MUHAMMAD IQBAL KALHORO J.---By this judgment instant appeal challenging the impugned order whereby learned Additional Controller of Rents Clifton Cantonment, Karachi has dismissed Rent Case No,11/2015 filed by the appellant for ejectment of respondent No,1, her tenant, is disposed of.
2. The brief facts of the case are that the appellant is owner of demised premises i,e, Flat No,1003, 10th Floor Block-K, Creek Vista Apartments, Phase VIII, DHA Karachi. She inducted respondent No,1 in the said premises as tenant vide rent agreement dated 09.12.2009 at a monthly rent of Rs,33,500/-.
But then due to some alleged default by him, she filed a rent case No,20/2014 against him before Addl. Controller of Rents Clifton Cantonment, Karachi through her attorney. However, during pendency of the said rent case, her son namely Fahad Nawaz's marriage was fixed with Ms. Noor Saba. Therefore, in view of such development coupled with the demand of said girl's family for a separate lodging for the couple after the marriage, the appellant required the demised premises for personal use of her son. Accordingly, she approached respondent No, 1 to vacate the premises but he refused, hence the present rent case on a new cause of action i,e, personal bona fide need was filed against him and the previous rent case filed against him on the ground of default was withdrawn.
3. The respondent in his written statement has contested claim of the appellant and has further maintained that the appellant had demanded increase in the rent which he did not accept; hence she has filed the rent case against him. That in the previous rent case the appellant did not disclose that the demised premises were required for her personal use, nor did .she ever show her desire to use the demised premises for personal use of her son. The appellant always claimed that the demised premises was purchased as a long-term investment for the purpose of earning rental income, because there was no source of income available to the appellant's family except the demised premises. That although in the rent case the appellant was claiming that the premises was required for her son, but her daughter had sent him an email on 15.01.2015 claiming that the demised premises was required for her use as her husband who was working in Oman was coming back to Karachi, and thereafter she along-with him would move in the said premises. That nowhere it is mentioned in the ejectment application that the current residence of family of the appellant is insufficient for her requirements. The appellant is residing in a house in P.E.C.H.S. which is situated close to the houses of her other relatives whom she visits regularly. The appellant does not require the demised premises for her son, but her only him is to get the premises vacated and to let it out to some other person on higher rent.
4. Out of the pleadings of the parties, learned Controller of Rents framed following issues:--
1. Whether the demised premises is required for her personal bona fide need?
2. Whether the present accommodation of the applicant is sufficient to cater for their personal bona fide needs?
3. What should the order be?
5. In the trial, applicant's attorney namely Muhammad Nawaz Sahito filed his affidavit in evidence as well as affidavit in evidence of witnesses Fahad Nawaz Sahito and Mazhar Ali Magsi. In rebuttal, the respondent filed his affidavit in evidence. All of them were cross-examined. Finally, learned Additional Controller of Rents dismissed the ejectment application vide impugned Order. The appellant being aggrieved by the said order has filed instant appeal.
6. Learned counsel for the appellant has argued that the impugned order suffers from misreading and non-reading of the evidence, hence it is illegal and liable to be set-aside; that learned Controller of Rents has completely failed to appreciate the facts and relevant law applicable thereto and has based his findings on the material which is not relevant; that the Controller of Rents has based his findings on the facts of earlier rent application which was filed on the ground of default and has no nexus with the present case filed on a different cause of action, therefore his findings are not sustainable in law; that learned Controller of Rents has failed to appreciate that the appellant filed the present case after accrual of a fresh cause of action on the ground of personal bona fide need and withdrew the previous case, which is not illegal or barred under any law; that the appellant was able to prove her case by adducing cogent and reliable evidence but learned Controller of Rents miserably failed to appreciate the same; that learned Controller of Rents also to appreciate that it was always the choice of the landlord/landlady to choose any of the premises for his/her personal use and in this respect the tenant has no option to raise any objection; that the cause of action arose to the appellant to file the present case only when engagement of her son was performed after filing of earlier rent case and the girl's family demanded a separate house for the couple after marriage. Learned counsel has relied upon 2012 SCM R 1498, 2011 SCMR 846, PLD 2015 SC 33 and 1996 SCMR 846.
7. On the other hand learned counsel for the respondent has supported the impugned judgment and has further contended that the appellant has failed to establish her case on personal bona fide need; that in previous rent case, it was asserted that the rent of demised premises was the only source of income for the family but in the present case it is being claimed contradictorily that son of the appellant would settle in the said premises after marriage; that from the evidence of appellant, it is not established that her son has got any job and therefore rental income of the demised premises is not needed. He further contended that the house where appellant's family is residing is sufficient for the need of entire family. And more so out of the two daughters of the appellant, one is already married and is likely to move after return of her husband from abroad whereas the other would definitely shift from the said house after her marriage, which would leave ample room in the house for son of the appellant to live with his wife. Learned counsel in support of his arguments has relied upon the case law reported in 1984 CLC 755, 1990 M LD 1009, 2006 SCM R 152, 2014 M LD 693 and 2015 YLR 2683.
8. Heard and perused the record including the case law cited at bar. The burden to prove issue No,1 is on the appellant, she has to establish that the demised premises are required for her personal bona-fide need. Record reflects that in Para No,4 of the rent application, the appellant has asserted that marriage of her son Fawad Nawaz (who is also a witness in the case) has been fixed with Ms. Saba as such she needs the demised premise for use of her son. And in Para No,5 she has affirmed that she had purchased the said premises as her son's marital house and this fact was conveyed to the respondent at the time of rent agreement. A perusal of the evidence of attorney of the appellant and her other witnesses including her said son indicates that they have reiterated, the same facts in their depositions that the engagement of son of the appellant has taken place but the marriage has been put on hold for vacation of the demised premises. It has also been Asserted that the girl's family has demanded a separate house for living of their daughter as a precondition for the marriage. The son of the appellant namely Fawad Nawaz in his evidence has also confirmed the factum of his engagement and such demand of the girl's family and the fact that after marriage he intends to live in the demised premises. Learned counsel for the respondent contended that attorney of the appellant has stated in his cross-examination that only negotiations for engagement have happened, whereas the other witness have revealed that the engagement has taken place, which is contradictory to each other and it has weakened the case of the appellant. because it shows that the ground of personal bona fide need has been falsely taken to misguide the court. This argument does not appear to be persuasive, for in our society in vernacular, acceptance of proposal of marriage between the parties (which is of course done through negotiations) is also remembered as the engagement of the couple, therefore merely on the basis of such disclosure by the attorney of the appellant, her case cannot be considered weak.
All the witnesses of the appellant have unequivocally supported her personal need to require the premises for her son whom she intends to settle there after the marriage, and which is also the demand of her would-be daughter-in-law's family. Such assertions of the witnesses have neither been shattered materially in their cross-examination, nor rebutted adequately by the respondent in his reply to the ejectment application. The discrepancies, such as appellant's daughter sending an email to the respondent claiming that she was in need of the premises, appellant's failure to establish her son's job, etc. or filing of earlier rent case for ejectment by the appellant against the respondent on the ground of default are irrelevant and have no adverse bearings insofar as the merits of the present case are concerned. The law is by now clear that if assertion of the landlord/landlady on the ground of personal bona-fide is not shaken or rebutted satisfactorily in cross-examination or in the pleadings by the tenant, the same would stand established. In my humble view, the appellant has successfully discharged her burden on issue No,1, and has been able to establish her personal bona-fide need of the demised premises. Learned Controller of Rents has wrongly concluded otherwise in the impugned order.
9. As to issue No,2 that whether the present accommodation of the applicant is sufficient to cater to her family's personal bona-fide needs, in my view it is not essentially the case of the appellant that her current accommodation is insufficient for her family's residence. Her entire case is articulated in Paras Nos,4 and 5 of her ejectment application where she has asserted that her son's marriage has been fixed with Noor-eSaba, therefore, she needs the demised premises for his use; and that she B had purchased the suit property as her son's marital house, where he was to settle after the marriage and this fact was conveyed to the respondent at the time of rent agreement.
And that the girl's family has demanded a separate house for their daughter as a pre-condition for the marriage. The witnesses of the appellant have supported these assertions, and as discussed above in issue No 1, the same have not been shaken or rebutted satisfactorily by respondent to draw inference in his favour. So in my humble view the sufficiency of the current residence of the appellant, which is said to be, a house containing ground plus one storey constructed on 230 yards, is to be seen through the prism of such ascertains. Additionally, it may be noted that in the evidence it has also come on record that in the said house the appellant is living with her husband, two daughters one of whom is married and whose husband is abroad for job and her son whose marriage is pending for want of the demised premises. This house has only three bed rooms and one guest room. Going by this calculation, it would not be hard to conclude that no bed- room would be left for the new couple after their marriage, because in one bed room the applicant and her husband, in the other her married daughter, and in the last and third bed-room her second daughter who is still unmarried could be living. Therefore in my view the appellant has been able to establish that her current residence would not be sufficient after marriage of her son, and for whom she requires the demised premises.
10. For foregoing discussion, the impugned order is set aside and this appeal is allowed.
Respondent No,1 shall vacate the demised premises and hand over its possession to the appellant within 60 days from today for which period he, however, shall pay the agreed rent to the appellant.