1. The appellant who is tenant of the respondent in respect of Flat No. 2 on the first floor of Hasan Ali Mansion, Miani Road, Hyderabad at a monthly rent of Rs.
60. Has filed this appeal against the order of the Ist Additiop41 District Judge, Hyderabad dated 12-7-1980, upholding the order of the Joint Civil Judge and Rent Controller that the premises were required by the respondent for his own personal bona fide use and directing the appellant to hand over vacant possession of the same within one month of the date of the order.
2. The facts leading to the filing of the second appeal are as under:- The respondent in January, 1977, purchased the building known as 'Hasan Ali Mansion consisting of several shops on the ground floor, seven residential tenements on the first floor and five on the second floor. The appellant is tenant of the respondent in respect of Flat No. 2 on the first floor. The respondent filed application under section 13(2) of the Urban Rent Restriction Ordinance, 1959, against the appellant on the grounds of default in payment of rent and personal bona file requirement In his application the respondent stated that he had purchased the building from Messrs Hasan Ali and others in the month of January, 1977, by registered sale deed and the appellant who was already a tenant in that building became his tenant. The appellant used to pay rent at the rate of Rs. 60 per month but stopped paying the same from Month of April, 1977. With regard to the ground of personal requirement it was the case of the respondent that he used to live in Saudi Arabia and had come to Pakistan and had decided to settle down at Hyderabad, and had therefore purchased the premises for his own use and occupation. It was further his case that be was living in a rented house which was neither suitable nor contained sufficient accommoda--tion as he has a large family.
3. Appellant filed objections denying that he had committed default in the payment of rent and further denying that the respondent had a large family or that he required the premises in good faith for his bona fide use. It was his contention that the premises in occupation of the respondent were sufficient and suitable for his family.
4. The Rent Controller settled the following issues:
(1) Whether notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 had not been given to the opponent by applicant?
(2) Whether the opponent is wilful defaulter in payment of rent?
(3) Whether the applicant requires the premises in question for his own personal bona fide use?
(4) What should the decree be?
5. The applicant-respondent gave evidence on oath and closed his side and similarly the appellant- opponent also gave evidence but examined two more witnesses, namely, Zaboor Ahmed and Saifuddin. The learned Rent Controller found Issue No. 2 in the negative and Issue No. 3 in the affirmative.
6. With regard to the first issue since it was admitted position that the appellant was paying rent to the respondent and that the appellant had knowledge about the transfer of ownership in January, 1977 to the respondent-applicant, there was no question of issuing a notice in writing intimating the appellant about the transfer of ownership and the fact that no such notice was given did not affect the position with regard to the relationship of landlord and tenant between the respondent and the appellant. Tender of rent by a tenant and acceptance of the same by a landlord creates the relationship of landlord and tenant between the parties, and after such acceptance neither of them is entitled to deny that relationship subsequently. It is, therefore, apparent that although the issue was decided by the finding that no notice under section 13-A of the Urban Rent Restriction ordinance, 1959, was given to the appellant by the respondent, the same does not have any effect what--soever on the decision of the case.
7. With regard to the issue of default in payment of rent the finding that there was no such default was not challenged by the respondent either before the first Appellate Court or even in second appeal before this Court. The only issue of importance therefor which requires to be considered is whether the respondent required the premises in question for his personal bona fide use. On this issue there is concurrent finding by the learned Rent Controller and the First Appellate Court in favour of the respondent. Mr. Abdul Matin, the learned counsel who argued the case on behalf of the respondent referred to the decision of this Court in Mushtaq Ahmed v. Mrs. Mumtaz Zohra Rizvi (PLD 1978. Kar. 183) in support of his contention that concurrent finding of fact is not open to challenge in second appeal. In the decision it was inter alia observed as under:- "In the light of these principles it seems that the concurrent finding in this case is not open to challenge, merely because this Court can be persuaded to take a different view of the evidence on record. Be that as it may, the question that arises is whether the Courts below erred in properly drawing the inference of lack of mala fides on the part of the respondent from the absence of a demand for further enhancement of rent."
8. In Haji Muhammad and others v. Muhammad Rafique an.7 another, the Supreme Court of Pakistan, while considering a case of eviction of tenant on the point whether the shop was sublet or not observed that such a point was one of facts and the two Courts below having concurrently held against the petitioner such a finding cannot be taken exception to unless there is any omission or misreading of evidence. In Alifdin v. Khadim Husain (1980 SCMR 767a decision of the Supreme Court considering a case of ejectment on the ground of personal need, it was observed as under: "The question whether the landlord requires the house for his personal need or not is a question of fact. The learned Additional District Judge held that the landlord has two sons of marriageable age and one of his. Married sons is also living with him and that the premises in his occupation are not sufficient for his need. He, therefore, held that the landlord required the house for bona fide personal need. This finding was upheld by the High Court which after discussing the plea whether the respondent was getting the premises vacated for enhancement of the rent concluded that 'I am not inclined to accept the contention of the learned counsel for the appellant that the ejectment application filed by the respondent was aimed at seeking enhancement of the rent'. On the other hand, it was held that the accommodation now available to the respondent and his family was not sufficient to meet their requirements and that the premises in dispute was needed by the respondent in good faith for his own occupation and for the use of his children. The learned counsel for the petitioner was not able to show that these findings were vitiated by misreading or overlooking of the material evidence and cannot, therefore, be interfered with."
9. It is, therefore, apparent that ordinarily the finding that the premises are required for the bona fide use of the landlord concurrently made by the Courts cannot be upset unless it is pointed out on behalf of the appellant that the same is arrived at by misreading or non-reading of the evidence on record. In the present case, there was evidence of respondent Asadullah Shah before learned Rent Controller that he is at present living in a rented house and before January, 1977, he was residing in Saudi Arabia. According to him, there are seven members of his family living with him in the rented house which only has accommodation of two rooms, which is barely sufficient as shelter. In his cross-examination he stated that his eldest child is aged about 14 years and the youngest is about 4 or 5 months old. He has denied as incorrect that the premises in his occupation are sufficient for his needs. It is clear from his evidence that he carries on business and has to use one of the two rooms as 'Otaq'. This statement about his personal need has stood the test of cross-examination. The Rent Controller in his order observed that, although the opponent (appellant) had denied the fact of personal requirement of applicant and had raised vague pleas he had not been able to deny the personal need of the applicant as he had failed to put any question to the applicant in this respect and the statement on oath of the applicant had stood the test of cross-examination. It was further held there was no rebuttal of the statement of the applicant on the point. The learned Additional District Judge (the First Appellate Court) observed that leaving aside the requirement of 'Otaq' the accommodation for such a number of members of a family is obviously inadequate, and that neither the appellant nor his witnesses Saifuddin and Zahoor Ahmed have questioned the averment of the respondent about the number of his family members and about the type of accommodation available to him. He therefore, held that mere denial in objections and vague and unsupported by evidence could not be of any help to the respondent. The learned Additional District Judge has further discussed the contention on behalf of the appellant that the respondent had initiated ejectment proceedings against other tenants and had got one house vacated should not make any difference in the decision as it does not prove any mala fides on the part of the landlord. It was further remarked that it is the prerogative of the landlord to select any of his tenements for his personal use and neither the tenant nor the Rent Controller has discretion to ask him to reside in any particular premises.
10. Mr. Jamil Ahmed Khan, the learned counsel for the appellant has argued that there were other similar applications for ejectment by the respondent and he has produced certified copy of order of the IIIrd Extra Joint Civil Judge and Rent Controller, Hyderabad dated 31-5-1977 to show that ejectment application of the respondent against Muhammad Ibrahim son of Deen Muhammad had been allowed and the aforesaid tenant was directed to hand over possession of the premises to the respondent within one month of the order. He has also filed certified copy of judgment of the IVth Additional Distri.t Judge, Hyderabad in Rent Appeal No. 334 of 1977, wherein Ali Muhammad, son of Abdur Razak, a tenant was directed to hand over vacant possession of the premises in dispute to the respondent within two months of the passing of the order which was dated 29-8- 1978. He has also produced a certified copy of the order of the Civil Judge, A. C. M., Hyderabad and Rent Controller, dated 29th August, 1979, ordering one Wasumal son of Chabaldas, a tenant of Hasan Ali Mansion to hand over possession of the premises to the respondent within one month of the date of the order which was passed on 29th day of August, 1979. Mr. Abdul Matin, the learned counsel for the respondent, however. Pointed out that there is a second appeal pending in this Court against the appellate judgment in Rent Appeal No. 334 of 1977, and that the order in Rent Appeal No. 707 of 1978 striking off defence has also been appealed against and the appeal is pending. He has pointed out that the ground for ejectment in the various matters referred to were different and with regard to R. A. 69 of 1977, Muhammad Ibrahim, son of Deen Muhammad, another tenant who was directed to hand over vacant possession of the premises to the respondent has filed appeal which is also pending in this Court. It is, therefore, his case that none of the aforesaid apartments is in possession of the respondent who, as landlord, has the right to get enough accommodation vacated for his bona fide use and for the use of his children. He has further pointed out that there is no question of the respondent suppressing information about his seeking to get vacant possession of the tenements as he has admitted in his deposition about his filing ejectment applications against some of the tenants.
11. The question of 'good faith' which is material in the case of action for eviction on the ground of personal need was considered in the judgment of this Court in Mwhtaq Ahmed v. Mst. Mumtaz Zohra Riz vi. It was observed in that decision as under: "Subsection (3) clause (a) of section 13 of the Ordinance lays down that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of residential building, inter alia, if he requires it in good faith for his own occupation or for the occupation of any of his children. Clause (b) of this subsection, then lays down that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession in the building. Accordingly the jurisdiction of the Controller to order eviction on this ground is depended on his satisfaction that the claim of the landlord is bona fide and his requirement is in 'good faith'. The term 'good faith' has not been defined in the Ordinance but it has been defined in section 2(27) of the West Pakistan General Clauses Act, 1956, as follows: 'A thing shall be deemed to be done in 'good faith' where it is in fact cone honestly, whether it is done negligently or not'."
12. This definition of the expression 'good faith' necessarily, implies therefore, that the demand for possession of the rented premises must be honestly made. Honesty is a state of mind and is therefore, a psychological fact capable of proof or disproof only by evidence of conduct. The word 'bona fide' in the con--text of the provision in question would also appear to mean the same as 'good faith'. Mala fides conversely means "in bad faith" If it has been held that "action taken for collateral purposes not authorised by the law under which the action is taken or actions taken in fraud of the law are mala fide. It r necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above (PLD 1974 SC 151). In actual practice a landlord would be deemed to have satisfied the aforesaid conditions by leading evidence of the reasonableness of his needs and if he succeeds in doing so, the onus would shift to the tenant to prove facts which militate against the existence of good faith or which positive establish the dishonesty of purpose on the part of the landlord to claim possession of the premises on the ground of personal need. If therefore, the circumstances brought on record are capable of being explained consistently with an honest claim for possession to satisfy personal need, they will in no way be construed to have discharged the onus of the tenant referred to above".
13. I am in respectful agreement . With the interpretation of law in the observations quoted above and in the instant case there is no reason to believe that the claim of the respondent that the premises are required by him for his personal use and that of his children is dishonest or mala fide. There is nothing on record to suggest that there is any other motive for getting the premises vacated but that of personal need.
14. In Nooruddin and others v. Asghar Ali and others 1968SCMR1087 ,a decision of the Supreme Court of Pakistan in a case where both the Controller and the Additional District Judge had come to the conclusion that the need of the landlord for extra accommodation was genuine, it was observed that it must follow that the demand for eviction was made in good faith. It was observed as under:- - "Learned counsel attempted to argue before us that 'good faith' was wanting in the present case as another flat in the premises had fallen vacant earlier but the landlords let out that flat to a tenant and did not utilise it for themselves. The question however as to which portion of the building would suit the landlords better must be left to their discretion, and there is nothing unreasonable in the landlords insisting that a particular portion of the building should be made available to them. We do not consider that the circumstances pointed out by the learned counsel affects the 'good faith' of the landlords' demand."
15. It is admitted fact that the respondent is residing in a hired premises which was considered not to be suitable to accommodate him. It has however been contended on behalf of the appellant that the aforesaid accommodation is sufficient for his needs and therefore, it is further argued that the claim for personal use is not bona fide. It is however by now settled interpretation of the provisions of section 13(3) of the Urban Rent Restriction Ordinance, 1959, that the reference to occupancy of another residential building suitable for his needs in the same urban area does not apply to rented or hired premises. It may also be pointed out that section 15-A of the Sind Rented Premises Ordinance, 1979, now provides enough protection to the tenant in cases where the landlord has obtained the possession of the premises under clause (7) of section 15 on the plea that he requires the premises in good faith for his own occupation and use or for the occupation and use of his spouse or any of his children, relets the premises to any person other than the previous tenant or puts it to a use other than personal use within one year of the possession. The penalty under section 15-A aforesaid is a good deterrent for the landlord getting the premises vacated otherwise than for bona fide use. Under the circumstances stated there is no reason made out for interference with the concurrent findings of the Rent Controller and the First Appellate Court. I accordingly dismiss the appeal however with no order as to costs.