مالک مکان اپنی پسند کا فلیٹ ذاتی ضرورت کے لیے خالی کروا سکتا ہے — سپریم کورٹ کا اہم فیصلہ
حوالہ: 2026 SCMR 1931
سپریم کورٹ آف پاکستان نے قرار دیا ہے کہ مالک مکان اپنی ذاتی رہائش کے لیے اپنی پسند کی جائیداد کا انتخاب کرنے کا مکمل حق رکھتا ہے اور کرایہ دار اسے کسی دوسرے مکان یا فلیٹ کے انتخاب پر مجبور نہیں کر سکتا۔
مقدمے کے حقائق
مالک مکان نے کراچی میں واقع عمارت کے تیسرے فلور پر موجود فلیٹ نمبر A-6 اپنی ذاتی رہائش کے لیے خالی کروانے کی درخواست دائر کی۔ مالک مکان کا مؤقف تھا کہ وہ اپنی بہن کے گھر رہائش پذیر ہے اور اسے مذکورہ فلیٹ اپنی رہائش کے لیے درکار ہے۔
کرایہ دار نے اعتراض کیا کہ مالک مکان کے پاس اسی عمارت میں دیگر فلیٹس بھی موجود ہیں، اس لیے ذاتی ضرورت کا دعویٰ درست نہیں۔
سپریم کورٹ کی قانونی وضاحت
سپریم کورٹ نے قرار دیا کہ مالک مکان اپنی ضرورت کا بہترین جج خود ہوتا ہے۔ اسے یہ اختیار حاصل ہے کہ وہ اپنی ذاتی رہائش کے لیے اپنی پسند کا مخصوص مکان یا فلیٹ منتخب کرے۔
محض اس وجہ سے ذاتی ضرورت کو بدنیتی پر مبنی قرار نہیں دیا جا سکتا کہ مالک مکان کے پاس دیگر فلیٹس بھی موجود ہیں۔
عدالت نے مزید قرار دیا کہ اگر مالک مکان کی حلفیہ گواہی اس کے اصل دعوے کے مطابق ہو اور جرح کے دوران غیر متزلزل رہے تو ذاتی ضرورت ثابت کرنے کے لیے کافی ہو سکتی ہے۔
حتمی فیصلہ
سپریم کورٹ نے سندھ ہائی کورٹ کا فیصلہ کالعدم قرار دیتے ہوئے اپیلیٹ کورٹ کا بے دخلی کا حکم بحال کر دیا۔
تاہم کرایہ دار کو فلیٹ خالی کرنے کے لیے چھ ماہ کی مہلت دی گئی، بصورت دیگر پولیس کی مدد سے قبضہ دلانے کا حکم دیا گیا۔
قانونی اصول: مالک مکان اپنی ذاتی ضرورت کے لیے اپنی پسند کی جائیداد خالی کروا سکتا ہے، کرایہ دار اسے متبادل جائیداد اختیار کرنے پر مجبور نہیں کر سکتا۔
حوالہ: 2026 SCMR 1931
2026 S C M R 1931
Ejectment of tenant---Personal bona fide need of landlord---Landlord sole judge of his requirement and choice of tenement---Personal need not disputed by tenant---Misreading and non-reading of evidence by High Court---Eviction order restored---Appellant/landlord was aggrieved of order passed by High Court setting aside eviction order which was passed against respondent/tenant by Lower Appellate Court---Validity---Landlord enjoys absolute liberty as the sole judge and master of his own requirement, retaining the exclusive prerogative to select the particular tenement that best suits his needs without being subject to the dictation or whims of the tenant---Appellant/landlord was residing in rented premises or in premises owned by his sister, therefore, his assertion that he required the subject tenement for his personal bona fide requirement could not be termed as mala fide, particularly in the absence of any evidence contrary to such assertion---Plea of personal need was not disputed by respondent/tenant throughout the rent proceedings---Supreme Court set aside order passed by High Court as the same was based on misreading and non-reading of evidence available on record and was an incorrect application of law, and restored order passed by Lower Appellate Court whereby respondent/tenant was evicted from the premises---
JUDGMENT
.---Instant petition for leave to appeal
has been filed under Article 185(3) of the
Constitution of Islamic Republic of Pakistan,
1973 against the common order dated
11.11.2025 passed by the Single Judge of th
High Court of Sindh, Karachi, whereby C.P.
No. S-120 of 2020 filed by the respondent/
tenant was allowed, and the eviction order
dated 25.11.2019 passed by the learned VIIth
Additional District and Sessions Judge,
Karachi South, in F.R.A. No. 72 of 2018
was set aside, and the order dated 20.01.2018
dismissing the Rent Application No. 1066 of
2016 by the Rent Controller was
restored/maintained.
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Brief facts of the case are that petitioners are co-owners of a building constructed on Plot No. RB-06/107, Farooq Manzil (previously known as Sadiq Manzil), Raam Bagh Quarters, Saddar Town, Karachi, comprising of shops on the ground floor and flats and officers on upper floors. The respondent occupies Flat No. A-06 (Old No. 23) (“Subject tenement”) on the third floor as a tenant, paying a monthly rent of Rs. 410/- plus other charges. The petitioners instituted Rent Case No. 1066 of 2016 seeking ejectment of the respondent under clause (ii) of subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979 (“SRPO”) for default on payment of rent (since March 2011), under clause (iv) of subsection (2) of Section 15 for damages caused to the material value and utility of the sewerage system and building structure, and under clause (vii) of subsection (2) of Section 15 for personal bona fide use by one of the co-owners, namely Nafees Ahmed, who was residing in his sister's house. Following a legal notice dated 07.01.2016 that went unheeded, the action was brought. The respondent contested the suit by filing a written statement, asserting that rent was regularly deposited in M.R.C. No. 1316 of 2006 before the Rent Controller, and that the landlords concealed other vacant commercial/residential spaces in the building to defeat the claim of personal need. The learned Rent Controller, vide order, dismissed the ejectment application on all issues. However, upon appeal preferred by the petitioners (F.R.A. No. 72 of 2018), the learned District and Sessions Judge, South, Karachi vide judgment dated 25.11.2019 reversed the finding on personal bona fide need, allowing the appeal and ordering eviction. Feeling dissatisfied, the respondent invoked the constitutional jurisdiction of the High Court through C.P. No. S-120 of 2020. The learned Single Judge, through the impugned order dated 11-11-2025, allowed the petition and restored the dismissal of the rent case, hence this petition.
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Learned counsel for the petitioners has vehemently argued that the learned Single Judge of the High Court has erred in law and fact by substituting findings of fact as recorded by the Appellate Court as to the bona fide claim of personal use of the petitioner in respect of subject tenement. Whereas, without pointing out any perversity or illegality, set-aside a well-reasoned order of the appellate Court while, exceeding the narrow scope of review under Article 199 of the Constitution. Learned counsel further contends, that as per the record of evidence produced, it is clear that in both the ejectment application and the affidavit-in-evidence, the petitioners have categorically stated that the subject tenement is required for the personal bona fide need of co-owner Nafees Ahmed because he was residing in his sister's house, and during cross-examination, the petitioner Nafees Ahmad firmly denied the suggestions that the premises was not required for his personal bona fide need. According to learned counsel the learned Judge of the High Court misconstrued the concept of bona fide need by holding that the landlord's requirement for subject tenement lacked good faith simply because of minor variations in address of petitioner who was residing in his sister's house, rather than his own property, despite consistent evidence proving his genuine need for his personal occupation. He argued that the impugned order ignores the settled jurisprudence that a landlord is the absolute master and sole judge of his own requirement and choice regarding which premises suit them best, and mere existence of other spaces in a large building and that too without proof of petitioner’s possession on such property, does not amount to a fatal concealment or mala fide. Learned counsel emphasizes that Flat No. A-2 on the 1st floor is an entirely different property with no concern to the instant proceeding, whereas, there is nothing on record to show that Flat No. A-2 is lying vacant or was ever in the actual use, occupation, or possession of the petitioners, and crucially, that during the entire cross-examination of the petitioners' attorney namely Nafees Ahmad not a single question or suggestion was ever put to him with regard to Flat No. A-2 situated at the 1st floor. He further submits that the impugned order violates the petitioners fundamental rights to a fair trial under Article 10A of the Constitution and property protections under Articles 23 and 24 of the Constitution. It has been prayed that impugned order dated 11.11.2025 may be set aside and the rent case filed by the petitioners be allowed. In support of his contentions, learned counsel has placed reliance on the case of Muhammad Hayat v. Muhammad Miskeen (decd.) through L.Rs. and others (2018 SCMR 1441) and Pakistan Institute of International Affairs v. Naveed Merchant (2012 SCMR 1498). He has further relied on the case of Collector of Customs v. Rohtas Industries (2010 SCMR 1925) to conclude that the High Court while exercising constitutional jurisdiction cannot act as a second appellate forum to appreciate evidence and substitute factual conclusions conclusively drawn by the final appellate authority under the SRPO, 1979.
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Conversely, learned Counsel for the respondent has contended that the petitioners failed to establish good faith in their requirement of personal need of the subject tenement. He has referred to Rent Case No. 1066 of 2016 wherein, according to learned counsel, petitioner stated that the premises were needed for personal use because he was living in his sister's house, however, his affidavit-in-evidence contradicted this, by claiming that he is residing in Shamsi Cooperative Society, Malir Halt, while the rent case listed his address as Delhi Colony. Furthermore, in paragraph 11 of the affidavit it has been claimed that he is living in rented premises, however no documents were ever produced to substantiate any of these conflicting claims. Learned counsel further submitted that the petitioners suppressed the material fact that numerous flats and offices are m his possession, in the same building which fact was disclosed in his cross-examination. Learned counsel argued that the onus was squarely on the landlords under the Qanun-e-Shahadat Order, 1984 to prove their application, which they failed to do. While concluding his submissions foamed counsel has emphasized that the concealment by the land or of one or more premises having fallen vacant during pendency of would reflect adversely on bona fide of is valid explanation is provided as to why such insufficient or unsuitable. In support of his counsel has placed reliance on Allies Book Corporation through LRs v. Sultan Ahmad (2006 SCMR 152).
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Heard the learned counsel for the parties and perused the record with their assistance.
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Chronology of proceedings of the case reflects that Rent Case No 1066 of 2016 was initially filed on multiple grounds, including default in payment of rent, damages caused to the property, and personal bona fide need of the petitioner namely Nafees Ahmad. While the learned Rent Controller dismissed the ejectment application on all issues, the First Appellate Court reversed the finding with regard to personal bona fide need, allowing the appeal and ordering eviction of respondent. Thereafter, the respondent invoked the constitutional jurisdiction of the High Court, which through the impugned order has set aside the appellate order and restored the dismissal of the rent case, giving rise to filing instant petition for leave to appeal. Perusal of the record shows that in support of petitioners' claim, one of the co-owners namely Nafees Ahmad himself and on behalf of other co-owners as attorney appeared in Court and filed his affidavit-in-evidence wherein, the material facts as recorded in the ejectment application regarding joint ownership, detail of all the tenements in the demised building, including flats, offices and shops, and also his claim of seeking ejectment from subject tenement for his personal bona fide need, were reiterated and there seems no discrepancy in this regard. The petitioner was subjected to cross-examination in detail by the counsel for the respondent, wherein, the petitioner was confronted as to the availability of other flats in the demised building in possession of the petitioners, which was responded by the petitioner in the following terms: - “It is correct to suggest that remaining 16 flats/ offices are in my possession. It is court to suggest that I have not mentioned in my ejectment application as well as in my affidavit-in-evidence that the possession of 16 flats/ offices is in my custody”. This portion of the cross-examination of the petitioner has been emphasized by the learned counsel for the respondent during his arguments to suggest that in view of availability of alternate flats in the building in possession of the petitioner, which fact, according to learned counsel was not disclosed by the petitioners in their ejectment application as well as in the affidavit-in-evidence filed by the petitioner namely Nafees Ahmad, renders the claim of the petitioner of personal bona fide need of the subject tenement as mala fide, hence cannot be considered for eviction on the ground of as personal bona fide need of the petitioner. Such aspect of the matter has been elaborately dealt with by the learned VIIth Additional District Judge (MCAC) Karachi, South in F.R.A. No. 72 of 2018 in the following terms:-
“The appellants/ landlords sought eviction of the respondent/tenant on the ground of personal need also. In the ejectment application as well as in the evidence, the appellants/landlords categorically stated that the demised premises is required by Nafees Ahmed, one of the co-owners/ landlords/appellants, for his personal need as he is residing in the house of his sister. During cross-examination, the appellants' attorney namely Nafees Ahmed denied the suggestion that demised premises is not required by him for his personal need. He clearly stated that he has been residing in the house on rent. It is held in 2018 SCMR 1441 (Muhammad Hayat v. Muhammad Miskeen (DECD.) through LRs and others) that the sole testimony of landlord was sufficient to establish personal bona fide need, if such statement of the landlord was consistent with the averments made in the ejectment application......It is important to note here that the respondent/ tenant has not denied the personal need of the appellants/landlords rather contended that another flat A-2 on 1st Floor in the said building may be given to the respondent/tenant as an alternate accommodation. In this regard, the respondent/ tenant filed a separate application under section 21(1-C) SRPO and the learned counsel for the appellant relied upon 1994 MLD 52 and 2006 YLR 522 in support of said application. This contention carries no weight for the reasons that the subject matter of the instant proceeding is Flat No.A-6 situated at 3rd floor in the building whereas Flat No.A-2 situated at 1st floor in the building is entirely a different property and has no concern with the instant proceeding. The court cannot compel any person to enter into any settlement in respect of a property other than the demised premises. It is the prerogative of the landlord/owner of the property to use the same as per his own wishes.”
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From perusal of the reply of respondent and the detailed evidence of the petitioner by learned counsel of respondent it has been observed that the respondent has not denied the personal bona fide need of the petitioner, rather contended that another Flat No. A-2 on first floor in the said building may be given to the respondent as alternate accommodation whereas, an application under Sectio 21, (1-C ),SRPO, 1979 was also filed to this effect which was dismissed by the learned VIIth Additional District Judge (MCAC) Karachi, South for the simple reason that under SRPO, 1979, the Court cannot compel any landlord to enter into any settlement in respect of a property other than the demised premises which is subject matter of rent proceedings. It will not be out of place to observe that in the ejectment application as well as affidavit-in-evidence filed by the petitioner namely Nafees Ahmad all the relevant facts including joint ownership of the building comprising of shops on the ground floor and flats and offices on upper floors of the demised building, wherein the subject tenement i.e. Flat No. A-6, third floor, Farooq Manzil, is situated, and the claim of personal bona fide need of the petitioner in respect of the subject tenement in possession of the respondent, has been given, therefore, the contention of the learned counsel of the respondent regarding concealment of facts pertaining to details of the number of flats in possession of the petitioners, is not relevant for the purposes of instant proceedings which were filed by the petitioners in respect of subject tenement (i.e. Flat No. A-6 ) only. Moreover, it is by now well settled that the landlord enjoys absolute liberty as the sole judge and master of his own requirement, retaining the exclusive prerogative to select the particular tenement that best suits his needs without being subject to the dictation or whims of the tenant. Reference in this regard can be made to the case of Dr. Hassan Fatima v. Pakistan Red Crescent Society and others (2026 SCP 132), Muhammad Ziafat v. Tariq Nawaz Khan and others (2026 SCMR 1132), Pakistan Institute of International Affairs v. Naveed Merchant (2012 SCMR 1498), Juma Sher v. Shabz Ali (1997 SCMR 162) and Jehangir Rustam Kakalia through Legal Heirs v. Messrs Hashwani Sales and Services (Pvt.) Limited (2002 SCMR 241). The aforesaid legal position has been reaffirmed in a recent judgment of this Court in the case of Najeebullah v. Syed Shams-ud-Din and others (2026 SCP 164) wherein, it has been held as under:-
“7. ...Such contention of the learned counsel is misconceived as it is well-settled that the landlord is the best judge of his own requirement and has the liberty to choose the tenement for his personal bona fide use which may suit him best. Reliance in this regard can be placed on cases of Dr Hassan Fatima v. Pakistan Red Crescent Society and others (2026 SCP 132), Muhammad Ziafat v. Tariq Nawaz Khan and others (2026 SCMR 1132), Juma Sher v. Shabz Ali (1997 SCMR 162) and Jehangir Rustam Kakalia through Legal Heirs v. Messrs Hashwani Sales and Services (Pvt.) Limited (2002 SCMR 241). Further Reference in this regard can be placed on a judgment given by Supreme Court of India in the case of Kanhaiya Lal Arya v. Md. Ehsan and others (2025 INSC 271).’’
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Since the petitioner, Nafees Ahmad has examined himself on oath and was subjected to detailed cross-examination wherein, his testimony with regard to personal bona fide need of the subject tenement remained unshaken, which fact, finds further support from the conduct of the respondent who instead of denying or disputing the personal bona fide need of the petitioner, filed an application under Section 21, (1-C), SRPO, 1979 seeking a settlement from the petitioners/landlords to the effect that respondent may be given another flat i.e. A-2 in the first floor of the said building. It is a well-settled principle of law that the sole testimony of a landlord on oath is entirely sufficient to establish personal bona fide need, provided that such a statement remains consistent with the original averments made in the ejectment application. Reference in this regard can be made to the cases, Muhammad Hayat v. Muhammad Miskeen (decd.) through L.Rs. and others (2018 SCMR 1441) and Pakistan Institute of International Affairs v. Naveed Merchant (2012 SCMR 1498). As regards, the reliance placed by learned counsel for respondent on Allies Book Corporation through LRs v. Sultan Ahmad (2006 SCMR 152) the same is misplaced, as the facts of the instant case are entirely distinguishable horn the facts of Allies Book Corporation supra. In the above cited case, a fresh affidavit was filed by the landlord wherein there was no mention about the bona fide personal need in respect of demised shop and the same was confined solely to the ground of sub-letting. Furthermore, during pendency of rent proceedings the shop No. 6 on the ground floor had fallen vacant and was let out by the landlord, which fact was not disclosed by the landlord, therefore, under the peculiar facts and circumstances of the case the Court was constrained to observe that the claim of the landlord was not in good faith. However, in the instant case, admittedly, the petitioner was residing on a rented premises or premises owned by his sister, therefore, the fact that he required the subject tenement for his personal bona fide requirement cannot be termed as mala fide, particularly in the absence of any evidence contrary to above assertion, whereas, the plea of personal need was not disputed by the respondent throughout rent proceedings.
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For the reasons recorded hereinabove, we are of the opinion, the petitioners have made out a case requiring interference of this Court in the order in dispute, which is based on misreading and non-reading of the evidence available on record and incorrect application of law. Accordingly, instant petition for leave to appeal is converted into an appeal and the same is allowed. The impugned order dated 11.11.2025 passed by the High Court of Sindh, Karachi in C.P. No. S-120 of 2020 and the order of the Rent Controller dated 20.01.2018 in Rent Application No. 1066 of 2016 are hereby set aside, and the judgment and order dated 25.11.2019 passed by the learned VIIth Additional District and Sessions Judge, Karachi South in F.R.A. No. 72 of 2018, ordering the eviction of the respondent from the subject tenement, is restored.
Before parting with the judgment,
in the interest of justice and equity,
we allow the respondent to remain in the
subject tenement for a period of Six
Months from the date of this judgment
and during this period the petitioners
shall not pursue ejectment proceedings.
It is however, clarified that in case
the respondent does not vacate and
handover the peaceful possession of
subject tenement to the petitioners,
writ of possession will be issued along
with police aid without further notice.