' This common order will govern four rent appeals namely, Appeal No, 757 of 1982, filed by appellant Rajab All in respect of part of first floor of the disputed bungalow- situating on Plot No, 278, Street No, J. M. 2 Britto Road Karachi, Appeal No, 761 of 1982 filed by Mit. Ruqia Bai in respect of a portion of a ground floor of the premises referred to above, Appeal No, 762 Of 1982 filed by M. M. Asgbar in respect of a portion of the first floor of the aforesaid premises and Appeal No, 765 of 1982 filed by Attaur Rehman in respect of portion of the ground floor of the aforementioned building. These four appeals have arisen from four separate judgments passed by Xlth Rent Controller Karachi (Mr. Sultan Ahmed) on the same date i,e, 27-5-1982 whereby he has ordered ejectment of all the four appellants from their respective tenements, directing them to hand over the vacant possession thereof within 60 days of the orders to Darius B. Kandawalla and Mrs. Mucca Bejon who are the joint owners/landlords of all the four tenements.
2. The relevant facts for disposal of these appeals may briefly be recapitulated as follows : The disputed bungalow is a double storey building with two separate portions (hereinafter called tenements) of each floor of the bungalow. The tenements on the first floor are in occupation of appellant Rajab Ali and M. M. Asghar whereas those on the ground floor are in possession of Mg.
Ruqia Bai and Attaur Rehman. The landlords/owners filed four separate rent cases against the appellants seeking their ejectment from the tenements in their occupation on the ground that the premises are needed for use and occupation of the respondent. No, 2 and her ailing usband and unmarried daughter. All the four appellants resisted their eviction, vehemently denying the respondent's plea of personal requirement. Except appellant Attaur Rehman who has admitted the relationship of and lord and tenant between the parties in para. 2 of his written statement, he other appellants have challenged the jurisdiction of the Rent Controller on the ground that the disputed bungalow is a trust property and the respondents are not the owners thereof and consequently no relationship of and lord and tenant exists between the parties. After taking into consideration the evidence adduced by the parties, the learned Rent Collector, as stated hove, allowed the ejectment applications of the respondents in all the four and hence these appeals.
3. Mr. Akhtar Ali Mahmud was heard on behalf of the appellant Rajab Ali and S. Inayat All submitted his arguments on behalf of the appellant M. M. Asghar, and Mr. Wajihuddin Ahmed made his submissions for the appellant Attaur Rehman, Mr. Abdul Sattar Pinger for the appellant Mst. Ruqia Bai however adopted the argument of Mr. S. Inayat All and Mr. Wajihuddin. On behalf of the respondent Mr. Ikram Ahmed Ansari argued the case.
4. Following two points were contested in course of the arguments by the learned counsel for the parties :
(i) That the property in dispute is a trust property and, therefore, the relationship of landlord and tenant does not exist between the parties and consequently the impugned orders are without jurisdiction.
(ii) That the respondent's requirement of the disputed premises for personal use is neither bona fide nor is supported by evidence on record.
' The first point that the property in dispute is trust property has not been pressed by Mr. S. Inayat Ali, the learned counsel for the appellant M. M. Asghar. As has been stated above even the appellant Attaur Rehman has no dispute with ownership of the property. So, far the appellant Raqia Bai is concerned, her counsel Mr. Abdul Sattar Pinger by adopting the arguments of the Advocates of the above two appellants has obviously given up his opposition on the point of ownership of the property. It is only the learned counsel for the appellant Rajab All who has taken the stand that the property in question is a trust property. In this regard he has almost repeated the arguments which were prodL.Ed in the lower Court. However, this plea stands completely demolished by the appellant's own admissions. When the appellant Rajab Ali was subjected to cross-examination, he frankly conceded that he has no personal knowledge about the creation of the trust, and his information is based on hearsay evidence. In the course of his cross-examination it was also admitted by him that right from 1947 he has been tenant of the respondent No, 2 and further that he has accepted the said respondent as owner of the disputed property since then. The learned counsel for the appellant Rajab All also raised an argument that the disputed property is an evacuee property. But the appellant has been frank in admitting that he is unable to produce any documentary proof to substantiate this argument, The appellant Rajab All has further admitted in his cross-examination that his attempt for summoning of certain witnesses for the purpose of proving the disputed property as a trust property also proved abortive as his application in that regard did not find favour with the learned Rent Controller. In view of the appellant's admissions in unambiguous terms that he has been tenant of respondent No, 2 who has been accepted by him as owner and landlord of the disputed premises, he is estopped by his own conduct from denying the relationship of landlord and tenant between him and the respondent No,
2. Accordingly no exception can be taken with the findings of the Rent Controller that the relationship of landlord and tenant exists between the parties.
' To prove the question of personal requirement the learned counsel for the respondent No, 2 has, inter alla, advanced the following reasons :
(a) That after the marriage of her son with whom she is sharing the present house, the position has changed inasmuch as that her son is in need of more space,
(b) That her ailing husband is not comfortable in .The present house because of the noisy surroundings. He is, also finding it is inconvenient to live on the first floor of the said house as he is unable, to climb the stairs now and then. ,
(c) That she wants more accommodation for herself and for her family member and, therefore, wants to shift to her own house i,e, disputed house. -
7. On the other hand the learned counsel for the appellants have submitted the following arguments in an attempt to rebut the respondent's demand for personal requirement :
(a) That the respondent No, 2 has been residing in the present house with her husband for last so many years and there is no evidence to show that any 'new developments have occurred which have compelled the said respondent for shifting to her own house.
(b) That the present house where respondent No 2 is residing: with her . Ailing husband and unmarried daughter is far More commodious than the disputed house.
(c) That judged by any standard the present accommodation in occupation of the respondent No, 2 and other two members of her family is more than sufficient for their needs and accordingly they do not 'require separate bigger house.
(d) That because of her ailing husband and remarried daughter, the respondent No,. 2 needs constant. Help and attention of some 'male person, which will not be available her in the disputed house.
(e) That the present house where the respondents' ailing husband is accommodated is situate comparatively in more' peaceful environments than the disputed house..
(f ) That the' respondent No, 2 has admittedly cordial relations with her son with whom she is- sharing the, resent house and therefore, she has absolutely no reason to give up such happy and peaceful abode in preference to unseen premises.
(g) That the respondent No-2 has sought. Ejectment of all the four tenants from her disputed bungalow simultaneously which adversely reflects on her bona fides, as she would not need all the four tenements for her use and occupation.
(h) That, the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred as old.
Ordinance) is different from the Sind Rented Premises Ordinance, 1979 (hereinafter referred as new Ordinance) inasmuch as that under the old Ordinance, the landlord seeking ejectment of his tenant had to show that he had no other accommodation in the same locality nor he had vacated such accommodation for insufficient reasons whereas under the new Ordinance the landlord has to prove that he requires the premises in good faith for his own use and occupation or for use and occupation of his spouse or children. The respondents have failed to prove good faith.
8. Evidently the ejectment cases filed by the respondents fall under section 15(2) (viii) of the new Ordinance which reads as under : "the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children.'"
9. In view of above provision of law it is to be determined if the respondent No, 2 who is admittedly owner and landlord of all the four tenements requires the same in good faith for her own use and occupation of her spouse or any of her children. The case of the respondent No, 2 is that she wishes to occupy the disputed premises alongwith her ailing husband and unmarried daughter. Thus, she requires the disputed premises not only for her own use and occupation but also for her husband and daughter. It is to be examined if her wish to occupy the disputed premises is grounded on good faith within the meaning of above provision of law.
10. It is an admitted position that the present house which the respondent No, 2 sharing with her son is exclusive property of her son. There is no doubt that respondent No, 2 has been living in this house for last so many years. It is also admitted that the relations between the mother and the son are very cordial. There is also no dispute on the point that after her shilling to the disputed house, the respondent No, 2 would be deprived of the care and company of her son and. There would be no male member other than baer ailing husband in her house to fill the vacuum caused by her son's absence and come to the aid and rescue of the family in the hour of the need. The respondent's own admission is that in the disputed house she would still need the help and attention of her son particularly because of her ailing husband. It is also not denied that the house in which the respondent No, 2 is presently accommodated is far bigger and far commodious than the disputed house. In the present house she is occupying whole of the first floor. So far the disputed house is concerned, it is admitted by the respondent No, 2 that she has not seen the said house from inside.
11. Keeping the above considerations in view, the reasonable mind would ask why after all the respondent No, 2 is insisting on shifting to the disputed house. It is precisely on this account that the other side has attributed bad faith to the respondent No, 2, contending that the respondent's demand on the ground of personal requirement is not based on good faith. 1 am afraid I cannot persuade myself to subscribe to this view. First of all respondent No, 2 is not living in the present house with her son in her own right. Even though she may have all the comforts of life available to her and her family members in the said house, still her desire to live in her own A house is quite natural and cannot be lightly ignored. The appellants cannot be permitted to assail her desire to live in her own house as being mala fide or having been expressed in bad faith. Whatever, be the circumstances, every one has an urge to live in one's own house.
12. In this connection reference may be made to the Supreme Court authority reported as Ghulam Nabi v. Rao Muhammad Usman Ali (1). In this case the landlord seeking ejectment of his tenant on the ground of personal requirement was residing with his son. The Supreme Court was pleased to observe :- "It may be observed that he was not occupying his son's house in his own right and, therefore, he had every reason to seek ejectment of the petitioner from his house, which he intended to occupy in terms of section 13(3) (a) (i) of West Pakistan Rent Urban Restriction Ordinance; 1959 ; {{FOOT NOTE}}
(1) 1980 SCMR 751 {{FOOT NOTE}}
13. In an other case reported as Muhammad Ismail v. Asghari Khanum (1) it was held .: "The deposition of the landlady on oath that the house will be occupied by her cannot be brushed aside merely on basis of the opposition. She was not cross-examined by the appellant on this point. In this view of the matter there is no substance in objection raised by the learned counsel."
14. In the case of Syed Ibrahim v. Dr. Mrs. Salima Firdaus (2). It was observed : $6 ..... ....No particular kind of evidence is required to be led by a person claiming a property for personal use. The Court has rather to see the cumulative effect of the entire evidence and if it was confidence inspiring even the solitary statement of landlord may be sufficient to establish his case."
15. In the case reported as Mushiaque Ahmed v. Mrs. Mumtaz Zohra Rizvi (3) the learned Single Judge has attempted to explain the words bona fide, mala fide, and good faith in relation to the landlord's demand based on personal requirement. It was held : "Accordingly the jurisdiction of the Controller to order eviction on his ground is depended on his satisfaction that the claim of the landlord is bona fide and his requirement is in 'good faith.' The term 'good faith' has not been defined in the Ordinance but it has been defined in section 2(27) of the West Pakistan General Clauses Act, 1956 as follows : "A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not."
' This definition of the expression 'good faith' necessarily, therefore, implies that the demand for possession of the rented premises must be honestly made. Honesty is a state of mind and is, therefore, a psychological fact capable of proof or disproof only by evidence or conduct. The word bona fide in the context of the provision in question would also appear to mean the same as 'good faith'. Mala fides, conversely means "in bad faith". It has been held that action taken for collateral purposes not authorised by the law under which the action is taken or actions taken in fraud of the law are mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above (PLD 1974 SC 151.) In actual practice a landlord would be deemed to have satisfied the aforesaid conditions by leading evidence of the reasonableness of his needs and if he succeeds in doing so, the onus would shift to the tenant to prove facts which militate against the existence of good faith or which positively establish the dishonesty of purpose on the part of the landlord to claim possession of the premises on the ground of personal need."
16. In the next case of Sh. Muhammad Riaz v. Mst. Naseem Akhtar and others (4) unlike the instant case in which the respondent No, 2 is residing with {{FOOT NOTE}}
(1) NLR 1980 Civil Cases 558 (2) PLD 1982 Quetta 49
(3) PLD 1978 Kar. 188 (4) 1981 SCMR 979 {{FOOT NOTE}} ' her son in the latter's house, the landlord owned another property in the same local area. It was held by the Supreme Court : "Mere ownership of the property in the same urban area is by itself not a ground to refuse application of the landlord for eviction of his tenant on ground of personal requirement."
17. It follows from the above authorities that the landlord is absolutely free to live in his own house, once he has elected to do so, his demand for eviction of his tenant from the said house would be presumed to be bona fide and based on good faith unless mala fides are alleged and proved against him by the tenant. In the instant case, as has been discussed in the foregoing paragraphs the appellants have not been able to prove that the respondent's demand is mala fide.
18. It would appear that one of the grounds on which the respondent No, 2 wants to leave present house is that after the marriage of his son, his own family has expanded and, therefore, they are in need of more space. The material on record however shows that the family of her son consists of only four members, the husband and wife and their two children. Of course such a small family would not need greater accommodation than what has been provided to them in the present house. As has been stated above the relations of the two families living together in the said house are also, free from any friction. Still the respondent No, 2 desires to live separately in her own house.
It seems that apart from her urge to live in her own house, her idea is to leave her son and his family alone and to live independently which has always been the desire of every family. Even though the two families have so far managed to maintain his relations amongst themselves, yet the possibility of conflicts and quarrels arising in future cannot be ruled out for all times to come particularly after introduction of the wife of her son in the latter's family. To avoid such ugly situations the wise mother seems determined to shift to her own house.
19. Apart from above, the respondent No, 2 has advanced her husband' illness as a reason for changing her residence. According to her, he is not living comfortably on the first flour in the present house because of his difficulty to climb the stairs off and on. This argument has also its own merits and cannot be summarily dismissed. It is but material that a sick, man of the type of respondent's husband would prefer to live on ground floor where he would not be required to put in extra-physical exertion for climbing the stairs frequently. If the respondent succeeds in getting the disputed tenements vacated, her husband could be easily accommodated on the ground floor.
20. It was further contended by the learned counsel for the appellants that the disputed house is not the exclusive property of respondent No, 2 but is jointly owned by her and her son. He further argued that unless it is required for the bona fide needs of both the respondents, the respondent No, 2 above could not claim it for her own use and occupation or tor use and occupation of her family. Since the impugned order has taken care of the needs of the respondent No, 2 only, the learned counsel for the appellant thought it could not be sustained. I am sorry, I cannot agree with this view. The premises of joint ownership could be got vacated even for the use and occupation of any of the owners. I am fortified in my view by the authority reported as Fazal Rehman v, Ghulam Habib and 2 others (1) wherein it was {{FOOT NOTE}}
(I) 1980 CLC 887 {{FOOT NOTE}} ' held that when there are more than one landlord and they agree to the use of the property by one of them, the tenant occupying the same can be ordered to put the landlord in possession.
21. The argument was also raised on hehalf of the appellants that after the tenments in question are vacated, they would either be sold or relet by the respondent No, 2 at enhanced rent. The case of Peerzada Rafiq Ahmed v. Ch. Abdul Rehman (1) furnishes a complete answer to the above argument. It was held by Supreme Court : "We do not find any reason for interference and agree with the dictum contained in Badaruddin Hasan Farooqi and others v. Manghi Industrial Home PLD 1976 Kar. 620 that the demand of a higher rent by itself does not cast any doubts about the personal bona fide requirement if the factum of bona fide requirement is independently proved.
22. On the above reasoning, I am also inclined to hold the view that even if the respondent has expressed her desire to sell the disputed house, that F should not be permitted to come in her way in getting her tenant's ejected if she has succeeded otherwise in establishing her case on the ground of personal requirement.
23. The further contention of the appellant's counsel that even if the respondent No, 2 is held to have proved her case for personal requirement, she would at the most be entitled to get possession of only one tenement. According to him she certainly does not need all the four tenements which are admittedly separate and independent units. The argument does not appear to be convincing. Admittedly the whole building with two floors each floor having two independent tenements, is the property of the respondent. It is entirely left to her to decide if she wants whole of the building or any of the tenements for her residence. If she decides to have whole of the building for her use and occupation, she cannot be prohibited from doing so. It is not for her tenants to determine suitability or sufficiency of accommodation for her. Moreover, the need for accommodation varies from one landlord to another depending upon his or her social status. In one case certain accommodation may be, suitable for the landlord's needs but the same accommodation in the other case may be considered as unnecessary extravagance. In the instant case the respondent comes from rich family of Parsis. In view of her social status, her demand for vacation of the whole house is by n means unreasonable. Even the present house with admittedly 29 rooms which the respondent No, 2 is sharing with her son may be too big for two middle class families but it is not so in the instant case involving rich families of the respondents. Assuming for the sake of argument that by demanding the vacation of the whole building the respondent No, 2 has shown her extra-, vagance, that is no reason to declare her demand having been made in bad faith. After all she is the master of the property.. If she wants to retain whole of the property for her own use and occupation she could do so without any legal difficulty in her way. It is none of the business of the appellants to tell her to keep particular portion for her use and let out the other one.
In this connection reference may be made to Supreme Court's authority reported as Messrs Tiger- wire Product Ltd. v. Abrar Hussain (I) wherein it was held : "As to whether the respondent/landlord is showing extravagance for {{FOOT NOTE}}
(1) 1980 SCMR 172 {{FOOT NOTE}} ' occupying big house which is owned by him is not a such circumstance to which the tenant can object."
24. In view of the above authority the appellants cannot be permitted to frustrate the respondent's demand for the whole house on the ground that it is in excess of her requirements. Their apprehension that she would relent the disputed premises at higher rent also appears to be unfounded. If she does that, she will incur the penalty provided in the law. Despite the legal barricade in her way if she takes the risk of reletting the premises, the appellant would be free to taken appropriate steps to bring the respondent to book.
25. The last argument that has been advanced on behalf of the appellants is that the legal position has materially changed following the promulgation of the Ordinance. Under the new Ordinance the landlord cannot succeed in his ejectment case merely on the ground that he has no other accommodation in the same locality or has not vacated any such accommodation for insufficient reasons as was the position under the Old Ordinance. He is now required to prove that be has made the demand for vacating the disputed house in good faith. It was accordingly argued that for the purpose of proving his case under the new Ordinance, it is immaterial if the landlord has any other accommodation or the accommodation he is occupying belongs to somebody else. It appears to me that under the new Ordinance the position of the landlord has considerably improved. Under the new Ordinance he stands on better footing than under the old Ordinance. He is no longer required to furnish proof that he is without accommodation in the same locality. Under the new arrangement all that he has to show is that the house in possession of his tenant is needed by him in good faith. Thus, it is now possible for him to succeed, in getting his house vacated even if he is occupying some other accommodation in the same locality. Of course his success would be dependent on proof of good faith on his part. The fact that the landlord is living in the house which does not belong to him and that he wants to occupy his own house is in itself a strong factor to prove goo faith on his part. Therefore, the above argument does not help the appellants.
26. The upshot of the above discussion is that from the evidence on record it is proved that respondents' demand for vacation of the disputed premises has been made in good faith.
Accordingly the appeals have no merit which are, therefore, dismissed with no order as to costs.
The appellants will deliver the vacant possession of the tenements in their occupation to the respondents within six months of this order.
(1) 1983 SCMR 402