' Appellant Manzoor Hussain is one of the legal heirs of deceased Haji Mehdi Hassan and he was one of the applicants in Rent Application No, 2526 of 1985 which was dismissed under the judgment dated 3-12-1986, impugned by the appellant in this appeal.
2. Admittedly the shop in litigation bearing No,197 Group I, Khalid Cloth Market, Commercial Area, Karachi was let out on 16-6-1972 by Haji Mehdi Hassan (predecessor of the appellants) to S. Nizamuddin, (predecessor of the respondents) on monthly rent of Rs,100 and such rent agreement was reduced into writing on 16-6-1972. Later on Mehdi Hassan died leaving behind Manzoor Hussain, Sabir Hussain and Zamir Ahmed as his heirs. Zamir Ahmed also died leaving behind Mst.
Hanifa Bano, Farhat Jehan, Munawarul Islam, Khalida, Mohammad Asif, Muhammad Farooq, Jamil Ahmed, Muhammad Arif and Saba as his legal heirs. Appellant Manzoor Hussain is son of deceased Mehdi Hassan and brother of deceased Zamir Ahmed and he has been collecting rent which was enhanced to Rs,150 P.M. From Rs,100 P.M. Under a renewal agreement.
3. The legal heirs of late Mehdi Hassan filed Rent Application No, 2526 of 1985 under Section 14 of the Sindh Rented Premises Ordinance (hereinafter to be referred to as the Ordinance) for eviction of S. Nizamuddin from the shop in litigation on the only ground of personal bona fide need. It was averred in the application that appellant Manzoor Hussain, who was employed in Singer Sewing Machine Company had retired from service on 14-1-1979 and as such he needed the demised premises for running his own business. Such notice dated 11-8-1982 was said to have been sent to S. Nizamuddin, who did not reply. It was added that the appellant had no other building owned by him in any locality.
4. The case was contested by S. Nizamuddin who in his written statement challenged the rent case to be not maintainable under Section 14 of the Ordinance as such remedy was not available to one of the owners of the demised premises. Claim of the appellant to have retired from service was challenged. It was further stated that the appellant had himself entered into renewal agreement with S. Nizamuddin and in pursuance of such agreement the rent was enhanced to Rs,150 per month and consequently the appellant was not entitled to seek relief under Section 14 of the Ordinance.
5. During pendency of the rent case S. Nizamuddin died and consequently the respondents being his L.Rs were brought on record and an amended rent application was filed in identical terms against the present respondents, who did not file any amended written statement.
6. After allowing the parties to lead evidence learned VIth Senior Civil Judge and Rent Controller, Karachi West under the impugned judgment dated 3-12-1986 dismissed the rent application.
Hence this appeal.
7. Mr. Rehan-ul-Hassan Farooqi, learned counsel for the appellant argued that the appellant had retired from service on 14-1-1979, while he had filed the rent case on 6-12-1982 and hence he was entitled to seek remedy under Section 14 of the Ordinance, which came in force on 21-11-1979. It was next argued that the appellant had been able to prove his retirement from service on 14-1-1979 by examining Mohammad Aqeel Ex.7, who produced certificate Ex. 4-C and letter about gratuity Ex.4- D, the admissibility of which was not challenged by the respondents. It was further argued that the appellant had filed the case after about 3 years of retirement because no period of limitation was fixed for moving an application under section 14 of the Ordinance. In support reliance was placed on the case of Abdul Malik v. Mohammad Ilyas PLD 1989 SC 356, where the landlord had sought eviction of his tenant on the ground of his being 60 years of age and in that context the landlord filed fresh application under Section 14 of the Ordinance after having withdrawn the previously instituted application, seeking eviction of the tenant on the ground of default. The point of limitation was not involved in the cited case. Learned counsel for the appellant further argued that although the appellant was one of the co-sharers of the demised premises but he was competent to move an application under Section 14 of the Ordinance. He relied on the case of Mst.Saeed Haidri Khatoon v. Aftab Ahmed and others 1986 CLC 1534, where it was observed that a widow as a co- owner is entitled to press into service Section 14 of the Ordinance provided the other co-owners support her application or the portion of the building for which she has applied for ejectment has fallen to her share upon partition of the property, but Section 14 of the Ordinance cannot be pressed into service where the other co-owners do not support the widow in her application under Section 14 of the Ordinance. It was also argued that if the tenant had occupied the demised premises after payment of "Pagri" that would not come in way of the appellant in seeking the relief under Section 14 of the Ordinance. Learned counsel cited some more authorities which would be discussed later on.
8. Mr. Muhammad Anwar Tariq, learned counsel for the respondent argued that Singer Sewing Machine Company was a private firm and documents issued by said firm viz. Ex.4-C and Ex.4-D required proof. It was further argued that the demised property had not been partitioned and the appellant was not supported by other co-sharers and consequently he was not entitled to seek eviction of the tenant. Learned counsel for the respondent contended that payment of "pagri" by the tenant cannot stand in the way of the appellant in seeking the eviction under section 14 of the Ordinance. But he strenuously argued that had the appellant required the demised premises bona fide he would not have waited for three years after his retirement to move an application for eviction. It was added that the appellant was conscious of the weakness of his case and hence he wanted to adduce evidence at the appellate stage for which he moved an application (CMA 346/87). Learned counsel for the respondents cited certain authorities which would be discussed at the proper stage.
9. First point to be determined is' whether appellant Manzoor Hussain being one of the legal heirs of Haji Mehdi Hassan can maintain his application 'under Section 14 of the Ordinance for getting evicted the common tenants of the legal heirs of Haji Mehdi Hassan. On this point learned counsel for the appellant cited certain authorities which follow. In Mst. Safia Bai v. Abdul Sattar PLD 1983 Kar.
419, the view taken was that finding of the Controller that ejectment application cannot be maintained as the landlord was not full owner, cannot be sustained in view of Section 14(1) of the Ordinance. In Rajab Ali v. Darius B. Kandawalla and another PLD 1984 Kar. 14, the view taken was that the premises jointly owned could he got vacated even for use and occupation of any of the owners. In the case of Rahiman Bano v. Syed Wasi Ahmed Jafari 1984 CLC 44 it was observed that if a widow had no other property except her share in the joint property left by her husband, she would be hit hard if she is refused the relief permissible under Section 14 of the Ordinance on the ground that the property in question does not belong to her exclusively. In the case of George Levi v. Mrs. Zakia Sultana 1984 CLC 3066, the view taken was that a landlady not full owner of the disputed property can maintain her ejectment petition under section 14 (1) of the Ordinance. In the case of Sayeda Haidri Khatoon 1986 CLC 1534 cited by learned counsel for the respondent, it was held that a widow being co-owner ofthe property was entitled to press into service Section 14 of the Ordinance provided other co-owners/legal heirs supported her application or portion of building for which she had applied for ejectment had fallen to her share upon partition of property. In the present case appellant Manzoor Hussain was not the only person who moved the application for eviction. It was moved by all the legal heirs of Haji Mehdi Hassan. However, appeal has been preferred by Manzoor Hussain only and this can give the impression that other heirs of Haji Mehdi Hassan do not support the appellant. In the cited cases the right to move eviction application was conceded in favour of one of the co-owners, who was a widow.In the present case the appellant in his appeal has not joined other co-owners of the disputed property. A decision of a Court of law can be challenged by any one of the persons who were party to such litigation. Hence I do not find fault with Manzoor Hussain alone having preferred this appeal and the objection on that score stands overruled.
10. Second point needing determination is whether Manzoor Hussain has retired from service. In his affidavit Ex.4 Manzoor Hussain stated that he was employed in Singer Sewing Machine Company and had retired from there on 141-1979. In support, he examined Muhammad Aqeel Ex.7, who was Manager, Legal Affairs Singer Sewing Machine Company. He deposed that Manzoor Hussain was appointed in said Company as Sale Agent in 1962. He added that on 14-1-1979 Manzoor Hussain had retired from service while he was Manager, Paposh Nagar Store of said Company. He supported Ex.4-C and letter Ex.4-D Said documents were produced by the appellant with his affidavit Ex.4. Admissibility of said documents was not challenged earlier but it was challenged by learned counsel for the respondent during arguments. He was of the view that said documents required to be proved. In support he cited certain authorities which follows. In the case of Sultan v.
Government of West Pakistan PLD 1964 SC 302, it was held that an order of Government can be proved by producing original or certified copy of order. In the case of Khan Mohammad Yousuf Khan Khattak v. S.M. Ayoob and others PLD 1973 SC 160, it was held that the documents, which were not copies of judicial record should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them even if such documents are brought on record and exhibited without objection. In the case of Ali Mohtaram Naqvi v. Cogefar Astaldi Sidmail PLD 1986 Kar. 574, it was held that unless the genuineness and authenticity of a document and its contents, including its authorship and its relationship with the case, by putting the man in the witness box, who is alleged to have written and signed the same is produced, the document cannot be relied upon, simply because document, which is a carbon copy has gone on record without an objection by the other side. None of these cases was a rent case. The technicalities of the law of evidence cannot be allowed to stand in the way of doing proper justice in the rent proceedings which do not follow even technicalities of the Civil Procedure Code. Even if said documents be excluded from consideration there is oral evidence of the appellant and of Mohammad Aged Ex. 7, which cannot be brushed aside without any evidence in rebuttal from the other side. Consequently the appellant had been able to establish that he had retired from private service on 14-1-1979.
11. On the point of seeking eviction under section 14 of the Ordinance, learned counsel for the appellant cited, the cases of (i) Hafiz Abdul Malik v. Muhammad Ilyas PLD 1989 SC 356, (ii) Mst.
Rahiman Bano v. Syed Wasi Ahmed Jafferi 1984 CLC 44, (iii) Mohammad Bux v. Karim Bux alias Kaman Lala 1987 CLC 13, (iv) Razia Begum v. Ghulam Sarwar Malik 1988 CLC 234, (v) Ghulam Muhammad v. Zahir Ahmad Khan 1986 CLC 681 and (vi) George Levi v. Mrs. Zakia Sultana 1984 CLC 3066. In (i) above the landlord was involved in litigation since 1967 for getting tenant evicted but he did not succeed till 1982 and he filed another case for eviction on the point of default but withdrew it and then filed a fresh application under Section 14 of the Ordinance in 1983 and in the circumstances it was held that series of litigation indicated that there was genuine personal need on part of the landlord to get the tenant evicted. In (ii) above husband of a widow died and she inherited the property left by her husband jointly with other heirs and the widow had no other property and the view taken was that the widow would continue suffering indefinitely if she is refused the relief under Section 14 of the Ordinance. In (iii) above the view taken was that a landlord under Section 14 of the Ordinance, was not required to prove bona fides of his needs and his claim that the premises were required for personal use would be sufficient when applying under section 14 of the Ordinance. In (iv) above the view taken was that while dealing with an application under Section 14 of the Ordinance, the Controller was not competent to go into the question of bona fides or otherwise of need and requirement of landlord (v) above was cited by both the sides. In the said case the view taken was that bona fide requirement is not required to be proved by the landlord under section 14 of the Ordinance, but at least he has to prove that he needs the building. It was further observed that the word "needs" used in section 14 of the Ordinance, indicates that the landlord has to establish that it is not his arbitrary desire to have a particular premises vacated but he has a need for the same and the need has therefore, to be proved and the proof of course would be different in the circumstances of each case but unless and until some prima facie need is established the landlord cannot insist that irrespective of his need he should be given the premises because he desires to have them. It was also observed that the legislature did not intend to invest the landlord with that arbitrary wish and therefore, in its wisdom it used the word "needs" in section 14 of the Ordinance and therefore, some necessity of requiring the premises or some genuine want of the premises and the necessity of possession has to be proved by the landlord. In (vi) above the view taken was that desire to reside or carry on business in one's own premises is a natural desire of all human beings and one may start with the presumption that a claim of requirement by a landlord for personal use and occupation is true, although such presumption is rebuttable and may be displaced by acceptable evidence. It was also observed that it was not requirement of law that the requirement of the landlord in an application under section 14 of the Ordinance should be bona fide.
12. Learned counsel for the respondent cited the cases of (a) Ghulam Mohammad v. Zahir Ahmad Khan 1986 CLC 681, (b) Mst. Kalsoom Begum v. M/s. Elite Cone Industries and another 1989 CLC 969 and (c) Dr. Roshan H. Nanji v. Mst. Razia Khatoon 1984 CLC 2343. (a) above was also cited by counsel for the appellant and has been discussed above. In (b) above a landlady being vidow in her application for eviction of her landlord took the ground mentioned in section 14 of the Ordinance and also took several other grounds such as default, nuisance and subletting etc. The need for the premises appeared to be of son of the landlady and not of the landlady. In the circumstances it was held that the application under Section 14 of the Ordinance was not warranted in the case and the dismissal of the ejectment application was maintained. In (c) above a landlady moved application for ejectment under Section 14 of the Ordinance on the ground of her having attained the age of 60 years and the view taken was that proof of her age by satisfactory evidence was incumbent upon her.
13. In the present case the appellant retired from service on 14-1-1979 and on 21-11-1979 the Ordinance came into force but the rent case was filed on 6-12-1982. In his affidavit Ex.4 the appellant did not give explanation for filing the rent case so late. Although no period of limitation is prescribed for moving an application under Section 14 of the Ordinance, but such inordinate delay militates against genuine need of the appellant and it indicates that it was arbitrary desire of the appellant to have the premises in litigation vacated by the respondents. Here I would again refer to the case of Ghulam Muhammad 1986 CLC 681, which was cited by both the sides, for the view that the landlord moving an application under Section 14 of the Ordinance for eviction of his tenant has to establish his prima facie need.
14. Evidence of the appellant shows that he has not been able to establish his need for the shop in litigation. In his cross-examination the appellant admitted that his father owned property No,B- 351/10 in Federal 'B' Area, Karachi and on his death in July 1972 said property was mutated in his name and in names of his two brothers to whom he sold his share in 1978. Appellant admitted that signboard in name of Manzoor Sons appeared on Shop No,9 of Yagoob Hydri Market, Karachi, which was being run in name of his wife and her partners, who never remained at the shop. He denied if the shop factually belonged to him. He admitted that shops Nos. 61 and 62 in Paposh Nagar, Karachi belonged to his sons, who were running their business of hire-purchase independently, although they were residing with him. Appellant further stated that after his retirement in January, 1979 he used to make collection of hire-purchase goods on behalf of different shopkeepers and was earning Rs,600 to Rs,700 per month as commission. He admitted that he had filed against the respondents another application also for ejectment under Section 15 of the Ordinance and the same was pending. Admissions made by the appellant in his cross- examination suggest that he has already been carrying on business in Shop No,9 Yaqoob Market, Hydri in the name of his wife besides collecting hire-purchase charges. Even otherwise the appellant has failed to establish that he needs the shop in litigation for his own use. In other words his desire to have possession of the disputed shop appears to be arbitrary.
15. Before seeking eviction of the tenant under Section 14 of the Ordinance, the landlord has to send a notice in writing to the tenant informing him that he needs the premises for personal use and requiring him to deliver vacant possession of the premises within such time as may be specified in the notice. In the instant case the appellant claimed to have sent a notice dated 11-8-1982, copy Ex.4-E to S.Nizamuddin predecessor of the respondents through registered post A/D. The appellant did not examine any postman to prove that the registered envelope (containing the notice) was duly delivered to S. Nizamuddin. It was not mentioned in the affidavit-in-evidence of appellant Manzoor Hussain if the registered envelope containing the notice was duly served upon S. Nizamuddin or if S. Nizamuddin had signed the A.D. Receipt. In this way it has not been established affirmatively if S. Nizamuddin was served with any notice under subsection (1) of section 14 of the Ordinance. In the Full Bench decision of Barkatullah Khan v. Mirza Muhammad Hassan PLD 1986 Kar.
309, it was held that under section 14 of the Ordinance in order to get an order of eviction a landlord, if he is qualified as mentioned in the section is required to give notice in writing informing the tenant that he or she needs the building for his or her personal use and requiring him to deliver vacant possession of the same within such time as may be specified in the notice not being less than two months. It was further observed that in order to get an order of eviction a landlord must fulfil the condition about notice. In absence of proof about prior service of notice under subsection
(1) of section 14 of the Ordinance, the present application under section 14 of the Ordinance was not maintainable.
16. Respondents, S. Jamil Akhtar and S. Nihal Akhtar filed their affidavits and they filed affidavit of Qari M. Hussain and examined Mst. Hanifa Bano Ex.11 wife of the appellant. Mst. Hanifa Bano deposed that she had shop in Hydri for five years and the same was in her name only and it was run by her son. In her cross-examination she said that business in Shop No,9 in Hydri was being run in name of "Manzoor Sons". She produced photo copy Ex.11-A of a receipt, showing that she was tenant of Shop No,9-A in Yacioob Market, Hydri, North Nazimabad, Karachi. In this way Mst. Hanifa Bano has deviated from the path taken by her husband Manzoor Hussain. She did not state if the business in Shop No, 9 Hydri was carried on in her name. She said that her son was running the business. All this shows that the appellant has a hand in the business being run in Shop No,9 Hydri but there was an effort to conceal his connection with business in said shop.
17. However, Mst. Hanifa Bano in her cross-examination made certain statements in favour of the appellant. She stated that the appellant was old and he required the demised premises after his retirement, as he wanted to run his business. This admission coming from a witness of the respondents can turn the tables. In order to evade the effect of such statement learned counsel for the respondents cited the cases of Jalaluddin and another v. Nawab and others AIR 1941 Lah. 55 and Babu Ram v. Emperor AIR 1937 All.
745. In latter case the view taken was that a party is not bound by evidence of a witness whom he produces and no part of the statement of such a witness amounts to an admission on behalf of the party producing him and there was no rule of law that a party is not able to say that a witness produced by him is not speaking the truth upon some particular point unless he makes a written application to say that the witness is hostile. In Lahore case it was held that there is no rule of law that a party must be bound by the statement of his witnesses though the belief in such a rule is not uncommon and does great harm in judicial trials in some of the subordinate Courts. In view of these authorities no value can be attached to statement made by wife of the appellant in favour of her husband.
18. As a result of the above discussion I am of the view that the appellant and the other heirs of Haji Mehdi Hassan had not been able to make out their case for eviction of the respondents under section 14 of the Ordinance. Therefore, dismiss this appeal with no order as to costs.