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Petitioner: MUHAMMAD YASIN and 4 others VS Respondent: IIIADDITIONAL DISTRICT JUDGE, KARACHI JUDGMENT
Court Name: Sindh High Court Judge(s): Azizullah M. Memon, Munib Ahmed Khan Title:MUHAMMAD YASIN and 4 others vs IIIADDITIONAL DISTRICT JUDGE, KARACHI
JUDGMENT
Reported As: 2008 YLR 1641 Result: Case remanded Judgment JUDGMENT ' AZIZULLAH M. MEMON, J.---Heard Messrs Abdul Aziz Khan and Abdul Qadir Khan for the petitioner and Mr. 'Muhammad Sher Awan for respondent No,3 (a) to (g). ' Predecessor of the private respondent namely Abdullah Naji filed Rent Case No,32/1994 in the Court of VIth Senior Civil Judge/Rent Controller Karachi, South, against the petitioners under section 15-2 (ii), (iii) (b), (iv), (vi), (vii) of Sindh Rented Premises Ordinance, 1979, stating therein that he was owner of the premises known as Byculla Mansion constructed on Plot No,1, 1/2, Serai Quarter SR-6 along with godown bearing Nos. 1, 2, 3, 4, 5, and open space, measuring 49 feet in length and 24 feet in width, whereas petitioners are tenants of the said applicant in respect of godown Nos. 1, 2, 3, 4, and 5 with open space on monthly rent of Rs,1000 since February 1979, without any written tenancy agreement. It was alleged that the tenant/ petitioner committed default in payment of rent for the month of March 1993 till 31st January, 1994, amounting to Rs, 11000 that the petitioner/tenant unauthoriazedly covered the open space with tin sheet and converted the same for his use, and further that he also made unauthorized construction in the said godowns without the written consent of the said applicant and thereby damaged the pillars of the said godowns, and diminished material value and utility thereof by causing serious damages to the same; the Karachi Building Control Authority also issued notices regarding the said status of building structure of the godown. ' The said applicant further contended in the said memo. Of ejectment application that the said godowns are required for the bona fide use and occupation of his son Muhammad Shoaib Naji, who is jobless and has to start his own business and therefore, the tenants/ petitioners are liable to
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be ejected from the said godowns and he prayed for the ejectment of the said tenant from the same. ' The tenants/petitioners filed their written statement in the said ejectment case denying the allegations/assertions of deceased Abdullah Naji who expired during proceedings of the ejectment case and his legal heirs stand impleaded therein. ' The petitioners stated in their written statement that prior to the present ejectment case, the deceased owner of the godowns had filed ejectment case bearing No,1086/1986 against the petitioners in respect of the same premises on the grounds of (a) Default in payment of rent, (b) Infringement of terms and conditions of the tenancy, (c) Impairing the material value and utility of the disputed godowns, (d) Causing nuisance to other tenants and. (e) Personal requirement for the use of his said son in good faith. ' The said ejectment application was allowed by the Rent Controller vide order dated 24th March 1988, only on the ground of default in payment of the rent, whereas the other issues framed on the basis of the pleadings of the deceased owner of the godowns were decided against him by the Rent Controller, and deceased landlord did not file any appeal (against the judgment of the Rent Controller) and so also, no cross objections were filed by him in the appeal, which was filed by the petitioners/ tenants against the said ejectment order. The said appeal of the petitioners was dismissed by the judgment dated 17th June 1990, against which the petitioners filed civil petition for leave to appeal before Honourable Supreme Court and the same was granted vide order dated 10th December 1990, thereby converting the said application into civil appeal bearing No,807-K-90, which was heard and was allowed by Honourable Supreme Court vide judgment dated 28th November 1992. ' Review petition filed before Honourable Supreme Court was also dismissed and thereby the findings on all the issues in the previously instituted ejectment case bearing No,1086/86 attained finality and the present ejectment case is hit by the principles of res judicata. ' The tenants further assert that the tenancy agreement was reduced into writing on 5th February, 1974 and again on 8th December, 1979. They denied the allegations of committing default in payment of the rent for the period from 1st March, 1993 to 31st January, 1994, and pleaded that they were depositing rent in the said previously instituted Rent Case No,1086/1986. Further that after the earlier: proceedings concluded before Honourable Supreme Court, the tenants/petitioners remitted amount of Rs,5000 to the landlord vide money order dated 29th March, 1993 as rent for the period from May, 1993 to September, 1993, but the deceased landlord refused to receive the same whereafter the petitioners filed miscellaneous R.C. Bearing No,559/1993 in the Court of Vlth Senior Civil Judge/Rent Controller South Karachi, and with the permission of the Rent Controller, they deposited a sum of Rs,5000 towards rent vide receipt dated 19th April and again deposited sum of Rs,12000 in the said M.R.C. On 21st August, 1993 as rent for the period from October 1993 to September 1994 (in all) in advance and therefore, they did not commit any default in payment of the monthly rent. The tenants/petitioners further denied of having unauthoriazedly covered the open space with the tin sheets; under the orders of the Rent Controller a Commissioner was also appointed who visited the site and submitted such a report before the Rent Controller. ' Further that the deceased landlord had pleaded in the previously decided ejectment case that the disputed godowns were needed for the personal use of his son, which was disallowed by the Rent Controller, and no appeal was preferred by the respondents against the said decision of the Rent Controller that the disputed godowns are not required by Muhammad Shoaib for his personal bona fide use to run his own business therein. They further pleaded that two other shops located in front of the very same building had became vacant but the deceased/applicant leased out the same on receipt of the huge Pagri amounts to other tenants, and thereby it stands proved that
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godowns were never needed by Muhammad Shoaib (respondent No,3(a)) herein, the said son of the deceased landlord for his personal use. ' On the pleadings of the parties following issues were framed by the Rent Controller:-- (1) Whether this rent case is hit by doctrine of res judicata? (2) Whether the opponents have impaired the value and utility of premises in question? (3) Whether the applicant requires that premises for personal bona fide need of his son? (4) Whether the opponents committed wilful default in payment of rent due from them w.f. 1-3- 1993 to 31-1-1994? (5) What should the order be? ' Parties produced their respective evidence in support of their pleadings, whereafter the learned Rent Controller decided the other issues against the applicant, while issue of need of the disputed godowns for personal bona fide use of son of the deceased-landlord was decided in his favour, and ejectment application was allowed by the Rent Controller, accordingly. ' The tenants/ petitioners preferred the appeal bearing No,624/1999 in this Court against the said ejectment order, and due to the amendment in the relevant provisions of Sindh Rented Premises Ordinance, 1979, the said appeal was sent to the District Court; ultimately it was heard by IIIrd Additional District Judge, South Karachi, (having been given F.R.A. No, 133/2001), vide judgment dated 14th May, 2002, the said appeal was dismissed. ' The relevant observations recorded by the Appellate Court are as under:-- "11. As mentioned above, out of the five issues framed by the learned Rent Controller, Issues Nos.1, 2 & 4 were answered in Negative, whereas Issue No,3 was answered in Affirmative and under Issue No,5 the learned Rent Controller allowed the ejectment application on the ground that the respondent/ applicant was able to prove/ establish the requirement of case premises for the personal bona fide use and occupation of his son. 12. Perusal of the R & P reveals that the ejectment of the appellant/ opponent was sought by the respondent/applicant on three grounds i.e, impaired the value and utility of demises premises, requirement of demised premises for personal bona fide use of the sons of respondent/applicant and wilful default in payment of rent, out of which the pleas of respondent/applicant in respect of impaired the vte and utility of the demised premises and wilful default were declined, whereas the application was allowed on the sole ground of requirement for personal bona fide use. That sole ground has not been impugned before this Court. The learned advocate appearing on behalf of the respondent has mainly argued the matter on the point of res judicata and has contended that the said plea was taken by the appellant in earlier Rent Case No,1086/86 but the same was disallowed; hence on the basis of said plea which was already decided by the competent Court the ejectment is not warranted by law. I have gone through the judgment passed in Rent Case No, 1086/ 86 which reveals that the issue in question was not decided on merits but the relief to the applicant, for the personal bona fide use was declined on technicalities that the respondent had failed to disclose the business that he wants to start in the demised premises, so also the person for whom the demised premises was required not examined. In the second rent proceedings it has been pleaded that said son of the applicant is still jobless and desirous to start the business in subject tenement. The ground of personal need is ever recurring. Requirement for personal need may not have arisen formerly but may arise subsequently. The round of first litigation upto Honourable Supreme Court was completed on 28-11-1992, whereas second rent proceedings was filed on 12-1-1994. Although it related also to the some period of few months, which was the subject matter of the first application yet the additional period from November, 1992 upto the filing of the second application for eviction furnished an independent cause of action. The second application would in any case not barred as has been held in 1985 SCMR 24. In my view, the principle of res judicata is attracted only when the matter is finally decided on merits.
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13. I have gone through the findings of the learned trial Court on the point of personal bona fide use and I am of the view that the learned Rent Controller has elaborately discussed this important issue and the findings of the learned Rent Controller are based on sound reasoning and calls for no interference by this Court. The case law cited by the learned counsel for the appellant are distinguishable on facts of the case in hand and in my view the same will not come for the rescue of the appellant. On the contrary the case law cited by the learned counsel for the respondent are very much applicable. 14. In view of the above, I see no force in the appeal in hand, which is hereby dismissed but with no order as to costs. The appellant is directed to hand over vacant and peaceful possession of the tenement in question to the respondent within 30 days from today. ' Hence the tenants/petitioners have filed this constitutional petition against the said order/judgment passed by the two Courts below. ' Learned counsel for the petitioners/ tenants argued that the findings recorded by the Appellate Court are contrary to law and principle of equity, in as much as it was not properly appreciated that fresh ejectment .Application, filed after dismissal of earlier one, on the ground of personal bona fide need of son of the deceased landlord, was barred by principle of res judicata, for the reason that plea of personal bona fide need of the disputed premises having earlier been agitated, heard on merits and rejected, no appeal/cross objections were filed against such decision, and details of the fresh circumstances, since the judgment finally passed by Honourable Supreme Court in the earlier ejectment application, till the date of filing of the fresh one, having not been disclosed in the second rent application, the presumption of law is to be drawn that circumstances then prevailing (during the proceedings of the earlier ejectment application) continued to exist exactly the same till filing of the second ejectment application and that (the circumstances having remained the same) the respondent had no cause of action to file fresh ejectment application against the petitioner/ tenants on the ground of personal need of Muhammad Shoaib. It is further argued that petitioners are tenants in the disputed premises since more than 23 years, doing business therein by investing huge amounts, inclusive payment of huge amount of Pagri, and also for change of rent receipt in their favour, paid to the deceased landlord, the respondents stand debarred from ejecting the petitioners from the said premises; further that two shops situated in front portion of the building, wherein the disputed premises is located fell vacant which could have been utilized for the personal need of respondent Muhammad Shoaib, but even then the same were not availed for the said purpose; the presumption of law is to be drawn that he had neither any need to have disputed premises for his personal use nor have any intention to carry on any business of any nature. ' Learned counsel for the petitioner tenants cited the following case law to argue that where the landlord owns numerous shops in the building and during pendency of proceedings got vacated some shops which were let out to other tenants, and no material having been placed on the record of the case to prove that such shops (got vacated) were not suitable for the use of the landlord, such a landlord is to be taken to have failed to prove his bona fide, personal need for the premises involved in the ejectment case:-- (1) Abid Masood and others v. Dilshad Khan (1995 SCMR 146) (2) Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394) (3) Muhammad Yousaf and another v. M. Ibrahim Khandwani (PLD 1991 Karachi 226) (4) Shahid Nadim and others v. Muhammad Shafi (2000 SCMR 542) (5) Muhammad Inayat v. Saleh Muhammad (2001 SCMR 599) (6) Mst. Zohra Bibi v. Additional District Judge and others (1990 SCMR 1243) (7) Mst. Anwari Begum v. Noor Hassan (1984 CLC 265)
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' Learned counsel cited Muhammad Sanaullah v. Mehran Feed Industries Ltd. And other (1994 CLC 2141) Karachi (2) Pir Bakhsh and others v. Chairman Allotment Committee and others (PLD 1987 SC 145) (3) Muhammad Tufail v. Atta Shabir and others etc. (PLD 1977 SC 220) (4) Ch. Rehmat Ali and others v. Custodian Evacuee Property Lahore and others (PLD 1966 (W.P.) Kar. 31 (5) Muhammad Sulleman and another v. Settlement Authorities and others (1969 SCMR 163) (6) Abdul Majeed and another v. Muhammad Riaz Hashim and another (1968 SCMR 816) (7) P.I.A. Corporation v. Mst. Safooran Khanam (1981 CLC 1636 Lah) to argue that where the attempt to seek eviction of tenant from the premises at the hands of the landlord for his own use was not accepted in earlier round of litigation, and the findings recorded in such earlier round of litigation having attained finality, filing of subsequent ejectment application on the same ground, coupled with the material available on the record of the second case being indicative of the fact that subsequent ejectment application was filed in the Court with unclean hands, it is to be held that good faith and bona fides urged by the landlord are not proved. ' In reply, learned counsel for the respondent/owners argued that the judgment passed in the earlier round of litigation in between the parties, pertaining to the very same godowns, are indicative of the fact that the Rent Controller had dismissed the plea of the deceased father of respondent Muhammad Shoaib to eject the petitioners from the disputed godowns only for the reasons that neither respondent Muhammad Shoaib was examined in the earlier ejectment application to say that he needed the godowns for his personal bona fide use, nor nature of the business to be carried out by him was stated therein, (and therefore, the plea to that effect was rejected by the Rent Controller), whereas the said earlier ejectment application was allowed by him on the remaining grounds, and the appellate Court also upheld the order of ejectment passed by the Rent Controller (on the remaining grounds), but before the Honourable Supreme Court the ejectment application was dismissed; it is further argued by the learned counsel for the respondents/landlords that presently respondent Muhammad Shoaib has examined himself before the Rent Controller deposing that he intends to run his own business in the disputed godowns, and for such a purpose the same are needed for his personal bone fide use. Learned counsel has further argued that respondent Muhammad Shoaib has now inherited the disputed godowns (being one of co-sharers, on the death of his father Abdullah Naji, who expired during the proceedings of"the second ejectment application, while pending before the Rent Controller) and that Muhammad Shoaib was not challenged in the cross examination by learned counsel for the tenants/petitioners on the plea that the disputed godowns are needed by him for running his own business; learned counsel referred to the above cross- examination available at page 1S3 which* reads as under :-- ' "I know little English. I signed affidavit in evidence before Oath Commissioner. It is correct that we also filed a rent case No, 1086/88 against the same opponent. Vol says that on the ground of default. It is incorrect that in previous case also taken same grounds in this case. I produce certified copy of previous rent case produced as (Exh.A/2) it is correct that previous rent case No, 1086/88 was dismissed. " ' Learned counsel further argued that it is a settled principle of law that whenever a witness asserts some facts in his examination-in-chief but not challenged in his cross-examination, then it is to be presumed that the assertions made by such a witness in his examination-in-chief stand admitted and accepted by the other party; and further that the case can be decided in favour of the party whose examination-inchief was not challenged in the cross- examination. ' Learned counsel cited ' Messrs Eveready Pictures Ltd. v. Chaman Begum (PLD 1982 Karachi 770); wherein relevant observations appear as under :-- ' "In his statement before the Court the respondent's attorney categorically stated that thepremises in occupation of appellant was situated in commercial area and there are shops all around this
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premises but the appellant are using the same as a Garrage. The Rent Controller who inspected the suit premises also found that the premises was situated in an area which was predominantly a commercial area. No question was put to the witness in cross- examination to show that the premises was a residential premises. The landlady's husband also appeared in the witness-box and fully supported the statement made by respondent's attorney with regard to personal and bona fide requirement of landlady's son Ilyas. He further stated that he owned a shop in the same building on the ground floor which is at the back of the premises occupied by the appellant. The above evidence sufficiently establishes the requirement of landlady for her son Ilyas. The contention of learned counsel that the Rent Controller should have drawn an inference from the evidence on record that landlady's son must be doing business some where and could not remain jobless from 1968 to 1978 has no substance. The landlady's son Muhammad Ilyas for whose benefit the premises was required by the respondent appeared as attorney of the landlady in witness- box but no such suggestion was given to him in cross-examination that he was doing business elsewhere. The appellant also did not produce any evidence in rebuttal. In these circumstances, the inference now sought to be drawn by the learned counsel for the appellant from the evidence is only conjectural in nature. The learned counsel for the appellant also contended that the respondent had failed to lead any evidence to establish the bona fide inasmuch as it was not shown in evidence from where the finance will be made available to her son. The learned counsel specifically referred to an answer given by Muhammad Ilyas in cross-examination to a question put to him by the appellant's counsel. It is true that landlady's son Muhammad Ilyas in his cross- examination stated that he had no money of his own but he further stated that my mother and father would provide money for me. No further suggestion made to him that his mother was not in a position to provide the finance. Similarly when father of Muhammad Ilyas appeared in evidence he was also not asked in cross-examination that he was not in a position to provide financial assistance to his son. Besides, this fact alone is not sufficient to hold that the application on the ground of personal requirement lacked bona fide. It has been held in the case of Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832 that in view of the safeguard contained in section 13(4) of the Ordinance, the assertion of claim on oath by a landlord that he required the premises for his personal use shall be accepted by the Controller as bona fide, if such claim, or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal. The above observations in Hassan Khan's case were specifically approved by the Supreme Court in the case of Mst. Tauheed Khanam v. Muhammad Shamshad 1980 SCMR 593. The evidence of the landlord in the case before me fulfilled the standard laid down in the above case and after going through it. I am satisfied that Rent Controller rightly granted ejectment of appellant on this ground also. ' As a result of above discussion this appeal is dismissed but there will be no order as to costs. The appellant is allowed four months time to vacate the premises. ' Learned counsel for the respondents cited Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCMR 593), wherein Honourable Supreme Court was pleased to record observations to the effect as under:-- ' "The first appellate Court, after recalling the evidence, did not further proceed to appraise it but held it insufficient to establish the plea of bona fide personal use principally on the observation made in the case of Mst. Almas Begum v. Haji Pir Baldish PLD 1964 Pesh. 278. This approach to the evidence on record was unsatisfactory as on the facts stated in the evidence led on behalf of the appellants a finding had to be given qua the bona fide requirement of the shop by the appellant. There was no dispute that the husband of the appellant had no other income except his meagre salary which was insufficient to maintain a large family. Equally, it was also brought on the record that the husband of the appellant was in position to draw from his
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Provident Fund a loan sufficient to start a small business like the one stated by his son. There was also no reason to discredit the assertion of the son that his mother had 5 Tolas of gold ornaments which could also provide some financial assistance in starting the business. To ignore these considerations which were unrebutted on the record was to misread the evidence. Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application and we are surprised to note that the High Court has held that the first appellate Court had, on a proper assessment of the evidence, reached the conclusion that the requirement "was not genuine" although this exercise was not done by that Court; apart from giving credit to the improper motive in filing the application which consideration also prevailed with the High Court. There is no objective assessnient of the evidence produced on behalf of the appellant even by the High Court and it felt content in holding that no attempt was made to show that the first appellate Court had "in any manner misread the evidence on record or that his conclusions were wrong. In this connection we would refer to the opinion of I. Mahmood. J., in Hassan Khan v. Munawar Begum PLD 1976 Kar. 832 which we have recently approved in another case which correctly lays down the mode of assessing the bona fide requirement of the landlord. The considerations which have emerged from the evidence fall squarely within the purview of the opinion so expressed by I. Mahmood, J. Further, neither the First Appellate Court nor the High Court has held the evidence of the…
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