' This is second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 from the judgment of III Additional Sessions Judge, Karachi dated 14-10-1978 whereby the learned Judge had dismissed the appeal of the present appellant which was directed against the judgment of II Rent Controller Karachi dated 9th July, 1977. The learned Rent Controller had rejected the ejectment application filed by the appellant against Mst. Sakina, the predecessor of the present respondents, in respect of a house bearing No, 409/1 situated in Garden West, Karachi.
2. The above house was rented out to late Hassan Ali, the father of the present respondents. It is not stated as to when did the tenancy start but from the record it appears that in the year 1962 the present appellant had filed an ejectment application being R. C. No, 1924/62 in the Court of II Civil Judge First Class, Karachi. In that rent case all the legal representatives of deceased Hassan Ali including the three appellants, who were sons of Hassan Ali, Mst. Sakina, the widow of Hassan Ali, and one daughter of Hassan Ali, were impieaded as tenants. The above case ended in a compromise and was decided on 27-4-1965 according to the terms and conditions thereof. All the legal heirs of late Hassan Ali excepting the Mst. Sakina had, according to the terms of the compromise application, reannounced their right of tenancy and agreed that the house shall be re-let to Mst. Sakina alone at the rate of Rs, 165 per month. On the basis of this compromise, which was recorded by Rent Controller on 27-4-1975, Mst. Sakina continued to occupy the house in dispute.
3. On 25-10-1968 the appellant filed fresh ejectment application against Mst. Sakina out of which the present appeal has arisen. In the fresh rent application which was registered as Rent Case No, 2707/68 it was pleaded by the appellant that the tenant Mst. Sakina had committed default in paying rent for five months from 1-5-1968 to 30-9-1968 and that the house is required for the personal and bona fide of his son M. A. Salman. The application was resisted by Mst. Sakina, During the proceedings before the Rent Controller Mst. Sakina died, therefore, the three respondents were brought on second as her legal representatives.
4. The ejectment application was contested before the learned Rent Controller inter alia on the ground that notice under section 30 of the Displaced Persons (Settlement and Rehabilitation) Act, 1958 has not been served upon the original tenants, namely Hassan Ali. A preliminary issue was framed by the Rent Controller and decided in favour of the appellant, holding that notice under section 30 was duly served on late Hassan Ali. It was further held by the learned Rent Controller that, since the original tenancy which was statutory tenancy in favour of Hassan Ali, had ceased to exist by virtue of the compromise between the parties dated 27-4-1965 when the new tenancy agreement was executed as between the present appellant and Mst. Sakina alone, hence the question of applicability of section 30 of the Act 1958 did not arise. This order was taken in appeal before Additional District Judge but the appeal was dismissed.
5. The learned Rent Controller then framed issues regarding default and personal requirement of the appellant and recorded evidence of the parties on these issues. So far as the default was concerned, the respondent has produced five money order receipts purporting to be for rent for the months of May to September 1968. On the basis of the receipts it was held that the appellant had failed to prove tube defrauding payment of rent on the part of the respondents.
6. On the question of personal bona fide requirement, the plea of the appellant was that he wanted the house for the use of his son Muhammad Ali Salman. In support of this issue the appellant had examined his son Muhammad All Salman who also acting as attorney for his father for the purpose of these proceedings. The learned Rent Controller held that the house in question was a double- story building and had much more accommodation than the actual requirement of the appellant's son Muhammad All Salman. Nevertheless the learned Rent Controller held that if the appellant had applied for only one of the floors of the house it would have been sufficient for the personal use of the son of the appellant. The relevant extract from the judgment of Rent Controller in this behalf runs as under :- "I would have been convinced of his requirement if he had chosen either ground floor or first floor for his personal use. "
' Taking this view of the matter, the learned Rent Controller held that the claim of bona fide requirement was not proved.
7. The first Appellate Court also rejected, the claim of the appellant for personal requirement but on a different ground. In his opinion the appellant himself should have appeared as a witness to depose about his requirement for the purpose of his son Muhammad All Salman. According to the learned Judge evidence of Muhammad Ali Salman could not have proved the requirement of his father. He, therefore, held that the appellant had failed to prove that he required the premises for the bona fide use of his son M. A. Salman.
8. At the hearing of this second appeal Mr. Zafar Hadi, learned counsel for the respondents raised the preliminary objection that the ejecmeat application was not maintainable for want of notice under section 30 of the Act of 1958. It may be stated that no such point was raised before the First Appellate Court, therefore, it cannot be allowed to be raised at the stage of II Appeal. Moreover the learned Rent Controller had rightly held that the question of applicability of section 30 doe not arise in this case because the statutory tenancy came to an end when a fresh tenancy agreement was executed as between Mst. Sakina and the present appellant. Preliminary objection has, therefore, no substance.
9. So far as the question of default in payment of rent for five months is concerned the learned counsel for the respondents has referred to the five money crder receipts for the months of May, June, July, August and September which are exhibited in the lower Court's record, from which it transpires that the rent for five months has deen paid to the landlord in time. The issue was, therefore, rightly decided in favour of the respondents. On the question of bona fide requirement the appellant has produced his son M. A. Salman as the sole witness. This witness was also holding power of attorney on behalf of his father. It was for the need of this son that the landlord required the house in question. In examination-in-chief this witness has stated that he himself is living in a rented house and is in need of the house. He has also produced a rent receipt for the house in which he is presently living, as Exh.
8. He further stated that he is a senior clerk in Boys Secondary School and is getting 25 per month as House Rent Allowance. He further stated that the disputed house consists of 6-7 rooms which will be sufficient for his need and that it is not possible for him to live with his father who is residing in own house consisting of four rooms where his father, that is, the appellant is living with his wife and four daughters.
10. The fact that M. A. Salman is living in a rented house not been disputed. No question has been put to him in cross-examinatio disputing this fact or the receipt Exh.
8. Both the courts have not applied their mind to this aspect of the case. The learned Additional District judge, in the first appeal, has taken the view that appellant himself should have come into the witness-box to prove his bona requirement for his son Salman. This view is not correct.
Muhammad Ali Salman was acting as attorney of his father. He was, therefore, the most competent person to prove the bona fide requirement which was his own requirement for the house in question.. Even the trial Court had held that his requirement would have been bona fide if he had applied only for possession of part of the house, that is, for one of the floors. In this connection Mr. Ismail Merchant learned counsel for the appellant has relied on a Supreme Court decision in the case of Khalil Ahmad v. F. B. Cabral. In the above case a point was raised before the Supreme Court that the premises in question was large enough to accommodate both the landlord and the tenant and as such the plea of the landlord for possession should he accepted only in respect of part of the premises in question. It was held by the Supreme Court that the Rent Restriction Ordinance does not warrant division of a residential house for being shared both by the landlord and the tenant. In view of this decision, the view of the learned Rent Controller that the appellant should have sued for one of the floors of the house only to prove hi bona fide, cannot be sustained.
11. The learned Additional District Judge rejected the plea of bona fide requirement of the appellant mainly on the ground that the appellant himself thould have appeared as a witness to prove his requirement, which included the requirement of the house for the use of his son. Reference in this connection has been made by learned counsel for the appellant to the case of Honest Trading Co. v. Mst. Muhammad Nisa. This Head note pertained to the Second Appeal No, 100/73 decided by a Single Judge of this Court on 8th September, 1976. It was held in this case by Fakhruddin G. Ebrahim, J. That if settlement proceedings have been filed through an attorney then personal examination of the landlady is not necessary. It was further held that personal examination shall be necessary if the premises are required by the landlady for her personal use and not for the use of her male children. In the present case the landlord did not require the house for his own use. He wanted the possession of the house for his son Salman who had been acting as attorney of his father also.
Hence in view of the principle laid down in the above-cited case it was not necessary for the appellant to have himself appeared as a witness to prove the requirement of the house for the use of his son. The latter himself was the most competent witness to prove this fact not only in the capacity of the son for whose u the house was required, but also as the attorney of his father. He was thus competent to give evidence on behalf of his father. Both the Courts below have taken wrong view of law in deciding the question of bona fide requirement. In view of the law laid down by the Supreme Court and this Court in similar cases referred to above, the order of the Courts1 2 below cannot be upheld. The learned trial Court had held that the appellant's son did require the house, for his own use, but not such a big one as the house in question. It has already been held that a house is to be deemed indivisible if once the Rent Controller comes to the conclusion that bona fide requirement of the landlord has been proved in respect of the house. Under such circumstances the fact that premises in question is much in excess of the need of the landlord, is neither relevant nor does it affect the question of bona fide requirement of the landlord.
11. In view of the above discussion the orders of the two Courts below are set aside and the appeal is allowed with costs. The respondents, are, however, allowed three months' time to vacate the premises. 1970 SCM R 539 PLD 1979 Note 56 at p. 39