only handicrafts business is carried out and this locality is not meant for the .garments business.
(iii) Two independent witnesses deposed that the appellant and her son are merely interested in giving the shop in dispute on Pagri.
The respondent did not allege about owning of these two offices in his written statement. The appellant in her cross-examination categorically stated that the office was surrendered after the death of her husband. She categorically denied the suggestion in her cross examination that the office is still with her. Appellant's son Zahid also denied the suggestion in cross-examination that the office of his father at Jodia Bazar was not in his possession. He also categorically stated to a question in cross-examination that he left this office after the death of his father. The father of the appellant, Ali Muhammad in his cross-examination stated that he did not know if Zahid has office in Aadmar House. Ali Muhammad in his cross-examination denied the suggestion that the husband of appellant had left so many buildings but he categorically stated that he left only one house. I am of the view that the finding of the Controller about these two offices is based on conjectures.
Another aspect of the case which negatives the case of the respondent may be taken note of. The respondent denied in para 4 of the written statement that the appellant belongs to a business community. At the trial however the responent gave good-bye to the above case pleaded in the written statement and came out with a new story that the appellant's son is in possession of these two offices.
The above statement of the respondent in the evidence being contrary to what he had pleaded in the written statement, was not to be taken notice of in view of the settle a law that a fact which has not been pleaded in the written statement, no amount of evidence in A support of the same can be looked into. Even for the sake of argument the respondent is in possession of two offices but these offices are, by no means, suitable for his needs.
The main emphasis of the learned counsel, in his allegation of mala fides against the landlady and her son, is that her son wanted to relet the shop in dispute or Pagri and higher rent. The assertion of the landlady that she required the shop in dispute for her should be determined in the context of the provisions contained in Section 15-A of the Ordinance, which enables a tenant to regain possession from his landlady who had obtained it on a false plea of bona fide personal need, but she or her son had failed to occupy the shop in dispute within one year of the date of obtaining possession or who relet it within one year of the date of obtaining of possession to any other person. This is said to be a safeguard for the tenant against being evicted on a false plea of bona fide requirement by the landlady for her" son. The evidence in the instant case fully justified the claim by the landlady that she required the shop in dispute for her son's use as he had no other accommodation of his own. To have dismissed this plea as not proved, merely because he had two offices and the shop in dispute is situated in handicrafts market, was arbitrary and contract, to law. I am, therefore, of the opinion that the finding of this issue by the Control is against the law and is contrary to the evidence.
For the foregoing reasons, I would allow this appeal and set aside the impugned order. In the circumstances I would give two months time to the respondent to vacate the shop in dispute. Parties to bear their own costs.
H.B.T./R-38/K Appeal allowed.
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