1. 'ZAHID AHMID, J. ---By this Order the instant constitutional petition which has been preferred by the tenant against his eviction maintained by the learned two Courts below with their concurrent positive findings inter alia on the ground of personal bona fide requirement shall stand disposed of.
2. 'The factual perspective is that the respondent No, 1 (hereinafter referred to as the respondent) filed an application for eviction of the petitioner, from the rented premises situated on Plot No, 140-L Block 2 measuring 1000 square yards in PECHS Karachi (hereinafter called the premises) in the court of learned IVth Senior Civil Judge and Rent Controller Karachi, East bearing Rent Case No, 33 of 2006 on the grounds of personal bona fide requirement and unauthorized conversion of the user. However previously another Rent Case No, 928 of 2000 was filed basically on the ground of personal bona fide requirement, divorced, from the plea of emergent need based on 9/11 attack which was convassed in subsequent rent case wherein it was pleaded that due to worsening conditions and environment in USA against Pakistani immigrants the respondent had decided to finally shift to Pakistan with her children and husband and occupy the premises. The First Rent Case was abandoned half way. It is pleaded in para.6 of Rent Case No, 33 of 2006 and in reply in the corresponding para. Of the written statement as follows:-- "That previously the applicant had filed Rent Case No, 928 of 2000 in the Court of Vth Senior Civil Judge Rent Controller (East) Karachi, for ejecetment of the opponent, but the same was not pursued again on the assurance of the opponent that he would shift the school to some other premises and hand over vacant and physical possession thereof as early as possible. Accordingly the above said rent case was not pursued and was accordingly dismissed for non-prosecution. A Photostat copy of the certified true copy of Rent Case No, 928 of 2000 in the Court of Vth Senior Civil Judge and Rent Controller (East) Karachi, is also filed herewith and marked `D'."
3. "Reply in written statement 'That in regard contents of para. 6 it is submitted that the Rent Case No,928 of 2000 was filed by the applicant but the same was dismissed as the applicant has failed to put her appearance for evidence, as such the rent case was dismissed under Order IX, Rule 8, C.P.C. Therefore the above rent case is not maintainable and hit by Order IX, Rule 9, C.P.C. And also the above rent case is hit by res judicata hence the same is liable to be dismissed. "
4. 'Based on the above pleadings the petitioner as it would appear from the highlighted portion above first negated the plea of res judicata and then agitated it in the same breath.
5. 'In cross-examination of the respondent who had come from USA it transpired that the earlier rent case was allowed to be withdrawn when the rent was enhanced. It was nonetheless stressed upon by her that in addition during all these years she had been coming to Pakistan in Summer/Winter Vacations and was constrained to reside with her family in the house of her father and that her husband had been receiving threats and the situation was not all that favourable for Pakistani nationals in America and that so far her husband had not wound up his business of Real Estate in America.
6. 'The respondent also examined her father inter alia in the capacity of her attorney and he supported the respondent and deposed that on her visits from America the respondent and her family would reside in his house. He also generally supported the plea of personal bona fide requirement.
7. 'The petitioner disputed the personal bona fide requirement on the ground that the respondent was happily living in America with her family and receiving no threats and that the living- environments in America were far better than Pakistan and the plea of personal bona fide use was not honest as the respondent did not intend to shift to Pakistan. In addition of course the plea of res judicata as indicated above was also raised. In answer to the second ground of unauthorized conversion it was pleaded that the premises was being used since the date of purchase by the respondent for running a School and as such waiver would be attracted.
8. 'The learned Rent Controller framed the two issues i,e., whether the demised premises were required for personal need in good faith and whether the petitioner used the premises for the purpose other than for which it was let out with consent of the respondent?
9. 'While dealing with the first issue the learned Rent Controller relied on the affidavit in evidence of the respondent and her father and observed that the respondent had no accommodation in Karachi except the premises even for utilizing the same on her temporary visits to Pakistan. He observed that earlier on 30-6-1997 a letter was written to the petitioner claiming vacant possession and in reply dated 12-6-1997 the petitioner promised to vacate the premises if only one month's time was granted to her and that further correspondence was also made on that subject. He observed that the political situation prevailing in USA was goading the respondent to permanently settle in Pakistan. The learned Controller also took into account of the pleas in rebuttal and the fate of earlier rent case stated to have been dismissed for non-prosecution. He also referred to cross- examination of the attorney of the petitioner wherein he admitted that the respondent had no other place or accommodation available in Karachi except the premises and whenever the respondent came to Pakistan she had to stay in her father's house. The learned Controller referred to the case of Mst. Ahmedunnisa and others v. Mst. Parveen Siraj (1985 SCM R 2012) wherein it was held that requirement for personal occupation even though it be temporary and for occasional visits could be recorded as the occupation by the landlord so long the premises contained the landlord's belongings and furniture. In this reported case the landlady who resided with her husband abroad who was an employee of a foreign country also had children and was continually visiting her parents and grand parents in Pakistan and was forced to live with her parents on such sojourns. In this case the tenant was given four months time to vacate the premises without fail.
10. 'The learned Rent Controller on having fully considered the pleas of personal bona fide requirement in the backdrop of the First Rent Case which came to be dismissed or withdrawn as it is not very clear and other facts as stated above finally relied on the celebrated gauge to establish the personal bona fide requirement i,e. When the landlord's assertions in support of his plea for personal bona fide requirement remain consistent with the pleadings and not shaken in cross- examination and or rebutted in defence, it would be concluded that the personal bona tide requirement was established.
11. 'On the second ground of unauthorized conversion of user the learned Controller too gave a positive finding in favour of the respondent..
12. 'Aggrieved by the aforesaid order dated 27-8-2008 delivered by the Controller the petitioner filed FRA No, 95 of .2008. This appeal too was dismissed vide judgment dated 15-8-2009 by the learned 1st Additional District Judge Karachi East who concurred with the finding of the learned Rent Controller.
13. 'During the pendency of the above FRA an application under section 21(3) of Sindh Rented Premises Ordinance, 1979 read with Order XLI, Rules 27 and 151, C.P.C. Was filed by the petitioner praying to hold an inquiry the following "issues":--
(a) To ascertain what steps the respondent has taken to arrange for alternative accommodation in Pakistan since filing of the ejectment application, in order to substantiate her intention to return to Pakistan as stated in paragraph 4 of the ejectment application?
(b) To ascertain what steps has been taken by the respondent to permanently settle in Pakistan since the filing of the ejectment application?
(c) To ascertain whether the political situation in the United States has changed since filing of the ejectment application?
(d) To ascertain whether any threats have been received by the respondent or her family due to the political situation in the US bearing in mind that she is a Pakistani Muslim.
(e) To ascertain whether political situation in the USA renders the respondent unable to live there as asserted by her in paragraph 9 of the ejectment application.
(f) To ascertain the respondent's contention that she can't visit Pakistan even on temporary basis therefore both the Passports of the respondent may be deposited in Court to check whether she has visited Pakistan at all. If so then how many times and what duration.
(g) To ascertain the above mentioned assertion, the U.S. Immigration documents of the respondent should be filed in the Court to ascertain whether she intends to settle in Pakistan.
(h) To ascertain the precise residency status of the respondent in the United States.
(i) To ascertain the fate of her U.S. Residence status if she settles in Pakistan.
(j) To ascertain the respondent's intent to settle in Pakistan some documentary evidence may be submitted in the court.
(k) To ascertain what steps the respondent has taken to substantiate her claim of personal bona fide need of the premises.
(1) To ascertain if the respondent waived her right and or gave implied consent to the property being used as a school, as several years had passed before an ejectment application was filed.
(m) To ascertain whether the respondent has in this case extinguished her personal bona fide need as she did in Rent Case No, 928 of 2000 filed on the same grounds.
(n) To ascertain whether the husband of the respondent is permanently working in the U.S as asserted by the respondent in her cross-examination.
(o) To ascertain if the respondent's husband intends to settle in Pakistan. If so, then it needs to be ascertained if the respondent is willing to live separately if the respondent's husband intends to settle in Pakistan then he should be asked to come to court and give evidence of the same.
(p) To ascertain the level of schooling the children of the respondent have received so far.
(q) To ascertain whether the children of the respondent will continue residing in the US for their studies. If yes, then it needs to be ascertained if the respondent is willing to leave her children in the US and live in Pakistan.
14. 'Learned Appellate Court after reproducing the hair-splitting questions ibid formulated basically to tilt the findings on the issue of personal bona fide use in favour of the petitioner proceeded to hold that the said application was not maintainable as the application did not mention as to whose additional evidence would be required in connection with further inquiry and that all the above questions had been mostly answered by the respondent in her depositions in extensive cross examination conducted by late Mr. Mumtaz Ahmed a Senior learned Advocate and that the two relevant issues of personal use and unauthorized conversion had already been answered and the additional issues suggested above could not be framed and the application had no merit and was dismissed on 15-7-2009.
15. 'I have heard learned counsel for the parties. The main thrust of the arguments advanced on behalf of the petitioner was that by dismissing the aforesaid application under subsection (3) of section 21 of Sindh Rented Premises Ordinance, 1979 the learned appellate Court denied a valuable right to the petitioner to bring it on record that the respondent had no intention whatsoever to come to Pakistan and occupy the premises. This plea was amalgamated with the plea of res judicata by variation introduced in cross-examination of the respondent.
16. ' It appears that the hair-splitting questions raised in the aforesaid application were an afterthought in order to fill in the lacunae left in cross-examination of the respondent. This opportunity could not be provided afresh to the petitioner in order to interminably prolong the litigation in denial of the prerogative of the landlord to live in her own house. It would appear that the First Rent Case was filed in the year, 2000 as its number would show and in the year, 2001 it came to be dismissed for non-prosecution or withdrawn after the increase in rent. The subsequent rent case was filed about five years later and during the interregnum the situation in America had adversely changed for Pakistanis living there due to 9/11 attack. This was a new plea and was part of a total sum of facts which the respondent was entitled to prove in order to establish her personal bona fide requirement. Res judicata could not, therefore, be attracted. The issue as to personal use was initially raised in the year, 2000 based on the want of respondent to shift to Pakistan. Several years passed thereafter and on 25-5-2001 the same was disposed of as it would appear from the statement of even date on record whereby the parties had pleaded that an amicable settlement had been arrived at and as such statement was ordered to be filed. About five years farther the Rent Case No, 33 of 2006 was filed and it was being contested whereas in the year 1997 the petitioner was beseeching for grant of one month's time to pack and shift in the correspondence referred to above. If the time is computed from the year 2006 it would be too late in the day to argue that the respondent was not honest in contending, amid change of political situation in USA that she really wanted to return to Pakistan and occupy her own house. Indeed the petitioner would not have any right to fix the schedule of the respondent as to when it would be favorable for her to come to Pakistan and start living in the premises nor the petitioner could claim that in the first phase the respondent should abandon her house in America, come to Pakistan languish here and there and prosecute a new case for eviction of the petitioner. This has never been endorsed by the judicial precedents nor it could be said to be a reasonable demand at all. It also needs to be realized that whenever the respondent with her family came to Pakistan during summer or winter vacations they were forced to live in the house of the respondent's father and as such even if she does nut come to Pakistan to permanently settle here she cannot be deprived of intermittently using of the premises on her regular visits to Pakistan. The Sindh Rented Premises Ordinance or its section 15 is not exclusively designed for such landlords as are permanently residing in Pakistan.
17. The word requirement "as it appears in the phrase personal bona fide requirement in section 15 cannot be dwarfed in its meaning so as to limit its use to the landlord's living in Pakistan only. The respondent's evidence supported with the evidence of her father which could not be shaken in cross-examination to be little its preponderance in any way has sufficiently established it. It is also admitted by the petitioner that the premises is the only accommodation available with the respondent in Pakistan and she even otherwise had been coming to Pakistan in vacations and her need to occupy had become all the more impending and necessary in attending circumstances when the political situation for Pakistani immigrants in America had adversely changed to their disadvantage. The tenant under no circumstances can expect the landlord to unsettle himself first and then to prosecute the case of eviction against him. The need of the premises as agitated in the subsequent rent case under compelling circumstances and after a time lag of several years could not allow the petitioner to succeed on the ground of constructive res judicata of having abandoned the plea on increasing the rent which had reflected in the cross-examination of the respondent otherwise both the parties had pleaded that the earlier rent case had been dismissed for non prosecution. The plea of res judicata was not even properly pleaded and except the statement dated 25-5-2001 no other document from the previous litigation was placed on record to support that plea. The petitioner failed to bring on record through cross-examination of the respondent the implications or facts as suggested by hair-splitting questions intended to form part of second inquiry in connection with personal bona fide use at the appellate stage. The petitioner did not adduce any evidence herself to establish that the political situation in America for the Muslim immigrants was favourable for them. In absence of such material F the statement of the respondent corroborated by her father about her personal bona tide requirement cannot be doubted or revisited.
18. 'It would be advantageous to refer to section 15 of S.R.P.O., 1979 wherein the requirement of a premises has been shown either to be related to reconstruction or erection of the new building at the site or to that of the landlord in good faith for his own occupation or use or for the occupation or use of spouse or any of his children and whereas the phrase "personal use has been defined to the use of premises by the owner thereof or his wife or husband, son or daughter, the word 'use' has not been given statutory meaning. The dictionary meaning of the word 'use' according to the Chambers 21st Century Dictionary is, "to put to a particular purpose." The word 'use' is not qualified by the word constant or permanent. Thus one may use his neck tie only occasionally and likewise any other belonging. The word "or" between the words "occupation or use" occurring in clause (vii) of subsection (2) of section 15 of S.R.P.O., 1979 is clearly disjunctive. The word 'use' therefore does not place any fetters on the requirement of a premises by the landlord to limit it to continuous, constant or permanent user only even on the favourable assumption of cogency of the above hair splitting questions defined from (a) to (q) ibid suggested for de novo enquiry and rightly turned down by the learned Appellate Court.
19. 'Learned counsel for respondent has relied on the case law brief resume whereof is given below:--
(1) Munir Ahmed Naulakha and others v. Ch. Muhammad Din and others (PLD 2006 SC 422) on the point of unauthorized conversion of user.
(2) Javed Khalique v. Muhammad Irfan (2008 SCM R 28). In this case it was held that when the Rent Controller as well as learned Single Judge of the High Court on appraisal of evidence came to the conclusion that the landlord had proved his personal bona fide requirement as there were concurrent findings on the question of personal need no interference in Constitutional Jurisdiction was called for.
(3) Fazal Khursheed v. S. Agha Jawed Raza (1993 M LD 2183). In this case it was held that evidence on record had proved that landlord had established his business and had residence there and that in spite of his residence in another country he could seek ejectment of the tenant from the rented premises for his personal bona fide use if he could establish by sufficient evidence such requirement but since there was merely a word of attorney of landlord against statement of tenant therefore the landlord's personal requirement was held to have not been proved.
(4) Allies Book Corporation through L.Rs, v. Sultan Ahmed and others (2006 SCM R 152). In this case it was held that since there were concurrent findings of two Courts below on bona fide personal need of landlord and the same had been arrived at justly, fairly and legally they were not liable to be interfered with as such findings were neither wrong nor incorrect or based on arbitrary or fanciful discretion.
(5) Abdul Mehdi v. Mrs. Abdul Hakim (1990 M LD 2182). In this case it was held that the plea of res judicata could not be attracted as earlier application filed by landlord was based on the ground of reconstruction of building and the same was dismissed in default or dismissed having been withdrawn by the landlord and as there was no adjudication on merits of the case subsequent application on same ground was not barred. Plea of res judicata was held to be misconceived.
(6) Sh. Maula Bakhsh and another v. Fazal Din and another (PLD 1982 SC 201). In this case it was held that since the earlier proceedings were not finally adjudicated plea of res judicata could not be attracted in subsequent proceedings.
(7) Javed Khalique v. Muhammad Irfan (2008 SCM R 28). In this case it was held that the normally landlord must be allowed to benefit from the use of his premises unless any circumstance was brought on record indicating his requirement to be mala fide and he had to prove his need to be genuine at the time of filing eviction proceedings.
(8) Qaumi Foundation v. Asad Anees Ansari (1997 CLC 33).
20. ' In this case it was held that where landlord being fully employed in foreign country such factum would not reflect upon bona fide of the landlord if he had asked for vacation of the house in his own country for the purpose of his own occupation. It was not accepted that he must remain idle or should not work for gain till such time that his property was vacated by tenant and further where tenant had changed the character of premises from residential to non residential such conduct would not negate the right of landlord to seek his eviction for residential purpose while interpreting section 11 of West Pakistan Urban Rent Restriction Ordinance, 1959.
21. ' The learned counsel for the petitioner vehemently argued that the honesty of the claim as to personal bona fide requirement was lacking. However I do not deem it to be so in view of what is stated above.
22. Following the ratio therefore in Mst. Ahmedunnisa's case (supra) and the concurrent findings on the issue of personal bona fide requirement I am not persuaded to interfere with the findings on the above issue arrived at by the learned two courts below.
23. So far as the issue of conversion of user is concerned it is quite clear that when the premises was purchased by the respondent a school was being run therein and the position is the same till date and did not even change after the disposal of the First Rent case in 2001. Accordingly the I right if any to seek eviction on that ground must be deemed to have been waived. The learned counsel for the petitioner who has taken pains to argue his case referred to Karachi Building Town Planning Regulations and submitted that School could be run if it were situated on a 60 feet wide road and there was no prohibition. Be that as it may this contention was not disputed on behalf of the respondent.
24. ' For all these reasons the instant constitutional petition is dismissed but the findings on unauthorized conversion are reversed. The petitioner at one time in 1997 was asking for one month's time to vacate. She is given six months time from here to hand over vacant possession of the premises to the respondent landlady.
25. ' The C.P. Stands disposed of accordingly.