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Petitioner: ABDUL RAUF VS Respondent: Mrs. SHEREEN HASSAN
Court Name: Sindh High Court Judge(s): Syed Deedar Hussain Shah Title: ABDUL RAUF vs Mrs. SHEREEN HASSAN Case No.: First Rent , Appeals Nos.155 and 156 of 1997 Date of Judgment:1998-05-27 Reported As: 2000 CLC 230 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' These first rent appeals are being disposed of with this judgment as the parties, facts, circumstances and impugned judgments are common in both these appeals. Facts of First Rent Appeal No,155 of 1997. ' The brief facts of the matter are that respondent Mrs. Shereen Hassan filed application under section 15 of the Sindh Rented Premises Ordinance, 1979 before the 1st Rent Controller, Karachi East, being Rent Case No,758 of 1992, mentioning therein that she is the owner/landlady of the commercial building constructed on Plot bearing No,225-C, Central Commercial Area, PECHS, Karachi, known as "Al-Kashan" consisting of two flats and three shops on the ground floor. The total area of three shops which are located on ground floor is about 850 square feet and appellant is tenant of Shop No,1 since September, 1981 and the rent presently paid by the appellant is Rs,325 per month. The possession of Shop No,2 is also with tenant, she has filed a separate rent case against the tenant whereas possession of Shop No,3 has already been obtained by her under judicial order, she kept this shop vacant for the use of her daughter Dr. Nilofer Hassan who has passed her M.B.,B.S. Examination in the year 1990, after completing house job she took admission in paediatrics at the Civil Hospital, Karachi, she completed Post Graduate Course in 1992, appeared in D.C.H. Examination in June, 1992 and she is expected to qualify as child specialist. Her daughter is keen to start her own practice as doctor at the place where the above shops are located. For this purpose she wishes to use the entire area to set. Up a clinic and laboratory alongwith ancillary facilities. Respondent asked the appellant on 19-7-1990 to vacate the shop in his possession as she required it in good faith for the use of her daughter but he failed to do so despite reminders. In the same notice she informed the appellant that he was misusing the passage of building for commercial
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purposes and obstructing the right of way and indulging in such activities which are causing nuisance to the neighbourers and are likely to impair the material value and utility of the premises and further that he should stop such activities immediately but he failed to do so despite repeated reminders (sic) appellant has also encroached upon the foot-path outside the authorised area by extending the area of shop in his possession to that extent and constructed iron shutters thereon. This encroachment amounts to make structural altercations or additions to the leased area impairing the material value and utility of the premises and infringing the terms and conditions of the lease agreement. ' The appellant filed his written statement and denied the allegations. According to appellant the covered area of the three shops is not 850 sq. Feet. The Shop No,1 is 10 x 19-1/2 i,e, 195 sq. Feet, Shop No,2 is 10 x 19-1/2. i,e, 195 sq. Feet and Shop No,3 is 10 x 25-1/2 i,e, 250 sq. Feet as such the total area comes to 640 sq. Feet. According to him shop No,1 was let out in the year 1981 at the monthly rent of Rs,250 per month as rent thereof and respondent received a sum of Rs,50,000 as goodwill a premium from the appellant through the agreement of tenancy, dated 30-9-1981 that shop in question was let out through Estate Agency who received commission fee/services charges for arranging shop in question to the appellant and passed a receipt as well. That at the time of inception of tenancy the rent was Rs,250 and after three years it was raised to Rs,275 and again after three years it was enhanced to Rs,275. The appellant admitted that respondent has got vacated Shop No,3 through judicial order but he denied that the respondent has kept the said shop vacant for the use of her daughter Dr. Nilofer Hassan. It was further denied in the written statement that daughter of respondent is keen to start her own practice as a doctor at the demised premises, that daughter, of the respondent is already married and she is not dependent upon the respondent after marriage. That respondent is taking undue advantage of personal use of her daughter whereas the respondent wants to enhance the rent and in this regard the respondent, two years ago asked the appellant through letter in writing to enhance the same and due to this respondent filed the present rent application against the appellant. Furthermore, it has been stated in the written statement that respondent has sufficient accommodation on the second floor of the building to run the clinic if she desires so as the second floor flat is more suitable to run the clinic which was vacated recently and let out on higher rent by taking huge good will/Pugree. The respondent has a mala fide intention to enhance the rent and demanded more huge Pugree/good will from the appellant. The appellant denied the allegation that he is misusing the passage to the upper floors of the building for commercial purposes, obstructing the right of way, and indulging in such activities as are causing nuisance to the neighbours as alleged. Appellant also denied that he has encroached upon the foot-path outside the authorised area by extending the area of the shop in his possession. Facts of First Rent Appeal No,156 of 1997 ' The respondent filed application under section 15 of the Sindh Rented Premises Ordinance, 1979, mentioning therein that she is the owner/landlady of the commercial building constructed on Plot No,255-C, Central Commercial Area, P.E.C.H.S., Karachi known as "Al-Kashan" consisting of two flats and three shops on the ground floor and that the covered area of the abovementioned three shops is 850 sq. Ft. The appellant is tenant of Shop No,2 since September, 1981 and the rent presently paid by him is Rs,325 per month. According to respondent she has already received the possession of Shop No,3 through judicial order and she has kept the shop vacant for the use of her daughter Dr. Nilofer Hasan who has passed M.B.,B.S. Examination in the year 1990 and after completing her house job, she took admission in Paediatrics at the Civil Hospital, Karachi. She has completed postgraduate course in May, 1992 and appeared in the D.C.H. Examination in June, 1992. She is expected to qualify as child specialist. That her daughter is keen to start her own practice as doctor at the demised premises and for that purpose respondent wishes to use the entire area
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available to set up a clinic and laboratory alongwith ancillary facilities. That on 19-7-1990, respondent asked the appellant to vacate the shop in his possession as she requires it in good faith for the use of her children but he failed to do so. According to rent application, appellant has been misusing the passage to the upper floors of the building for commercial purposes, obstructing the right of way and indulging in such activities as are causing nuisance to the neighbours and as are likely to impair the material value or utility of the premises. That the appellant has encroached upon the footpath outside the authorised area by extending the area of the shop in his possession to that extent. This encroachment amounts to making structural alterations or additions to the leased area, impairing the material value and utility of the premises and infringing the terms and conditions of the lease agreement. ' The written statement of the appellant in this appeal is practically one and the same as that of appellant in First Rent Appeal No,155 of 1997. ' Out of the pleadings of the parties, learned Rent Controller settled the following issues in both these applications/appeals. (1) Whether the demised shop is required by the applicant in good faith for the use and occupation of her daughter namely Nilofer to establish a clinic thereon. (2) Whether the opponent has encroached upon the footpath in front of demised shop and made addition and alterations in the shop and thereby impaired the material value and utility of the shop in question and also infringed the terms of tenancy agreement? (3) What should the order be? ' The respondent in support of her case examined her husband/attorney Meer Ghulam Hassan who filed his affidavit in evidence as Exh.A./l and produced photostat copies of the educational qualifications of his daughter as Exhs.A/2, to A/8 as well as site plan and photographs of shop as Exh.A./9 to Exh.12. Respondent also tiled affidavit in evidence of her daughter Dr. Nilofer Hassan as Exh.A./13 and then closed the side. Abdul Rauf, the appellant tiled his affidavit in evidence as Exh.O/1 who also produced tenancy agreement, dated 15-8-1981, as Exh.O/2 receipt, dated 30-9-1981 and 2-10-1981 and legal notice of respondent addressed to the appellant and reply thereof. Muhammad Anwar Saigal filed affidavit of evidence as Exh.O/4 and Fasihullah Shaikh tiled affidavit in evidence as Exh.O/3. Both the parties thereafter closed the side on their behalf. ' Whereas in First Rent Appeal No,156 of 1997, respondent has examined her attorney and husband Meer Ghulam Hassan who produced his affidavit in evidence as Exh.A/1. He produced photostat copies of education qualifications of his daughter as Exh.A/2 to Exh.A/8 and also produced site plan of the demised premises and photographs of the shops as Exhs.A/9 to A/ 12. Respondent also tiled affidavit in evidence of her daughter Dr. Nilofer Hassan as Exh.A./13 and closed her side. Appellant Tariq Siddiqui filed his affidavit in evidence as Exh.O/1 and also filed photostat copies of tenancy agreement, dated 15-8-1998, receipts, dated 30-9-1981 and 2-10-1981, copy of the legal notice of the respondent addressed to the appellant and reply thereof. Appellant also filed affidavit-in- evidence of Muhammad Anwar Saigal and Fasihullah Shaikh and Exh.O/2 and Exh.O/3 and then closed the side. ' After hearing the parties learned Rent Controller decided the Application and announced his findings which are as follows:-- Issue/Point No. 1 .... In affirmative Issue/Point No. 2 .... Not proved Issue/Point No. 3 .... Application allowed. ' Being aggrieved and dissatisfied with the judgment, dated 4-7-1997 appellants tiled the present appeals. ' 1 have heard Mr. Amin Lakhani, learned counsel for the appellants who contended that impugned judgments are bad in law, against the principles of natural justice, both the judgments are
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perverse and inconsistent to the evidence so recorded. Learned counsel further contended that learned trial Court has accepted the evidence furnished on behalf of the respondent to show that the demised premises are required by the respondent for establishing clinic and laboratory with ancillaries without proper appreciation of the evidence. The respondent has received valuable consideration of Rs,50,000 as Pugree/premium from the appellants whereas Rent Controller has not touched this point/aspect of this case. That after signing of the agreement, dated 30-9-1981 through which appellants were put into possession of the demised premises as tenant, the respondent/landlady has waived her right of personal bona fide use. Thar since agreement is a permanent one, therefore, respondent cannot violate the terms of the agreement. That application was filed by Mrs. Shereen Hassan whereby attorney was examined and power of attorney was not filed. That premises are not suitable for opening a clinic, moreover, demised premises are situated in the commercial area of Tariq Road, P.E.C.H.S., Karachi. Learned counsel cited the following case-law:-- (1) Syed Farzan Rizvi v. Khafmr Rehman 1981 CLC 1223, (2) Muhammad Yousuf v. Abdullah PLD 1980 SC 298, (3) Mrs. Zebra Begum v. Messrs Pakistan Burmah Shell Ltd. 1992 SCM R 943. ' Mr. A.I. Chundrigar, learned counsel for the respondent contended that affidavit-in-evidence of attorney and husband of respondent was filed which is available in R&Ps and he has rightly appeared and furnished evidence on behalf of the respondent. Moreover, he is husband of the respondent and father of Dr. Nilofer Hassan for whose bona fide personal use the demised premises are required. That the rent agreement is not a registered one as such its period is not binding. That the paym ents of Pagree though not proved is an illegal transaction which cannot be legalized. That the third shop of the respondent whose possession was received by the respondent about 50 months ago is still in the possession of the respondent which establishes that premises are required for bona tide personal use of the child of the respondent. That respondent has filed approved plan of the building where clinic, laboratory and its necessary ancillaries are to be established. That the building approved plan is sanctioned by the competent Authority which has been produced in evidence, the correctness of which has not been disputed by the appellant. Learned counsel cited the following authorities:- (1) Mst. Razia Begum v. Messrs Pakistan Medical and General Stores 1982 C1LC 659, (2) Mst. Farukh Nisa v. Safdar Ahmed and 6 others. PLD 1985 Kar. 639, (3) Messrs Habib Bank Limited v. Messrs Thal Jute Mills Ltd. 1988 CLC 2310, (4) Zaheer Ahmad Khan v. Mst. Amina Begum 1989 SCM R 1370, (5) Karim Baldish v. Haji Arthi Khan and others 1983 SCM R 178, (6) M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 178, (7) Sheikh Abdus Sattar v. Malik Muhammad Afzal and others PLD 1985 SC 148. ' Before I can discuss the case-law referred to by the learned counsel for the parties, it would be advantageous to refer to the evidence recorded by the Rent Controller in both the rent applications. ' On beha respondent, Meer Ghulam Hassan, the attorney of respondent/husband and father of Nilofer Hassan has been examined. In cross-examination on point of general power of attorney he has stated as follows:-- "Applicant is my wife, I have been deposing as attorney in this case. It is correct G.P.A. Was given to me on dated 27-4-1993. I have been authorised through G.P.A. To give evidence in this case. My wife has filed this case. Opponent is tenant since September, 1989 as per written tenancy agreement. The area of the building is 342 sq. Ft. It is correct that there are 3 shops on ground floor and entire area of 3 shops is 342 sq. Ft. It is correct that area of 850 as mentioned in ejectment application is incorrect ...."
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' Attorney of the respondent regarding the qualification of her daughter has stated in cross- examination as under:-- "My daughter Nilofer qualified M.B.,B.S. In the year 1989. She was married in the year 1992 i,e, 3-8- 1992. It is correct that my daughter is not my dependant." ' The respondent's second witness Nilofer in her cross-examination has stated as follows:-- "I passed M.B.,B.S. In 1989. My marriage was solemnized in 1992. My husband is pharmacist. It is correct that tenement in question is situated in commercial area... ' It is not correct to suggest that tenement in question is not required to the applicant for personal need. It is correct that I have got other brothers and sisters." ' Appellant Abdul Rauf in cross-examination conducted by the learned counsel for the respondent about the payment of Pugree has stated as follows:-- "It is correct that I have not mentioned in the notice about goodwill (Pugree) for increasing rent. I have given Pugree and I have also such proof. I have demanded receipt of Rs,50,000 but the applicant replied that there is no such receipt of Pugree. It is incorrect to suggest that I have levelled allegation on the applicant that I had paid Pugree in the shape of Rs,50,000." ' About the qualifications of Nilofer Hassan, the daughter of the respondent he has further admitted in cross-examination in the following terms:-- "Through this case I came to know that the daughter of the applicant namely Nilofer is a Child Specialist. There is no hospital or clinic in the locality." ' Furthermore, he has admitted about Shop No,3 in cross-examination which is as follows:-- "The Shop No:3 is lying vacant for last 50 months." ' The appellant's witness Muhammad Anwar Saigal in cross-examination has admitted in cross- examination as under:-- "It is correct to suggest that I am deposing at the instance of opponent." First Rent Appeal No,156 of 1997 ' In this appeal affidavit in evidence of Meer Ghulam Hassan was filed and he was cross-examined. He also produced educational certificates of Nilofer Hassan showing thereunder that she has qualified M.B.,B.S. From Karachi University and Post Graduate Diploma in Child Health from University of Karachi also and secured third position by her in Board of Intermediate Education, Karachi Pre-Medical in First Division. In this case Dr. Nilofer Hassan was examined who also supported the case of the respondent. ' Appellant Tariq Siddique was examined who in cross-examination about Pugree has stated as follows:-- "It is incorrect to suggest that I have not given any Pugree to the landlord: I cannot produce any receipt or document in writing of Pugree." ' He has further admitted: ' It is correct to suggest that Shop No,3 is lying vacant from October, 1991." ' Appellant Abdul Rauf has admitted in cross-examination that Dr. Nilofer Hassan, daughter of respondent is a Child Specialist whereas appellant Tariq Siddique in his cross-examination has stated as under:-- "I do not know whether the daughter of applicant Dr. Nilofer is Child Specialist." Muhammad Anwar Saigal witness of the appellant has also admitted as follows:-- "It is correct to suggest that I am deposing at the instance of opponent." ' In the light of the evidence referred to hereinabove now I would like to discuss the case-law referred to by the learned counsel for the parties. The learned counsel for the appellants cited the following cases:-- ' PLD 1980 SC 298. In this authority their Lordships of the Supreme Court have held that "lease deed stipulating landlord's (lessor's) entitlement to confiscate security deposit made by lessee in case of
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lessee's failure to pay rent for three consecutive months or if he failed to give vacant possession to lessor at time of termination of tenancy". ' With due respect to the authority in view of the fact, circumstances and evidence referred to hereinabove in my humble opinion this authority is not relevant to the facts of the present case. ' 1981 CLC 1223. In this authority it was observed that Landlords' requirement in good faith for personal use, Landlord making averment of his desire to start business of manufacturing Katha. No evidence led as to landlord's requirements in terms of area for business and obtaining permission to start such business. I am afraid this authority in any case is not helpful to the case of the appellants inasmuch as the evidence adduced by the parties before the learned Rent Controller which has come on record show s that respondent requires the demised premises for the personal bona fide use of her daughter Dr. Nilofer Hassan who is a Child Specialist and has also obtained Post Graduate Diploma in Child Health. She has a very brilliant academic record, she secured first division in pre-medical examination in Board of Intermediate Education, Karachi and also secured third position. ' The third shop which was got vacated by the respondent about 50 months ago is still lying vacant which fact even is admitted by the applicants in cross-examination referred to and reproduced hereinabove. The respondent has also produced approved plan of the proposed clinic duly approved by the competent Authority which has also come on record, the correctness of which is not disputed or denied by the appellant in the evidence recorded by the learned Rent Controller. The appellant Abdul Rauf has admitted in evidence that Dr. Nilofer is a Child Specialist having qualified M.B.,B.S. degree. He also admitted that in the vicinity there is no other clinic as such on the contrary this authority is helpful to the case of the respondent. ' 1992 SCM R 943. In this matter appellant owner of a plot measuring 949 square yards on Jahanghir Road, Karachi. It has a bungalow built on it which was occupied by the appellant. He in 1965, decided to lease out the plot, the bungalow was in fact demolished and the plot was leased out to the respondent/company on 1-5-1965 for establishing at its own cost and investment a petrol pump and service station. The lease was initially for a period of 10 years with two options made available to the lessee to get it renewed in all for 30 years. According to the case the first renewal took place in May, 1975 and was to end till May, 1985 with yet another option df 10 years available to the respondent. The lease deed was registered and some of the salient features of this lease were that the lessee was free to erect and permitted to erect on the demised premises, any boarding or other usual advertising material incidental to their trade and business and the lessee was entitled to assign or sublet the demised premises. The lessors, on the other hand, undertook nqt to evict or interrupt the enjoyment of the lessee if the lessee continued paying the rent reserved and observed the covenants. The appellant thereafter, shifted to rented premises. On 8th February, 1981 the appellant served a notice on the respondent to vacate the premises forthwith as she wanted it fol. Her own occupation and that of her 'family. She thereafter, filed an application for ejectment under section 15(2)(viii) of the Sindh Rented Premises Ordinance. The application was contested by the respondent and the learned Rent Controller was pleased to dismiss the application. Thereafter, appellant approached the Honourable Supreme Court where also order of the Rent Controller was maintained. On the face of it this authority under the circumstances is not applicable and helpful to the case of the appellant. ' I would like to discuss the case-law referred to by Mr A.I. Chundrigar, learned counsel for the respondent. (1) 1982 CLC 659. In this matter learned counsel for the respondent submitted that law envisages need of landlord and his dependent minor son and daughter and not need of independent married son. This contention was not accepted by his Lordship by observing as follows:--
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"In my opinion the contention is misconceived for the term 'children' has been used in the Ordinance in a broader sense and no such qualification as mentioned can be read therein. A reference to the concise Oxford Dictionary, New Edition (sixth Edition) would show that the word 'child' means; son or daughter (any age). According to the Oxford English Dictionary Vol. II also it means, offspring, male or female, or human parents, a son or daughter." ' In this case daughter of respondent Dr. Nilofer Hassan is a qualified Child Specialist for whose bona fide personal use for establishing clinic the demised premises are required. ' PLD 1985 SC 148. In this case their Lordships of the Supreme Court have laid down that finding of fact by District Judge clear and unequivocal negating plea raised by tenant against bona fide of personal need of landlord. Such finding of fact could not be interfered with by High Court in its Constitutional jurisdiction nor same could, a fortiori, be assailed, before Supreme Court at leave granting stage. ' 1988 CLC 2310. In this case learned Judge of this Court has held that where eviction of tenant is sought on ground of personal requirement, it was not necessary to give all details in eviction application. ' PLD 1985 Kar. 639. Again in this authority, the same learned Judge has held that not only requirement of dependent children is available but also requirements of independent and married children are included. Moreover, he observed that landlady could file application for eviction for requirement of her independent daughter. ' 1989 SCM R 1370. .In this case tenant's eviction on ground of bona fide requirement of landlady's son and for default in payment of rent was ordered which order was maintained by the High Court, in appeal their Lordships of the Supreme Court under the circumstances refused to grant leave to appeal in the matter. ' 1983 SCM R 178. In this case a tenant approached the Honourable Supreme Court with the following facts:-- Haji Arthi Khan was the transferee of the disputed property in Dera Ismail Khan. The premises were said to be in possession of Karim Bakhsh and respondents 2 and 3. In the first round of litigation when the respondent sought the eviction of the petitioner and others he failed in the High Court as his application was considered to be premature in view of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which provided to the occupants protection against eviction…
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