This second appeal under section 15 (5) of the Sind Urban Rent Restric--tion Ordinance, 1959 (hereinafter called the 1959 Ordinance) is directed against the order dated 29-11-1976 passed by the IInd Additional District Judge, Karachi in Rent Appeal No. 596 of 1974, whereby he dismissed the Rent appeal maintaining the order dated 29-8-1974, passed by the Control--ler in Rent Case No. 700 of 1972, dismissing the application for eviction of the respondent.
2. The facts giving rise to this appeal briefly stated, are : The appellant is a landlord of a residential house constructed on Plot No. 249, Blocks 7 and 8, C. P. And Borar Co-operative Housing Society, Karachi and the respondent is the tenant of the premises of the appellant, from 1-11-1966.
3. The appellant applied under section 13 of the 1959 Ordinance for eviction of the respondent on the ground of default in payment of rent of the premises for 3 months and for requiring the premises in good faith for his own use and for the use of his children.
4. The respondent in his written statement denied that he had committed any default in payment of the rent, and with regard to the plea of personal requirement he pleaded that the appellant is in occupa--tion of a house bigger than the one in possession of the respondent and that he did not need the premises for his own use. He further pleaded that the appellant had pressed him for enhancement of rent which was not accepted, therefore, the appellant offered to sell the house to him for R s. 80,000 and he offered a sum of Rs. 60,000 as sale consideration which offer was not accepted by him. Therefore, the application for eviction was filed.
5. On the pleadings of the parties the following issues were framed by the Controller:---
(1) Whether the opponent has committed default in payment of Rent ?
(2) Whether the applicant requires premises bona fide for his own personal occupation ?
(3) What should the order be ?"
6. In support of their respective cases the parties examined themselves and no other witnesses.
However, the appellant produced three certificates from the school in support of the plea that his several children were study--ing in Schools. The respondent produced money order coupon in support of the plea that he had sent the rent by money order and had not made any default in payment of the rent.
7. The Controller by the order dated 29-8-1974 decided both the issues against the appellant and dismissed the application.
8. Aggrieved by the order the appellant filed an appeal in the District Court; Karachi which came to be heard by the II Additional District Judge, Karachi, who dismissed the same by the order dated 29-11-1976, now impugned before me in this second appeal.
9. I have heard Mr. S. Hussain Asghar Rizvi learned counsel for the appellant and Mr. Khuda Bux Umrani learned counsel for the respondent and have also gone through the evidence produced by the parties.
10. Mr. S. Hassan Asghar Rizvi has not questioned the finding of the Controller or the Additional District Judge, Karachi on the issue of default. He has however contended that the findings of the Controller on the other issue are based on misreading of the evidence. He further contended that the Additional District Judge, Karachi has also not consi--dered the material evidence. He has pointed out that the Controller has stated in the order that "the applicant/landlord (appellant) has further even the measurement of the three bedrooms, dining-cum-drawing hall of the premises in occupation of the opponent/tenant (respondent) but he has not given the measurement of the house of which he is in occupation presently: He has merely stated in his deposition that the present house of his father occupied by him is insufficient for his family".
But it is pointed out that the appellant in his deposition has in fact, given the full detail of accommodation in the house of his father and even measurement of the rooms and full detail of his family in these words :-- "The premises belong to my father, consists of 3 bedrooms, dining cum-drawing hall. The measurement of two bedrooms is 14' x 16' and the dining-cum-drawing is 14' x4 22'. At present I am living with my father, mother and one brother. My family consists of 11 mem--bers, eight children, 2 wives and myself. The age of my eldest dau--ghter is about 17 years. She is in Matric. Abdul Nasir, my son is aged about 15 years. He is in VII Class. My another daughter Fatima is aged about 14 years. She is in VIII Class. Salma my third daughter is about 10 years in III Class. Jamila daughter about 4 years is in K-G classes. Zahida daughter about 7 months old. I produce 3 school certificates as Exhs. P. 6, 7 and 8. The present house of my father is insufficient for tray family.' (SEE : Paper book, page 14).
11. I may here observe that the respondent has not questioned in the cross-examination the correctness of the statement as to the accommo--dation given by the appellant or the number of members of the family of the appellant or ages of the children. He therefore, argued that this is a clear case of misreading and non-consideration of material evidence.
12. The reasons which weighed' with the Additional District Judge for upholding the order of the Controller were that the certificates produced by the appellant were irrelevant and proved nothing and the premises in question was constructed in the year 1965 and let out to one Haji Abdul Sattar and later on the same was let put to the respondent and these facts showed that the appellant did not require the premises for his own personal use and he needed the premises for the purposes of letting out the same on rent. In fact the entire reasonings of the Additional District Judge is contained in one paragraph and I may reproduce the same hereinbelow in extenso :- "Considering the second contention of the learned counsel on behalf of the appellant that he needs the said premises for his personal bona fide use and that of his children, and in support of this conten--tion he produced school certificate Exh. 6, Exh. 7 and Exh.
8. One certificate Exh. 6 bears the signature not of the Headmistress but some one else on her behalf. Certificate Exh. 7 does not bear the signature of the principal and third certificate Exh. 8 only shows that his daughters are studying in Government Primary School. In any case these certificates produced by the appellant prove nothing and I fail to understand that how they are relevant to the bona fide need of the appellant ; has not shown that the present accommo--dation of the appellant is not suitable and/or is insufficient for his own use or that of his family. The premises in question were constructed in 1965 and were let out to one. Haji Abdul Sattar and latter he let out the same to the respondent ; this shows that the appellant does not need the said premises for his own personal requirement but he owns them for the purposes of letting them out on rent. It may be pointed out that it is well settled law that the landlord must establish as a fact his bona fide requirement before he can be allowed to eject his tenant from the premises which he rented out to him."
The record shows that the appellant has failed to establish his bona fide requirement and/or that of his family.
13. It will be seen from the-above that the Additional District Judge/ has not considered the facts deposed to by the, appellant that be was residing with his father and mother and one adult brother in the house of his father with 10 members of his family consisting of two wives and 8 children. He has also not considered the fact that the father's house consists of only 3 bedrooms and drawing- cum-dining room which accom--modation in my opinion, is ordinarily quite insufficient for 14 people.
14. Now, I propose to deal with the contention of Mr. Umrani. Mr. Umrani submitted that the requirement of the appellant is not genuine for the appellant was married for the first time in the year 1956 and his second marriage took place in the year 1959 and he constructed the house in the year 1965 and let out the same to the respondent in the year 1966. He therefore, argued that if the need of the appellant was genuine he would not have let out the premises to the respondent. The learned counsel for the respondent conveniently fails to take note of the fact that the application was not made in the year 1966 or immediately thereafter but was made in the year 1972, about 6 years after letting out the premises and that several children were born afterward as is clear from their ages and with the advancement in the ages of the children need of more and better accommodation would also -grow. If the respondent wanted to use this argument he would have asked the appellant as to why did he let out the premises in the year 1966. There might have been variety of reasons for letting out the premises then. May be that then he was indebted or may not be having sufficient income and wanted to supple--ment it with rental income.
15. In any case, it is undisputed fact that the appellant is residing in his father's house with his father, mother, brother and 10 members of his family, 3 bedrooms cannot ordinarily be said to be sufficient for such a large family. Then it is the natural desire of every owner to live in his own house if his circumstances permit him. Therefore, if the appellant did not need the premises in the year 1965 or 1,966 from that it cannot be reasonably inferred that the need in the year 1972 was not pressing one.
16. It was next submitted by Mr. Umrani that the appellant did not examine his father or brother in support of his case and therefore, he argued that the appellant failed to prove his case. The argument is miscon--ceived for the learned counsel here failed to take into consideration the fact that the requirement of the premises was not for the use of the father or the brother. The appellant requires the premises for his own use and for the use of his family. Further his statement that he was residing with his father in his (father) house where 'also his mother and brothers were residing has gone unchallenged. Therefore, it was not at all necessary for the appellant to have examined his father or the mother.
17. I am, therefore, of the opinion that bona fide need of the premises for his own use and occupation by the appellant is clearly established from ` the facts and evidence of this case.
18. I, therefore, set aside both the orders and allow this appeal with costs. Accordingly the respondent will vacate the premises and put the appellant into possession of the premises.
19. Mr. Umrani requests that the respondent may be allowed two months' time to vacate the premises. Since the appellant had filed the case in the year 1972 and almost 9 years have already passed I think the ends of justice would be met if I allow one month's time to there respondent to put the appellant into possession of the premises and to vacate the premises. I accordingly allow' one month time