' In this case ejectment application was filed by the appellant/landlord in January, 1977 for the ejectment of the respondent/tenant on the ground of default in the payment of rent and electricity charges and on the ground that the premises were required for the appellant's own occupation as well as for his children and family members as the accommodation in his occupation was insufficient. The ejectment application was opposed by the respondent who filed a written statement denying various adverse allegations made in the ejectment application. The appellant examined himself and his brother Muhammad Yamin and a neighbour Munawar also gave evidence on behalf of the appellant/landlord. The tenant gave evidence and also produced Akbar Ali and Muhammad Umer as witnesses in support of his case. The learned Rent Controller by order dated 21-12-1981 dismissed the ejectment application. The appellant/landlord has come in appeal before this Court under section 21 of the 1979 Sind Rented Premises Ordinance. I have heard Mr. Amjad Hussain, learned counsel for the appellant and Mr. Niazi A. Khaliq, learned counsel for the respondent.
2. Learned counsel for the appellant has not pressed this appeal on the ground of default in the payment of rent and electricity charges. Arguments were advanced by the learned counsel on the ground of personal requirement only. The respondent is the tenant of the appellant in respect of half portion of the quarter in question situated in Korangi Township, Karachi with effect from 1972.
Originally the quarter was residential, constructed on 120 square yards. Later on in part of the half portion in possession' of the appellant, 4 shops were made and apart from this one room in the said half portion remained in possession of the appellant. The other half portion of the quarter was rented out to the respondent. As observed earlier, the appellant had filed an ejectment application apart from the ground of default on the ground of personal requirement for him and his family. The premises in occupation of the respondent were required by the appellant for residential purposes.
During the arguments a contention was raised by Mr. Niazi A. Khaliq, learned counsel for the respondent/tenant, that the premises rented out to the respondent were commercial and as such the application on the ground of personal requirement for residential purposes was not maintainable. However, when the learned counsel was required to point out any plea taken in the pleadings or any statement made in the evidence to this effect, learned counsel expressed his inability to do so and did not press the contention in this regard.
' It was also contended that the appellant owned several other quarters and as such the ejectment application was not maintainable. However, this contention raised on behalf of the respondent is without substance as in the cross-examination of the respondent be admitted that only the quarter in question was in the name of the appellant and other quarters belong to his relatives.
3. The question that requires consideration in this case is whether the appellant has established a case of personal bona fide requirement and as such the order of the learned Rent Controller is liable to be set aside. In his evidence, the appellant has stated that he has 9 children and he was living in half portion of the quarter in question as the other half portion had been rented out to the respondent. According to the landlord the half quarter was too insufficient to accommodate his large family of 11 members. He further stated that the premises in occupation of the respondent consists of a room, a big verandah and a courtyard and when the portion in his occupation proved congested he started to live in the house of his father with his family. In his cross-examination he stated that in those days he was laying with his father and that some time his father used to live in the room of the quarter in question and some time the appellant lived there. In his cross- examination he also produced a Ration Card showing the number of his family members. The number of the house mentioned in the Ration Card was that of appellant's father. The two witnesses Who gave evidence on behalf of the appellant have supported the case of the appellant.
Witness Munawar Hussain stated that the appellant had 5 children when he was living in the house in question and that one room which is in occupation of the appellant is without W. C. And water.
The respondent denied the allegation of personal requirement in his evidence before the, Rent Controller. The only statement that he made in cross-examination-in-chief about the personal requirement was that apart from the quarter in question, the appellant has 5 other quarters and that the appellant does not live in the house in dispute.
4, The learned Rent Controller rejected the ejectment application on the ground of personal requirement and the reasoning of the Rent Controller is as follows :- "From the evidence as brought on record, it is indicated that the applicant divided the quarter into two portions out of which, half portion is under the tenancy of the opponent and on the remaining quarter/premises, 4 shops and one room are constructed. One shop is on rent and the remaining are in possession/occupation of the applicant. It is an admitted fact that the applicant was living with his parents from 1970-71, one year before the letting out the suit premises. Moreover he himself admitted that one room in his occupation which is being used by him and his father is without latrine and water. It shows that the portion in -occupation is being used for commercial purpose and not for residential purpose. As such I hold that the applicant does not require the premises for his personal bona fide use."
5. The reasons given by the Rent. Controller for dismissing the ejectment application on the ground that the portion in occupation of the respondent was being used for commercial purposes and not for residential purposes cannot be sustained. It has already been observed that this was not the case of the respondent in his pleadings and neither in the cross-examination of the appellant's witnesses nor in the evidence adduced by the respondent any such case was set up. In fact learned counsel for the respondent could not substantiate this allegation. The pleadings and the evidence on record shows that the premises had been let out for residential purposes and there was no evidence that the same were being used for commercial purposes.
6. The appellant had stated in his evidence that he has. 9 children and his family comprises of 11 persons. The evidence could not be controverted by the respondent. Only a suggestion was made in the cross-examination that the appellant had three children. The evidence led on behalf of the appellant, in my view, has established that the family of the appellant comprises of 11 persons including 9 children. It has already been observed that from the evidence it was established that apart from the quarter in question no other quarter or property belonged to the appellant. It has been noted that the respondent himself admitted in the cross-examination that other quarters stand in the name of relations of the appellant. The requirement of the appellant for himself and his family members, therefore, stood proved. The only other question which requires consideration is the fact the appellant bad shifted to his father's house. The appellant has stated in his evidence that the portion of the quarter in question which was in occupation of the appellant proved very congested and accordingly he started to live in the house of his father alongwith appellant's family.
There is no cross-examination on this question and the reasons for moving to his father's house till such time the premises in occupation of the respondent became available is a plausible reason and does not reflect adversely on the case of the appellant. Learned counsel for the respondent has relied upon the following reported judgments in support of the contention that the appellant had not established a case of personal bona fide requirement :-
(a) Habibur Rehman v. Fakir Muhammad PLD 1983 Lah. 425.
(b) Muhammad Uris v. Ziauddin PLD 1981 Kar. 345.
(c) Farooq Baig v.' Muhammad Arif PLD 1981 Kar. 67.
' In the Lahore case reported in PLD 1983 Lab. 425 a learned Single Judge of the Lahore High Court held that the conduct of the landlord in suppressing the fact that he was also in occupation of the other business premises and not trying to establish that such other premises were not suitable for his needs and not taking the Court into confidence reflected on the bona fides and good faith of the landlord for establishing personal need. In my view this judgment does not help the case of the respondent as admittedly the premises in which the appellant was residing belongs to his father and did not belong to the appellant.
' In PLD 1981 Kar. 345 it was held that concurrent findings of the Courts below were not sacrosanct and in the facts and circumstances of that case, the learned Single Judge who decided that case doubted the personal requirement of the landlord and the Second Appeal was allowed. There can be no quarrel with the observation of the learned Judge that the concurrent findings of the two Courts below are not sacrosanct. In appropriate cases, for instance in a case of no evidence or where relevant evidence was not taken into consideration or the concurrent findings were arbitrary and perverse, the High Court does exercise-powers in Second Appeal to set aside concurrent findings of the Tribunals below. In that case the personal requirement was doubted and the learned Judge came to the conclusion on the basis of evidence on record in that case that the landlord had not established a case of bona fide personal requirement. The judgment in PLD 1981 Kar. 345 does not help the respondent in the facts of this case.
' In PLD 1981 Kar. 67 it was held that where a landlord during the pendency of his application for ejectment of the tenant on the ground of personal bona fide requirement had succeeded in' getting vacated another premises of the same class in the same urban area, whether through proceedings before the Rent Controller or otherwise, he could not be allowed to proceed with a pending case unless he satisfied the Rent Controller that the premises he got vacated were not suitable for his needs. The facts of that case are clearly distinguishable from the facts of the instant case.
7. In my view, on the basis of the evidence on record, a case of personal bona fide requirement had been established by the appellant in respect of the premises in question and the impugned order of the Rent Controller cannot be sustained. As a result F. R. A. No, 684/81 is allowed, the order dated 21-11-1981 of the Rent Controller in Rent Case No, 29/77 is set aside and the ejectment application of the appellant is granted. There will be no order as to costs.
' The respondent is however, granted time till 29-2-1984 to vacate the premises.