' This appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979 against the Judgment of the IIIrd Rent Controller at Karachi in Rent Case No, 514 of 1972 whereby the appellant/tenant was directed to hand over possession of the premises in dispute to the Respondent-Landlord.
1. The brief facts of the case are that the appellant is the tenant of the respondent in respect of flat No,
1. In the building situated on plot No, 241, Block No, 3, in Delhi Mercantile Muslim Co-operative Housing Society, Karachi on a monthly rent of Rs, 240.
' Application for ejectment under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1959 was filed by the respondent on 8th March, 1972 on the plea that the respondent requires the said premises in good faith for her own occupation and for the occupation of her children and the rented flat, at present occupied by her is not at all suitable and that her eldest son also attained marriageable age.
' The appellant/tenant filed objections and denied the allegations made by the Respondent/landlord.
2. Upon the pleadings of the parties the following issues were framed.
(I) Does the applicant require the premises for her personal use and occupation ?
(2) Has the defendant effected unauthorised additions and alterations in the house ?
(3) What should the order be ?
3. On behalf of the landlord was examined Talai Anwar (son and attorney of the respondent).
In defence the appellant examined himself as Exh. .6 and also produced Mr. Musharaf Khan Malik Exh. 7 and Habibur Rehman Exh. 8 as witnesses.
4. The learned Rent Controller after recording the evidence and written arguments of the learned counsel for the parties, answered the issue No, 1 in the affirmative and issue No, 2 in the negative.
Accordingly the application was allowed and the appellant was directed to vacate the premises.
5. Against the above order of the learned Rent Controller this appeal has been preferred in this Court. The arguments by the learned advocates for the parties were confined to the findings given under issue No, 1 above, and this appeal therefore is disposed of on consideration of the questions arising under the said issue.
6. The learned counsel for the appellant Mr. Munawar Abbas, submitted that during the pendency of the case after evidence of landlord's witness (Talai Anwar) had been examined the adjoining tenement in the same building fell vacant and the same has been occupied by Talai Anwar who is the son of the respondent. According to Mr. Munawar Abbas the learned counsel under section 13 the appellant therefore now could not be ejected from the tenement in question.
' The learned counsel for the appellant raised two-fold pleas in support of this appeal.
(i) The respondent has already got possession of tenement in the same building, and thus no longer entitled to get any ejectment order against the appellant.
(ii) That in any case the requirement of the respondent to get the premises vacated from appellant, cannot be termed as reasonable and bona fide.
8. In order to appreciate the arguments of the learned counsel on the contentions raised as above we may first refer to the evidence produced by the parties. On behalf of the respondent was examined Talai Anwar her son and attorney. From the evidence of this witness it is established as a fact that the respondent is residing with her son Talai Anwar who is the tenant of flat in the same locality on a monthly rent of Rs, 250, that the accommodation consists of two rooms and one passage and the total covered area therefore, is about 80 Sq. Yds. The said witness Talai Anwar deposed that his mother resided with him alongwith her members of family numbering 11 persons in the said rented fiat. The family of applicant consists of her four sons, three daughters, applicant, her husband and grandmother of the applicant besides wife of Talai Anwar. All these members are adults except one son and one daughter. According to these evidence given by Talai Anwar the tenement in question is required by the respondent for her own use and for the use and occupation of members of her family mentioned above. The perusal of his evidence shows that the family of the respondent had been shifting from one place to another residing in rented premises from time to- time. Initially the applicant's faimly resided in Ashiqeen Building in Ranchore Line, thereafter they shifted to a flat in Artillery Maidan and thereafter to a flat in Ratan Talao. All these tenements were taken on rent by the respondent, Finally after 1971 she shifted in the same locality in Dehli Mercantile Co-operative Housing Society where she is now residing with her son Talai Anwar, who took a flat on rent.
' Suggestion was made in the cross-examination that the tenement in question was sought to be evicted by the respondent as the rates of rent in the locality have increased and that the appellant had refused to concede to the demand made to increase the rent.
' The appellant in his own evidence denied the knowledge that the family of the respondent consisted of seven children though he admitted that Talai Anwar is a married person. With reference to the subsequent event which took place during the pendency of the case i. e. One tenement in the building owned by respondent was vacated by Master Aslam and was occupied by Talai Anwar, the appellant deposed that Talai Anwar was not residing with his mother and that he had started residing in another flat on the same plot. It was however not disputed by the appellant that the landlady resides in the rented premises of which her son continues to be the tenant. The learned counsel made grievance that there are other persons occupying premises as tenants and that no action was taken against any of them and the appellant was singled out as he had refused to enhance the rent.
' The appellant also examined one Mr. Musharraf Khan Malik an engineer on the question that no damage was done to the property by the appellant Other witness examined was Habibur Rehman a neighbour who deposed that Master Aslam who was also occupying one of the tenements vacated the same and that said tenement is now occupied by Talai Anwar.
9. The perusal of the evidence led by both parties clearly establishes the fact beyond any controversy that the respondent has been shifting from one place to another residing in rented premises and that though her married son Talai Anwar has separated she has been and still continues to reside along with her own big family in a rented flat consisting of only two rooms. The family of the respondent consists of her husband, her own mother and six grown up children who reside with her in the aforementioned small rented flat. The requirement of the landlady in the circumstances, and also because of absence of proper accommodation even in a rented house, becomes all the more pressing, reasonable and genuine as she has got a large family. The requirement of the respondent, to occupy and reside in the tenements, in possession of the appellant is thus proved to be reasonable and bona fide requirement with in the meaning of the law and that she cannot be deprived of availing better accommodation by utilizing her own property. The Honourable Supreme Court of Pakistan in the case of Abdul Salam Akhter v. Dr. Najam Pervez while considering the case of a landlord who had applied for eviction of his tenant on the ground of his bona fide personal need, repelled the contention advanced on behalf of the tenant that since the landlord was living in a rented premises he was in occupation of another residential building suitable for his needs in the same urban area and therefore not entitled to evict him, and observed as follows :- "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 a 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".
10. The learned counsel for the appellant then argued that another house occupied by Master Aslam in the same building had fallen vacant during the pendency of the case which has been occupied by Talai Anwar and therefore the resquirement of the landlady was satisfied and thus she would not be entitled to an order of eviction in her favour against the appellant. This agument however omits to take notice of the fact that the respondent according to the appellant's own admission is no longer residing with Talai Anwar in the tenement which had fallen vacant on the same plot and is now occupied by the said Talai Anwar. The respondent alongwith her seven members of family still continues to reside in a rented flat. As to her right, to live in the house owned by her and of her own choice it is by now settled law that if a landlord posesses more than one house in the same urban area the choice as to the house in which he/she would like to live himself/herself is a matter within his/her prerogative and discretion and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside. If any authority is needed reference may be made to the case of Sabu Mal vs. Kika Ram In the circumstances the respondent with her own large family can neither be forced to live with her married son nor can she be compelled to continue to live in a rented flat at the mercy of any other person.
11. Before concluding I would like to take note of the argument advanced by learned counsel for the appellant to the effect that the respondent had not examined herself as a witness in the case. This contention has also no force as I find that the respondent/landlord had examined her son and attorney on her own behalf. Suffice it would to refer to the case of Munir Ahmed v. Ahmad Din and others where while repelling the contention, that the son for whose benefit premises was required1 2 3 was not examined the Honourable Supreme Court observed that the evidence given in the case remained unshaken and that :- "The case depends on appreciation of evidence and the learned counsel has not been able to point out any legal procedural error in the concurrent findings of all the Courts below."
12. For the reasons disussed above I hold that the respondent landlady who is residing in a rented flat and has a large family of seven persons consisting of grown up children besides husband and her own mother, is entitled to occupy and reside in her own house and in doing so she is entitled to exercise her option as to the house in which she would like to reside and that her. requirement to occupy and reside in the disputed tenement owned by her, is I bona fide and reasonable.
' Accordingly I find this appeal has no merits and is dismissed. The appellant is granted four months time to vacate the premises. 1976 SCM R 52 1973 SCMR 185 NLR 1979 SC 696