1. ' This First Rent Appeal arises out of the order dated 15-5-1980 of the Vth Rent Controller, Karachi whereby the learned Rent Controller rejected the Ejectment Application No,81 of 1977 filed by the appellant.
2. ' The brief facts of the case are that on 6-1-1977 the appellant filed the Ejectment application on the ground of default and personal requirement of the property bearing No,A/492, Block 'C' North Na'zim abad, Karachi which was let out to the respondent at Rs,325 per month. It was averred in the application that the respondent had not paid Rent from July, 1976 to December, 1976 and also did not clear property tax from September, 1973. The appellant further averred that the displaced property was required by him for his family in good faith. The respondent filed the written statement and denied both the grounds. It was averred in the written statement that he has been regular in the payment of rent. The respondent also mentioned in the written statement that he paid rent for the months of June, 1976 to September, 1976 to the Attorney of the appellant. The said Attorney did not collect rent for the months of October, 1976 onwards. The Attorney refused to accept the rent for the months of October, 1976 onward. The respondent after seeking permission started depositing rent in the Court. The liability of the taxes is that of the appellant/ applicant and not his liability. The respondent also denied the contents of paras.4 and 5 of the application for want of knowledge. The learned Rent Controller framed the following issues on 16-8-1977:- "ISSUE No,
1. Whether the applicant requires the premises in question in good faith for his own and the occupation of his family?
3. ' ISSUE NO,
2. Whether the opponent has committed default in the payment of rent?
4. ' ISSUE NO,
3. What should the order be?"
5. ' The appellant examined himself in support of the ejectment application. The respondent examined himself and also examined his father Nabi Ahmed as D.W.No,1 and one witness Abdul Mahmood as D.W.No,3.
6. ' The learned Rent Controller after recording the evidence of the parties and after hearing the arguments of the learned counsel for the parties decided Issue No,1, in negative. Issue No,2 not proved and dismissed the application by his order dated 15-5-1980.
7. ' The appellant being aggrieved against the aforesaid order has preferred this appeal on the grounds mentioned in the memo of appeal.
8. ' Mr.Dewan Bashir Ahmed has contended that the appellant has proved bona fide requirement and also proved default. On the other hand Mr.Rashiduddin the learned counsel for the respondent has contended that the appellant has failed to prove bona fide requirement. he respondent has not committed default.
9. ' With regard to contention No,1, there is firstly the assertion in the ejectment application in pares. 2, 3, 4, 5 and 6 thereof that the appellant requires the premises for his own occupation and his family which consists of the appellant, his wife and children and he has no other place to abode in Karachi. In the application the appellant had also no doubt stated that he is temporarily occupying a rented place at Chandni Chowk, Paposhnagar, Karachi, which is not suitable for his needs and status being located in a noisy and extremely crowded locality. In examination-in-chief he reiterated that his family consists of his wife and four children. His eldest son is 19 years of age and the rest are three daughters, All the four children are school-going. The ages of his daughters are 14, 12 and 10 years, At the time of his deposition before the trial Court he was putting up with his father-in-law. He also stated that in 1977 he shifted his family from Saudi Arabia to Karachi and accommodated in rented premises in Paposhnagar and from where he shifted them to his father- in-law's house. The property in dispute consists of two bedrooms, one drawing room. The aforesaid evidence was not shaken in cross-examination and the only contention of the respondent was that the appellant is permanently employed in Saudi Arabia. The appellants reside with his father-in- law. His wife and children also reside some times in Saudi Arabia.
10. ' The learned Controller observed firstly that the appellant, has not disclosed the number and true description of the house where his family was residing in Paposhnagar. The appellant has not produced any rent receipt or agreement of tenancy of that rented house. Secondly the appellant was allowed time to produce passport of his wife but he did not produce the same. In such circumstances the non-production of the passport raises a presumption that passport contains the entries against the contention of the appellant. Thirdly that the appellant has not examined his father-in-law or any other person to say that the appellant family is residing here in Pakistan and that they have got the difficulty of accommodation.
11. ' The learned counsel for the appellant has attacked the impugned order on the grounds that the evidence of the appellant was not appreciated in the proper context and that the learned Rent Controller came to a conclusion that the appellant/landlord was in possession of the premises which was sufficient for his personal need. His family does not reside in Karachi but reside with him at Saudi Arabia. In fact the appellant/landlord has no such accommodation of his own except the disputed premises. His family reside in Karachi with his father-in-law. From the evidence on record the learned Rent Controller did not draw the correct inferences.
12. ' The learned counsel for the respondent has contended that the appellant has not proved bona fide requirement of the premises in question. During the course of hearing of this appealthe 'respondent has also filed an application stating therein that the appellant has purchased a house in Defence Society and his family resides, in the said home.
13. ' The sole question for determination in the case is whether the appellant has satisfied the legal requirement that the premises in question is needed by him in good faith, In the present case the appellant had stated in his application for ejectment that he requires the premises in good faith for his own occupation and for his wife and children. He appeared himself in the witness box and stated on oath that the premises is required by him for his own residence and that of his family. On the other hand, the only evidence adduced in rebuttal by the respondent was that the appellant had never asked him to vacate the said house on the ground that the same is required by the appellant for occupation of his family. The appellant has not given his address either in the application or otherwise with ulterior motive so that he may not be able to ascertain correct facts about his family. The respondent to a suggestion in cross-examination stated as under:- "It is incorrect to suggest that applicant had asked me to vacate the premises for personal use. It is incorrect to suggest again says I cannot say if the applicant requires the premises for his personal bona fide occupation."
14. ' I think the evidence of the appellant was not properly appreciated by the learned Rent Controller.
15. Lastly after having assessed the entire case I have come to the conclusion that the bona fide of the landlord/appellant cannot be doubted as he has the right to get ejectment of the premises in question. The learned Rent Controller has misread the evidence and drawn inferences which are incorrect.
16. ' The learned counsel for the respondent has argued that in order to prove that he was residing with his father-in-law, the appellant should have examined his father-in-law or some other person.
17. I am unable to agree with him. The appellant offered himself for cross-examination but he could not be shaken in cross-examination. In these circumstances, his failure to examine his father-in- law did not militate his bona fide.
18. ' The learned Rent Controller in the impugned order had held that the appellant did not produce his wife's passport, rent-deed or rent receipts. The arguments addressed on behalf of the appellant in this respect was that the learned Rent Controller was influenced by an irrelevant consideration which vitiated his order I think that the learned Rent Controller was influenced much by this factor to the exclusion of the weight of other evidence which established that the premises was required by the appellant bona fide for self-use and for use of his wife and children.
19. ' In the case of Badruddin Hassan Furooqui v. Manghi Industrial Home PLD 1976 Kar. 620 at p. 622 M.M.A. Rashid (as he then was) held: "This provision does not require that the landlord should not 'have' a house in the same urban area.
20. On the other hand the condition is that the landlord should not be occupying another residential building in the same urban area, where the disputed building is situated, and second condition is that of the suitability of such building. But in any case it is not necessary for the landlord, when he takes the plea of personal bona fide requirement, that he should specifically urge, in the rent application, all the ingredients which constitute his personal bona fide requirement. Those ingredients are a matter of proof. If the landlord has proved the personal bona fide requirement either of himself or of his children the onus is discharged. Any absence, in the pleadings of such averment, does not reflect adversely on the bona fide, if otherwise proved, of the landlord's personal requirement. The first appellate authority, therefore, fell in error when it observed that specific fact, in the rent application that he did not have any other house in the same urban area."
21. ' In the case of Ghulam Nabi v. Rao Muhammad Usman All Khan 1980 SCM R 751 at p.
752. The Hon'ble Supreme Court has held as follows: ' Pit was urged before us that the respondent had not discharged the onus which was on him to establish that the house was not sufficient for his needs. This contention has no force as the Courts below have on an appraisal of his evidence and that of his witnesses held that he had discharged the onus in the context of the dictum of this Court in A.R. Khan v. Muhammad Ishaque 1972 SCM R 437, which is as under:- "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, although the intention behind the move is purely subjective, which can only be inferred from the circumstances, which must be alleged and proved by the landlord by reproducing evidence in mani festation of that intention."
22. ' We have no reason to interfere with that conclusion which is eminently a question of fact."
23. ' This evidence produced by the landlord appears to be more than sufficient to prove the assertion that the house in question is required for personal occupation. It is not open to the respondent to state that the appellant is residing in his own house. It is the choice of the landlord or landlady and neither the tenant nor for that matter, even the Rent Controller can offer any gratuitous advice with regard B to the suitability of accommodation for the purpose for which it is being acquired.
24. ' Their Lordships of the Supreme Court were pleased to observe in the case of Sabumal v. Kikaram alias Remandas 1973 SCMR. 185 that where a landlord was living in a small rented accommodation reiterated in the premises of a temple, and bona fide reqUired the house in dispute for his personal residence; "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 of the Rent Controller the power to determine where the landlord should personally reside."
25. ' The principles laid down by the Hon'ble Supreme Court of Pakistan and the ears while High Court of Sind are applicable to the facts of this case.
26. ' The learned counsel for the appellant has contended that the respondent had committed default for the month of July 1976 to December, 1976 ' On the other hand the learned counsel for the respondent has contended that the respondent had not committed default in payment of rent. He has further contended that Mushtaq Ahmed Attorney of the appellant had accepted rent up to September, 1976. Later on the rent of October, 1976 was tendered through Money Order which was also refused by him. Thereafter the rent was being deposited in Court. The learned Rent Controller held that the respondent in his written statement stated that he paid rent up to September, 1976 to Mushtaq Ahmed, the Attorney of the appellant and, therefore, the Attorney did not collect the rent for the month of October, 1976 onward. This fact has not been denied by the appellant. The burden was on the appellant which he did not collect the rent then he had sent through money order which was refused as such he started depositing the rent in the Court.
27. ' The question for consideration is whether the respondent committed default indeed, the question of default has to be viewed in the light of section 15 of the Ordinance according to which tenant commits default if he had not paid or tendered rent due by him in respect of the rented premises within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, within sixty days from the period from which rent is payable. It is admitted position in this case, that the respondent had paid rent up to September, 1976 to Mushtaq Ahmed. He had sent rent through money order which was refused by him. Thereafter, the respondent was depositing with the Nazir of Rent Controller after seeking permission in this respect.
28. The assertion of the respondent that the attorney of the appellant avoided to receive rent was also not without basis as the learned Rent Controller on appreciation of the material found, as a fact that the attorney had avoided to receive rent from the respondent. In this view of the matter, learned Rent Controller was perfectly justified and right in holding that the respondent was not a defaulter and refused ejectment of the respondent. I see no substance in this contention.
29. ' The apprehension expressed by the learned counsel for the respondent that the appellant may not occupy the disputed premises after rejecting the respondent from the premises is, therefore, ill- founded. The law provides sufficient safeguard for a tenant who is ejected from the premises on the ground of personal bona fide requirement of landlord, if the landlord and his wife and children do not occupy the premises themselves after getting it vacated from the tenant.
30. ' I accordingly accept this appeal, reverse the finding of the Rent Controller, on the ground of personal bona fide requirement and grant the ejectment application accordingly. The respondent is directed three months' time to vacate the premises subject to payment of monthly rent regular during this period.
31. ' In the circumstances of the case the parties will bear their own costs.