' This is a second appeal against the order dated 17-4-1979 and 14-2-1982 passed by the learned VI Rent Controller, Karachi, and IInd Additional District Judge, Karachi respectively in Rent Case No, 101/76 and Rent Appeal No, 312/79 respectively.
' The brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid rent case for ejectment on the ground of bona fide personal requirement. The above application was resisted by the present appellant. However, the learned Rent Controller on the basis of the evidence on record concluded that the respondent was able to prove his bona fide personal requirement. The appellant being aggrieved by the above order of the Rent Controller dated 17-4- 1979 filed aforesaid Rent Appeal, which was dismissed by the learned IInd Additional District Judge, Karachi, by his aforesaid order dated 14-2-1982. The appellant being aggrieved by the above two orders has filed the present IInd appeal.
2. In support of the above appeal, Mr. N. K. Jatoi, learned counsel for the appellant has urged that both the Courts below have acted illegally by not taking into consideration the material facts, namely, that after the filing of the above rent case, a tenement adjacent to the tenement in question had fallen vacant which the respondent instead of occupying himself had let out to Mr. Douglas. On the other hand, it has been urged by Mr. Iftikhar Chudhary that the tenement in possession of the appellant is more suited to the requirement of the appellant than the tenement which had fallen vacant. His further contention is that since there is a concurrent finding of the two Courts on the question of personal bona fide requirement, this Court, cannot set aside the above concurrent finding of fact unless it is to be found perverse or contrary to the record.
' It may be observed that at the request of the learned counsel for the parties, I had appointed the Nazir of this Court as a Commissioner for ascertaining the accommodations of the two tenements, namely, the tenement in possession of the appellant and the tenement, which was let out to Mr. Douglas, the Nazir has submitted his report dated 26-10-1982 alongwith a rough sketch. None of the parties has filed any objection to the above report. I, therefore, will take into consideration the above report while dealing with the respective contentions of the learned counsel for the parties.
3. (a) Mr. N. K. Jatoi, in support of his above contention has referred to the case of Muhammad this v. Ziauddin. On the other hand Mr. Iftikhar has placed reliance on the case of Nooruddin v. Asghar Ali and the case of Sabumal v. Kikaram alias Hemandas.
(i) As regard the above Karachi case, reported in PLD 1981 Kar. 345, it may be observed that in the above case a learned single Judge of this Court allowed a IInd Appeal on the ground that the two Courts below had failed to take into consideration the fact that the respondent had sold an otak about two years prior to the date when the respondent's statement was recorded situated very close to the house in respect of which ejectment order was granted by the two Courts below on the ground of personal requirement. It was also held that the factum of the above sale adversely reflected on the bona fide of the respondent landlord.
(ii) Referring to the case reported in 1968 SCMR 1087 it may be stated that the Hon'ble Supreme Court while declining to grant leave to appeal repelled the argument of the learned counsel for the appellant to the effect that the fact that the respondent had not occupied a flat which had fallen vacant earlier would prove bad faith on the part of the respondent landlord. It may be advantageous to reproduce hereinbelow the relevant portion of the above judgment which reads as follows : "Learned counsel attempted to argue before us that good faith was wanting in the present case, as another flat in the premises had fallen vacant earlier but the landlords let out that flat to a tenant and did not utilize it for themselves. The question, however, as to which portion of the building would suit the landlords better, must be left to their discretion and there is nothing unreasonable in the landlords insisting that a particular portion of the building should be made available to them.
We do not consider that the circumstance pointed out by the learned counsel affects the good faith of the landlord's demand."
(iii) Reverting to the second Supreme Court case reported in 1973 SCMR 185, it may be mentioned that in the above case also the Hon'ble Supreme Court while declining to grant leave to appeal rejected an identical argument which was advanced in the aforesaid earlier case of 1968 in the following words : "The contention that the finding on the question of the personal need of the landlord is not sustainable in law has no substance, as all the Courts below have come to the conclusion, after examining the evidence brought on the record, that the landlord was living in a small rented accommodation situated in the premises of a temple, and he bona fide required the house in dispute for his personal residence. If a landlord possesses more than one house in the same urban area, the choice as to the house in which he would like to live himself is surely a matter within his 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. The law, however, provides an adequate safeguard by stipulating in subsection (4) of section 13 of the Ordinance, that the tenant may be put back in possession if the landlord does not occupy the premises himself after getting them vacated on the ground of personal need. Subsequent litigation in respect of another house owned by the respondent is thus irrelevant to the present dispute."
(b) The above two Supreme Court's cases support the view urged by the learned counsel for the respondent.1 2 3
4. (a) I am inclined to hold that if a landlord had failed to occupy a tenement which had fallen vacant in the recent past prior to the filing of an ejectment application or during the pendency of the ejectment proceedings in the same building and, which had identical accommodation to the tenement in respect of which he seeks ejectment, on the ground of personal requirement, this fact will be fatal to the landlords' bona fide. .But if the two tenements were different from the point of view of accommodations or location, the choice rested with the landlord and in such a case no adverse inference can be drawn against the landlord.
' In the instant case the fact that the respondent has only two bedrooms at the first floor of the building in question has not been disproved. Nor the factum that he has two married sons with their children living with him has been belied. The Nazir's report indicates that the tenement which had fallen vacant and which was let out to Mr. Douglas is not identical to the tenement in possession of the appellant which has more accommodations inasmuch as it has additional bedroom, both room and drawing room etc. And also a basement which at present is not being used, because of its condition. The relevant portion of Nazir's report on this aspect reads as follows : "A. Tenement in Occupation of Appellants {{TABLE}} because of its condition. The relevant portion of Nazir's report on this aspect reads as follows: "A. Tenement in Occupation of Appellants
1. Drawing RoomA1202.67 sq. ft.
2. Dress RoomB136.00 sq. ft.
3. Bath RoomC158.67 sq. ft.
4. VerandahD154.47 sq. ft.
5. StoreE152.77 sq. ft.
6. KitchenF157.39 sq. ft.
7. RoomG1190.19 sq. ft.
8. VerandahH187.08 sq. ft.
9. BedroomI1204.94 sq. ft.
10. PassageJ19.46 sq. ft.
11. Dress/BathK187.13 sq. ft.
12. VerandahL1152.00 sq. ft.
Total1192.77 sq. ft.
"B. Tenement in Occupation of Mr. Douglas
1. Drawing/DinningA2369.83 sq. ft.
2. PassageB247.83 sq. ft.
3. Kitchen ,C286.62 sq. ft.
4. Store-cum-roomD2102.38 sq. ft.
5. BathE251.02 sq. ft.
6. BedroomF2141.79 sq. ft.
7. PassageG227.12 sq, ft.
8. PassageH2' 88.67 sq. ft.
9. Verandah12115.45 sq. ft.
Total1030.71 sq. ft.
(b) It may be advantageous to reproduce the relevant portion of the Nazir's report in respect of basement existing in the appellant's tenement which reads as follows :- "The measurements of the basement were as under
1. Length25'.10
2. Breadth5.8
3. Areaa 146.36 sq. ft.
4. Height5'.5 ' It was observed that the floor of the basement was covered with mud apd water. Some dry leaves and an old tyre were lying on the floor, ' The plaster of the walls and roof of the basement was decaying. There was old and out of use loose electric wiring. There was no door fitted to the opening of the cellor. The size of the opening was 3'.1" x 4'.5". A loose wooden plank was lying on the opening. There was a window in the cellar size 3' x 1.3' with grill in the tenement of appellants below the portions marked BI, Cl and Dl."
(c) There is also oral evidence on record to indicate that the accommodation in the tenement occupied by the appellant is more than the tenement which was let out to Mr. Douglas. In this regard a reference may be made to the deposition of P. W. 2 Shahid Hussain (the respondent's son) who has deposed that "one other tenant is also living on the ground floor as Mr. Douglas. He is in occupation of one room and drawing room only. The accommodation with premises is 3 bedrooms with other amenities, We require the premises as the accommodation is bigger than the accommodation with tenant of Mr. Douglas."
(d) It has also not been denied by the appellant that the respondent had filed only ejectment case against appellant and not against his previous tenant of the other tenement referred to hereinabove. This fact also lends support to the conclusion that the tenement in possession of the appellant is more suitable to the respondent's requirement.
5. It may be observed that the concurrent finding of fact on the question of the personal requirement given by two Courts below on the question of personal requirement cannot be said to be perverse or contrary to the evidence and, therefore, does not call for an interference by this Court in a second appeal.##TE#
6. The upshot of the above discussion is that the appeal is dismissed with no order as to costs.
However, 1 grant four months time to the appellant to hand over the vacant possession of the tenement to the respondent on the condition that the appellant shall continue to deposit rent in terms of the learned Rent Controller's tentative rent order and in case he fails to deposit the same, the respondent shall be at liberty to file an execution application before the expiry of the above period and furthermore, in case the appellant fails to hand over the vacant possession of the tenement on the expiry of above four months period the Rent Controller shall issue a writ of ejectment without any notice to the appellant. The fee Rs, 800 claimed by the Nazir is sanctioned subject to the rules. PLD 1981 Kar. 345 1968 SCMR 1087 1973 SCM R 185