' This is a second appeal against the judgment dated 24th April, 1980 passed by learned II Additional District Judge, Karachi, in Rent Appeal No, 311 of 1979.
' The brief facts leading to the filing of the above appeal are that the respondent filed Rent Case No, 1234 of -1977 on the ground of personal requirement. The above application was resisted by the present appellant. The learned Rent Controller by his order dated 18th April, 1979 dismissed the above application. The respondent being aggrieved by the above order filed the aforesaid .Rent appeal which was allowed by the aforesaid judgment dated 24th April, 1980. The appellant being aggrieved by the above judgment has filed the present appeal.
2. In support of the above appeal Mr. Mirza Saeed Baig, learned counsel for the appellant, has urged. That the learned First Appellate Court - has set up a new case for the respondent inasmuch as it was not averred in the rent application that the respondent needed better accommodation on account of his status as being a lecturer in the Government Commerce College. It may be observed that the respondent in support of his rent case had examined himself and two witnesses, namely, Nasim Ahmad Khan, a neighbour and Ghulam Abbas, a co-lecturer in the Government Commerce Colleges, whereas the appellant examined himself in rebuttal to the above evidence.
From the evidence on record the following facts stand proved :-
(1) That the accommodation in possession of the present appellant comprises of two living rooms and one drawing room and is a part of one house, the remaining portion is in possession of the respondent. According to the evidence of the two above witnesses there is temporary partition wall. However, according to the learned counsel for the appellant there is a Pucca partition wall between the two portions of the house. Be that as it may the fact remains that two portions are part of one house divided into two portions.
(2) When the above tenement was let out the respondent was working in Islamabad and thereafter in 1972 he came over to Karachi.
(3) The respondent is putting up in the other portion of the house with his wife, two children one sister-in-law and one niece. However, it has been urged by Mr. Baig that the sister-in-law and niece cannot be treated as a member of respondent family as they are not the relations mentioned in the relevant provision of the Rent Restriction Ordinance.
3. It may be observed that the fact that a sister-in-law and a niece have been putting up with the respondent has not been challenged in the cross-examination. It has been laid down in various cases even by this Court that it a landlord is putting up with his children and with some other close relations as one unit, the Court is to consider the landlord's requirement with reference to the number of the persons putting up with him and not with reference to the number of children alone.
4. It is an admitted position that the respondent has in his possession a portion of the house having three rooms. He wishes to occupy the other portion for having better accommodation. From the evidence on record it seems that the rent of the premises was increased from time to time and that a draft Exh. A/5 was sent by the respondent to the appellant for tenancy agreement for a period commencing from April, 1976 to March, 1977 at an enhanced rent of Rs, 475 instead of Rs, 450 per month. The enhancement of rent simplicitor will not be sufficient to defeat the claim of A a landlord for bona fide requirement, this will be a factor to be considered alongwith the other facts.
In the instant case the respondent has filed the ejectment case even after the expiry of the period mentioned in the draft of the tenancy agreement Exh. A/5 and, therefore, it cannot be urged by the appellant that the rent case was filed because the appellant had not agreed to enhance rent by Rs,
25. The draft of the tenancy agreement was for a period of eleven months only which period has expired by the time of filing of the present rent case. The law has provided protection to a tenant in case the landlord obtains an ejectment on the ground of personal requirement by enacting section 15-A in January, 1980, by Ordinance No, 2 of 1980 which empowers the Rent Controller to punish a landlord and to impose fine not exceeding the rent of one year in case a landlord fails to occupy the tenement, the possession of which he obtains on the ground of personal requirement.
In my view the learned first appellate Court on the basis of the evidence on record could have granted the ejectment application. The judgment of the learned first appellate Court does not call for interference by this Court in a second appeal and, therefore, the appeal is dismissed with no order as to costs. However, I grant four months' time to the appellant to hand over the vacant possession of the tenement on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's Order, failing which the respondent will be at liberty to file an execution application before the expiry of the above period. Furthermore, in case the appellant fails to hand over the 'vacant possession on the expiry of four months period, the Rent Controller shall issue a writ of ejectment without further notice.