1. ' The appellant filed ejectment application against the respondent on the following grounds:-
(1) Default in payment of rent from July, 1977 till the filing of ejectment application.
(2) Subletting.
(3) Requirement for personal bona fide use and occupation.
(4) Damaging the building and impairing its value and utility.
2. ' The issue relating to the last ground was not pressed whereas on the other issues the finding of the learned Controller is against the appellant. Pre-admission notice was issued to the respondent and Mr. Manzurul Haq has appeared on their behalf.
3. Mr. Abu Sharaf Ziauddin Muhammad, the learned counsel for the appellant contended that the evidence on record has not properly been appreciated by the learned Controller. So far issue relating to default is concerned, the main objection of the learned counsel is that in spite of notices served on 17-7-1977 no rent has been paid. The respondent had pleaded and proved that the parties were litigating even before the application for ejectment was filed, and an appeal wa pending which was also dismissed. The respondent, however, continued to deposit the rent in the same matter which was pending in the Court and when notice, dated 17-7-1979 was served on him, he replied it on 25-7-1979 stating all these facts. in order to show his bona fides h remitted the rent by money order on 26-7-1979, which was accepter, and the subsequent money orders sent in August and September, 197' were refused. These facts clearly establish that the respondent is no a willful defaulter. He continued to deposit the rent in Court in disposed of matter which may be a mistaken conduct on the part of the respondent. The appellant has not produced any evidence on record to show the such deposits were made in bad faith or to harass the appellant. In the absence of any evidence, to that effect, in the circumstances o the case the learned Controller was justified in not exercising his discretion in favour of the appellant.
4. ' On the issue regarding subletting the main contention of the appellant was that the opponent has sublet the premises to the respondent No, 2 and the Pan Shop has been sublet to one Syed Ali. The respondent has taken a stand that he is running the business in partnership with the respondent No, 2 and that he has employed several persons to run his business. One of them is Syed Ali, who is running the Pan Shop. The appellant had tried to establish that the respondent No,1 had parted with the possession and is not available and known for the last so many years, This fact was denied by the respondent No,1 who appeared personally, filed his affidavit of evidence and was cross- examined. The learned counsel for the appellant contended that in fact the respondent No,1 has not filed his written statement, but that a joint written statement was filed by the respondent No, 2 for and on behalf of the respondent No, 1 also. If the respondent No, 1 had not signed the written statement, it was merely a technical defect which does not completely debar him from defending the case. The fact remains that the respondent No, 1 did appear and was cross-examined and he has filed his counter-affidavit in this Court also. The evidence produced on behalf of the appellant does not inspire confidence. They are either interested witnesses or they have been managed or tutored by the appellant. In these circumstances, the appellant has failed to establish subletting.
5. The learned counsel for the appellant pressed the plea for bona fide use and occupation. The premises is required for residential purposes by the appellant on the ground that after the premises was let out his family members have grown, and it is needed for their accommodation.
6. The appellant has nowhere given in his evidence any particular of the accommodation available to him in which he is residing nor has he stated that the present accommodation in his occupation is insufficient. This lacuna in his evidence is fatal. Since such facts have not been brought on record, it is not possible to assess the need of the appellant. The appellant has further stated that he is a patient of T.B. and is the only earning member. At one hand he has pleaded his poverty and on the other hand wants to convert the premises into residential one and occupy it personally, and thereby deprive himself of its rent income. It is 'unbelievable that in such circumstances, a sick man would like to remove the tenant from the premises from which he is earning part of his livelihood. In the circumstance, alleged by the appellant, the intention cannot be to obtain the possession and then to live in such premises.
7. ' The other aspect of the case which has been dealt with by the learned Controller is that the premises was let out by the landlord for business purposes and, therefore, it cannot be required for residential purposes. The evidence on record clearly establishes that even before, this premises was let out a hotel was in existence there. The witness examined by the appellant testified that in that locality and around the hotel there are several shops. To begin with the area in which shops are situated would have been primarily a residential locality, but with the passage of time, it has developed into a commercial area. In view of these facts it is established that the premises was let out for commercial purposes and is now located in a commercial area. The learned counsel has referred to a notice which was issued to the appellant's father in 1967 by the Municipality calling upon him to remove the shops and action would be taken if the premises is converted into a commercial one. This notice was not allowed to be brought on record by the learned Controller, as it was produced at a late stage. However, even if this document is accepted on record, it is not likely to effect the merits of the case. This notice was issued in 1967 and the fact remains that up to date the Municipality has not taken any action, on the ground that the house has been converted into a commercial unit. In the result the appeal has no force, and is dismissed, in limine.
8. Appeal dismissed.
9. 1984 M L I) 1086 [ Karachi ] Before Nasir Aslam Zahid, J RIAZ AHMAD--Petitioner versus Mst. JAM1LA and others--Respondents Constitutional Petition No, S-35 of 1983, decided on 11th December, 1984
(a) West Pakistan Family Courts Act (XXXV of 1964)-- - --S. 5--Provisional Constitution Order (1 of 1981), Art. 9--'Khula'--Wife clearly stating that she was not ready to live with husband and forgoing her claim for maintenance--Decree of family Judge dissolving marriage by way of 'Khula', held, not liable to interference in Constitutional jurisdiction.
10. [p. 108TrA
(b) Provisional Constitution Order (1 of 1981)-- - --Art. 9--West Pakistan Family Courts Act (XXXV of 1964), S. 5--Restitution of conjugal rights-- Marriage already dissolved by 'Khula' and wife remarrying and giving birth to a child from her second husband--Claim of petitioner for restitution of conjugal rights, held, became infructuous in circumstances. [p. 10871 B Arshad Noor Khan for Petitioner.
11. Mirza Ghiasuddin Baig for Respondents. Date of hearing: 11th December, 1984.
12. ' The present Constitutional petition has been filed by the petitioner (husband) against judgment and decree, dated 26-3-1983, passed by the II Extra Joint Civil Judge, Hyderabad. Whereby three suits were decided. Suit No, 174 of 1981 had been filed by the respondent No, 1 (wife) for recovery of dower and for maintenance for herself and for the three daughters, Suit No, 175 of 1981 was also filed by respondent No,1 for dissolution of her marriage with the petitioner. Suit No, 177 of 1981 was filed by the petitioner against respondent No, 1 for restitution of conjugal rights.
2. This Constitutional petition was admitted to regular hearing by order, dated 24-5-1983. On 26-5- 1983 when this matter came up before this Court for hearing of the interim application filed by the petitioner for restraining respondent No, 1 from re-marrying, the learned counsel for respondent No, 1 made a statement that respondent No, 1 had no intention to re-marry at that time and in the circumstances it was considered not necessary to pass any order on the interim application.
13. However, both the learned counsel now stated that since then respondent No, 1 has re-married and she has also given birth to a child from her second marriage. A contempt application has also been filed by the petitioner in the present Constitutional petition.
3. The suit for dissolution of marriage (Suit No, 175 of 1981) has been decreed in favour of respondent No, 1 on the ground that for three years the petitioner has not maintained respondent No, 1 and secondly on the ground of 'Khula' also. The R.& Ps. had been called by this Court. From the evidence of respondent No, 1 it is found that she had clearly stated that she could not live with the petitioner and that if 'Khula' was granted she was ready to forego her dower as well as her claim for maintenance. The learned Family Judge has granted 'Khula' but also dissolved the marriage on account of non-maintenance of respondent No, 1 and has gone further in granting a decree for dower also. In fact Suit No, 174 of 1981, has also been decreed for maintenance and dower. Mr. Arshad Noor Khan, learned counsel for the petitioner, is correct in arguing that if 'Khula' was being granted and respondent No, 1 herself had stated that she was ready to forego dower and her claim for maintenance, the learned Family Judge should not have passed decree for her maintenance and for her dower. Mr. Mirza Ghiasuddin Baig, learned counsel for respondent No, 1 also concedes that this is correct. To the extent that his marriage has been dissolved also on the ground of non- maintenance for three years, the decree of the Family Judge requires to be set aside.
14. Learned counsel for the petitioner has also contended that on the evidence on record a case of Khula' had not been established. I have seen the evidence of respondent No,l. In the evidence of respondent No, 1 it has been clearly stated by her that she is not ready to live with the petitioner.
15. The decree of the learned Family Judge dissolving the marriage by way of 'Khula' is not liable for inter ference.
16. As the marriage has already been dissolved by way of 'Khula' and the decree by way of Khula' is not being set aside in the present Constitutional petition and respondent No, 1 has also re-married and given birth to a child, this Constitutional petition, as regards the claim of petitioner for restitution of conjugal rights, has become infructuous.
17. ' Learned counsel for respondent No, 1 has pointed out that as against the decree for maintenance an appeal has been filed by the petitioner which is pending before the learned Appellate Authority.
18. It is also pointed out by the learned counsel for the petitioner that as far as the custody of three daughters is concerned, the petitioner has filed an application under section 25 of the Guardian and Wards Act which is also pending.
19. ' The judgment and decree, dated 26-3-1983 of the learned II Extra Joint Civil Judge, Hyderabad, is amended as follows:-
(a) The decree of dissolution of marriage on account of non-main tenance for three years is set aside. However, the decree for dissolution of marriage by way of 'Khula' is maintained.
(b) The decree of dower is set aside.
(c) Decree for maintenance of respondent No, 1 is set aside, as respondent No, 1 has herself foregone her claim for maintenance in her evidence before the Family Judge.
20. ' The appeal against the decree for maintenance is pending before the Appellate Authority. While considering the appeal, the Appellate Authority will only consider the question of maintenance for the three daughters and no maintenance will be allowed as far as claim of respondent No, 1 for herself is concerned.
4. Constitutional Petition No, 35 of 1983, stands disposed of in the above terms with no order as to costs.