1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 has been filed against the order dated 22nd March, 1981 passed by the Xth Senior Civil Judge and Rent Controller, Karachi in Rent Case No, 2921 of 1978 ordering the ejectment of the appellant from the first floor of the premises bearing No, 65-A, Block 2, P. E. C. H. S., Karachi.
2. ' The facts of the case are that the appellant is tenant of respondent in respect of the premises mentioned above under a lease agreement dated 1st September, 1970 on consolidated monthly rent of Rs, 425. The respondent filed ejectment application on the ground of personal requirement and also wilful default in the payment of rents for the months of November and December, being Rent Case No, 2921 of 1978 in the Court of Xth Senior Civil Judge and Rent Controller, Karachi. It was the case of the respondent that he required the premises in question as he was badly in need of accommodation for his growing children. He stated in the application that the marriage of two of his sons was held up for want of accommodation and that his eldest son who is married and has one child is also residing with him. It was his case that he was in need of accommodation not only for himself but his, three sons and two daughters who were also residing with him. The respondent asserted that he had only two bedrooms for the entire family and that he had repeatedly requested the appellant to vacate the premises which he had refused to do and therefore he had been put to the necessity of filing the application.
3. ' The appellant filed written statement on 15th May, 1979 admitting the tenancy but denying that the respondent required the disputed premises bona fide for himself as well as his children or that the marriage of his sons was held up for want of accommodation. He denied that there was any default in the payment of rent for the months of November and December, 1977 and stated that since the respondent was avoiding to receive rent he bad remitted the same by money order, but since the respondent had also refused to receive the money order he had moved Miscellaneous Application No, 683 of 1978 before the Rent Controller and had been depositing the rent for the months of November, 1977 and thereafter.
4. ' The affidavits of evidence were filed by the respondent and the appellant and they were cross- examined. It was the case of the respondent that he was in need of the premises in question on account of his grown up children. He repeated in his evidence the assertion that marriage of two of his sons was held up for want of accommodation and further that the eldest son was residing with him with his wife and two children. He further asserted that besides the three sons viz. Muhammad Iqbal, Muhammad Afzal and Mustafa Kamal, his two, daughters, namely, Azara Kaleem and Zahida Sultana were also residing with him. He pointed out that Azara Kaleem, his daughter who was residing with him had two children and the accommodation available at his disposal was only two bedrooms for the entire family. In his cross-examination the respondent stated that it was correct that he was presently living in bungalow No, 114 in Block 2, P. E. C. H. S., Karachi, which is a single storey bungalow ; but there are two bedrooms, one drawing-dining room and a verandah. He further admitted in his cross-examination that he had filed ejectment case against the Colony Textile Mills which was also pending. It is apparent from a perusal of the record that the assertion of the respondent with regard to the number of members of his family putting up with him was not shaken in the cross-examination and also the fact that he had only two bedrooms at his disposal.
5. The learned Rent Controller in the impugned judgment gave the finding in favour of the respondent that he required the premises in question for his personal use and for the use of his children.
6. ' The impugned judgment is assailed in this appeal on the following grounds :-
(1) That the orders are based on misreading of evidence on record.
(2) That the learned Rent Controller erred in holding that it was not necessary for the respondent to examine any of his children to prove their bona fide requirements.
(3) That the Rent Controller had erred in holding that choice rests with the owner to select and choose any accommodation in his house to suit his requirements.
(4) That the Rent Controller erred in ignoring the fact that the respondent had also obtained ejectment orders against his tenant in occupation of the ground floor of the disputed premises on the ground of personal requirement in R. C. No, 2920 of 1978.
7. ' With regard to ground No, 1, there is nothing pointed out from the record which can show that there has been misreading of the evidence or misrepresentation of the facts with regard to the personal requirement of the landlord and his children. As already stated, the assertion of the respondent with regard to the number of members of his family staying With him and the accommodation now available to him has been fully supported by his evidence in the affidavit which has stood the test of cross-examination.
8. With regard to ground. No, 2, it is by now settled legal position that for proving assertion that the landlord wants the premises for his own use A or that of his children it is not necessary for him to examine the children specially when his assertion with regard to the plea of personal requirement has not been shaken in cross-examination. In Ghulam Hussain v. Mst. Chaman Sultana Shafi, a decision of the Supreme Court it was inter alia held that there was no legal requirement for the respondent to have examined her children in support of her case. In that case the respondent was having a family of 12 members, including children, some of whom were of marriageable age, and the finding with regard to bona fide requirement of the landlord was confirmed.
9. ' With regard to grounds Nos. 3 and 4, it is apparent from a perusal of the record of the proceedings before, the learned Rent Controller that the matter with regard to ejectment of Messrs Colony Textile Mills Ltd. From the ground floor of the building was known in the instant case also and the learned Rent Controller had observed about the state of affairs in the impugned order. The1 contention is obviously based on the provisions of section 13 (3), (a) (i) (b) which is to the effect that the landlord may apply to the Controller for order directing the tenant to put the landlord in possession in case of a residential building if he is not occupying another residential building suitable. For his needs at the time in the same urban area in which such building is situated. The words used are "not occupying". The fact that the landlord has also applied for ejectment in respect of other premises or even that there is an order by the Controller directing the vacation of those premises would not make any difference unless the landlord is actually put in possession of the premises in question and the same are occupied by him. In Master Chiragh Din v. Mian Anwar Rashid, a decision of the Lahore High Court where ejectment petition was contended not to be maintainable on the ground that the landlord had filed two other ejectment applications in respect of shops other than shop in question, it was held that the contention was not just and proper as inference against bona fide need is also not justified in the circumstances. It was observed as under :- "If the appellant had proceeded against only one tenant by leaving the others untouched but had, after litigating for about ten years, failed to eject him, and had then repeated that exercise against other tenants, one after the other, he may not have been able to secure possession of any of the shops even after thirty years. It is therefore not just and proper to non-suit him on the ground that he had filed two other ejectment applications in respect of shops other than the shop in question. If he ultimately succeeds in getting possession of any of the other shops and consequently he does not occupy the shop in dispute on its vacation, the appellant will be able to regain its possession by pressing into service the provisions of subsection (4) of section 13 of the West Pakistan Urban Rent Restiiction Ordinance, 1959."
10. ' The occupation of other residential accommodation referred to in section 13 (3) (a) (ii) (b) it has been held does not include rented premises or premises not belonging to the landlord himself. In Muhammad As/am v. Abdul Jabbar, a decision of the Lahore High Court it was held that the words "not occupying" mentioned in section 13 were with reference to premises owned by the landlord. In Mirza Farooq Beg v. Muhammad Arif, a decision of this Court where it was contended that a landlord if seeking ejectment of a tenant from the premises on the ground of personal bona fide requirement and during the pendency of such proceedings succeeds in getting another premises of same class in the same urban area vacated whether through recourse to proceedings before the Rent Controller or otherwise, he should not be allowed to proceed with the pending case in view of the proviso to subsection (3) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959, it was observed that the contention was fully supported by observations in the case of Ghulam Farooq v. Fazal Ghaniwhich appear at page 1084 of the report as under :- "By keeping in view the spirit of law, I am constrained to hold that the instant application did not remain maintainable after the landlord succeeded in obtaining possession of the adjacent shop from the tenant under the said parallel proceedings. The bar contained in the above-quoted proviso to a subsequent application, therefore, would still be available to render this application incompetent and having become infructuous."
11. ' In the precedent case of this Court Mirza Farooq Beg v. Muhammad Arif, it was however observed as under :- "While I am in respectful agreement with the conclusion of the learned Single Judge in the above case that if during the pendency of the application for ejectment on the ground of personal and bona fide requirement, the landlord succeeds in getting possession of another premises of the same class and description in the same urban area the second proviso to subsection (3) of section 13 of the Ordinance will come into play. With utmost respect, I am unable to subscribe to the view expressed further by the learned Judge, that in such an event the pending application under section, 13 of the Ordinance also becomes non-maintainable and infructuous. In my humble view,2 3 4 5 the effect of the second proviso to subsection (3) of section 13 of the Ordinance in such a case on the pending application of a landlord in addition to proving his personal and bona fide requirement shall have to further satisfy the Controller, before succeeding in the pending case, that the premises so got vacated was not suitable to his needs. In my view of the embargo on the right of a landlord to "move a second application on the same ground provided in the second proviso to section 13 (3) of the Ordinance is not complete. If later on, the landlord, who had earlier applied and got vacated a premises for his personal need, is able to show that the premises so got vacated by him is no longer suitable for his need, there is nothing in law which could prevent him from moving a second application on the same ground and succeeding on it."
12. ' With respect I am in full agreement with the interpretation of section 13 (3) of the Sind Rent Restriction Ordinance, 1959, but in the instant case there is nothing on record to show that even though the premises on the ground floor were ordered to be vacated by the Rent Controller, the respondent is actually in occupation of the same. The appeal from the aforesaid decision of the Rent Controller was also before this Court in F. R. Appeal 203 of 1981, and the appeal has also failed, but at the same time it cannot still be said that the respondent is in actual occupation of the aforesaid premises on the ground floor. However, even if the premises had been in his occupation, the requirement of accommodation for his family numbering 12 persons may well have been not only in respect of the tenement already attempted to be got vacated, but also at the same time for the other premises on the first floor. As already stated, there is nothing on record in the case to show that there was any suppression of the fact that the respondent had also applied for ejectment of the tenant on the ground floor.
13. ' Mr. Khalilur Rehman, the learned counsel for the appellant, has also referred to the unreported decision of the Supreme Court in Civil Appeal No, 93 of 1981 of which he has provided a certified copy. It was contended in that case that the landlord was the sole judge of his own needs, but the Supreme Court observed as under : - "We are unable to subscribe to such a wide proposition of law, in view of the clear language contained in clause (b) of subsection (3) of section 13 of the Ordinance, which enjoins the Controller to order eviction of a tenant only if he is satisfied that the claim of the landlord is bona fide. It is no doubt well established that out of the several tenements on rent with a number of tenants, a landlord has the prerogative to choose any one considered by him to he best suited for his purpose of personal use and seek ejectment of such a tenant. The Controller in such a case will not be right in inflicting his own ideas with regard to the need of the landlord if, otherwise, it is found to be bona fide. But the question here arises in a slightly different context. In the present case the appellant sought the ejectment of the respondent from the two shops in question on the ground of personal use and on the date of institution of the proceedings, he was not in occupation of any other building for this purpose, but before the final orders could be passed by the Controller, he came to occupy shops Nos. 8 and 9 which fact brought his case within the purview of clause (b) of section 13 (3) (a) (ii) and the question whether this additional accommodation coming into his hands was suitable for his needs as disclosed in his application, became a justiciable issue to be determined by the Controller. In such circumstances, the appellant could not get away with the argument that it is his prerogative to choose the accommodation of his choice from any of the rented premises owned by him."
14. ' The learned counsel for the appellant however does not get any support from the aforesaid decision for the simple reason that the most important matter to be considered is whether the respondent was in occupation of the premises other than those for which he had applied, and in the instant case it is apparent that the appellants are still in occupation. The facts of the two cases are also totally different in that in the instant case assuredly besides the application for ejectment of the premises in question another application for ejectment of the premises of the ground floor had also simultaneously been made, and the ground in both was that the respondent and his family of 12 members required accommodation in view of the fact that he had in his occupation only two bedrooms. Even if both the premises in respect of which he had made applications for ejectment of tenants are considered, it would be difficult to assume that the accommodation vacated is not for his bona fide personal use and the use of his children. In any case, there is the safeguard provided under section 15-A of the Sind Rented Premises Ordinance, 1959 in case the landlord does not put the premises to personal use or the use of his children. I, therefore, see no substance in the appeal which is accordingly dismissed however without any order as to costs. The appellant is hereby directed to hand over vacant possession of the premises to the respondent within two months of the date of this judgment. 1980 SCM R 9 1980 CLC 650 PLD 1979 Note 12 at 8 PLD 1981 Kar. 67 1980 CLC 1082