This First Rent Appeal has been filed against the judgment dated 28-10-1999 passed by the learned IV Senior Civil Judge and Rent Controller, Karachi (West) whereby the ejectment application filed by the applicant/respondent, against the opponent/appellant was allowed.
2. Brief facts of the case, are that the applicant/respondent filed Rent Case No,63 of 1999 for ejectment on the ground of personal bona fide use as, according to him, he had retired from Government service on 27-12-1995 and since then he was making attempts to get the premises vacated. He also pleaded that the opponent/appellant was difficult in payment of rent and used to pay the rent after long delay. It was further pleaded that the appellant/opponent has dismantled one wall without permission of the applicant/respondent therefore, he was liable to be ejected. He further pleaded that he was aged about 70 years and a cardiac patient and was being harassed by the opponent/tenant on various pretexts.
3. The appellant/opponent filed his written statement wherein while admitting the relationship of landlord and tenant between the parties and the rate of rent, he denied the allegation of harassing the respondent/applicant and stated that the respondent/applicant himself adopted illegal methods by approaching the Khidmat Committee and S.D.M. He also denied the personal bona fide use of the respondent/applicant.
4. Applicant/respondent filed his affidavit in evidence and was cross-examined on 7-8-1999 whereas the opponent/appellant field his affidavit in evidence and was cross-examined on 27-9- 1999.
5. After the pleadings of the parties, the learned Rent Controller framed the following two issues for determination:
(i) Whether the premises is required for the personal bona fide use of the applicant?
(ii) What should the order be? The Issue No,1 was decided in favour of applicant/respondent and ejectment application was allowed.
6. I have heard the arguments advanced by Mr. Naveed Ahmed Khan, Advocate for the appellant and Mr. Afaq Yousuf, Advocate for the respondent and have gone through the record of the case.
7. It has been argued by the learned counsel for the appellant that the impugned judgment was erroneous, as no case was made out for personal use. He contended that the plea raised by the appellant were inconsistent with regard to his requirement and that no good faith was established by the landlord/respondent. He cited following authorities to support his contentions:
(i) 1989 SCM R 1366.
(ii) 1986 SCMR 380.
(iii) 1987 CLC 686.
(iv) 1998 MLD 377. On the strength of above-cited authorities learned counsel urged that the order of eviction be set aside, and the appeal be allowed.
12. On the other hand, learned counsel for the respondent contended that the landlord was not necessarily required to disclose in his application the nature of business, and that ordinarily the landlord was entitled to use his property according to the best of his discretion. He further contended that omission, if any, on the part of a party to cross-examine a witness on a specific point would not amount to acceptance of his plea. The learned counsel has pleaded that the appeal was barred by the limitation and has submitted that the order passed by the Rent Controller was quite just and proper. Learned counsel relied upon the following authorities in support of his contentions and has prayed for dismissal of this appeal:--
(i) 1992 M LD 2488.
(ii) 1997 M LD 98.
(iii) 1991 SCM R 2300.
13. The respondent/applicant in his application has pleaded that in the year 1995 when he was retired from service,.He made attempts to get the premises vacated for his personal use but all his efforts were thwarted by the appellant/opponent who started causing undue harassment to the respondent by instituting various proceedings against him, which included the filing of C.P. No,D- 1656 of 1998 before this Court. Copies of various proceedings were annexed with the ejectment application. He further alleged that he was an old, feeble and sick person about 70 years old and was suffering from cardiac problem.
14. The respondent/applicant substantiated the same pleas in his affidavit in evidence. In para.3 of the affidavit in evidence the respondent/opponent disclosed that he had given two shops to the opponent/appellant on, rent, but he dismantled the intervening wall, without seeking permission from the respondent/applicant. In para. No,10 of the affidavit-in-evidence he has asserted that he required both the shops for personal bona fide use in good faith, as he was retired, old, feeble person, and had no other source of income. In cross-examination the applicant/respondent disclosed that he was a heart patient, and also diabetic. He affirmed the suggestion that due to above diseases he was unable to do any hard work but can do any light work. He also affirmed the suggestion that he was a Homoeopathic doctor. In cross-examination he further stated that he was running a homoeopathic clinic in rented premises. He, however, admitted that he did not state these facts in the ejectment application.
15. The appellant/opponent in his cross-examination has admitted that he filed a civil suit against the applicant/opponent for permanent injunction as the respondent wanted to dispossess him. He also admitted having lodged a report against the respondent before the police. He also admitted having filed contempt application against the respondent. The appellant, however, denied a suggestion that because of litigation the respondent suffered heart stroke. But admitted that he had taken the respondent to hospital when he suffered heart attack in the first instance.
16. From the perusal of the evidence brought on record, it is crystal clear that the premises are required by the respondent/applicant for his personal bona fide use. Admittedly, the respondent is in need of the premises, as after his retirement from service he has been practising as Homoeopathic Doctor in the rented premises for the simple reason that all his efforts to get the premises vacated remained futile. It is also admitted fact, the respondent has suffered the agony of protracted litigation at the behest of the appellant which was thrust upon him due to the annoyance of the appellant.
17. Merely because in his ejectment application, the applicant/respondent did not disclose the nature of business for which he intends to utilize the premises would not be a ground to disallow the prayer. In this respect the reliance can be placed on the authority of Honourable Supreme Court reported in 1997 SCM R 1062 (Juma Sher v. Shaz Ali). In this case Honourable Supreme Court was pleased to allow the appeal of the landlord against the judgment of Peshawar High Court observing as under:- "We have gone through the statement of the appellant recorded before the Rent Controller in the case. The appellant in his evidence clearly stated that he required the premises for his personal and bona fide need and that he is presently not occupying any other shop or premises where he could do the business in the cantonment area. He was subjected to a very lengthy cross- examination by the counsel for the respondent but his evidence could not be shaken. Nothing was brought on record to show that the appellant was in possession of any other property in the cantonment are suitable for his needs and requirements. It has been held by this Court in the case Messrs F.K. Irani & Co. v. Begum Feroz 1996 SCM R 1178, that even the sole testimony of the landlord is sufficient to establish the personal and bona fide requirement of landlord. In the case before us, the statement by the appellant on oath was quite consistent with his averments made in the ejectment application and neither this statement was shaken nor anything was brought in evidence to contradict his statement."
18. Needles to mention here that it has been consistent view of the superior Courts that ordinarily a landlord is entitled to use his property without any restraint, as the right to acquire and possess a property is even guaranteed under the Constitution, unless the tenant was able to show by leading a tangible evidence that the ground of personal use was not coupled with good faith.
19. It will be obviously clear from the circumstances of the above case, that the landlord requires the premises bonafidely for his own use to start his clinic as undisputedly he is practising as a Homoeopathic 'Doctor, and running his clinic in a rented premises. It is also evident that the landlord is retired and sick person having neither any other source of income and/or any other premises. He has suffered the agony of protracted litigation since the year 1995, though the rent case was filed in the year 1999 naturally as a last resort when all persuasive measures to get the premises vacated bore no fruit.
20. I have considered the authorities submitted by both the parties. With due regard to the rulings cited at the bar, I am of the view that the authorities cited by the appellant's counsel are not applicable in the peculiar circumstances of this appeal. The judgment of the trial Court is well- reasoned, and is accordingly affirmed.
I am of the considered opinion that this First Rent Appeal must fail, being devoid of merit. The same is accordingly dismissed. The appellant is directed to hand over the vacant physical possession of the premises in question to the respondent/landlord within a period of sixty days from the date of this order.