ABDUL KADIR SHAIKH, J.--This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dismissing petitioner's appeal and thereby upholding the order of the Rent Controller whereby petitioner was directed to hand over possession of the demised house to respondent's landlady,
2. Respondent is the owner of two storeyd house on Plot No.1-6-C in Block 6, P. E. C. H. Society, Karachi, the ground floor having been occupied by petitioner as a tenant on monthly rent of Rs.450 plus 50$ of the water and conservancy charges.
3. On 16-7-1979 respondent filed ejectment application against petitioner on the ground that she required the premises for the occupation of her children and petitioner was also a defaulter in payment of water and conservancy charges. The Rent Controller after recording evidence of the parties allowed the application on both the counts, and directed petitioner's eviction. On appeal learned Judge in the High Court upheld the findings of the Rent Controller and dismissed the appeal as stated earlier.
4. Mr. Khurshid Anwar Shaikh learned counsel for the petitioner submitted that the courts below misdirected themselves inasmuch as they considered the case as if respondent had applied for petitioner's eviction on ground of requirement of the premises for the use. Of respondent's children as well as for her personal use, whereas in fact she had specifically mentioned in the ejectment application that she requires the premises for her two children and had not claimed the same for her personal use. Learned counsel further submitted that the Courts below erred in law in ignoring the material evidence that the first floor premises of the building fell vacant during the pendency of the case and it is in respondent's possession and can easily accommodate her two children for whose benefit ejectment application was filed.
5. It is sufficiently proved in evidence that respondent has six children, four out of first wedlock with Muhammad Ahmad who afterwards divorced her and two, namely, Aziz and Samina aged 15 and 13 years respectively out of second marriage with Razi Ahmed who died in a car accident. Learned Rent Controller assessed the situation in which respondent was placed as under:- "After the death of her second husband she started living with her sister. The children of her sister are eight in number and grown up, therefore, she moved to the house of her children from the first marriage and at present she is living at 21-A Sunset Boulevard, Defence Housing Society, Karachi with her children who are from first husband. This house belongs to her first husband who subsequently gifted this house to his four children........
The applicant has mentioned that the house wherein she is living now does not belong to her and she is under constant pressure from her first husband to move out of premises, which has caused her mentally upset. Moreover the children of the applicant from second marriage also find it unbearable to live with the children from her first marriage as her first husband constantly visits the house and harasses them. In this respect the opponent, in her affidavit in evidence, has mentioned that it is unbelievable that a divorcing husband is trying to create a situation where the children would be deprived of the protection of their mother, if she shifts to some other place. In my opinion the contention raised by the opponent is unbelievable. It is not only religiously proper but also socially and morally improper and unbelievable that a divorcing husband should keep the divorced wife in his house. It is also unbelievable that the children of the applicant out of second marriage can tolerate the frequent visit and conversation of previous husband of their mother. It is, therefore, natural that residing of the children of the second husband with the children of first husband of applicant in same house, should result into mental torture to both the sides.
Taking into consideration the afore-discussed evidence, facts and circumstances, I am of my considered opinion that requirement of applicant for the premises is genuine in good faith."
Learned Judge in the High Court also fully confirmed this view. No doubt in the ejectment application respondent had mentioned that "the premises are required by the applicant in good faith for the occupation of her children . . .. . ." . But since obviously her two children from the second marriage being minors they were not to live on their own and she did not mean to exclude her own occupation. No explanation for this omission in the averments made in the ejectment application was sought from her in the cross-examination, nor was this plea raised before the High Court, and it is, therefore, not open to the petitioner to agitate a fresh ground for the first time in these proceedings.
6. As regards the premises on the first floor of the house which fell vacant during the pendency of the present proceedings, learned Judge in the High Court accepted respondent's statement that she under medical advice has been restrained from climbing stairs and, therefore, held that "it is proved that respondent's demand for vacation of the demised premises has been made in good faith."
7. These conclusions reached by the learned Judge in the High Court are unassailable and do not warrant interference by this Court.
The petition is, therefore, dismissed. 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.