ABDUL RASOOL MEMON, J.---Through instant petition, the petitioner being tenant of premises in question has impugned the judgment dated 6-3-2012 passed by 1st Additional District Judge.
Karachi (Central), whereby Rent Appeal No,149/2011 was allowed and the judgment dated 30-3-2011 of Vth Rent Controller, Karachi (Central) passed in Rent Application No,709/2009, was set aside and the petitioner was directed to vacate the demised premises viz. Flat No,8-A, situated in the project known as Ali Heights, Block-7. F.B. Area, Karachi within a period of 30 days from the date of impugned judgment.
2. The background of the case is that a rent application, cited above was filed by respondent No,1 under section 14 of Sindh Rented Premises Ordinance, 1979 (hereinafter shall be referred as the Ordinance) against the petitioner pleading therein that her mother, who was owner of the demised premises, had executed the rent agreement with deceased father of the petitioner on 28-3-1994 for a period of 11 months through her elder son Mubarak Ali and rent was fixed at the rate of Rs,2800 per month against the security deposit of Rs,40000, on expiry of first tenancy agreement, the mother of respondent No, 1 through her daughter in law again executed a new tenancy agreement with the deceased father of petitioner and after that oral agreement said to have been continued between them. It was further alleged that after the death of his father petitioner stopped payment of rent since 2005, consequently, respondent's mother filed a Rent Application No,626/2007, during its pendency she died and the respondent contested the matter but the same was dismissed on 6-6-2009 the mother of the respondent left the following legal heirs:--
1. Mr. Mubarak AliSon
2. Mr. Murad Ali Son
3. Mr. Mehboob AliSon
4. Mr. Mansoor AliSon
5. Dr. Najma BegumDaughter
6. Mst. Naseem AkhtarDaughter
7. Mst. Nargis Daughter
8. Mst. Noorjehan Daughter
9. Mst. Yasmeen Daughter
10. Mst. Azra Daughter
11. Mst. Farah DeebaDaughter
12. Mst. Munirah Daughter
3. All the above legal heirs of original owner executed Special Power of Attorney, in respect of premises in question, in favour of the respondent No,l. She filed the instant application on the grounds of illness of her elder brother Mubarak Ali being a chronic patient of sugar, passing retired life and her two brothers Murad Ali and Mehboob Ali living in a rented house, she demanded vacant possession from the petitioner for personal bona fide use but was kept on false hopes.
3(sic). The petitioner contested the case and in his written statement denied the claims of the respondent No,1 by asserting that earlier rent case filed by the respondent No, 1 's mother was dismissed hence, this application has been filed with mala fide intention only to dispossess the petitioner without any cogent reason. The personal need of the respondent was also denied.
4. In support of her case, respondent No,1 filed her affidavit in evidence so also examined her brother Murad Ali by filing his affidavit in evidence; they were cross examined by the other side. On the other hand petitioner Muhammad Rafique filed his affidavit in evidence and he was also cross examined by learned counsel for the respondent No,
1. The Rent Controller framed the following points for determination.
(1) Whether the rent application is maintainable?
(2) Whether the flat in question is required by the applicant for personal use of her 3 elder brothers?
(3) What should the order be?
The point No,1 was answered in negative and on the basis of findings on this point the Rent Application was held as not maintainable and dismissed the same by holding point No,2 as redundant vide judgment dated 30-9-2011 The said judgment was challenged in appeal and learned 1st Additional District Judge, Karachi (Central) vide impugned judgment allowed the application by converting rent application from section 14 to section 15 of the Ordinance; held that the appellant had proved her case of personal need of the demised premises and set aside the judgment of the trial Court.
5. The learned counsel for the petitioner contended that the Rent Case No,626/2007 filed by the 'respondent against the petitioner under section 15 of the Ordinance, on the point of default, was dismissed and thereafter this application was malafidely filed: that appellate Court without affording an opportunity of the leading evidence in rebuttal to personal bona fide need converted the application from section 14 to section 15 of the Ordinance thus requires interference. In support of his contention, he has placed reliance upon the cases of Syed Fazilat ul Hoda v. Bashir Muhammad' (1997 CLC 992) and 'Salim Ahmad Khan v. Mst. Jamil Latif (1990 SCM R 1117).
6. Conversely, learned counsel for the respondent argued that section 14 of the Ordinance in the title of rent application was erroneously typed as from the contents of the rent application, it is clear that it was filed under section 15 of the Ordinance. He further submitted that the brother of respondent Mubarak Ali during trial of the case was expired, thus could not be examined and PW Murad Ali has clearly stated that he and his brother Mehboob Ali are living in a rented house, as such, the demised premises is required to them for personal bona fide use and the contention of this PW was not rebutted in cross examination and that since complete evidence on controversy was available on record, the appellate Court, having same powers of trial Court, has rightly passed the judgment in favour of the respondent instead of remanding the case. In support of his contention he has placed reliance upon the reported cases of 'Amin Akhtar Jami v. Jahangir Alain'
(1993 M LD 1530), Nawab Begum v. Muhammad Haleem Alvi and others' (1983 CLC 85) and 'Shan Illahi v. Mst. Mahmooda Begum' (1984 CLC 931).
7. I have heard in detail the arguments of learned counsel for the parties in the light of the material on the file.
8. Although this Court is not called upon 'to reappraise the evidence on record in exercise of constitutional jurisdiction, yet, in the interest of justice, I have gone through the evidence and impugned judgment and find that the reasoning recorded by the appellate Court are in consonance with the evidence on record and as per law and no prejudice seems to have been caused to the petitioner. The most surprising aspect of the case is that the ejectment was as claimed by filing application under section 14 of the Ordinance by the legal heirs of original owner for their personal bona fide use. This section is applicable to four categories of landlords viz. (i) A widow; (ii) A minor whose both parents are dead; (iii) A salaried employee due to retirement within the next six months or who is retired; and (iv) A retired person who is due to attain the age of 60 years within the next 6 months or who has attained the age of 60 years. But in the body of Rent Application in Para No,9, it is stated that the legal heir No,1 (Mubarak Ali) of the original owner is patient of sugar and passing his retired life from the job and dependent on the help of the other legal heirs and lives with his family in the rented house which is given by other legal heirs while in para No,10, it is stated that the legal heir Nos.2 and 3 (Murad Ali and Mehboob Ali) demanded to vacate the demised premises because there is need of the flat for residing of them due to illness and retirement from job, as they could not manage rent for their residence. The next surprising thing is that statutory notice as contemplated under section 14(1) of the Ordinance, which is prerequisite condition for filing rent application under section 14 of the Ordinance, was-not sent to the tenant / petitioner by the respondent.
10. Apart from above, in deciding this matter learned Rent Controller did not adopt the summary procedure for bringing the case under section 14 of the Ordinance. Notice was duly issued to the petitioner, written statement was obtained and the evidence of the parties was recorded. This is not a procedure contemplated by the section 14 of the Ordinance. This section simply says that if Rent Controller satisfied that the landlord falls under any clause of various categories mentioned above and has no other house to live, then he may eject the tenant in summary way. The Rent Controller by recording evidence of parties after requiring the petitioner to file written statement proceeded in the manner which is usually adopted in application under section 15 of the Ordinance, therefore, for all practical purposes, the ejectment application filed by the respondent appears to be one under section 15 of the Ordinance. It is, by now, settled principle that an application under section 14 can be converted into one under section 15(2)(vii) of the Ordinance provided that in effecting such conversion, the Controller must see whether adequate opportunity has or has not been provided to the tenant to defend himself for the purpose of section 15(2)(vii) of the Ordinance and whether or not, in actual fact, bare need of landlord in terms of section 14 of the Ordinance, is really one under section 15(2)(vii) of the Ordinance satisfying the elements of requirement in good faith, which are essential ingredients of that provision. Not only before the Rent Controller but if these necessary conditions upon further enquiry under section 21 of the Ordinance, are found existed at appellate stage, the appellate Court can also convert the application, in this regard reliance may be placed on case of 'Amin Akhtar Jami' (supra).
11. In the case in hand, since the petitioner was given a full opportunity to file written statement, cross examine the landlord and put himself in the witness box, thereby, adequate opportunity had been given to him to defend his case for the purpose of section 15(2) of the Ordinance; and in this way while converting the rent application from section 14 to section 15 of the Ordinance, by learned appellate Court no prejudice seems to have been caused to the petitioner. With profound respect the citations relied upon by the learned petitioner's counsel have no relevant application so far facts and circumstances of this case are concerned.
12. Adverting to the prayer clause, it may be mentioned that respondent has sought directions to the tenant / petitioner to vacate the demised premises for personal use of her three elder brothers.
It has come on record that brother of respondent No,1, namely, Mubarak Ali died after filing of this application while PW Murad Ali and respondent No,1 herself have supported the contention of rent application, though they have been cross examined at length but nothing in rebuttal has been brought on record to dislodge their claim in respect of requiring the said premises for her two brothers, namely, Murad Ali and Mehboob Ali.
13. In the above circumstances of the case. I am of the opinion that the respondent has fully proved her case that demised premises is required to them for their personal bona fide need, therefore, the impugned judgment does not require any interference of this Court and the same is hereby maintained.
14. For the reasons discussed above, the petition merits no consideration and is accordingly dismissed.