This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called 'the Ordinance') is directed against the order dated 31-7-1980, passed by Second Rent Controller, Karachi in Rent Case No. 1269 of 1980, whereby he has allowed the application under section 15 of the Ordinance for eviction of the appellants.
2. The facts giving rise to this appeal briefly stated, are as follows :- That one Ch. Abdul Rauf Minhas son of Ch. Chirag Din was the owner of a house bearing No. A-41, Block No. 8, Azizabad, F. B. Area, Karachi, constructed on a plot of land having an area of 200 sq.
Yards (hereinafter called the "premises").
The appellants are the tenants of the premises. Ch. A. Rauf Minhas sold the premises to the respondent by registered sale-deed dated 19-12-1979. The respondent thereafter served a notice dated 22-12-1979, under section 18 of the Ordinance on the appellants informing them that he had purchased the premises and has become the owner thereof and requiring them to remit the rent to him including the arrears of rent as he was authorised by the sale---deed to collect the same.
He further informed them that he was living in a rented house and that he required the premises for his personal bona fide use and 'therefore, called. Upon them to vacate the premises. The appellants through their counsel, namely, Messrs A. R. Mirza & Co.,' by the letter dated 18-1-1980, acknowledged the receipt of the letter and informed the respondent that they had already deposited the rent due from them in Miscellaneous Rent Case No. 1724 of 1977 up to January, 1980. It was asserted in the reply that according to the notice itself the respondent was already occupying a suitable premises in the same urban area and as such his requirement was not according to law.
3. Thereafter, the respondent on 27-2-1980, filed an application under section 15 of the Ordinance claiming eviction of the appellants from the premises on the ground that he in good faith required the premises for his personal and bona fide use as be was residing in rented house bearing No. 47- 48, Block No. 15, Dastgir, F. B. Area, Karachi (hereinafter called 'the house') and he had purchased the .Premises for the sole purpose of accommodating himself and that he had no other house in the same urban area or elsewhere in Pakistan.
4. In the written statement filed by the appellants the claim of . The respondent, he in good faith required the premises was denied and it was asserted that the respondent was occupying a specious residential house constructed on a plot of land measuring 240 sq. Yards and having six rooms, which it was claimed, was prima facie sufficient for the need of the respondent. It was also averred that the respondent did not require the premises in good faith but wanted to enhance the rent of the premises.
5. On the pleadings of the parties the Controller framed the following issues; "(1) Whether the applicant requires the premises in case bona fidely and in good faith for his use ?
(2) What should the order be ?
6. In support of the case the respondent filed his affidavit and he was cross-examined on behalf of the appellants. The appellants filed affidavits of Mohomed Masood Khan, appellant No. 2 andGhousuddin a resident of Federal 'B' Area, Karachi.
7. The respondent in his affidavit stated that he had purchased the premises for the sole purpose of accommodating himself and his family and that the landlord of the house where he is presently residing wanted him to vacate the house and in support of this plea he produced two letters dated 15-7-1979 and 1-10-1979, sent by Mr. M. G. Dastgir, Advocate on behalf of his landlord requiring the respondent to vacate the house. He further deposed that his landlord had put-great pressure upon him to vacate the house and that he required the premises in good faith .For his personal bona fide use.
In his cross-examination it came out that he was paying Rs. 450 per month as rent of the house while the appellants were paying Rs. 225 per month as rent of the premises and that the area of the plot of land on which the premises is constructed is 200 sq. Yards. He denied the suggestion that the house in which the respondent is presently residing consists of 6 rooms. He also denied the suggestion that notices served on him by his landlord were issued in collusion with the landlord of the house. He also denied the suggestion that he wanted to increase the rent of the premises.
8. Appellant No. 2 in his affidavit denied that the respondent had no other house/accommodation in the same urban area and pleaded that the respondent was already occupying a specious residential house on 240 sq. Yards plot of land having an accommodation of six rooms which was sufficient for him. He also deposed that the respondent wanted him to increase the rent from Rs.225 as the prevailing rent was much higher. He however, in cross-examination admitted that he had not seen the house of the respondent from inside and explained that since usually there are three rooms in every house of Federal B Area constructed on a plot of 120 sq. Yards and the house was constructed on a plot of 240 sq. Yards, therefore, he had stated that the respondent was occupying six rooms. He, however admitted that the respondent never asked him to increase the rent. He was asked if he would vacate the premises if the respondent gave an undertaking that he would not rent out the premises for 10 years but he declined to vacate.
9. Ghousuddin in his affidavit stated that the respondent was occupying a specious residential premises built on an area of 240 sq. Yards with six rooms and that he (respondent) wanted to raise the rent. He however, in cross-examination admitted that when he had gone to the house of the respondent in connection with gas complaint he did not count the number of rooms. With regard to the evidence that the respondent wanted to increase the rent he stated that he had deposed so because every landlord wants to increase the rent.
10. The learned Controller in his order relied on Abdul Salam Akhtar v. Dr. Najam Parvez 1976 SCMR 52, Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC 442, Muhammad Bashir v.
Vensimal and 4 others PLD 1980 Kar. 409and observed that even if for the sake of arguments it was believed that the respondent was residing in a very big house even then in hi-. Considered opinion the respondent was entitled to get the premises vacated for his own use because he was residing in a rented house. Accordingly, the Controller held that the respondent required the premises in good faith for his own use and accordingly ordered the eviction of the appellants, allowing them 60 days time for vacating the premises and handing over the possession thereof to the respondent.
11. Aggrieved by the aforesaid order the appellants had come up in this appeal under section 21 of the Ordinance.
12. I have heard Mr. Mansoorul Arfin, learned counsel for the appellants and Mr. Syed Anwar Ali, learned counsel for the respondent and have gone through the record.
13. It is contended by the learned counsel for the appellants that the Controller has not examined the question of `good faith' with reference to the facts and evidence of the case and mere residence of the respondent in a rented house was not sufficient under the law to order eviction of the appellants from the premises. In support of the conten--tions the learned counsel has relied on Haji Ghulam Mohomed v. Abdul Qadir PLD 1975 Lah. 200, Muhammad siddig v. Abdul Hameed PLD 1976 Kar. 696, Mushtay Ahmed v. Mrs. Mumtaz Zohra Rizvi PLD 1978 Kar. 188Muhammad Asghar and 5 others v. Mst. Jamila Khatoon 1979 CLC 367, Fahmeeda Jahan Begum v. Varindamal 1980 CLC 604and Muhammad Yunus v. Dr. S. Muzammil .Ali 1981 CLC 327. He has also produced a copy of the order dated 11-1-1981 passed in Civil Petition for Special Leave to Appeal No. K-3 of 1981 (Muhammad Younus v. Dr. S. Mazammil Ali) whereby leave has been granted to consider the question whether the another residential building mentioned in section 13(3)(b) of the 1959 Ordinance refers to another residential building owned by him as decided in Abdul Salam Akhtar v.
Dr. Najam Pervaiz (or it will also include a residential building occupied by him as a tenant.
14. On the other hand, Mr. Syed Anwar Ali, learned counsel for the respondent has submitted that where the landlord is residing in a rented premises that by itself in the absence of any mala fide on the part of the landlord would be sufficient to establish the requirement of the .Premises in good faith. He even otherwise submitted that the evidence on record fully establishes the requirement of the premises in good faith. In support of his contention the learned counsel has relied on Abdul Salam Akhtar v. Dr. Najam Parvez. Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC 442, Muhammad Aslam v. Abdul Jabar PLD 1979 Note 12 at p. 77, Nazir Ahmed and others v. Ghulam Nabi and another PLD 1981 SC 255, Muhammad Bashir v. Vensimal and 4 others PLD 1980 Kar.
409and Jamilur Rahman Khan v. Mst. Sara Begum PLD 1981 Kar. 26
15. Now, I would take up first contention of Mr. Mansoorul Arlin, learned counsel for the appellants.
He has submitted that the landlord's requirement of the premises should be reasonable and since the respondent is already occupying a house built on a plot of land having a larger area i.e. 240 sq.
Yards as compared to the premises built on an area of 200 sq. Yards he has better accommodation. He has further submitted that the respondent is in possession of six rooms and even if the evidence of the appellants' witnesses is not accepted still the accommodation in the premises is same as in the house i.e. Two bed rooms, drawing and dining rooms. Therefore, he argued that respondent did not require the premises reasonably. He has also submitted that the respondent wanted to increase the rent and that is the reason why he filed the application for eviction of the appellants.
16. Now, before I discuss these submissions I may here quote the relevant provisions of section 15 of the Ordinance: "15.-(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14 he shall make such application to the Controller.
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that ; (i);--------------------- (ii)--------------------- (iii)------------------..
(a)------------------.
(b)---------------..
(iv) ------------.
(v)------------------ (vi)---------------.
(vii) thelandlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children."
17. From the above-cited provisions it will be seen that the provisions require satisfaction of the Controller as to the fact that the landlord requires the premises in `good faith' for his own use and occupation or for the use and occupation of his spouse or any of his children.
18. I may here also quote the relevant provisions of section 13(3) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the 1959 Ordinance) for a number of cases have been cited which are on the interpretation thereof.
"13(3)(i)(a).-A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(i) in case of a 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 ; (ii)---------------.
(a)---------------.
(b)--------------- (c)---------------..
Provided---------------------.
Provided---------------------.
(b) 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 of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an older rejecting the application.
Provided------------------ Provided---------------..
19. Now, reverting to the phrase `good faith' used in section 15(2)(vii) of the Ordinance, it may be stated that it has not been defined in the Act, though it is defined in clause (2) of section 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 done honestly, whether it is done negligently or not."
Now, from the above-quoted definition it follows that if the application is made honestly then it is made in good faith "Honourable or upright conduct, esp. Without fraud or falsehood, with honest intention or by honest means, sincerely, fairly, frankly, without disguise."
(See Oxford English Dictionary, 1961 Edition, Vol. V, p. 362).
According to Ballentine's Law Dictionary, 3rd Edn., p. 528, `good faith' means; "Fairness and equity. The antithesis of fraud and deceit." According to the same Dictionary 'honesty' means; "The quality of being honest, neither cheating nor lying."
"The word is derived from the Latin "honestus", and is essentially one which takes its meaning from its context. Primarily, it means suitable, becoming, or decent. In money, transactions, it means financial integrity. In affairs of state, it means loyalty. In matters of friend--ship, it means steadfast.
In sexual relations, it imports fidelity. (State v. Snover 63 N J L 392, 43 A 1959)."
Black's Law Dictionary, Fourth Edition, page 223 has given the following meanings of the phrase `bona fide'
"Good faith, integrity of dealing ; honesty ; sincerity ; the opposite of malafides and of Dolus Malus."
20. Now, I would examine the case in the light of the above-mentioned meanings of the phrase. A person who is residing in a rented premises would naturally like to live in his own house, if the house is suitable for his need. Such a conduct would be consistent with honourable and upright conduct and fairness. Now, in the present case the respondent has stated that he is residing in a rented house which has 4 rooms, i. e., drawing, dining and two bed rooms. While the premises in which the appellants are residing has similar accommodation i. e. drawing, dining, and two bed rooms. The assertion made by the appellants that the house in which the respondent is residing consisting of six rooms, cannot be accepted for the simple reason that assertion is based, so far as the evidence of appellant No. 2 is concerned, merely on guess and not on physical inspection of the house and so far as evidence of Ghousuddin is concerned he has admitted in his cross-examin--ation that he did not count the number of rooms in the house where the respondent is residing when he visited the same, even if he is believed that be at all visited it. Therefore, definite statement made by the respondent should be believed moreso, when he is an advocate and there is no reason why be should make an incorrect statement on that point. There is yet another fact which cannot be lost sight of. It is that the respondent is paying a rent of Rs. 450 per month for almost the same accommodation while admittedly he is receiving Rs. 225 per month as rent for the premises.
Naturally, he would, therefore, like to live in his own house. From these facts no dishonest intention or insincerity or unfairness on the part of the respondent could be inferred. No doubt they have no elements of cheating. There is also no question of lying. In fact in my opinion, these facts not only clearly establish good faith on the part of the respondent in requiring the premises .For his own use and occupation, but also reasonableness of the requirement.
21. Now, I would consider whether any bad faith or mala fide has been proved by the appellants on the part of the respondent. The only allegation made was that the respondent wanted to increase the rent of the premises. However, appellant No. 2 in his cross-examination admitted that the respondent never asked him to increase rent. The appellants' witness Ghousuddin stated that appellant No. 2 never told him that his landlord wanted to increase the rent but he stated so because every landlord wants to increase the rent. Therefore. No mala fide is proved by the appellants on the part of the respondent.
22. The question of good faith came up for consideration in two cases cited by the learned counsel for the parties. In Haji Ghulam Muhammad v. Abdul Qadir M. A. Zullah, .J. Held that mode of proof of reasonableness and/or good faith/bana fide is dependent upon various factors and it cannot be ignored that one of the material items of evidence for consideration would be the statement on oath of the landlord himself. In the instant case the respondent has filed his affidavit and has allowed himself to be subjected to cross-examination, but his plea of good faith has not been shaken in any manner.
23. In Mushtaq Ahmad v. Mrs. Mumtaz Zohra Rizvi my learned brother War Hussain Mirza, J. At page 199 of the report, after referring to the provisions. Of section 2 (27) of the West Pakistan General Clauses Act, 1956 observed as follows "This definition of the expression `good faith' necessarily, therefore, implies that the demand for possession of the rented premises must be honestly made. Honesty is a state of mind and is therefore a psy--chological fact capable of proof or disproof only by evidence or conduct.. The word `bona fide in the context of the provision in question would also appear to mean the same as `good faith' ; male fides, conversely means `in bad faith.' 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 male fide. It is necessary, therefore, for a person alleging that an action has been taken male fide to show that the person responsible for taking the action has been motivated by any one of the consider--ations 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 N succeeds in doing so, the onus would shift to the tenant to prove facts which militate against the existence of good faith or which positively establish the dishonesty of purpose on the part of the landlord to claim possession of the premises on the ground of personal need."
The above observations fully support the case before me for the respondent has proved his good faith, while the appellants have not been able to prove any male fide whatever on the part of the respondent.
24. Both the learned counsel have cited a large number of cases mentioned (hereinbefore but all these cases relate to the provisions of section 13 (3) of the 1959 Ordinance whereunder the right of a landlord to apply for eviction of his tenant from the premises which he required in good faith for his own occupation or for the occupation of any of his children was curtailed if he was occupying another residential building suitable for his need at the time of filing of the eviction application, in the same urban area in which the building in dispute was situated and he had not vacated the said building without sufficient cause after the commencement of the said Ordinance in the said urban area. However, ins a case where the landlord was occupying the rented house and required his house for his own occupation and made an application on that ground in such a case his occupation of the rented house was not considered to B be a bar for making an application for eviction of the tenant for the purposes of occupying the house for his own use. Reference may be had to Abdul Salam Akhtar v. Dr. Najam Parvez wherein Hamoodur Rahman, C. J. At page 54 of the report observed as follows;-- "The next contention advanced on behalf of the petitioner is that since the landlord was living in rented premises, he was in occupation of another residential building suitable for his needs in the same urban area and therefore, he was not entitled to evict the petitioner. The occupation of another residential building suitable for his need at the time does not, in our view, 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. It would be more reasonable to hold that the other residential accommodation, which the landlord is occupying at the time, must be shown to be his own and not merely rented premises.
The law in the United Kingdom is somewhat different. There the case of a person who purchases a premises after the coming into force of the special law has been dealt with separately. In the law prevailing in this country, there is no such separate treatment and, therefore, it is reasonable to assume that the Legislature did not intend to disqualify a person occupying a rented premises from getting his own premises vacated for his own use and occupation."
This case was followed by the Supreme Court in Abdul Aziz and another v. Muhammad Ibrahim and by this Court in Muhammad Bashir v. Vensimal and 4 others and Jamilur Rahman Khan v. Mst.
Sara Begum and by Lahore High Court in Muhammad Aslam v. Abdul Jabbar. Mr. Syed Anwar Ali has referred to a recent judgment by the Supreme Court in Nazir Ahmed and another v. Ghulam Nabi and another wherein it was observed by Karam Elahi Chauhan, J. `that occupation of a rented shop by a landlord is not a disqualification for asking the eviction of the tenant from his own shop on the ground of requirement for personal use.
Mr. Mansoorul Arfin has referred to an unreported order of the Supreme Court in Civil Petition for Special Leave to Appeal No. K-3 of 1481 (Muhammad Younus v. Dr. S. Muzammil Ali) granting special leave to appeal to consider the question decided in Abdul Salam Akhtar v. Dr. Najam Parvez In the case of Muhammad Younus it was submitted as follows;-- "It is submitted by the learned counsel for the petitioner that section 13 of the Urban Rent Restriction Ordinance speaks of the occupation of the landlord of "another residential building" and these words are not followed by the words "owned by him". In this state of the law, learned counsel for the petitioner contends it is not necessary that the building which is occupied by the landlord should also be owned by him and even if he is living in a rented house the bar contained in section 13 would apply and he would not be able to evict his tenant from a house owned by the landlord. It is conceded that there is a judgment of this Court (1976 SCMR 52) Abdul Salam Akhtar v. Dr. Najam Parvaiz in which a contrary view has been taken. Learned counsel submits that in the absence of the words `owned by him' in section 13 after the words "another residential building" the inter-- pretation given in the judgment of this Court referred to above requires re-examination. He submits unless the Legislature adds the aforesaid words or words to that effect the dictum of the judgment of this Court referred to above amounts to legislation which is not a function of this Court."
However, the case of Abdul Aziz and another v. Muhammad Ebrahim was not brought to the notice of the learned Judges at the time of granting the leave, whereinafter referring to Abdul Salam Akhtar's case and quoting a passage therefrom it was further observed by Muhammad Haleem, J.
(now Acting C. J.) at page 445 of the report as follows;-- "It is true that the observations turn on the language of the expression `another building' in clause
(b) of sub-clause (i) of section 13 (3) (a) but the guiding principle underlying those observations was to discover the real intent of the Legislature while construing the word `another building' and on this principle it was held that words should not be construed to extend to cover a rented premises and we would re-affirm it for it could not have been intended to prescribe a different criterion for a residential building.
Accordingly the requirement in this sub-clause does not extend to cover the rented premises."
It is submitted by Mr. Mansoorul Arfin that in the Supreme Court cases the question of good faith which was the requirement of clause (a) of subsection 3 (i) of section 13 of the Ordinance was not considered but it is apparent that the good faith of the landlord in making an application when he himself was occupying a rented premises was not in dispute but what was urged was that the eviction could not be ordered because he was not in a position to fulfil the condition provided in clause (b) because he was a landlord occupying another premises in the same urban area.
Now, I would refer to the other cases cited by Mr. Mansoorul Arfin, namely, Haji Ghulam Muhammad v. Abdul Kadir, Muhammad Siddiq v. Abdul Hameed, Mushtaq Ahmad v. Mrs. Mumtaz Zohra Rim, Muhammad Asghar and S others v. Mst. Jamila Khatoon, Fahmeeda Jahan Begum v. Varindamal and Muhammad Younus v. Dr. S. Muzamil Ali.
He cited Haji Ghulam Muhammad v. Abdul Qadir in support of the proposition that the mere desire of the landlord though made in good faith was not enough. Controller's satisfaction with regard to bona fide of claim of landlord was necessary. Firstly it was so held in view of the provisions of section 13 (3) (i) (b) quoted herein before. Secondly, in the instant case it was not merely a desire of the respondent to occupy the premises but he needs the premises for he is living in a rented house and paying almost, double the amount of rent which he receives from the appellants for almost same occupation.
In Muhammad. Siddiq v. Abdul Hameed on facts it was found that the landlord was already living in two-roomed quarter allotted to him and the premises in dispute had also 2 room and both were situated in the same urban area. On these facts and in view of the provisions of clause (b) which provided the condition that the landlord should not be in occupation of another residential building suitable for his need at the time of making the application, in the same urban area in which the building was situated, the claim of the landlord was not accepted. Thus this case is therefore distinguishable.
In the case' of Muhammad Asghar and S others v. Mst. Jamila Khatoon it was held that if the landlord was in occupation of the rented house that was not conclusive proof that his need was bona fide and that he was not absolved of the responsibility to show that he requires the house in good faith. Firstly, in this case Supreme Court cases referred to above have not been considered.
Secondly, in the instant case the need of the premises 'in good faith by the landlord has been duly proved. Thirdly, the observa--tions are in relation to the provisions of section 13 (3) (a) (i) of the Ordinance.
In the case of Muhammad Younus v. Dr. S. Muzammfi Ali it was observed that the fact that the landlord resides or carries on business in a rented house itself simipiciter will not be sufficient to prove the landlord's bona fide personal requirement but it will be a material act to be considered along with other facts and attending circumstances. Firstly, the observations relate to the provisions of section 13 (3) of 1959 Ordinance, secondly, in the instant case there are otherwise sufficient reasons to hold that requirement of the premises by the respondent is bona fide.
In Fahmeeda Jahan Begum v. Varindamal it was observed as follows;- "Under section 13 (3) (a) a landlord can obtain possession of the demised premises for his own occupation inter alia on the condition that he is not occupying another residential building suitable for his needs and has not vacated such a building without sufficient cause. It, therefore, follows that in case the landlord is shown to be in occupation of other premises even though as a tenant himself he must show that such premises are not suitable for his needs."
This case again relates to the provisions of section 13 (3) (a) of 1959 Ordinance. Then it does not take into consideration the Supreme Court decisions cited herein before for no reference is made to them. Therefore, this case is also of no help to the appellants.
For the reasons discussed above, in my opinion the respondent has duly proved his requirement in good faith of the premises. I therefore, find that the order passed by the Controller is according to law, and accordingly dismiss this appeal allowing the appellants three months more to vacate the premises, and hand over possession thereof to the respondent.