' This second appeal is directed under section 15(4) of the then West Pakistan Urban Rent Restriction Ordinance of 1959 against the judgment dated 14-1-1980 in Rent Appeal No, 300 of 1979 passed by the learned VII1th Additional District Judge, Karachi whereby he upheld the findings given by the Rent Controller in Rent Case. No, 682 of 1977 holding the appellant to be a defaulter in payment of rent and also liable to vacate the premises as the same is required by the respondent/landlord for his personal use and occupation.
2. The brief facts of the case are that the demised premises was let out to the appellant on 12-6- 1967 on monthly rent of Rs, 500. The agreement was for 11 months under which Rs, 3,000 were paid to the respondent as advance rent which were agreed to be adjusted as follows :-
(1) 3 months rent to be kept by the landlord as deposit.
(2) 3 months advance to be adjusted at the rate of 100% each month (i,e, Rs, 500 only)
' On the expiry of the above-mentioned agreement fresh agreement of tenancy was entered into between the parties which were reduced into writing on 26-6-1968 wherein the landlord admitted and acknowledged that the tenant had paid to him a sum of Rs, 1,500 as deposit which would remain with him (the landlord). The rent of the premises was agreed to continue to be Rs, 500 per month. This agreement also provided that the tenancy shall be for 11 months commencing from 12- 5-1968 and that it could be renewed by mutual consent of both the parties. On the expiry of the period of tenancy agreed upon as above-mentioned, the tenant continued to remain in possession.
' However on 12-2-1977 the respondent/landlord filed an application (Rent Case No, 682 of 1977) under section 13 of the then West Pakistan Urban Rent Restriction Ordinance of 1959 in the Court of the Third Rent Controller Karachi on the plea that the tenant was a habitual defaulter in payment of rent, that he sent cheque dated 11-1-1977 for Rs, 1,000 covering rent for the months of November and December, 1976 which cheque when presented to the bank for encashment, was dishonoured.
According to the landlord the tenant was defaulter in payment of rent for the months of November to February, 1977 when the application for ejectment was filed on 14-2-1977. Amongst other grounds mentioned in the application the landlord claimed ejectment also on the ground that he required the premises in dispute inA good faith for his personal use and use of his family, that he is an ailing person suffering from chronic disease of T. B. And is leading a retired life. It was also stated that he was residing in his wife's house which apart from being small was injurious to him and his family and had to be disposed of on account of serious personal circumstances and monetary problem and that he had no house of his own other than the present one. It was also pleaded that the premises are urgently required for the maintenance of his family members and for school and college going daughters, one of whom was already engaged and that her marriage was to be performed as soon as the premises was vacated.
' The above application was contested by the respondent who filed his written statement.
' Upon the pleadings of the parties the learned Rent Controller framed the following issues :-
(1) Whether the opponent is a regular defaulter and has committed default in the payment of monthly rent ? If so, its effect?
(2) Whether the tenement is required in good faith for the applicant and his family ?
(3) Whether the opponent damaged the premises and has diminished its value ?
(4) Whether the opponent was liable to pay the taxes over the property but failed to pay ? If so, it's effect ?
(5) Who is the owner and landlord of the premises in dispute ?
(6) What should the order be ?
2. The landlord examined himself and also examined his brother A. U. Haider. The tenant examined himself on his own behalf and also produced one Allah Ditta as a witness in defence.
3. The learned Rent Controller by order passed on 19-4-1979 answered the issue No, 1 in favour of the landlord holding thereby that the tenant had committed default in payment of rent. Issue No, 2 was also answered in the affirmative and it was held that the premises is required in good faith by the landlord for his own use and the use of his family. Issue No, 3 was answered in the negative while under issue No, 4 it was held that the tenant was not liabie to pay the taxes. Issue No, 5 was not pressed.
' Consequent to the findings given as above the tenant was directed to vacate the premises and handover its possession to the landlord.
4. Against the said order the tenant filed Rent Appeal No, 300 of 1979 which ultimately came up for hearing before the learned Second Additional District Judge Karachi who by his order dated 14-2- 1977 upheld the findings given by the Rent Controller and dismissed the appeal and maintained the order passed by the Rent Controller.
5. The above orders of the two Courts have been challenged by the tenant by filing this second appeal under section 15 of the then Ordinance of 1959.
6. At the very outset it may be mentioned that in view of the submissions made by the learned counsel for the appellant/tenant that admittedly at the time when the said agreement was made with the respondent/landlord on 26-1-1968 a sum of Rs, 1,500 was lying as deposit and that after the expiry of the period of 11 months, the said amount was not adjusted or refunded to the tenant and continued to remain with the landlord, upon the principle authoritatively laid down by the Honourable Supreme Court of Pakista in the case of Muhammad Yousuf v. Abdullah Mr. S. H. Fani, the learned counsel for the landlord did not press issue No, 1 and conceded that there was no default in payment of rent.1
7. The learned counsel for the appellant then urged that the respondent/ landlord failed to prove that he required the promises bona fide and for his reasonable and personal requirement. In support of his arguments the learned counsel raised the following two pleas :- "(i) Firstly, it was argued that the respondent failed to prove that he required the premises bona fide and reasonably and thus no order of ejectment could have been passed against the appellant.
(ii) Secondly, he submitted that the respondent/landlord owned another house which he disposed of and thus he was not entitled to seek ejectment of the appellant on the ground of his personal and bona fide requirement."
8. In order to appreciate the arguments of the learned counsel as above I would first refer to the findings reached by the learned Rent Controller wherein after, placing reliance upon facts proved under issue No, 2 it was held as follows :- "I have heard both the Advocates and gone through the record and find that the applicant has proved without any reasonable doubt that the applicant has no other house of his own and is living in a small room with his large family which belongs to his brother. The applicant and his wife are old and ailing persons and, therefore, in my view the premises is required bona fide by the applicant for his own use and his children and the applicant cannot live in his brother's house for ever."
9. In the appeal filed against the above order of the Rent Controller, the learned first appellate Court also after discussing the evidence which proved that the respondent/landlord has five children (four are daughters and one son) and that he is residing with his brother with whose son one of his daughters is engaged, and that the said brother of the respondent himself has six children while accommodation available with him consisted of only three bedrooms, one drawing room and one dining room and placing reliance on the case of Hassan Khan v. Munawar Begum observed as follows :- "Thus, it is evident that respondent requires the premises in good faith for his personal use and occupation."
The learned counsel for the appellant was unable to point out any error of fact or law in the impugned orders. The conclusions reached on the evidence by the two Courts below are in accordance with the law laid down by the Honourabie Supreme Court. Reference be made, if necessary, to the case of Ghulam Nabi v. Muhammad Usman All Khan, where the order of ejectment was passed, on the evidence on record that the landlord though putting up of his son yet not occupying the same in his own right, was upheld with the observation that the contention raised that the landlord had not discharged the onus which was on him to establish that the house was not sufficient for his needs, had no force as the Courts below had on appraisal of the evidence led by the landlord and that of his witness, held that he had discharged the onus. The following principle laid down in the case of A. R. Khan v. Muhammad Ishaqwas also reaffirmed ". In the last analysis the question becomes one of fact whether a landlord does or does not require a certain premises for his bona fide requirement, as contemplated by the Ordinance."
' The Honourabie Supreme Court further held :- "It may here be observed that he was not occupying his son's house in his own right and, therefore, he had every reason to seek ejectment of the petitioner from his house which he intended to occupy in terms of section 13(3) (a)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959."
In the light of the above principles laid down by the Honourable Supreme Court and concurring with the conclusions reached by the two Courts below and finding myself on appreciation of evidence that the respondent alongwith members of his family is putting up with his brother (who has his own six children) in a house consisting of only three bedrooms, not his own right, has established his reasonable and bona fide requirement of the premises in dispute.2 3 4 ' Thus the first contention raised on behalf of the appellant, has no substance.
10. Dealing with the second contention the learned counsel for the appellant in the first place argued that the respondent has sold away the property in dispute and wanted the premises with vacated possession for ulterior motives. This submission finds no support from the record. In fact at the hearing of the case before the Rent Controller, Issue No, 5 was given up. It may further be observed that if the landlord does not occupy the premises after getting it vacated on personal needs, adequate safeguard provided by subsection (4) of section 13 of the then Ordinance of 1959, is still available under the law now in force.
11. Continuing his arguments on the second point the learned counsel for the appellant also raised the plea that the respondent had disposed of another house which was in his occupation during the pendency of this case and thus he is not entitled to claim vacant possession of the house in question from the appellant. The learned counsel in support of the above argument referred to the statement of the landlord-respondent in cross-examination wherein to a question put he replied as follows :- "It is correct that I have sold away 'a house' after filing of this case but the agreement was prior to this case. It bears No, 5/A-2/20 Nazimabad. I had sold this house for Rs, 1,50,000."
On the basis of the above statement, the learned counsel contended that it was proved on the respondent's own admission that he was in occupation of another house of his own which he bad sold away and thus he is not entitled to ask for the ejectment of the appellant from the premises in dispute.
' I have carefully gone through the evidence of the respondent and find that there is nothing in the above statement to established that the house sold, belonged to him. Reference to the portion of evidence relied upon by the learned counsel for the appellant shows that though the respondent had stated that 'a house' was sold by him after the filing of the case and he gave its number as 5/A-2/20 Nazimabad, but neither he claimed nor any suggestion was made to him, that he was the owner of the said house.
' Important to note is the reply of the respondent in re-examination where he stated : - "The house which has been sold belonged to my wife."
' The above statement was not challenged by the appellant by putting any question to the said witness.
' In the light of the above explanation there is no escape from the conclusion that the house which was sold by the respondent belonged to his wife and not to the respondent himself. The second contention of the learned counsel for the appellant to the effect that the respondent had sold away his own house and thus not entitled to seek eviction in view of proviso to section 13(2), also fails.
12. It is also significant to note here, that neither in the memo. Of appeal nor at the hearing of the appeal before learned first appellate Court, the appellant raised any plea that the respondent had sold away another house of his own and thus not entitled to seek ejectment from the house in question.
' The counsel then made reference to the letter dated 11-3-1973 sent by the respondent to the appellant intimating of his intention to sell the said house and demanding vacant possession by 30-4-1973. No reliance however can be placed upon this letter for the purpose of denying the respondent his right to seek ejectment on a cause of action which arose about four years thereafter, on the basis of which the case was filed on 14-2-1977.
13. Before concluding I would like to refer to the case of Abdul Aziz v. Muhammad Ibrahim where the Honourable Supreme Court while interpreting the provisions of section 13(3)(a)(ii)(b) of the then West Pakistan Urban Rent Restriction Ordinance reaffirmed the principle laid down in the case of Abdul Salam Akhtar v. Dr. Najam Pervez wherein it was held :-5 6 "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 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 reasonabie 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."
' Finally reference be made to the case of Muhammad Bashir v. Vensimal and 4 others wherein Honourable Mr. Justice Zaffar Hussain Mirza (as he then was) repelling the contention of the respondents that the house of the landlord's son where he was living at the time of the application, had sufficiant accommodation for the appellant and his family to satisfy their needs, held as follows :- "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. 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, 1959. It was so held in Ghulam Nabi v. Rao Muhammad Usman All Khan PLD 1977 SC 442."
14. The upshot of the above discussion is that I find no merit in this appeal which is accordingly dismissed. There shall however be no order as to costs.
' The appellant is granted two months time to vacate the premises. PLD 1980 SC 298 PLD 1976 Kar. 832 1980 SC MR 751 1972 SCM R 437 PLD 1977 SC 442 1976 SCM R 52 PLD 1980 Kar. 409