1. ' This is first appeal under section 21 of Sind Rented Premises Ordinance, 1979 directed against the Judgment of IXth Senior Civil Judge and Rent Controller, Karachi dated 7-9-1982 by which the appellant was directed to handover possession of the premises bearing No,14-E-3/13, Nazimabad, Karachi. The application for ejectment had been filed on 17-12-1976 and the ejectment had been allowed by the then Rent Controller on 2-12-1978 against which the first appeal by the present appellant was dismissed by Vth Additional District Judge on 12-1-1980. The matter was then taken by the appellant to the High Court in second appeal where both the orders of the two Courts below were set aside on 1-6-1980 on the ground that wrong inferences had been drawn by the two Courts. And the case thereafter remanded to the Rent Controller for fresh decision and both the parties were at liberty to lead fresh evidence.
2. ' The ejectment had been sought on the ground that the appellant had been retired from Government service and needed the premises in dispute for his own occupation. It was also alleged that the appellant had carried out additions and alterations in the rented premises without the written consent of the landlord and that a notice had been sent on 18-5-1976 and also 8-12- 1976 but to no effect.
3. ' The appellant denied the need of the premises by the respondent for personal use and occupation. It was alleged that the rent of the premises was Rs,450 in April, 1973 and shortly thereafter it was increased to Rs,500 and further increase had been made in January, raising the rent to Rs,600 per month, The respondent had asked for further increase but since the appellant had refused the same, therefore, the application far ejectment had been filed. The appellant had also alleged that the respondent owned other properties and it was further alleged that the respondent had been removed from Government service before the premises were let out by him to the appellant. The appellant had also denied that he had converted the premises for use other than that for which the premises had been let.
4. ' Four Issues were framed to the effect whether the applicant required the premises in good faith for his own use and whether the opponent had committed such act which were likely to impair the material value and utility of the premises and whether the opponent is using the premises for purpose other than that for which it was let. The respondent filed his affidavit stating that he had been retired in March, 1972 as Assistant Engineer in T & T Department and he has filed application for review against the same. He had Government accommodation in November, 1972 he went to Abu Dahabi for service but used to come to Karachi on short visit. He had been called upon to leave the Government quarter which was in his occupation but later on the said quarter was allotted to his nephew Manzoorul Islam and thereafter the family of the respondent lived with his nephew. He explained that on 1-3-1973 he had let out the premises in dispute due to financial difficulties and he had twice approached the appellant for increase in rent which was a reasonable request. He had come back from Abu Dahabi in November, .1974. He had also proposed to sell the said house if he could get proper value for Hie same. His family consists of five members and he required the premises for his bona fide use. He admitted on cross-examination that the premises had remained vacant for about two months in 1972 and thereafter he had let out the same to the appellant. The allotment of the Government accommodation was cancelled on 13-4-1972. He states that he was in need of the use even from 1973 to 1976. He admitted having written a letter to opponent to allow Nazimabad agency to show the premises to any intending purchaser. He had stated that he had got a job in Saudi Arabia after his finances had improved. He had also stated that the premises were given to the appellant for residential purposes but he was using the same for his clinic in the name of Ali Clinic.
5. ' In rebuttal the appellant had examined himself and denied the personal requirement of the respondent. He stated that the premises were let out by the respondent in March, 1973 after he is retired. And that the respondent is still in occupation of the same accommodation which he had. In 1975 the respondent wanted to sell the house and had issued a notice. The respondent had secured increase in the rent from Rs,450 to Rs,600 within two years and he wanted more increase.
6. The appellant admitted in cross-examination that the respondent was out of Pakistan in Abu.
7. Dahabi when the agreement for tenancy was executed in 1973. He admitted that the rent increased in 1973 and 1974 was by mutual consent. The appellant had no knowledge of any other property of the respondent. The appellant stated that he had got an employment in P.I.A.
8. ' The Rent Controller allowed application for ejectment on the ground of his personal use. He also held that the premises was being used as a clinic although it had been rented out only for residential purposes and, therefore, the appellant was using the premises for a purpose other than that for which it was let out. The issue in respect of commission of such acts which were likely to impair the value and utility of the premises was disposed of as not pressed.
9. ' Mr.Fazal Bhoy counsel for the appellant has submitted that the bona fide and personal need of the appellant had not been established in view of the following factors:--
(1) Landlord was motivated to secure increase in rent as exhibited by letter Exhs. A/5 dated 24-9- 1973, A/6, dated 9-12-1973 and A/7 dated 12-12-1974 written by the respondent to the appellant for increase in rent.
(2) The premises had been let out from 1966 although the respondent had stated that he had constructed the same for his personal use.
(3) That the premises had been let out even in March, 1973 in spite of the fact that the respondent had been compulsorily retired, in March, 1972 and had been asked to vacate the Government accommodation in April, 1972.
(4) And lastly that the respondent had intended to sell the house in question as exhibited by his letter Exh. A/8 dated 10-3-1975.
10. ' The letters above referred have all been admitted by the respondent and he has given the reasons for not asking for the eviction of the appellant before 1976. The respondent has clearly explained in his favour that he was in occupation of the Government accommodation as an Assistant Engineer Telegraph and Telephone Department, and therefore, he had rented out the house in 1966 and hence it cannot be concluded that the mere giving of the house on rent in 1966 would negative a future need of the respondent in case he was to be deprived of the Government accommodation. A person who was in occupation of the Government accommodation in 1966 as an officer would not easily give up that accommodation and it was natural for him to try to take advantage of the situation and earn more money by giving his own house on rent. Therefore, nothing turns upon the factum of renting out of the said house from 1966 till 1973. The respondent was removed from service in March, 1972 and he had also been directed to handover the Government accommodation in his possession since April, 1972, and therefore, renting out his own house again on 1st March, 1973 to the appellant would appear prima facie to suggest that the respondent was not in need of the house in dispute. However, the respondent has given a reasonable explanation as to why he did the same. He has stated that when he was retired he had moved review application against his retirement which was pending and was ultimately decided only in 1978. However, what is more important in that the nephew of the appellant Mr.Manzoorul Islam had been allotted the same house by the Government which had been in the possession of the respondent as the Government servant and the family of the appellant had been allowed by Manzoorul Islam to continue residing in the said house. And, therefore, the immediate necessity of occupying the disputed house by the family of the respondent was not so acute at that time.
11. Moreover, the respondent has explained that his financial condition was bad, and therefore, he was obliged to go to Abu Dahabi in November, 1972 and the house in question was rented out by his Attorney Manzoorul Islam on 1st March, 1973. This explanation of the respondent that the house was rented out in March, 1973 on account of financial needs of the respondent appears to be reasonable. The respondent has stated in his cross-examination that he was getting approximately of Rs,3,000 as salary in Abu Dahabi while when he went to Saudi Arabia he started getting 5,400 Rialas per month which is approximately 17,000 Pakistani rupees. A pay of Rs,3,000 per month at Abu Dahabi in 1972-73 could not be regarded as such a pay which would relieve the respondent of his financial difficulties, and therefore his family in his absence on 1-3-1973 was amply justified in giving the house on rent to the appellant at Rs,450 per month, The need for money of the appellant apparent from Exh. A/6, dated 912-1973 when he repeated his request for increase in rent where he had stated that his family circumstances were such that they were to depend on such a rental recovery. Again the letter dated 24-9-1973 written from Abdu Dahabi shows that the family of the respondent was in need of money on account of rise in prices, and therefore, he had demanded a rent of Rs,550 per month. Thereafter, the respondent had left his service in Abdu Dahabi and come back to Pakistan in November, 1974 and since he was without job he again made request to the appellant by Exh. A/7 dated 12-12-1974 to increase the rent to Rs,600 per month and he has again the reason for the increase of rent that he had come back to Pakistan for the sake of education of his children and he had no other resources except to pull on with this rent. This letter again shows the equate financial strain in which the respondent and his family was and therefore, the various attempts made by the respondent for getting an increase in the rent of the house do not militate against his bona fide need for a house for himself. The family of the applicant was living in the same accommodation in a Government quarter along with the nephew Manzoorul Islam who had been kind to the respondent and his family and had continued to accommodate them and since the financial conditions of the respondent were bad, therefore, he could not afford to move into the disputed house and thus forego the only income which he had in Pakistan at that time. The pitiable condition in which a retired Government servant was placed in 1972 when he had been compulsorily retired is known to all persons and therefore, the respondent could not afford to seek the eviction of the appellant for the sake of personal use of the premises as he and his family would, then have been left without any income.
12. ' Similarly the letter of 10-3-1975 where the respondent requested the appellant to allow the inspection of the disputed house by a broker for the purpose of sale again exhibits the strained financial circumstances of the respondent and it cannot, therefore, militate against the demand made by him for use of the premises for his personal use in December, 1976.
13. ' The respondent has explained that in May, 1975 he went Saudi Arabia and he has given his pay at about 17,000 per month. It was then that his financial position was improved and thereafter, he was in a position to request for a separate and independent accommodation for his family in December 1976 vide Exh. A/9. In the same notice he had asked the appellant that he had been using the premises as a clinic for which it had not been rented out to him.
14. ' The respondent has given the number of his family as five members apart from himself, Ghous Muhammad his son was student of B.Sc. Part I in 1981, Ghousia Sharif, daughter was studying in Shaheen College P.A.F. Drigh Road and Muhammad Alam Sharif, son was student of 10th Class and Muhammad Umar Sharif, son was a student of class IIIrd in Montessori School.
15. ' The respondent having satisfactorily explained the difficulties that he has had in 1972 and the financial strains from which he was passing from 1972 till May, 1975 he could not afford to lose the rent which he was getting for the house otherwise he and his family would have been in very bad shape. The family had therefore to be satisfied with whatever accommodation they had up to 1975.
16. After the improvement of the financial conditions of the family from 1976 onward the respondent did not ask for any increase of rent and wanted a separate accommodation for his family which appeared to be genuine and bona fide. I am further of the view that the demand in the increase of the rent from Rs,450 to Rs,600 between March, 1973 to December, 1974 was actuated by the desire to allow a better income for the family and till that day or some time thereafter the failure of the respondent to ask for eviction of the appellant was amply justified by the circumstances and it did not suggest that the demand of possession in December, 1976 was in any way mala fide or unreasonable. The appellant did not suggest that there had been any demand in the increase in rent by the respondent after May, 1975. And hence the demand of possession in December, 1976 could not be termed as a device for getting an increase in rent.I am, therefore, of the view that the personal need of the respondent had been established from December, 1976 onward and the issue in this respect had been correctly decided by the Rent Controller. In fact the appellant had not been able to suggest any circumstance to the respondent in cross-examination which would show any mala fides on the part of the respondent. Merely because a landlord has not demanded the eviction of the tenant from a premises in spite of having need of the same for a particular time on account of a financial strain and stringency, would not militate against the bona fides of the landlord when he demands the possession of the house for the use of his family and himself after his financial conditions have improved.
17. ' The eviction on the ground of conversion of the premises as a clinic by the appellant in spite of the fact that it was rented out for residential purposes is also justified. Paragraph 9 of the agreement Exh. A/2 clearly stated that the second party (the appellant) will use the premises for his residential purposes only. It is an admitted position that a part of the premises was used by the appellant as a Clinic as admitted in paragraph 12 of affidavit of the appellant dated 4-2-1982 which he states to have discontinued from 1977 after he secured a permanent job in P.I.A. Therefore, it is obvious that between 1973 and 1977 the appellant had used a part of the premises for a purpose other than his residence and hence the conversion of the premises to a house other than residence was clearly established. The mere fact that from 1977 the appellant discontinued using the part of the premises as a Clinic would not condone the misuse or the conversion which he had made up to 1977.
18. Consequently this appeal is hereby dismissed but the appellant is allowed six months' time to vacate the premises in dispute provided he continues to deposit the rent in Court in terms of the Rent Controller's order.