1. ' This second appeal is directed against the impugned judgment dated 26th September, 1978 of the learned Additional District Judge, Karachi whereby appeal against the dismissal of application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordii ince, 1969 has been dismissed.
2. ' Briefly stated the relevant facts are that respondent/landlord Mohammad Usman file an application for ejectment against appellant/tenant Fazal Karim on the grounds of default in the payment of rent and requirement of the demised premises for personal use. The parties had executed an agreement of lease Exh. 4-D on 1st May. 1967, which .Was operative for two years. The demised premises are ground floor residential accommodation of a double-storeyed bungalow on Plot No 157/L, Block No, 2 of P. E. C. H. S., Karachi let out at monthly rent of Rs, 600 payable quarterly in advance. The application for ejectment was filed before the Rent Controller on 10th March, 1975 which was contested by the tenant, who filed the written statement denying the grounds of eject ment. Keeping in view the pleadings of the parties the learned Rent Controller framed the following two issues, namely :-
(1) Whether the opponent has committed -default in payment of rent ? If so, its effect ?
(2) Whether applicant requires the premises in question for his and his family's personal bona fide use ?
3. ' The landlord Mohammad Usman examined himself as Exh. 4 and tenant Fazal Karim examined himself as Exh. 5 and some documents were also produced. After consideration of the evidence brought on the record the learned Rent Controller; answered both issues in negative and consequently dismissed the application for ejectment by his decision dated 4tb March, 1978. The landlord went into appeal against the decision of the Rent Controller which has been allowed by the learned Additional District Judge only on the ground of requirement of demised premises for personal use, on which the finding of the Rent Controller has been reversed, while his findings on the issue of default has been maintained. Against the judgment of the Appellate Court tenant Fazal Karim has filed this second appeal which is presently under consideration. Having felt aggrieved against the decision of the appellate Court for the reason that the negative finding of the Rent Controller on the issue of default has been maintained, landlord Mohammad Usman also has filed cross second appeal in this Court bearing No, 462/78, which I propose to dispose of by separate judgment.
4. ' I have heard at great length Mr. Iqbal Kazi and Mi. Mansoorul' Arfin counsel for appellant and respondent, respectively. The main contention raised on behalf of the appellant is that the evidence brought on the point of requirement of demised premises by the respondent/landlord for personal use is insufficient to warrant a positive finding and in that behalf it is further submitted that the Rent Controller was right in dismissing application for ejectment on that ground that the landlord does not require the premises in question for his personal use or use of his children bona fidley and. Reversal of such finding of the Rent Controller by the first appellate Court is unjustifiable and is based upon gross misreading of evidence, which in consequence is liable to be set aside.
5. The learned counsel for the appellant has very emphatically criticised the evidence on this issue in the light of legal objections raised by him. Before I go into the contentions made on behalf of the appellant/tenant, it would not be out of place to mention here a few basic principles and essential features of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) which have necessarily to be kept in view while taking in hand the assessment of evidence.
6. A Rent Controller under the said Ordinance is not a Court, therefore, it is clear that Civil Procedure Code is not applicable. The Controller conducts inquiry in a quasi-judicial manner and is not bound by the Civil Procedure Code. He has wide discretion to conduct inquiry but that discretion is to be exercised in a judicial manner in accordance with principles of natural justice. Section 13 (2) of the said Ordinance provides that a landlord, who seeks to evict his tenant shall apply to the Controller for a direction in that behalf on the grounds specified in the said subsection and the Controller after giving the tenant a reasonable opportunity of showing cause against the application, if satisfied, shall pass such order for eviction. The intention behind the said Ordinance is manifestly clear that the proceedings are intended to be free from legal and procedural intricacies in order to be short and uncomplicated. The relevant provision for seeking eviction on the ground of requirement of premises of personal use contained in subsection (3) (a) of section 13 of the said Ordinance, which reads as under
(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(i) in the case of residential building if-
(a) he requires it in good faith for his own occupation or for the occupation of any of his children,
(b) he is not ;occupying another residential building suitable for his needs at the time in the same urban area in which such building is situated, and
(c) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area.
7. ' In the instant, case the landlord has applied for eviction of the tenant under sections 13 (2) (1) and
(3) (a) (i) of the said Ordinance on the grounds of default in the payment of rent and requirement of premises for personal need. For the latter ground which is relevant in the appeal under consideration, he has categorically stated in paragraph that he has retired from the Government service from a Senior position and requires both the stores in the building in question, which is owned by him, in good faith for his own occupation and for the occupation of his wife and six grown-up children. He has also stated in the application that he is living temporarily in the house of his father, which: after the death of his father, is now inherited by his brother, who has" "become the sole owner and, wants him to vacate as it is insufficient for his brother's family. The landlord has also mentioned in' the application that he wants the possession of the whole bungalow in which the ground floor is rented out to the appellant in this case and he has applied for ejectment of tenant who is in occupation of the residential accommodation on the first floor. The landlord has also mentioned and produced the copies of letters forming part of 'correspondence with the appellant showing that he had requested him to vacate the premises in question, which are needed for his own use. As against this the appellant/tenant in his written statement filed before the Rent Controller simply denied the assertion of the landlord that premises were required for personal use and also denied that the residential accommodation occupied by the landlord was insufficient. There is no denial in the written statement that the landlord is putting up temporarily in the house of his father, which is now inherited by his brother to the exciusion of others.
8. ' The landlord has examined himself before the Rent Controller and has testified that he was in Government service and was posted outside Karachi, where he was provided with official accommodation. He rented out the ground floor to the appellant when he was posted in Bangla Desh then known as East Pakistan. He has also, deposed that at present he is residing with 'his younger brother in one bedroom and he has six grown-up children going to school and college. His one married daughter also lives with him with a child as her husband is in U. S. A. His other daughter is also 'married. He has no privacy or facility for his children to study. In his cross- examination he has explained further that his first son is 18 years' old and is studying in first year science. His other two sons are twin and 16 years old, his fourth son is 13 years old and these three are school going. The landlord has also stated that he was employed in Land Customs. It is not clear from what position he has retired but at one place in his deposition he has statesd that when he was posted at Karachi in 1963, he was Deputy Collector, Customs. One thing is very clear in the deposition of the landlord that the tenant has not challenged the assertion that residential accommodation occupied by the landlord in the house of his father now owned by his brother was insufficient. It is also not challenged that that house is now owned by the brother of the landlord. In this context whatever little cross-examination is made, in that the landlord has stated that the house in which he lives now belongs to his brother. He has three- brothers and five sisters. His father had made a will and left the house in favour of his brother. He has also stated that in that house of his brother are living two other brothers with their families and one sister. To a solitary question put to the landlord in his cross-examination whether he has produced any document to prove that the house of his father is given by will to his brother, he has replied in negative and stated that it is not necessary. It is very clear that the tenant has not disputed the assertion of the landlord that he is putting up temporarily in the house of his father which is now inherited by his brother after the death of his father. The assertion is reflected in the application for ejectment and in the written statement as stated above there is no denial of this assertion. In the evidence of the landlord there is no challenge to this assertion and no such questions have been asked from the landlord in his cross-examination disputing this fact except a passing question whether he has produced any document to which the landlord has replied in negative. This shows that the tenant does not dispute the fact that landlord is living in the house of his brother, which accommodation is insufficient. This fact also appears to have been mentioned in the letters exchanged between the parties by way of correspondence before ejectment proceedings were filed. Letter dated 22nd October, 1974 Exh. 4-B/7 addressed by the landlord to the tenant shows that the landlord had informed the tenant that accommodation presently occupied by him by courtesy had proved absolutely inadequate for his growing children and their expanded requirements and he finds it difficult to adjust, hence a request was made to return the house in dispute. The request is reiterated by the landlord in his letter dated 15th January, 1975 Exh. 4B/10 addressed to the tenant for vacating the disputed premises for the reason that nephew of the landlord had been betrothed, hence brother of the landlord was waiting for him to vacate the house so that he should get his son married. Then there is letter Exh. 4-B/I 1 dated 21st January,. 1975 addressed by the landlord to the tenant in which grievance is made that tenant has not mentioned in his letter about vacating the house although for months have elapsed. In this letter cheque for rent was returned and offer made to the tenant to live as gUest of the landlord in premises in question. The last letter dated 27th January, 1975 Exh. 4-B/12 is. From tenant to the landlord in which appeal has been made by the tenant to the landlord to accept the rent for the period the tenant is "compelled" to stay in his bungalow, failing which ,the rent would be deposited in the Court. These letters clearly indicate that the landlord is living in the house of his brother by courtesy and wanted his own house vacated for his personal use. That is why this assertion of the landlord is not challenged by the tenant and it is admitted by him in his deposition that the landlord returned the cheque for rent on the ground that he required the premises for his personal use and offered to keep him as a guet. In his deposition the tenant does not say anything about the fact that the landlord is living in his brother's house.
9. Which is owned by his brother and that accommodation is insuffi cient for him or not. On the other hand the tenant has dilated upon the subject as to how much residential accommodation is in his ocoupation and how much is available on the first floor of the same house, which has been got vacated by the landlord. The tenant has also stated that the landlord has another house in Mohammad Ali Housing Society which has been let on rent by him but in his cross-examination has stated that he is unaware whether the landlord owned any other house except the one in which the tenant himself resides. It is admitted by the landlord that the other house is owned by his wife and is let on rent.
10. ' This is the evidence adduced by the parties before the Rent Controller, Which is criticised by the learned counsel for the appellant/tenant on the ground that it is insufficient to prove that the landlord needs premises in question for his personal use. It is contended by Mr. Lqbal Kazi that the landlord must state as to what accomnodation he requires and why and must prove his case by evidence. The evidence on the record clearly shows that landlord has stated clearly in his application for ejectment that he wants both groundfloor and first floor of his house for his own occupation and that of his family inciuding wife and six, children. He has stated so in his evidence also. The iandlord has admitted that his first married daughter is living with her husband in Karachi.
11. Minus that daughter the landlord still has family of seven including himself. Wife, one married daughter with a child and for sons. The landlord has clearly stated that he wants the accommodation on the ground floor as well as first floor, which is in fact one compact house. The landlord has also admitted that he has succeeded in getting vacant possession from the tenant on the first floor and got it repaired but that is insufficient for his needs and he wants the accommodation on the ground floor also. It is contended on behalf of the appellant that accommodation on the first floor available to the landlord is equal to the accommodation on the ground floor in occupation of the tenant and additionally the landlord has got two rooms constructed on the ground floor and one room on the roof, which are in occupation of landlord, hence these three looms plus first floor accommodation is sufficient for landlord so as not to require ground floor accommodation. No such question was put to the landlord about the newly- constructed rooms in his occupation while he was deposing. The tenant mentioned it for the first time in his statement before the Rent Controller, which was recorded after the statement of landlord. The tenant further was evasive to give the details about these newly-constructed rooms although two are stated to be on the ground floor which is in his occupation. He has stated in his cross-examination that he cannot distinguish whether those two rooms are servant quarters or for residential purpose. He has further admitted that. Those rooms are separate from the building and he could not say whether roofs of these rooms are of asbestos sheets. It is therefore clear from the evidence of the tenant that these rooms are not for the use of landlord or his family members. As per his own admission the tenant had stated in his deposition that on the first floor there are three bedrooms with baths attached, one drawing and dining kitchen, etc. The same accommodation is available on the, ground floor which make six bed rooms. If one bedroom is occupied by the landlord and his wife, one by the married daughter with a child, who is living with her father and for bedrooms for for sons, the whole family can reasonably be provided for. The landlord has stated in details about his family and children in his evidence.
12. It was contended on behalf of the appellant tenant that burden of proof that he required premises for his personal use and that of his family is on the landlord and he has not discharged that burden. I think this contention has no merit. The evidence discussed above clearly shows that the landlord has produced sufficient evidence in proof of his claim. It is indisputable fact that if the tenant challenges the assertion of the landlord that his claim is not bona fide but is mala ride ; then burden shifts on him. In this case the tenant does not allege mala fides. Furthermore, it is evident from letter Exh. 4-B/9 addressed by the landlord to the tenant that landlord took exception to the offer of tenant to accept enhanced rent informing him that it was not for selfish motive that he (landlord) was pressurising the tenant to vacate. The landlord further informed the tenant in that letter that he is not so mean to adopt such cheap tactics for a few hundred rupees. This clearly indicates that landlord genuinely wants premises in question for his own use, ' Mr. Kazi next contended that the landlord .Has not specifically stated as to how he wants both first floor and ground floor accommodation for his own use. This contention has no merit because the landlord has stated both in his application for ejectment as well as deposition that he wants both floors for his use. He has given details of his family members. The law does not require him to say which room he wants for which child. It is enough if the number of bedrooms is commensurate with the number of family members. There is sufficient evidence on the record to satisfy the Controller to come to the conclusion that premises in question are required by the landlord for his personal use and use of his family members.
13. ' On the other hand Mr. Mansoorul Arfin counsel for the respondent has submitted that in the instant case the record itself reveals that there is sufficient evidence available to substantiate the plea of the landlord and the requirements of section 13(3) (a) have been fulfilled. The landlord has retired from high position in the Government service and has wife and 5 children including for sons and one married daughter, who are dependents upon him. He has no other house and the house owned by his wife, which is already on rent, cannot be deemed to be a house owned by the landlord himself. The wife also is dependent upon the landlord and wants to live with her husband and children. The landlord has not concealed any facts and in his application for ejectment has clearly stated that he wants accommodation on both the floors of the bungalow in dispute. He has stated in that application that he has moved for ejectment of the tenant on the- first floor. When the evidence in this case was recorded the landlord has admitted in his deposition that he has got the vacant possession from the tenant of the first floor and has got repaired the same but the accommodation so available is inadequate for his needs as such he also wanted accommodation on the ground floor. It is further submitted by Mr. Arfin that the landlord has no other property except the-bungalow in question, which he wants for himself and his family members, who are dependent upon him. The learned counsel for. The respondent has drawn my attention to the case of Adamali Hassanali v. Mst. Rubab Bai (1) wherein it is held that expression "for his own occupation". Ids to he construed liberally and must be interpreted to include not only need of family, dependents and persons, essential for such occupation but also other genuine requirements of landlord and the genuine needs of landlord depend on circumstances and facts of each case. It is further submitted that the decision in the reported case as stated above was affirmed in L. P. A. No, 28 of 1965 (PLD 1967 Kar. 437). On this premise it is contended on behalf of the respondent that he has retired from a high position in the Government service and has for grown-up sons who are receiving education, one married daughter with a child living with him and wife, for whom he requires the only house he owns for their occupation. There are three bedrooms on the ground floor and- three bedrooms on the first floor, which he wants for his family of seven.
14. Other facilities such as servant quarter, gardener quarter and garages, are facilities attached with the bungalow This residential accommodation of six bedrooms plus facilities is in line with his status and standard of life he is used to. He has produced sufficient evidence to prove his requirements and it is not necessary for the landlord to examine his children in support of his plea.
15. Reliance is placed on the case of Mohammad Bashir v. Vensimal and others (2). The learned counsel has further submitted that in the instant case there is sufficient evidence on the record to prove that the landlord requires the premises for his own use and the use of his children bona fidley and in the instant case mala fide is not alleged by the tenant and if it is alleged, the burden is shifted to him to prove the same. In support of this proposition reference is made to the case of Mushtaq Ahmed v. Mrs. Mumtaz Zuhra (3). In this context it is further submitted by the counsel for the respondent that in the instant case it is in the evidence that the. Landlord has declined the request of the tenant for enhancement of rent and has sternly warned him that he had no such motivation and he wanted the premises in question for his own occupation and that of his children.
16. It is further submitted that in the said Ordinance in subsection (4) of section 13 adequate safeguard is provided. which imposes upon the landlord an obligation to occupy the premises sought on the ground of requirement for personal use in time specified therein, failing which the tenant who has vacated such premises, is allowed to apply to the Controller for an order of restoration of possession. Reference is made to the case of M/s Amiruddin v. Seth Adamji (4). In view of the legal position enunciated in the rulings cited above by the learned counsel for the respondent and scrutiny of the record and perusal of evidence made as stated above, I am firmly of the view that the evidence produced is more than sufficient to answer the requirements of section 13(3) (a) of the said Ordinance, hence I dismiss the appeal. The appellant is directed to hand over the vacant possession of the premises within three months from the date of this judgment.
17. ' There will be no order as to costs. {{FOOT NOTE}}
(1) PLD 1965 Kar. 408 (2) PLD 1980 Kar. 409
(3) PLD 1978 Kar. 188 (4) 1969 SCMR 131 {{FOOT NOTE}}