' The brief facts of the case are that the appellant is the tenant of the respondent in respect of the premises on the ground floor of House No, 57/Y/6. P. E. C H. S., Karachi on a monthly rent of Rs, 400.
The respondent filed an application being R.C. No, 1253/1982 under section 15 of the Sind Rented Premises Ordinance, 1979, on the plea that the respondent and his family members are residing on the first floor of the premises and they are undergoing great hardships and inconvenience on account of gross insufficiency of accommodation and also on the plea that he is suffering from Arthritic pain in his legs with the result that he cannot conveniently climb stairs of the said first floor premises. It has been further averred that the use of the stairs is aggravating his disease, besides, causing extreme pain discomfort and inconvenience to him. It was averred that the appellant owns directly or through his wife, a house standing on Plot No, 84/11/9th Commercial Street, Phase IV, Defence Housing Society, Karachi. The above application was resisted by the present appellant/opponent averred that the application was mala fide and the sole intention was to enhance the rent. He also denied that he owns a house in Defence Society, Karachi. On behalf of the respondent was examined Khawaja Siddique-ul-Hassan (son and attorney of the respondent).
2. In defence the appellant examined himself, and one, Akhtar Baloch as witnesses. The learned Rent Controller after recording the evidence of the parties answered the Issue No, 1 in affirmative and accordingly the application was allowed and the appellant was directed to vacate the premises within 30 days from the date of his order.
3. Mr. Shaikh Muhammad Usman, learned counsel for the appellant has raised the following contentions :
(i) The application filed by the respondent was mala fide and the real object of the respondent in seeking ejectment of the appellant was to enhance rent.
(ii) The learned Rent Controller acted illegally in recording the findings on the question of personal requirement in favour of the respondent.
' He cited the following cases in support of his contentions : ' PLD 1961 Dacca 259, Mst. Hajra Bai Sulaiman v. Mst. Aisha Bai (1), 1972 SCM R 437 and PLD 1983 Kar.
486.
4. On the other band, Mr. H. A. Rehmani, learned counsel for the respondent contended that the findings of the learned Rent Controller on the ground of personal requirement is in accordance with the evidence on record. The mere omission to examine himself as a witness cannot affect his case.
Demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirement is independently proved. Mr. Rehmani cited the following cases in support of his contentions : ' PLD 1976 Kar. 832, 1980 SCM R 593, PLD 1982 Kar. 770, Mst. Amtul Rahim v. Abdul Ghaffar (2), 1981 SCM R 1081 ; 1978 SCM R 437 ; PLD 1965 Kar. 408 ; PLD 1976 Kar. 620 ; PLD 1981 Lab. 326, 1981 CLC 1091 and 1980 SCM R 772.
5. In order to appreciate the arguments of the learned counsel on the contention as raised above, 1 may first refer to the evidence produced by the parties. On behalf of the respondent was examined Khawaja Siddique-ul-Hassan, his son and attorney. From the evidence of this witness it is established as a fact that the respondent is residing with his family members on the first floor which consists of four rooms. It may be observed from his evidence on record the following fact stand proved :
(i) Applicant is residing in one room with his one unmarried daughter.
(ii) Applicant's son and attorney Khawaja Siddique-ul-Hassan with his wife and one son.
(iii) One married daughter with her husband and three children.
(iv)Applicant's other son, namely, Murtaza-ul-Hassan, who is presently in Dahran (Saudi Arabia) on temporary engagement but his two children and wife mostly remain at Karachi in the said first floor of the said premises. It is also proved that out of four rooms, three rooms are bedrooms and fourth room measuring 13' x 14' is sitting-cumdining room. The said witness deposed that his father has been suffering from Arthritic disease. In this evidence given by Khawaja Siddique-ul-Hassan that the premises in question is required by the respondent for his own use and for the use of members of his family mentioned above. The suggestions were made in the cross-examination that the tenement in question was sought to be evicted by the respondent as the appellant refused to cincede the demand to
(1) 1982 CLC 1444 (2) 1982 CLC 1833 ' increase the rent. On the other hand, the appellant in his own written statement denied that one son, namely, Khawaja Murtaza-ul-Hassan his, wife and two children are residing on the first floor.
He has also denied that the respondent has been suffer, ing from the Arthritic disease and averred that he is bale and hearty and easily climb stairs but in a suggestion made in cross-examination he showed his ignorance about the disease and also about the ignorance of Khawaja Murtaza-ul- Hassan and his wife and two children residing on the first floor. The appellant also examined one Akhtar Baloch, who deposed that the respondent is residing with his married son, namely, Khawaja Siddique-ul-Hassan and his one unmarried daughter and apart from this there are no other family members reside with the applicant. He has also deposed that the respondent seems to be quite healthy. It seems that the witness is a chance witness and no reliance can be placed on his evidence.
6. I would like to take note the argument advanced by the learned counsel for the appellant to the effect that the respondent had not examined himself as a witness in the case. This contention has also no force. Suffice it would refer to the cases of Munir Ahmad v. AhmedA Din (1) "where repelling the contention that the son for whose benefit premises was required was not examined the Hon'ble Supreme Court observed that the case depends on appreciation of evidence and the learned counsel has not been able to point out any legal procedural error in the concurrent findings of all the Courts below".
(ii) Zahoor Din v. Mirza Ayub Baig (2).
7. The contention for non-production of medical certificate has also no force. The respondent has been suffering from Artheritic disease has been averred in the application and in the affidavit in evidence of the B respondent's son and it has not been shaken in evidence. It is pertinent to point out that the appellant himself to a suggestion in cross-examination showed his ignorance about the disease.
8. With regard to the contention that the respondent had not been able to prove personal requirement in this case. Section 15 uses the words "require" the premises in "good faith" which undoubtedly c postulate that there must be an element of need as opposed to mere desire or wish.
The distinction between "desire" and "need" should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the learned counsel contended. It seems to me that the connotation of the term "need or "requirement" should not be artificially extended nor its language so unduly stretched or strained so as D to make it impossible or extremely difficult for the landlord to get an order for ejectment such a course would, defeat the very purpose of the Ordinance which affords the facility of eviction of the tenant to the landlord on certain specified grounds.
9. The perusal of the evidence laid by both the parties clearly establishes the fact beyond any controversy that the respondent's family consists of 12 members who reside with him in the first floor. The requirement of the landlord in the circumstances, and also because of absence of proper accommodation becomes all the more pressing, reasonable and genuine as he has got a large family.
(1) 1983 SCM R 893 (2) 1981 SCM R 1081
10. With regard to the contention on behalf of the appellant that the respondent does not require the premises for his personal bona fide use as he had demanded enhancement of rent. A suggestion made in cross-examination about enhancement of rent from Rs, 300 to Rs, 400 the witness replied it was voluntarily enhanced. It is pertinent to note that the appellant himself in his deposition admitted that the rent was increased by mutual agreement. It has also come in evidence that the appellant in his letter did not mention anything about the enhancement of rent, even in reply, dated 10th March, 1982 to letter calling upon him to vacate the premises, no such plea was taken. In the case of Pirzada Rafiq Ahmed v. Ch. Abdul Rehman (1) in which the Supreme Court held that demand of higher rent by itself does not cast any doubts about the personal bona fide requirement if the factum of bona fide requirement E is, independently proved. This requirement was according to the learned Rent Controller proved by evidence on record. Reference may also be made to the cases of (i) Badruddin Hasan Farooqui v. Manghl Industrial Home (2) and Syed Akhtar Hussain v. Wali Bahadur and 3 others (3).
11. On the other hand, Mr. Rehmani, learned counsel for the respondent contended that the respondent's attorney appeared in the witness-box and fully supported the statement made by respondent in his application with regard to requirement of the respondent and his family members. The above evidence sufficiently established the requirement of the respondent for himself and for his family members.
12. The contention of the learned counsel that the learned Rent Controller should have drawn inference from the evidence on record that the respondent must have sufficient accommodation on the first floor. The appellant also did not produce any evidence in rebuttal. In these circumstances, the inference now set to be drawn by the learned counsel for the appellant from the evidence is only conjectural in nature. It has been held in the cases of Hassan Khan v. Munawar Begum (4) that in view of the safeguard contained in section 13(4) of the Ordinance the assertio of claim on oath by the landlord that he requires the premises for his personal use shall be accepted by the learned Rent Controller as bona fide if such claim or assertion, although by itself may be insufficient, yet I consistent with his averments in the application and is not shaken in his cross- examination or disproved in rebuttal. The above observations I Hassan Khan's case were specifically approved by the Supreme Court in case of Mst, Tauheed Khanum v. Muhammad Shamshad (5). The evidence of the son and attorney of the respondent in the case before me fulfilled the standard laid down in the above cases and after going through it, I am satisfied that the learned Rent Controller rightly granted ejectment of the appellant on this ground. For these reasons, therefore, I am clearly of the opinion that in the instant case the respondent had proved that the requirement for the ground floor for his personal residence and as that of his family members is both genuine and reasonable.
(1) 1980 SCMR 772 (2) PLD 1976 Kar. 620
(3) PLD 1981 Lab. 326 (4) PLD 1976 Kar. 832
(5) 1980 SCMR 539
13. I, therefore, find no justification in the above appeal and it is, therefore, dismissed but I grant four months' time to vacate the premises on the condition that the appellant shall continue to deposit rent in the terms of the Rent Controller's order. However, in case he will make default the respondent shall be entitled to file the execution application before the expiry of the above- mentioned four months' time.
' In the circumstances, there will be no order as to costs.