1. ' By this appeal, the appellant has challenged the order of the learned Controller, whereby he has been ejected from the disputed premises on the ground of default and personal bona fide requirement of the respondent No.
4. The respondents claimed default in payment of rent and electricity charges from December, 1979. The appellant denied this allegation. It was pleaded that upto February, 1975 he has paid rent @ Rs.325 p.m. and at the request of respondent No. 1 raised it to Rs.400 p.m. which he has been paying regularly. From January, 1980 the respondent No.1 wanted to increase the rent to Rs.500 p.m. to which the appellant did not agree and thus the respondent No. 1 received the rent upto 29-2- 1980 @ Rs.400 p.m. It was also stated that according to the practice the respondent No.1 used to send a chit showing the amount of rent and electricity charges, which were paid. She stopped sending the chit in respect of rent and only mentioned the electricity and gas charges. In March, 1980 the appellant tendered rent and the electricity charges, but the respondent No.1 only received the electricity charges and thereafter, the entire rent was sent by money order, which was refused, and consequently it has been deposited in Miscellaneous Rent Case No. 372 of 1980. From the evidence it seems that the respondents were not issuing any receipt for payments made to them.
2. According to them the rent has not been paid from December, 1979. Such a statement has been made on oath by the attorney of the respondents which has not been discredited or shaken in cross-examina tion. The appellant has filed a large number of chits which at the time of issue did not bear date, therefore, it is not possible to reconcile them with the months for which they were issued. The appellant has written dates on the chits subsequently and in some chits he has also added the amount which was not mentioned by the respondent No.
1. These facts go to demonstrate that the appellant has attempted to mention such dates in the chits which may suit his defence. The appellant has stated that he had paid rent upto February, 1980 and thereafter, he remitted money orders which were refused. The respondent's attorney has explained that they were refused because they did not represent the entire rent, and the arrears had not been paid. The appellant has therefore, not been able to establish that rent from December 1979 to February, 1980 had been paid by him. Except the words of the appellant there is no other reliable and cogent evidence to substantiate it. The next item in this regard is the payment of electricity charges, which according to the respondents has not been paid from December, 1979. In this regard the appellant has pleaded that it was paid upto March, 1980.
3. Electricity charges upto March, 1980 were tendered and accepted by the respondent No.1 and in this manner the respondent No.1 has accepted the electricity charges upto December, 1980. She did not send chits for electricity charges from January, 1980 because there was a dispute for having over charged the appellant and, therefore, adjustment was claimed in future electricity charges from January to June, 1980. It has been stated that after such adjustment amount of Rs.500 were paid on 1-7-1980 and still a balance of Rs.408 was left to the credit of the appellant. In this regard the appellant has produced Exh. A/70 in which 9 figures denoting certain amounts were mentioned which according to the respondents were in respect of the amount due from the appellant for the payment of electricity charges. There are other notings against each amount denoting the month which are admittedly in the hand writing of the appellant. No evidence has been produced to show how and on what basis 'month' has been mentioned against each amount and how he has arrived at a debit balance against the respondents. According to the appellant the respondent No.1 used to receive the electricity charges, but not the rent. It is pertinent to note that when the money order was remitted during the month of March, this fact was not mentioned on the coupon where other facts regarding enhancement of rent and colour washing were stated. If the parties were disputing and not accepting the electricity charges according to the practice alleged by the appellant, then this fact should have been stated in the money order coupon in the normal course.
4. ' Mr. Rahmani the learned counsel for the respondent pointed out to the discrepancy in the pleadings and in the evidence that in the written statement, it was stated that the chit was sent upto December, 1980 but in affidavit of evidence, it is stated that it was sent only upto March, 1980.
5. In affidavit of evidence filed on 17-2-1982 it was stated electricity charges have been paid upto February, 1980. It was further pointed out by the learned counsel for the respondents that if Exh.A/70 is accepted, then on his own showing the appellant was not in arrears and therefore, there was no occasion to make ad hoc payment on 1-7-1980. From these facts, the learned counsel has attempted to show that there are glaring contradictions in the pleadings, proof and the submissions made by the appellant. This contention has great force. The burden was on the appellant to establish the payment to the landlord, but as no clear and cogent evidence has been produced the finding of the learned Controller cannot be disturbed.
6. ' The next issue relates to the bona fide requirement of respondent No. 4 for her personal use and occupation and for her husband and children. The plea was in clear and specific terms set out in paragraph 6 of the application which reads as follows:-- 'That the applicant No.4 is presently living with her in-laws in a tenament at the ground floor of House No.588, at Narain Das Bechar Road, Karachi. In the said tenament at present, there are living 3 families including that of Applicant No.4. The family of Applicant No. 4 consist of her husband, her two children and herself. The other two families living in the said tenament consists of (i) family of the in-laws of Applicant No.4 and (ii) the family of the elder brother of the husband of Applicant No.4. She and members of her family are in occupation of only one room of the said tenament, which is highly unsuitable and insufficient for her family, and it is not sufficient to cater her needs and requirements of a comfortable and peaceful life. She and members of her family, are undergoing extreme inconvenience and hardship on account of the absence of suitable accommodation'.
7. ' This allegation was denied by the appellant stating that it is not required by the respondent No. 4 but for the bona fide requirement of her younger brother-in--law, and further that she is living in a double storeyed building at Jamshed Road which can accommodate several families. It was pleaded that the respondent No.1 is residing on the ground floor of the disputed premises with six rooms, and only 5 members of the family. Therefore, the respondent No. 1 can be accommodated on the ground floor. On behalf of the respondent, the husband of the respondent No. 4 who is attorney of the respondent was examined. He has stated the same facts which were pleaded in the ejectment application, and in cross-examination, it has not been shaken nor any evidence in rebuttal has been produced to discre dit his statement or to falsify the facts stated by him.
8. ' Mr. Faizuddin the learned counsel for the appellant has contended that the respondent No. 4 is not a landlady and therefore, her requirement cannot be taken into consideration. The respondent No.1 has been dealing with the appellant, who is residing on the ground floor. The respondents are the legal heirs of late Sheikh Abdul Malik and it was after his death that the premises was rented out to the appellant. The respondents are the landlords and owners of the premises. Nothing has been brought on record to rebut this fact, testified by the respondent's witness. The objection seems to have been raised merely to construct the proceedings and can be termed as a contumacious conduct on the part of the tenant.
9. ' Mr. Faizuddin the learned counsel contended that the premises is not required for the bona fide need of the respondent No. 4, firstly, because it is the need of the younger brother-in-law that has been pleaded and secondly the attorney of the respondent No. 4 has stated that he requires the premises for his use and occupation and for his wife and children. So far the first contention is concerned suffice to mention that the respondent's attorney has stated the facts that the respondent No. 4 alongwith her husband and two children is residing in a house of her mother-in- law. The family members of her mother-in-law who are living there have caused shortage of accommodation, which has become more acute due to the fact that her younger brother-in-law is to be married soon and her mother-in-law, has required the respondent No. 4 and her husband to make their own separate arrangement. These facts do not show that actual requirement is that of the younger brother-in-law. These facts have been pressed into service to show that the respondent No. 4 can no longer live in the house of her mother-in-law.
10. ' The next contention does not seem to be well founded. The statement of the husband and attorney of respondent No. 4 cannot be termed as proving and projecting his need only and not of his wife and children. When he stated about his personal use he was making statement on behalf of the respondent No. 4 also. In any event the personal use and requirement of the respondent No. 4 includes the requirement of her children and her husband, and therefore, if he has stated that it is for his requirement also, it does not in any manner falsify the plea of respondent No.4.
11. ' Mr. Faizuddin the learned counsel for the appellant relying on Mst. Anwar Jehan v. Ismail Khan 1984 CLC 2849 contended that the premises cannot be required for the personal use and occupation of a married daughter. In that case, it was proved that during the pendency of the ejectment application the married daughter, her husband and four children who were living separately since marriage were brought by the landlord in the disputed premises. It was observed that nothing was brought on record to explain why the landlord had provided accommodation to his married daughter who was living with her husband and four children separately particularly in the circumstances, when it was not the case of the landlord that married daughter was living with him since the time of her marriage. Therefore in these circumstances it was held that the married daughter was not part of the respondent's family. This principle cannot be made applicable to the present case, as, the application has not been filed by the landlord to accommodate the married daughter. In fact the respondent No.4 is not claiming by virtue of being a part of the family members of the respondent No.1, but in her own right as the owner and landlady. The respondent No. C 4 being the landlady and having proved her own independent requirement and for her children and husband, is entitled in her own right to seek ejectment for her personal bona fide use and occupation.
12. ' Mr. Faizuddin the learned counsel then contended that as the respondent No. 1 has got sufficient accommodation on the ground floor she can accommodate respondent No. 4 and her family without disturbing the appellant. According to the appellant, the respondents have got six rooms on the entire ground floor and only respondent No. 1 and two sons are living there. The question is not that the ground floor is sufficient to accommodate the respondent No. 4 but the point for consideration is whether a landlord who is living separately from his co-owners can demand a separate accommodation for himself and for his family, even if other co-owners are residing in a large house which is sufficient to accommodate all the co-owners. The respondent No. 4 according to the learned counsel for the appellant is not member of family of the respondent No.
1. She has an independent family consisting of her husband and children and living separately. Her requirement is for an independent separate home for herself, her husband and children. Even if the other respondents are residing in a very spacious house which consists of accommodation in excess of their requirement, the appellant cannot force the respondent No. 1 to go and stay there and not to ask for the disputed premises. Mostly it is common that after marriage the daughter lives with her husband independently and separate from her parents. A landlord who is not living in his own house can ask for independent accommodation for himself and for his family members provided bona fide requirement is established. The respondent No. 4 has, therefore, established that the disputed premises is bona fide required for her use and occupation, her husband and children. The appeal is dismissed. The appellant is allowed three months time from today to vacate the premises.