1. First Rent Appeal No. 292 of 1980 by Wali and First Rent Appeal No. 29 of 1980 by Muhammad Hanif, both under section 21 of the Sind Rented Premises Ordinance, 1979, raise common questions of fact and law and I, therefore, propose to dispose them of by this common judgment.
2. The facts giving rise to these appeals briefly stated are as follows.
3. The respondent is the owner and landlady of the building constructed on plot No. 716, corresponding to Excise and Taxation Department No. AKI6-S-27, situated at Shah Waliullah Road, Liaquat Colony, Gali No. 1, Karachi. The building consists of 6 rooms as deposed to by the respondent in her cross-examination in Rent Case No. 6391 of 1977, filed by her against Wali, out of which First Rent Appeal No. 292 of 1980 has arisen.
4. The tenement occupied by appellant Mohammad Hanif as tenant on a rent of Rs. 25 per month consists of only one room. The tenement occupied by appellant Wali as a tenant on rent of Rs. 60 per month consists of only 4 rooms. One room was in occupation of another tenant namely, Adam.
5. The respondent had purchased this property from its previous owner/ landlord on 28-5-1975, as stated at the bar.
6. In October, 1977, the respondent filed three separate applications under section 13 of the Sind Urban Rent Restriction Ordinance, 1969 (hereinafter called the Ordinance) against all the aforesaid tenants on the grounds of default in payment of rent and requirement of the premises by the respondent for the personal use. All the three tenants denied both the grounds and separately pleaded that the application was mala fide as the respondent had demanded enhanced rent and on refusal she filed the applications. Each of them further pleaded that notice under section 13-A was not served on him. In all three cases the learned Controller framed the following issues; "(1) Whether the applicant required the premises in application, in good faith for her occupation and for the occupation of her children?
(2) Whether the opponent has committed default in payment of rent to the applicant?
(3) Whether the application is not maintainable for want of notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 ?
(4) What should the order be?"
7. The Controller by the separate orders decided issue of personal requirement of the premises in favour of the respondent and that of default in favour of the appellants/tenants.
8. Aggrieved by the aforesaid order all the three tenants filed three separate appeals. I am informed by the learned counsel present before me that tenant Adam has already withdrawn his appeal.
9. I have heard Mr. K. B. Bhutto, Advocate for the appellant Mohammad Hanif and Mr. Ikram Ahmad Ansari, Advocate for the appellant Wali and Mr. M. S. Khatri, Advocate for the respondent in both the appeals.
10. Learned counsel for the appellants have raised the following grounds in support of these appeals; "(1) That the respondent had failed to prove bona fide requirement of the premises.
(2) That requirements of section 13(3) (i) (b) of the Ordinance were not fulfilled.
(3) That she had filed the application stating she required the premises for her own use and not for use of her sons. While the Controller has considered the requirement of all of them.
11. Mr. K. B. Bhutto has urged the following additional ground;
(4) That tenant Mohammad Hanif is occupying one room and how can one room be more suitable in comparison with four rooms occupied by respondent in the rented premises."
12. I may state that the findings of learned Controller on the issues of default and the service of notice under section 13-A of the Ordinance are not in question.
13. Now, before I consider the arguments advanced by the learned counsel for the parties, I may refer to the pleadings and evidence so far relevant to the grounds urged before me.
14. In the application filed against Waii Mohammad the respondent in paragraphs 4 and 5 has stated that she requested Wali Mohammad a number of times to vacate the tenement as she required the same for her personal bona fide use but he refused to vacate the same. She has further stated therein that she is living in a rented premises and so were also her sons. In Rent Application No. 3690 of 1977 filed against Mohammad Hanif she in paragraphs 4 and 5 has made identical averments.
15. The appellants in their written statements denied these averments and pleaded that the respondent wanted to increase the rent and on their refusal filed the application.
16. In support of her case the respondent examined herself (Exh. 5) and her son namely, Ilyas (Exh. 6) separately in both the cases while Wali in the case filed against him, examined himself and Muhammad Hanif in the case filed against him, examined himself.
17. The respondent in the case filed against Wali, so far as relevant to the ground under consideration has stated that she has. Got 4 sons, out of whom three are married and that she is residing in a rented house and is paying Rs. 400 per month as rent. She has further deposed that her sons are also residing in the same house with her and she requires the premises in question for her personal bona fide use and for the use of her children. She has further deposed that the house occupied by her consists of 4 rooms and the accommodation is, not sufficient for their requirement. In her crossexamination she has stated that the building in question consists of six rooms and tenant Wali is in occupation of four rooms, Adam was in occupation of one room and tenant Mohammad (Mohammad Hanif) is in occupation of one room. She has further deposed that her eldest son was married about 18 years back and second son was married about 8 years back and third son about 5 years back. She admitted that she had not requested the appellant Wali in writing to vacate the premises in question on personal round. She has, however, denied the suggestion that she did not require the premises for personal bona fide use but she was interested in enhancement of rent.
18. In the cent case filed against appellant Mohammad Hanif, she has deposed that she has got 4 sons out of them. 3 were married and she is residing in a rented house on a rent of Rs. 400 per month and her sons are also residing in the same house with her and that she requires the premises for her personal use and for the use of her children. She further deposed that the house.
19. Occupied by her on rent consists of only 4 rooms and the accommodation thereof is not sufficient for their requirement. In her crossexamination she denied the suggestion that all her married sons have got separate house. She also denied the suggestion that the premises in her occupation is sufficient for her requirement.
20. The respondent's son namely, Ilyas in his evidence (Exh. 6) has stated that the respondent is his mother and she got the 3 tenants and that the respondent is living in a rented house and his three out of four brothers are married and they require the premises for their personal bona fide use. His cross-examination in the case of appellant Mohammad (Mohammad Hanif) is as follows;-- "I have got married 18 years back. Previously I was residing within my family in a house which was near to our present house. It is not a fact that my other brother has separate house. My mother has filed ejectment cases against all the tenants. Applicant is my real mother. It is not a fact that the applicant has filed this false case as she had asked for enhance rent from the tenant."
21. While in the case of Wali his cross-examination reads as follows;----- "I have got married 18 years back. Previously I was residing with my family in a house which was near to our present house. It is not a fact that my other brother has separate houses. My mother has filed ejectment cases against all the tenants."
22. After having reviewed the evidence of the witnesses of the respondent on the relevant issues, I may now state that the Controller in the impugned order dated 15-12-1979 has found as a fact that the respondent is residing in a rented house and the same is not sufficient for her requirement for, he reasoned, her four sons are also living with her, out of whom three are married. In the case filed against Mohammad Hanif the Controller has further observed that appellant Mohammad Hanif admitted that the house occupied by the respondent as tenant consists of only two rooms.
23. I would now proceed to examine the contentions of the learned counsel for the parties.
24. In regard to the first ground that the respondent has failed to prove bona fide requirement of the premises, it was submitted that, if the respondent was in bona fide need of the premises, she would not have delayed the filing of the ejectment application for almost two years as she had purchased the property in the year 1975 and had filed the ejectment application in 1977, moreso when she was paying Rs. 400 as rent per month and was receiving only a total rent of Rs. 110 per month from all the three tenants. Mr. Bhutto further submitted that she has not given in the application details of her requirement and the requirements of her sons. He also submitted that the respondent has not produced any rent receipt of the house and has not examined the landlord thereof.
25. As regards the question of delay in filing the ejectment application it may be stated that no question was asked to the respondent in her crossexamination as to why she delayed the filing of the ejectment application as there could be many reasons for not taking immediate action after purchasing the property. In any case, the delay in filing the action in my opinion would not prove lack of bona fide on her part.
26. As regards the submission that the respondent had not given the details of her requirement I am of the view that the averment to that effect made in the application was sufficient. The law does not require any particular details. She has deposed that her four sons are residing with her. No question was put to her in the cross-examination that her sons were not residing with her as deposed to by her but were residing separately, though, no doubt such a question was put to her son Ilyas but he had denied the same. But no further question was put to him. Neither the name of the building nor the address of the place where the sons were allegedly residing separately was mentioned to him.
27. If the sons were residing separately many other questions could be asked from the respondent or from her son when they came in the witness-box.
28. With regard to the submission that the respondent has not produced any rent receipt or has not examined the landlord 'of the premises where she is residing, it would suffice to say that the same is also misconceived for it was never in dispute that the respondent is not residing in a rented premises. In fact Mohammad Hanif in his cross-examination has admitted as follows;-- "The applicant is living in a house in Saleh Mohammad Building, Nawaabad. Her house (is consists of two rooms). She is living with her son."
29. In the face of the above admission, the submission has otherwise no force.
30. Now, I would consider the second ground that section 13 (3) (i) (a) (b) lays down the condition that the landlord should not be in accommodation of another house in the same urban area suitable for her need. It was argued that since the respondent was in occupation of another house which was more suitable to her need, therefore, the condition laid down in section 13 (3) (i) (b) of the Ordinance was not fulfilled. However, in my opinion the condition contemplates the occupation of another house which should be owned by the applicant/landlord and not a house which is a rented one. This question is now settled. However, here I may refer to Muhammad Bashir v.
31. Vensimal and 4 others P L D1980 Kar. 409, wherein Zaffar Hussain Mirza, J., while construing the provisions of section 13 (3) (i) (c) referred to several decisions of the Supreme Court and observed in paragraphs 5 to 8 of report as follows;-- "(5) It is however strenuously urged on behalf of the respondents that Chiraguddin's house where the appellant was living at the time of the application had sufficient accommodation for the appellant and his family to satisfy their needs. It is however clear from the evidence that the house does not belong to the appellant and therefore he is putting up there with the courtesy of his son.
32. Occupation of such accommodation even though suitable for the needs of the appellant will not be relevant for purposes of section 13 (3) (b) of the Urban Rent Restriction Ordinance, 1969. It was held in Ghulam Nabi v. Rao Muhammad Usman Ali Khan Law Notes 1977 SC 191.
(6) It was next contended on behalf of the respondent that admittedly the appellant before shifting to his son's house had vacated rented premises twice, which were not proved to have been vacated for a sufficient cause as required by section 13 (3) (c) of the Urban Rent Restriction Ordinance, 1959. This contention is also devoid of force. In Abdul Salam Akhtar v. Najma Parvez 1976 SCMR 52, it was held "that the requirement that the landlord should not be in occupation of another residential building suitable for his needs at the time does not extend to cover rented premises, for otherwise, the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all".
33. Although this reasoning was adopted by their Lordships for interpretation of clause (b) of subsection (3) of section 13 but it seems to me that it will prevail with equal force even while construing clause (c) of that subsection. Clause (c) of section 13 (3) (i) (c) reads as under "he has not vacated such a building without sufficient cause after the commencement of this Ordinance-in the said urban area."
7. In Abdul Aziz v. Muhammad Ibrahim (PLD 1977 SC 442) their Lordships referred to the rule of interpretation for construction of the word `such' from Maxwell, as under : "Where the word `such' occurs in a section it must not be ignored but must be read as referring back to the preceding provisions, even though this gives rise to a result which appears anomalous."
34. On the aforesaid rule, clearly the words "such building" in clause (c) would be construed to refer to clause (b) of the same subsection. As already pointed out, the building referred to in clause (b) does not include rented premises and consequently in clause (c) also the landlord would not be required to prove, that he did not vacate such rented premises in his occupation without sufficient cause."
35. Reverting to the third ground it was argued by Mr. Ikram Ahmad Ansari that in the application the respondent has simply mentioned her own requirement and not the requirement of her sons and therefore, any evidence led with regard to the requirement of her sons should be ignored and the Controller should not have considered the requirement of the sons. But the argument looses sight of the fact that a landlord's requirement also includes his family's requirement and if his children are residing with him then it would also include their requirement. If any precedents are needed reference may be made to Muhammad Ashraf v. Mst. Azizan and 4 others (PLD 1981 Lah. 201) wherein it I ruled that the expression "for his own occupation" used in sub-paragraph (i) (a embraces not only the needs of the landlord but also the needs of landlord's family and in my opinion, the family will include his children. It is only when the landlord applies for eviction of the tenant on the ground of the needs of children alone that he must mention their need. The respondent in this case, does not require the premises separately from them. From the evidence on record I am satisfied that the respondent need4he premises for her own use and for the use of her children.
36. It was next urged by Mr. Ikram Ahmad Ansari that the respondent has not examined all her sons for whom she needed the premises but if the respondent had needed the premises alone for her sons then their examination was necessary. Here the premises are needed by her for her own use and occupation and also for all those who are residing with her including her sons. In any case, she has examined one son and in my opinion in this case that is sufficient for if all sons were examined that would have only burdened the record, on the facts and circumstances of the case.
37. As regards the last ground urged by Mr. Bhutto that the appellant Mohammad Hanif is occupying one room and how could one room be more suitable in comparison with four rooms occupied by the respondent in the rented premises, it would suffice to say that the respondent has filed separate ejectment application against all the three tenants in respect of all the tenements altogether consisting of six rooms and, if the respondent gets all the six rooms that would definitely be more suitable for her and for her family including her four sons than the rented premises.
38. I may lastly say that the appellants had pleaded before the Controller that the cause for filing the application, was non-fulfilment of the demand for increase of the rent. But the plea was not accepted by the Controller for want of proof. Even otherwise, if the plea is accepted that could not be adversely construed in this case for admittedly the respondent is residing in a rented premises and paying Rs. 400 as rent. A landlord's desire to live in, his or her own house is natural moreso when he or she, as in this case, will monetarily be benefited therefrom.
39. I therefore, find no substance in these appeals and accordingly dismiss them with costs.
40. The learned counsel for the appellants however, requests that the appellants may be allowed time to vacate the premises. I think the request is reasonable and I allow four months time to each of the appellant to vacate the premises provided he continues to pay the rent as ordered by the Controller.