1. This appeal under section 21 of the Sind Rented Premises Ordinance ,1979 has been filed against the order dated 22nd April; 1981 passed by the 10th Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 2920 of 1978.
2. The facts are as under :- The appellant is tenant in respect of ground floor of house No. 65-A, Block 2, P. E. C. H. Society, Karachi under lease agreement dated 28th February, 1968 which was initially for a period of three years but was extended till 31st August, 1975. The rent agreed to be paid was Rs. 450 per month and the tenancy started from 1st March, 1968, Before the extended period of lease expired the respondent on 31st July, 1975 requested the appellant to vacate the premises as his children had grown up and he required the same for personal use. Mr. Amanullah who was in actual occupation of the premises however refused to vacate the same, and, therefore, the matter was referred to the Martial Law Authorities before whom Mr. Amanullah, the occupant on behalf of the appellant Mills gave an undertaking that he will vacate the premises on or before 8th November, 1977. Since the premises were not vacated and there was, according to the respondent, default in payment of rent, the respondent filed application under section 13(1) of the Sind Urban Rent Restriction Ordinance, 1959 on the grounds of default in payment of rent and per--sonal requirement. It was the case of the respondent in the application that the premises were badly required for bona fide- use of the applicant's children i.e. For three sons and two daughters. He had further stated' that the marriage of his two sons was held up for want of accommodation and further that the eldest son who is married was also residing with his family. He further stated that one married daughter was also residing with him along with her children. The accommodation at his disposal was only two bedrooms for the entire aforesaid family.
3. The appellant in the written statement denied that they had ever agreed to vacate the premises and stated that it had been agreed to increase the rent reasonably, but since the respondent wanted exorbitant increase in the rent there was no agreement. In the alternative, it was the case of the appellant Mills that the undertaking given by Mr. Amanullah Khan had no legal effect and they had already filed a Suit bearing No. 1863 of 1977 in the Court of XXI, Civil Judge, Karachi that the undertak--ing given by Amanullah was not legal. With regard to the ground of default in the payment of rent it was stated that the appellant Mills had offered but the respondent had refused to accept the same and, therefore, the rent was deposited in Court in Miscellaneous Rent Case No. 4578 of 1976.
4. As the rent account showed that rent had been deposited in Miscellaneous Rent Case No. 4578/1976 at the rate of Rs. 450 per month upto the date of filing of the application for ejectment, the only issue decided by the learned First Rent Controller was whether the respondent required the premises in question for his personal bona fide use.
5. It was argued before the learned Rent Controller that the tenancy was in respect of ground floor only consisting of two bedrooms and one drawing room and dining room. The respondent had requested for vacation of the premises in the year 1975 and thereafter repeatedly for the sole reason that the premises were required by him for his own use as well as the use of his growing children. It was his case that his family consists of 12 members, that is, he himself, his were, three sons and two daughters. The eldest son is married and has three children and a were. One of the daughters is married and has two children. She lives with him as her husband is presently in Libya.
6. It was the case of the respondent that the marriage of two other sons was held up for want of accommodation and presently he is residing in a house which is not suitable for his requirement as it consists of two bedrooms only. According to him, the house in which he presently resides belongs to his son, namely, Mustafa Kamal. The learned Rent Controller in the impugned order gave the finding on the only issue in favour of the respondent. It was observed by him that the facts, as stated in the application. Were reiterated and reasserted by the respondent in his evidence, and further, that the appellant had disclosed that the Chairman of the appellant Mills had promised to vacate the disputed premises but had not fulfilled his promise. Thereafter, the appellant had approached the Martial Law Authorities and the parties had arrived at a compromise dated 9th May, 1977 before the Martial Law Authorities. Mr. Amanullah, who was occupying the disputed premises as employee of the appellant Mills promised to vacate the house within six months or earlier. But had failed to do so. The learned Rent Controller in his impugned order has stated that the respon--dent had produced the original compromise. It was further the case of the appellant before the Rent Controller in his deposition that during the pendency of the application before the Rent Controller marriage of his eldest son had taken place, and he has been residing with the appellant with his family consisting of his were and three children.
7. On behalf of the appellant Mills their counsel contended that the respondent should have brought on record the evidence of his children as he needed the premises for their use. . The learned Rent Controller rightly decided that the present accommodation with the respondent consisting of two bedrooms was not sufficient and there was no evidence. Brought on record that there was any other accommodation available with him. It was further observed by him that the number of family members of the respondent had also not been disputed. The evidence of the respondent had not been rebutted or shaken in cross-examination.
(1) That the finding of the learned Rent Controller is capricious and arbitrary.
(2) That the respondent does not require the house for his own use and for his children and the ejectment application had been filed mala fide to extort exorbitant rent.
(3) That the alleged compromise before the Martial Law Authorities was under coercion and was therefore illegal.
8. With regard to grounds Nos. 1 and 2, the contention of the respondent in his application about his needing the premises for his own use and that of his children supported by his evidence and not shaken in-cross-exami--nation is to be considered sufficient, and it was for the appellant to rebut the same which he clearly failed to do. In fact, Amanullah who is the occupant of the premises on behalf of the Mills, was not competent unless he was so authorised by resolution passed by the Company's Board of Directors to give evidence on behalf of the appellant Mills. It is apparent from the observations of the learned Rent Controller that Amanullah had not produced any authority from the appellant Mills contest the proceedings and thereafter further evidence was adduced and one Asif Abdullah was examined who had filed copy of the resolution and had stated that Amanullah had been authorised to contest the case.
9. The resolution is purported to be signed by the Secretary on 9th B December,, 1980, whereas Amanullah had filed the affidavit of evidence on 17th September, 1980 before he was so authorised.
10. Mr. S. Mahmoodul Hassan, the learned counsel for the respondent, has relied upon the Supreme Court decision in Khan Iftikhar Khan of Mamdot v, Messrs Ghulam Nabt Corporation Ltd., Lahore (PLD 1971 SC 550), wherein it was inter alia observed that a suit by a Director Incharge of the Company was not competent unless he was so authorised by resolution passed by Company's Board of Directors, and further that the meeting could not be considered to be duly convened unless due notice of it had been given to all the Directors. It is therefore argued by the learned counsel that it was for the appellant Mills to conclusively show that Amanullah, the occupant of the premises had been legally and properly authorised by them to give evidence on their behalf. In the instant case no effort was made even to prove the signature of the Secretary of the Mills to show the authenticity of the document regarding resolution of the Directors in that respect. Be that as it may, there is no doubt about the matter that there was proper support of the assertion of the landlord with regard to the requirement of the premises for his own occupation. In Adam Ali Hassanali v. Mst.
11. Rubarb Bai (PLD 1967 Kar. 437), a decision of this court it was observed that the expression "for his own .Occupation" embraced needs not only individual and personal but those of family as well. In that case it was held that genuine requirement of better and healthier accommodation for landlord's spouse was a proper ground for eviction. Mr. Abdul Majid Khan, the learned counsel for the appellant, has relied upon the decision of this Court in pratap Bai and another v. Kadir Khan (PLD 1977 Kar. 759), as authority that when the finding of the Courts below that the premises were required for the bona fide use of the landlord was wholly unjustified, the same had to be set aside.
12. In the instant case however, for the reasons already given the finding of the learned Rent Controller cannot at all be considered an unjustified, and the burden lay on the appellant to show that on the material on record the finding was unjustified.
13. 1980 SCMR 9) it was inter alia held that there was no legal require--ment for the respondent to have examined her children in support of her case. In that case, according to evidence, the respondent was found having a family of 12 members, including children some of whom were of marriageable age and the finding with regard to bona fide requirement of the landlord was confirmed.
14. With regard to the ground that the respondent already has accommodation, in view of the assertion by the respondent that he is putting up in the house of his son, the aforesaid accommodation cannot be consider--ed relevant for the purpose of section 13 (3) (b) of the Sind Urban Rent Restriction Ordinance, 1959. Mr. S. Mahmoodul Hassan, Advocate fort the respondent has referred to the decision of this Court in Muhammad, Bashir v. Vensimal and four others (PLD 1980 Kar. 409) wherein it was inter alia observed as under :- "It is however clear from the evidence that the house does not belong to the appellant and, therefore, he is putting up therewith the courtesy of his son. Occupation of such accommodation even though suitable for the needs of the appellant will not be relevant for the purposes of section 13 (3) (b) of the Urban Rent Restriction Ordinance, 1959."
15. 1980 SCMR 751). With regard to ground No. 3, above, whether the compromise between the parties with regard to vacation of the premises was due to coercion or otherwise will have no direct effect on the finding with regard to bona fide personal requirement. The very fact that there was such compromise would support the plea of the respondent that he really did require the accommodation for his personal use and for the use of his children and family.