1. ' Appellant above-named being aggrieved by order dated 6-4-1980 of the learned Rent Controller No, 2, Karachi, by which appellant's ejectment application No, 3996 of 1976 was dismissed, has preferred the above appeal on the following facts and grounds :- ' That the appellant had filed the ejectment proceeding No, R C 3996/76 before IInd Rent Controller, Karachi on or about 18-9-1976 for the eviction of the respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the following grounds :-
(a) That the respondent used the premises in question for the purposes other than that for which it was let out.
(b) That the respondent has committed such acts which have impaired the material value of the property.
(c) That the Landlady requires the premises in question in good faith far her own use and occupation and for her spouse.
2. ' That the respondent filed written statement and denied the allegations and further stated that the appellant wanted to increase the rent and that she did not require the premises in good faith. The Court was, however, pleased to frame the following issues out of the pleadings :-
(1) Whether the premises are being used for the public for celebrating marriage and other functions and heavy rent is charged by the opponent for this purpose ?
(2) Whether any addition or alteration has been made by the opponent in order to impair the value and utility of the premises ?
(3) Whether the premises are required bonafidely by the applicant for her personal need ?
(4) Whether the present application is filed to coerce the opponent to enhance monthly rent ?
(5) What should the order be ?
3. ' That the present case under appeal partly proceeded under the old laws of 1959 and rest of the proceedings were accomplished under the Sind Rented Premises Ordinance of 1979. The appellant examined her husband P. W. 1 and closed her side. The respondent filed affidavits of evidence of two persons viz., Imtiayaz Ahmad Khan inspector in Central Excise and Land Custom, Karachi as the recent General Secretary and one outsider M. Yousuf as D. W. 1 and D. W. 2, respectively and closed the case.
4. ' The learned trial Court taking into consideration the evidence adduced before it, dismissed the appellant's ejectment application on all the grounds by impugned order dated 6-4-1980 and consequently the appellant has filed the above appeal on the grounds mentioned in the memo. Of appeal.
5. ' The learned Advocate for the appellant at the outset submitted, that he was pressing the above appeal only on ground of personal and bona fide use and not on any other ground. In support of his contention the learned Advocate for the appellant submitted as under :-
(a) That the appellant by examining her husband and producing the medical certificates, established beyond reasonable doubt, that she requires the premises in occupation of the respondent in good faith for her personal and bona fide use, but in spite of this the learned trial Court rejected the appellant's application on the grounds which were not warranted.
(b) That the learned Rent Controller wrongly took into consideration that the appellant acquired the another house on the ground floor after filing or the ejectment application in question and consequently her need if any stood fully satisfied, contrary to law laid down by Hon'ble Supreme Court and other High Courts.
(c) That the learned Rent Controller failed to take into consideration that the case before him was to be disposed of in accordance with the provisions of Sind Rented Premises Ordinance, 1979 "and not under the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, which stood repealed before the impugned order and as such erroneously took into consideration the premises recovered by the appellant, after filing of the above ejectment application in question."
6. ' In support of the above contention the learned Advocate for the appellant relied upon cases reported in 1973 SCM R 185 ; 1982 S CM R 462 ; 1970 SCM R 539 ; 1981 SCM R 557 and PLD 1965 Kar.
7. 408 and submitted that the learned Rent Controller has failed to appreciate the meaning of personal and bona fide use in context of the law in force at the time, when the impugned order was passed.
8. ' The learned Advocate for the respondent on the other hand submitted, that the impugned order of the learned Rent Controller is based on due appraisal of the evidence brought on record and since appellant did not choose to go into the witness box, her application on the ground of personal and bona fide use was not miantainable at all. In support of this contention the learned Advocate for the respondent relied upon case reported in 1980 CLC 241. The learned Advocate for the respondent further submitted, that the medical certificates produced by the appellant's witness was not proved in accordance with the law and both the certificates which were produced before the learned Rent Controller was subsequent to the filing of the ejectment application in question and as such they have rightly been ignored by the learned Rent Controller. In support of this contention the learned Advocate for the respondent relied upon case reported in PLD 1973 SC
161. The learned Advocate for the respondent further submitted, that admittedly appellant is not Pardanashin lady and moves out and as such nothing prevented her from appearing before the learned Rent Controller in support of her said application, but she chose to remain away from the Court and as such on this ground alone her application was liable to be dismissed. The learned Advocate further submitted, that since the ejectment application in question was filed at time when the West Pakistan Urban Rent Restriction Ordinance, 1959 was in force, the same has been rightly disposed of under the said Act. In support of this contention the learned Advocate for the respondent relied upon case reported in PLD 1982 Kar.
9. 532.
10. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court as well as impugned order and the cases cited by the learned Advocates before me.
11. The main contentions that were urged by the learned Advocate for the appellant before me were, that it was the choice of the landlord to select the house in which he/she wanted to live and secondly on account of repeal West Pakistan Urban Rent Restriction Ordinance, 1959, bar contained in 13(3)(1) proviso of the said repealed Ordinance ceased to exist, as there is such bar under section 15(2)(vii) of Sind Rented Premises Ordinance, 1979.
12. ' There can be no dispute about the first contention of the learned Advocate for the appellant, in view of law laid down by superior Courts in this connection. However, the choice or discretion vested in the landlord is subject to his bona fide need, which must be proved by landlord.
13. ' As far as the second contention of the learned Advocate for appellant is concerned, it requires consideration and appellant's counsel has relied upon cases cited by him.
14. ' I find case reported in 1970 SCM R 539 is based on different facts and as such not applicable to the facts of the present appeal. Similarly cases reported in 1981 SCM R 557 and 1982 SCM R 962 are also based on different facts and as such not applicable. However, case reported in PLD 1965 Kar. 408 does support the contention of the learned Advocate for appellant, that premises contemplated by section 13 (3) (b) Proviso applies to the premises in occupation of landlord, at the time of filing of ejectment application only. However, there is contrary view expressed by this Court in case reported in PLD 1981 Kar.
67. I am inclined to agree with case reported in PLD 1981 Kar. 67, for the reasons given in the said judgment.
15. In view of my above conclusions, the only question which now requires consideration is, whether repealed Ordinance of 1959 was applicable to the present case or the present ought to have been disposed of on the basis of section 15(2)(vii) of Sind Rented Premises Ordinance, 1979, which is different from section 13(3)(b) of West Pakistan Urban Rent Restriction B Ordinance, 1959. On this question, I find D. B. Decision of this Court reported in PLD 1982 Kar. 532, by which I am bound.
16. According to this decision, rights of parties are to be governed by West Pakistan Urban Rent Restriction Ordinance, 1959, whereas procedure to be followed for disposal of pending cases, should be one provided by new Ordinance of 1979. Therefore, in view of this, I see no illegality in the impugned order of the learned Rent Controller, for having taken into consideration the effect of acquisition of other premises by appellant, pending disposal of present case, in view of the provisions of section 13(3)(b), proviso. In addition to this, I find two medical certificates Exhs. A/7 and A/8 were not proved in accordance with law and both these certificates are after filing of ejectment application in question.
17. ' Therefore, in view of my above conclusions and findings, I find no merits in the above appeal, which is consequently dismissed, with no orders as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.