' This second appeal has been filed by the appellant/tenant against the judgment passed on 2nd October, 1980 in Rent Appeal No, 418 of 1977 whereby the said appeal was dismissed and the order of ejectment passed by the IInd Rent Controller in Case No, 2163 of 1976 filed under section 13 of the then West Pakistan Urban Rent Restriction Ordinance of 1959 was maintained.
1. The brief facts of the case are that the respondent is the owner/ landlord of the house bearing No, 1221 Block 16, Federal 'B' Area, Karachi and the appellant is the tenant occupying the said house on a monthly rent of Rs, 150 since 1st June, 1973 under an agreement in writing between the parties. The said agreement provided inter alia that the tenancy would commence from 1st June, 1973 and would be valid for 11 months, that a sum of Rs, 450 was paid by the appellant to the respondent out of which Rs, 300 Were kept with the landlord as fixed deposit refundable after handing over vacant possession of the house and Rs, 150 was paid as advance rent for one month.
2. Ejectment case under section 13 of the Ordinance was filed on 28th May, 1976 in the Court of Rent Controller on the plea that the respondent required the said house for her personal bona fide use and for use of her family and that the appellant tenant in spite of demands was avoiding to vacate the same on one pretext or the other and that ultimately legal notice dated 27th April, 1976 was served calling upon him to vacate the premises but he refused to do so. It was also pleaded that the appellant is a persistent defaulter in payment of rent and that at the time of filing of the case he was in arrears of rent from December, 1975 to May, 1976 and thus liable to be evicted also on the ground of non-payment of rent as a defaulter within the meaning of section 13(2X1) of the Ordinance, 1959.
The appellant contested the matter and filed his written statement.
3. On the pleadings of the parties the following issues were framed :- "(1) Whether the applicant requires the premises for her personal use or that of her husband reasonably and bona fidely.
(2) Whether the tenant committed default as alleged in the application?
(3) What should the order be 2"
4. The landlord examined herself (Exh. A. 1) and also produced one Yousuf Ali (Exh. 4). In defence the appellant tenant examined himself as Exh. 0/1/A. Lie also examined one Anwar Ali a estate broker.
5. The learned Rent Controller after recording the evidence and hearing the parties by order passed on 31st October, 1977 answered Issues Nos. 1 and 2 in favour of the respondent/landlord and under Issue No, 3 directed the appellant to vacate the premises and granted the application for ejectment filed against the appellant.
6. Rent Appeal No, 418 of 1977 was filed against the order of the Rent Controller. It was heard by the learnad IInd Additional District Judge, Karachi who by his order dated 2nd October, 1980 maintained the order of the Rent Controller and dismissed the said appeal. Against the above orders this present second appeal has been filed under section 15(4) of the Ordinance of 1959.
7. Under Issue No, 1 the learned counsel for the appellant argued that the landlady/respondent came to Karachi from Islamabad in April, 1973 and that she chose to go and occupy a rented house though the present house at that time was available for occupation and thereafter on 1st June, 1973 let out the present premises in dispute to the appellant. According to the learned counsel in the circumstances the appellant was not justified to file the case and seek ejectment of the appellant from the disputed house on the alleged ground that she required the same for her personal and bona fide requirement.
' In order to appreciate this contention raised by the learned counsel for the appellant, I have gone through the record with the assistance of the learned counsel for the parties in the case. The respondent appeared in person in support of the application, as a witness on her own behalf. In her statement she stated that at the time when she gave the house on rent to the appellant she was residing at Islamabad with her husband in Government accommodation. She further deposed that her husband was sent to Nigeria in April, 1973 on deputation, thereafter she shifted from Islamabad to Karachi and started residing in a rented house and that she had given the house in question on rent to the appellant for a temporary period. She further deposed that she presently pays Rs, 350 as rent per. Month, has three children aged 26, 25 and 24 years and that she has no other house anywhere in Pakistan. In the cross-examination the fact that the respondent landlady is residing in a rented house was not challenged. It has also come in evidence of the respondent that the landlord of the premises in which she at present is residing, has asked her to vacate the said house though no case had been filed in the Court. To a suggestion made in the cross-examination the respondent categorically stated that it is incorrect to say that she did not require the house for her personal use. Yousuf Ali the witness produced on behalf of the respondent landlady in his statement stated that he is the owner of the house where the respondent is residing as his tenant.
He further deposed that he requires the house for his own personal use and that he had let out the said house to the respondent for a period of four to six months. In the cross-examination this witness admitted that the respondent occupied the house owned by him in the month of May, 1975 and that no agreement of tenancy was ever executed and that the demand made by him requiring the respondent to vacate the house. Was verbal. The reason given by Yousuf Ali for asking the respondent to vacate the premises was that he requires it for his personal use as he has 1I family members residing with.
' Against the evidence given briefly discussed as above, on the question of personal requirement, the appellant Afaqur Rehman deposed that the respondent does not need the premises for her personal use and wants to sell the house and give its sale-proceeds to her daughter in dowry or that she wanted to increase the rent. He further stated that the respondent is residing in the house of her grandfather and father-in-law and that her husband was residing in Nigeria and he had approached Muhammad Anwar, a property dealer, for selling the house. In the cross-examination the appellant stated that if he was satisfied about the respondent's requirement he woulave tried to vacate the house.
' A perusal of the evidence, relevant portions whereof have been noted above clearly makes out a case that the respondent is residing in a rented house of which the owner is Yousuf Ali. This said Yousuf Ali was examined in the Court and he has supported the statement of the respondent that the latter was called upon by him to vacate the premises for his own personal use. It is significant to note here that whereas the respondent is paying Rs, 350 per month for the house in which she is residing, for the premises owned by her and occupied by the appellant she gets only Rs, 150 per month. Her husband stood retired w. e. f. 15th August. 1977, the notification to that effect dated 27th July, 1977 has been produced and marked as Exh. A/3. In the changed circumstances her husband having retired and the owner of the rented house occupied by the respondent insisting upon her to vacate the premises. I find that the prayer made by the respondent on 8th May, 1976 that she requires the premises in dispute for her personal use and occupation and for use and occupation of her husband, was fully justified.
8. Even if I accept for the sake of arguments. The case of the appellant stated in his deposition, that the respondent/landlady is residing in the house of her grand-father and father-in-law, even then we find that she is residing at the mercy of other persons and in the circumstances she would be fully justified to go and occupy her own house. Reference may here be made to the principles laid down in the case of Abdul Aziz v. Muhammad Ibrahim. In the case before the Honourable Supreme Court the facts were that the landlords were carrying on their business in a shop which they were occupying on a monthly rent of Rs, 200 and they sought ejectment of the tenant from their own building on the plea that they required their own shop for carrying on business of general merchandise. The two Courts below concurrently held that the landlords needed the shop in good faith for their own personal use. However a learned Single Judge of the High Court reversed the said findings holding that the landlords had failed to establish that the rented shop in their occupation was not suitable for their need. On the facts of the case as disclosed above, and interpreting the words any other such building" in sub-clause (iiXb) of subsection (3)(a) of section 13 of the Ordinance of 1959 the Honourable Supreme Court held: - "The conclusion, therefore is irresistible that the word building can have no other meaning except that which is owned by the landlord. This is in accord with the rule of construction i,e, to intend the Legislature to have meant what they have actually expressed."
' The Honourable Supreme Court in the above-mentioned case while allowing the appeal and setting aside the judgment of the High Court restored the order of ejectment passed by the Rent Controller. While doing so the Honourable Supreme Court cited with approval the following observations made in the case of Abdul Salam Akhtar v. Dr. Najam Pervez.
"The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does, not, in our view, extend to cover rentend 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 order residential accommodation, which the landlord is occupying at the time, must be shown to be his own and not merely rented premises."
9. Reference may also be made to the case of Mansoor Ahmad v. Bashir Hussain. In the said case the contention was raised on behalf of the tenant that the landlord was occupying the house, which it was not proved by him to be unsuitable for his needs. The learned Judge, Mr. Justice1 2 3 Muhammad Afzal Zullah, (as he then was) repelled the said contention in view of the principles laid down in the case of Abdul Salam Akhtar reported above.
10. In the present case after going through the evidence on record, I find nothing to suggest on behalf of the appellant that the premises in occupation of the respondent/landlady as a tenant, is suitable for her needs. In fact as the owner of the property in dispute who is residing in a rented house (or at the sufference of her father-in-law or grandfather as contended by the appellant) she is fully justified to claim the relief seeking ejectment of the tenant, and that in the circumstances discussed above the inescapable conclusion is that the respondent's requirement to live in her own house is bona fide and reasonable.
11. Sitting in second appeal I find that in the concurrent findings o facts arrived at by the two Courts below, the appellant has not been able t point out any error or that the said orders or findings are contrary to 1a or that in reaching the decisions the Courts below committed any mistake of law or acted against the law. No substantial error or defect in the procedure provided by the law in force which could possibly be said to have produced any error or defect to the case upon the merits, has been pointed out.
' In the case of National Steel Limited v. Mrs. F. Afsar the Honourable Supreme Court of Pakistan observed :- "It was next contepded that the respondent has not been able to establish her plea of bona fide requirement of demised premises for her own use. This contention relates to the merits of the evidence which has been assessed by the Courts below and in view of the concurrent finding on it we find no justification to interfere with it in the absence of any substantial defect in the appraisal of evidence."
12. Reference may also be made to the case of Mumtaz Hussain v. Muhammad Iqbal where the Honourable Supreme Court repelling the conention that the landlord had taken the shop on rent from the corporation observed as follows :- "Even if that was correct, this Court has held that in clause (b) of subsection (3) (a) (ii) of section 13 of the Ordinance the reference to occupation of another such building is to a building owned by the landlord and not to rented accommodation. It is, therefore, clear that the conclusions reached by the learned Additional District Judge and upheld by the High Court, were based on the material brought on the record, namely that the respondent landlord was not occupying any other building belonging to him in the same area for his business and that he needed the shop for starting his own business. There is therefore no scope for our interference with this finding of fact."
13. Lastly, I may refer to the evidence of Anwar Ali. He in his evidence started that some broker and one Sami had approached him for selling the house in question and that when he brought the parties he found that there were disputes in respect of this house pending and that ejectment proceedings were also pending in Court and as a result of this nobody was willing to purchase the house. This witness can hardly be relied upon as according to his own admission he has no office and works on the road and admitted that the appellant is also a estate broker known to him, and that he is a friend of the appellant. The fact has come on record that even according to this witness in view of the pending ejectment case nobody was willing to purchase the house and that except on one occasion he never saw Mr. Sami the husband of the respondent. In the circumstances in the absence of any advertisement inviting any offer for the sale of the house the evidence of this friendly witness of the appellant, who came forward voluntarily to oblige the appellant, can hardly be believed. One fact however emerges from the evidence that there was no intention to sell the house on the part of the respondent.
14. The contentions raised by the learned counsel for the appellant in support of the appeal under Issue No, I therefore do not succeed. Accordingly hold that the premises are required by the4 respondent for her C personal and bona fide use, reasonably and in good faith and no reason has been made out to interfere with the concurrent findings of fact arrived at by the two Courts below.
15. As regards the other ground raised by the Counsel for the appellant that the finding of the two Courts under Issue No, 2 to the effect that the appellant had committed default in payment of rent, I agree with the learned counsel that the two Courts below had not taken into consideration the pay order Exh. 4 for Rs, 450 dated 19th February, 1976 and Exh. 0/4 for Rs, 300 dated 30th April, 1976 and Rs, 300 lying in deposit with the respondent/landlady under agreement dated 1st June, 1973.
The learned counsel is correct that if the amount mentioned in the two pay orders and the amount of Rs, 300 lying with the respondent as deposit are taken into account and adjusted there would be sufficient cause to exercise discretion in favour of the appellant and to hold that he had not committed any default in payment of rent. It is important to note that the tenancy which commenced from 1st June, 1973 was to remain valid for 11 months as per agreement and there- after the amount of deposit would be refundable and if allowed to be kept with the landlord, the said amount has to be taken into account before the appellant could be treated as a defaulter.
The respondent had admitted that the rent used to be collected by her son as well as her attorney Abdul Salam. She further deposed that her son had not informed her that the appellant had not paid rent to him for the period from December, 1975 to May, 1976. The respondent did not produce her son in evidence and as such in the presence of the counterfoils of the pay orders filed as Exh.
0/4 for Rs, 450 and Rs, 300 drawn in favour of the respondent, the inference would be that these pay orders were handed over to the son of the respondent; and that if the latter wanted to challenge this fact it was her duty to have examined her son. In the circumstances the finding of the learned Rent Controller as well as the appellate Court under the Issue No, 2 holding that the appellant had committed default in payment of rent cannot be sustained as the finding under this issue is based upon omission to take into consideration material evidence on record.
16. The upshot of the above discussion is that this appeal fails and the' same is dismissed. The appellant is granted six months time to vacate the premises provided he deposits rent with the Rent Controller regularly fort as each month during this period.In case of default in payment of rent for any month during the above-mentioned period or failure to vacate the premises on the expiry of the period mentioned above whichever event happens first, writ of ejectment will be issued without prior notice to the appellant.
' In the circumstances of the case there shall be no order as to costs. PLD 1977 SC 442 1976 SCMR 52 PLD 1977 Lah, 532 PLD 1979 SC 819