1996 S C M R 1260
1996 S C M R 1260
[Supreme Court of Pakistan]
Present: Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ
MUHAMMAD ATIQUE---Appellant
versus
MUHAMMAD HANIF KHAN---Respondent
Civil Appeal No.370 of 1993, decided on 16th March, 1994.
(On appeal from the judgment dated 25-1-1993 of the High Court of Sindh, Karachi, passed in F. R. A. No. 10 of 1991).
(a) Sindh Rented Premises Ordinance (XVH of 1979)---
----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Leave to appeal was granted only on question of personal requirement to consider, whether in view of the fact that landlord was heart patient and that his married son was residing with him alongwith his family, two Courts below were justified in declining his ejectment application in respect of premises in question.
(b) Sindh Rented Premises Ordinance (XV13 of 1979)---
----S. 15---Constitution of Pakistan (1973), Art. 185---Bona fide personal need of landlord---Concurrent finding of two Courts below on question of fact on basis of evidence to the effect that bona fide personal requirement of premises was not proved by-landlord---Supreme Court could not interfere with such finding merely on the ground that it might have taken different view on the basis of same material---Main factor which had gone against landlord and correctly so was his suppression of fact that in addition to the premises in his occupation on the first floor he was also in possession of two rooms on the second floor--Landlord had failed to prove factum of his ailment through cogent evidence--Contention of landlord that since the filing of his petition for ejectment the number of his family members had increased, related to new cause of action which had arisen after the institution of ejectment application, and thus could not be taken into consideration, although he was free to file a fresh case in accordance with law.
Shafaat Hussain, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Appellant.
Abbas Ahmed, Advocate Supreme Court and M. S. Ghaury, Advocate-on-Record for Respondent.
Date of hearing: 16th March, 1994
JUDGMENT
AJMAL MIAN, J.---This is an appeal with the leave of this Court against the concurrent judgments of the two Courts below dated 29-11-1990 and 25-1-1993 of the learned Senior Civil Judge/Rent Controller, Karachi (South) and the learned Single Judge of the High Court of Sindh in Rent Case No. 1657 of 1988 and F.R.A. No. 10 of 1991, respectively, declining the above, rent case which was filed on the grounds of default, nuisance and personal requirement and dismissing the above F.R.A. by maintaining the above judgment of the learned Rent Controller. Leave to appeal was granted only on the question of personal requirement to consider, whether in view of the fact that the appellant is a heart patient and that his married son resides with him with his family, the learned two Courts below were justified in declining the appellant's application in respect of the suit premises situated on ground floor.
2. The brief facts are that the appellant filed above rent case on the grounds of default, nuisance and personal requirement. The above application was resisted by the respondent/tenant inasmuch as written statement was filed, in which inter alia it was averred that the petitioner had suppressed the fact that he was also in possession of two rooms on the second floor besides having the first floor in his possession. The other grounds were also denied. The learned Rent Controller, on the basis of pleadings of the parties, framed the following four issues:--
(1) Whether the appellant had committed wilful default in payment of rent since September, 1988, and has also committed default in payment of electricity charges?
(2) Whether the applicant requires the ground floor viz. case premises for his personal bona fide use as well as for the use of his married son?
(3) Whether the opponent is causing nuisance by his activities?
(4) What should the order be?
As regards Issue No.3 relating to nuisance, the learned Rent Controller observed that since a criminal case is pending before the S.D.M., it will not be appropriate for her to interfere with and discuss the matter. The other two issues were decided against the appellant. As regards personal requirement, it was held that the appellant failed to prove that he was suffering from heart ailment as he had not produced any medical certificate from a Government Hospital nor he had examined any doctor. It was also held that the appellant had in his rent case suppressed the factum that he was in possession of two rooms on the second floor though this fact was stated by him in his affidavit in evidence after the respondent had made the above averment in his written statement. She, after referring to the Commissioner's report about the inspection of the second floor wherein he confirmed that there were two rooms,, held that the appellant failed to prove his personal requirement. The issue relating to default was also decided against the appellant. After that the appellant filed the above F.R.A. before the High Court. The appellant conceded that he was unable to prove default in payment of rent from September, 1988 to October, 1988, but contended that there was default in payment of gas and electricity charges. However, the High Court did not accept the above contention and through the impugned judgment concurred with the finding of the Rent Controller. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above question.
3. In support of the above appeal, Mr. Shafaat Hussain, learned Advocate Supreme Court appearing for the appellant, has vehemently contended that even if it is to be conceded that the appellant had two rooms on the second floor, the number of members of the appellant's family was nine and, therefore, the Rent Controller should have allowed the rent case on the ground of personal requirement as admittedly the appellant had first floor having two bed-rooms plus drawing/dining room and one lounge.
4. The above contention is not tenable. The learned Rent Controller after referring to the evidence and the Commissioner's Report concluded as under:-
"It will not be out of place to mention that applicant has not raised any objection on the above report but the objections were raised by the opponent, The Commissioner Report which is not disputed by the applicant is giving the clear picture of the 2nd floor and there is no hesitation to come to the conclusion that applicant has concealed and suppressed the facts of having two rooms accommodation on the 2nd floor:
Firstly in main application he concealed the entire construction on the second floor then in his affidavit in evidence stated that he is having two store rooms then in cross-examination he stated that he is having a room which is used as store room then in the same cross-examination stated that two rooms with bath and kitchen are constructed where his son alongwith his family is residing. The entire accommodation in his use on 2nd floor in view of Commissioner Report dated 20-5-1990. The aforesaid canceling of facts shows that applicant has not come with clean hands.
It is to be noted that according to the applicant he has twenty years old college-going daughters. In cross-examination he has admitted that his one daughter is married. It will also not be out of place to mention here that during the pendency of the case an application was filed by .the opponent together with a wedding card with the contention that the daughter of the applicant got married on 2nd March, 1990. This application is not opposed by the applicant. Therefore, now the applicant is having his only two sons, his wife and mother which too, admittedly, has been brought by the applicant in his house after the inception of tenancy: Admittedly the sons of the applicant has already married when 'the premises was let out to the opponent, and he too is residing on the second floor with his family. Even otherwise the need of the mother or for the mother under the definition of personal requirement under section 2(f) of Sindh Rented Premises Ordinance, 1979 does not fall.
Although it is denied by the applicant that opponent had offered him the ground floor for his residential purposes and the 1st floor for himself but he stated that he is not ready if the opponent offers him the ground floor for his accommodation on the condition to be shifted on the 1st floor. "
5. The above finding has been concurred with by the learned Judge in Chambers in the High Court. Since it is a concurrent 'finding supported by evidence on record, this Court cannot interfere with merely on the ground that it might have taken a different view on the basis of the above available material. The main factor which has gone against the appellant is that he did not disclose in the memo. of rent case that he was in possession of two rooms on the second floor. The suppression of the above fact has adversely affected the credibility of the appellant. Both the Courts have taken into consideration the above factor. As regards the ailment of the appellant, both the Courts were of the view that the appellant failed to produce any reliable evidence to substantiate that he was not in a position to climb the first floor as he had not produced any medical certificate from a Government Hospital nor he examined any doctor. Additionally, the respondent, who is in occupation of the ground floor, offered to hand over the possession of the same in exchange of the first floor, which offer the 'appellant did not accept. We may observe that the above offer was repeated by the respondent before us but the appellant's son who was present in the Court did not accept the above offer.
6. Then it was urged by Mr. Shafaat Hussain that after the institution of the above rent case, the family members of the appellant have increased. It will suffice to observe that if any fresh cause of action has accrued to the appellant after the institution of the above rent case, the appellant is free to file fresh case in accordance with law, but this alleged additional factor cannot be used for reinforcement of the appellant's evidence on the ground of personal requirement, which has not been accepted by the two Courts below.
7. The upshot of the above discussion is that the above appeal has no merits and the same is, accordingly, dismissed.
A.A./M-3023/S Appeal dismissed
[Supreme Court of Pakistan]
Present: Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ
MUHAMMAD ATIQUE---Appellant
versus
MUHAMMAD HANIF KHAN---Respondent
Civil Appeal No.370 of 1993, decided on 16th March, 1994.
(On appeal from the judgment dated 25-1-1993 of the High Court of Sindh, Karachi, passed in F. R. A. No. 10 of 1991).
(a) Sindh Rented Premises Ordinance (XVH of 1979)---
----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Leave to appeal was granted only on question of personal requirement to consider, whether in view of the fact that landlord was heart patient and that his married son was residing with him alongwith his family, two Courts below were justified in declining his ejectment application in respect of premises in question.
(b) Sindh Rented Premises Ordinance (XV13 of 1979)---
----S. 15---Constitution of Pakistan (1973), Art. 185---Bona fide personal need of landlord---Concurrent finding of two Courts below on question of fact on basis of evidence to the effect that bona fide personal requirement of premises was not proved by-landlord---Supreme Court could not interfere with such finding merely on the ground that it might have taken different view on the basis of same material---Main factor which had gone against landlord and correctly so was his suppression of fact that in addition to the premises in his occupation on the first floor he was also in possession of two rooms on the second floor--Landlord had failed to prove factum of his ailment through cogent evidence--Contention of landlord that since the filing of his petition for ejectment the number of his family members had increased, related to new cause of action which had arisen after the institution of ejectment application, and thus could not be taken into consideration, although he was free to file a fresh case in accordance with law.
Shafaat Hussain, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Appellant.
Abbas Ahmed, Advocate Supreme Court and M. S. Ghaury, Advocate-on-Record for Respondent.
Date of hearing: 16th March, 1994
JUDGMENT
AJMAL MIAN, J.---This is an appeal with the leave of this Court against the concurrent judgments of the two Courts below dated 29-11-1990 and 25-1-1993 of the learned Senior Civil Judge/Rent Controller, Karachi (South) and the learned Single Judge of the High Court of Sindh in Rent Case No. 1657 of 1988 and F.R.A. No. 10 of 1991, respectively, declining the above, rent case which was filed on the grounds of default, nuisance and personal requirement and dismissing the above F.R.A. by maintaining the above judgment of the learned Rent Controller. Leave to appeal was granted only on the question of personal requirement to consider, whether in view of the fact that the appellant is a heart patient and that his married son resides with him with his family, the learned two Courts below were justified in declining the appellant's application in respect of the suit premises situated on ground floor.
2. The brief facts are that the appellant filed above rent case on the grounds of default, nuisance and personal requirement. The above application was resisted by the respondent/tenant inasmuch as written statement was filed, in which inter alia it was averred that the petitioner had suppressed the fact that he was also in possession of two rooms on the second floor besides having the first floor in his possession. The other grounds were also denied. The learned Rent Controller, on the basis of pleadings of the parties, framed the following four issues:--
(1) Whether the appellant had committed wilful default in payment of rent since September, 1988, and has also committed default in payment of electricity charges?
(2) Whether the applicant requires the ground floor viz. case premises for his personal bona fide use as well as for the use of his married son?
(3) Whether the opponent is causing nuisance by his activities?
(4) What should the order be?
As regards Issue No.3 relating to nuisance, the learned Rent Controller observed that since a criminal case is pending before the S.D.M., it will not be appropriate for her to interfere with and discuss the matter. The other two issues were decided against the appellant. As regards personal requirement, it was held that the appellant failed to prove that he was suffering from heart ailment as he had not produced any medical certificate from a Government Hospital nor he had examined any doctor. It was also held that the appellant had in his rent case suppressed the factum that he was in possession of two rooms on the second floor though this fact was stated by him in his affidavit in evidence after the respondent had made the above averment in his written statement. She, after referring to the Commissioner's report about the inspection of the second floor wherein he confirmed that there were two rooms,, held that the appellant failed to prove his personal requirement. The issue relating to default was also decided against the appellant. After that the appellant filed the above F.R.A. before the High Court. The appellant conceded that he was unable to prove default in payment of rent from September, 1988 to October, 1988, but contended that there was default in payment of gas and electricity charges. However, the High Court did not accept the above contention and through the impugned judgment concurred with the finding of the Rent Controller. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above question.
3. In support of the above appeal, Mr. Shafaat Hussain, learned Advocate Supreme Court appearing for the appellant, has vehemently contended that even if it is to be conceded that the appellant had two rooms on the second floor, the number of members of the appellant's family was nine and, therefore, the Rent Controller should have allowed the rent case on the ground of personal requirement as admittedly the appellant had first floor having two bed-rooms plus drawing/dining room and one lounge.
4. The above contention is not tenable. The learned Rent Controller after referring to the evidence and the Commissioner's Report concluded as under:-
"It will not be out of place to mention that applicant has not raised any objection on the above report but the objections were raised by the opponent, The Commissioner Report which is not disputed by the applicant is giving the clear picture of the 2nd floor and there is no hesitation to come to the conclusion that applicant has concealed and suppressed the facts of having two rooms accommodation on the 2nd floor:
Firstly in main application he concealed the entire construction on the second floor then in his affidavit in evidence stated that he is having two store rooms then in cross-examination he stated that he is having a room which is used as store room then in the same cross-examination stated that two rooms with bath and kitchen are constructed where his son alongwith his family is residing. The entire accommodation in his use on 2nd floor in view of Commissioner Report dated 20-5-1990. The aforesaid canceling of facts shows that applicant has not come with clean hands.
It is to be noted that according to the applicant he has twenty years old college-going daughters. In cross-examination he has admitted that his one daughter is married. It will also not be out of place to mention here that during the pendency of the case an application was filed by .the opponent together with a wedding card with the contention that the daughter of the applicant got married on 2nd March, 1990. This application is not opposed by the applicant. Therefore, now the applicant is having his only two sons, his wife and mother which too, admittedly, has been brought by the applicant in his house after the inception of tenancy: Admittedly the sons of the applicant has already married when 'the premises was let out to the opponent, and he too is residing on the second floor with his family. Even otherwise the need of the mother or for the mother under the definition of personal requirement under section 2(f) of Sindh Rented Premises Ordinance, 1979 does not fall.
Although it is denied by the applicant that opponent had offered him the ground floor for his residential purposes and the 1st floor for himself but he stated that he is not ready if the opponent offers him the ground floor for his accommodation on the condition to be shifted on the 1st floor. "
5. The above finding has been concurred with by the learned Judge in Chambers in the High Court. Since it is a concurrent 'finding supported by evidence on record, this Court cannot interfere with merely on the ground that it might have taken a different view on the basis of the above available material. The main factor which has gone against the appellant is that he did not disclose in the memo. of rent case that he was in possession of two rooms on the second floor. The suppression of the above fact has adversely affected the credibility of the appellant. Both the Courts have taken into consideration the above factor. As regards the ailment of the appellant, both the Courts were of the view that the appellant failed to produce any reliable evidence to substantiate that he was not in a position to climb the first floor as he had not produced any medical certificate from a Government Hospital nor he examined any doctor. Additionally, the respondent, who is in occupation of the ground floor, offered to hand over the possession of the same in exchange of the first floor, which offer the 'appellant did not accept. We may observe that the above offer was repeated by the respondent before us but the appellant's son who was present in the Court did not accept the above offer.
6. Then it was urged by Mr. Shafaat Hussain that after the institution of the above rent case, the family members of the appellant have increased. It will suffice to observe that if any fresh cause of action has accrued to the appellant after the institution of the above rent case, the appellant is free to file fresh case in accordance with law, but this alleged additional factor cannot be used for reinforcement of the appellant's evidence on the ground of personal requirement, which has not been accepted by the two Courts below.
7. The upshot of the above discussion is that the above appeal has no merits and the same is, accordingly, dismissed.
A.A./M-3023/S Appeal dismissed
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