1. ' This first Rent Appeal arises out of order, dated 19-3-1984 passed by the Xth Senior Civil Judge, and Rent Controller, Karachi, whereby the ejectment application of the respondent was granted and the appellant was directed to hand over possession of the disputed premises to the respondent within two months of the said order.
2. ' The facts which give rise to this appeal are that the respondent is owner of two-storeyed building on Plot No. 1-6-C in Block 6, P.E.C.H.S. Ltd., Karachi (hereinafter called said premises) and the appellant is tenant in respect of ground floor of the said premises at the monthly rent of Rs.450 plus 50% of the water and conservancy charges payable on the receipt of the bill from the authorities concerned. The respondent filed ejectment Application No. 3393 of 1979 on the ground that the appellant had failed to pay water and conservancy charges and had thereby committed default in the payment of rent and also on the ground that the premises are required by the respondent in good faith for the occupation of her children. The appellant filed written statement on 6-1-1980 and denied the allegations made in the eviction application and has averred that the respondent in order to harass, pressurise and to increase rent sent the letter to the appellant which was duly replied.
3. ' On the basis of the pleading of the parties the learned Rent Controller framed following issues:-- "(1) Whether the opponent has committed any default in payment of water and conservancy charges?
(2) Whether the applicant requires the premises in good faith for her own use?
(3) What should the order be?"
4. ' The respondent filed her own affidavit-in-evidence in support of the eviction application. The appellant filed her own affidavit-in evidence in rebuttal.
5. ' The learnrd Rent Controller on the basis of the evidence on record and after taking into consideration arguments of the learned counsel for the parties, decided issues 1 and 2 in the affirmative and allowed the eviction application vide order, dated 19-3-1984.
6. ' The appellant being aggrieved against the order, dated 19-3-1984, has preferred this First Rent Appeal, on the grounds disclosed in the memo of appeal.
7. ' Mr. M.M. Pirzada in support of the appeal has considered as follows :
(i) That the trial Court has seriously erred in holding that the appellant was defaulter in payment of water and conservancy charges inasmuch as the respondent has failed to discharge her burden to proof in respect of the default.
(ii) That the finding of the trial Court on the issue of bona fide personal use is contrary to law and facts."
8. ' On the other hand Mr. Azhar Ali Khan, the learned counsel for the respondent has submitted that the respondent has established the appellant was defaulter in payment of water and conservancy charges. He has also submitted that the finding of the trial Court on the issue of bona fide personal use is not contrary to law and facts. The order of the trial Court is consonance with evidence on the record.
9. ' As regards the first contention of the learned counsel for the appellant that the trial Court has seriously erred in holding that the appellant was defaulter in payment of water and conservancy charges. It is pertinent to note that the respondent in her application stated that the appellant had agreed to pay 50 per cent of the water and conservancy charges in respect of the disputed premises and the respondent had not paid water and conservancy charges for the period of three years before the filing of the eviction application, that is, on 16-7-1979. The appellant in her written statement stated that on 25-5-1978 she paid water and conservancy charges. It seems that water and conservancy charges due for the financial years 1977-78 stood paid up vide pay order, dated 25-5-1978. The appellant did not produce any documentary evidence to show that water and conservancy charges for the financial year 1978-79 were paid to the respondent. I have perused the tentative rent order, dated 25-3-1981 and find that the appellant was directed to pay water and conservancy charges for the financial years 1978-79, 1979-80 and 1980-81. It seems that on 16-7- 1979 when the eviction application was filed in the Court of Rent Controller, the A appellant was in arrears of water and conservancy charges for the year 1978-79. I agree with the learned counsel for the appellant that the appellant is not in arrears of water and conservancy charges for the period 1979-80 as on 16-7-1979, as the respondent did not receive any bill from K.M.C. in respect of water and conservancy charges for the said period of 1979-80.
10. ' The expression 'rent due' has not been defined in the Ordinance. Rent includes not only the agreed rent to be paid but includes even services or other things to be rendered by the tenant to the landlord. The tenant agreed to pay the landlord apart from the rent some other charges such as conservancy charges electricity and water charges, such payment could also be included in the term rent as per the case of Muhammad Hussain Patel v. Habib Wali Muhammad PLD 1981 SC 1. In these circumstances it seems that the order of the trial Court is consonance with evidence on record and there is no illegality. It seems that the respondent has established that the appellant is defaulter.
11. ' As regards the second contention of the learned counsel for the appellant that respondent has not established bona fide requirement, the respondent in para. 5 of her, eviction application stated that the premises are required by her in good faith for the occupation of her children. The appellant denied contentions of para. 5 of the application and stated that the respondent is residing at 21-A, Sunset Avenue, Defence Housing Society, Karachi, and which is sufficient to her need and the respondent has created false, frivolous grounds of bona fide requirements although the purpose is to increase the rent or given on higher rent after the premises are vacated. The respondent in her affidavit-in-evidence stated that she needs the case premises for her own use and for the use of her two children namely Azhar and Samina. She stated that she was originally married to one Muhammad Ahmed and from him she has four children namely Saeed Ahmed, Razwan Ahmed, Rubina and Imran. She was divorced from the said Muhammad Ahmed and thereupon married one Razi Ahmed and moved to Islamabad. Her second husband Razi died in a car accident. From him she has two children namely Azhar and Samina 15 and 13 years respectively. After the death of her second husband she started living with her sister. Since she has no other income. She rented out the disputed premises to the appellant. Since her sister's children who are 8 in numbers, grown up, she moved to the house of her children from the first marriage. The house bearing No. 21-A, Sunset Boulevard belonged to her first husband Muhammad Ahmed who subsequently gifted this house to her four children. At the time of her cross-examination, she deposed that, she was living with her sister in Drigh Colony. She stated in her deposition that she purchased the plot from the funds left by her deceased husband Razi Ahmed. She constructed the disputed house on the plot.
12. To a question in her cross-examination she stated that the accommodation on the first is identical with the accommodation on the ground floor. To another question in cross-examination she stated that under medical advice she has been restrained to climb stairs. She also denied the suggestion that she wants to relet the disputed premises on higher rent after the ejectment of the appellant.
13. The appellant in her deposition stated that the respondent, seeing appreciation of the rent in the locality wanted to fetch more rent from the appellant resorted to unfair tactics and started sending false and frivolous letter which was duly replied and on her failure to achieve her goal had filed Rent Case on false grounds of bona fide requirement and default. To a suggestion in her (appellant's) cross-examination she stated that respondent had never asked her to enhance the rent in writing but it was verbal. To a question in cross-examination she stated "It is not a fact that applicant is a sick lady".
14. ' As against all the aforesaid evidence there is only word of the appellant, that the respondent has sufficient accommodation at 21-A, Sunset Avenue, Defence Housing Society and the first floor of the disputed premises which is lying vacant and the respondent wanted to enhance rent and after getting vacant possession from the appellant the same will be relet at higher rent.
15. ' It is apparent that the averment in the ejectment application about the personal requirement of the respondent for herself and her two children namely Azhar and Samina from her late husband Razi Ahmed nothing has been brought out in cross-examination which could show that claim of personal requirement is to be false or is based on wrong statement.
16. It is well-settled legal position that the assertion of the landlady on oath as to requirement of the disputed premises for her personal use is to be accepted if constitute with her averment in her eviction application and not shaken in cross-examination or disproved in rebuttal. The evidence of the respondent in this instant case fulfilled the standard laid down in the case of Badruddin Hassan Farooqui through his 5 legal heirs v. Manghi Industrial Home PLD 1976 Kar.
620. The principles laid down in the above case are duly approved by the Hon'ble Supreme Court in the case of Syed Abdus Sattar Chisty v. Aftab Malik 1980 SCMR 742 and the case of Peerzada Rafiq Ahmed v. Chaudhry Abdul Rahman 1980 SCMR 772. The dictum laid down in the abov cases on all fours are applicable in the instant case.
17. ' The learned counsel for the appellant has submitted that first floor of the disputed premises is lying vacant and the respondent can occupy the same instead of the ground floor. It is well-settled legal position that it is always open to the landlord/landlady to choose any of the premises belonging to him/her. Reliance in this regard is placed D on the case of Sahmal v. Keekaram 1973 SCMR 185. The Hon'ble Supreme Court while refusing leave to Appeal observed: "If a landlord possesses more than one house in the same urban area, the choice as to the house in which would like to live himself is surely a matter within his prerogative and discretion, and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside."
18. 'In view of the above authoritative pronouncement of the Hon'ble Supreme Court, the appellant cannot be permitted to frustrate the respondent's demand for the ground floor on the ground that upper floor is lying vacant. Her apprehension that the respondent would relet the disputed premises at higher rent also appears to be unfounded. If she does, she will incur the penalty provided under section 15-A of the Sind Rented Premises Ordinance, 1979. The law, however, provides an adequate safeguard by stipulating in section 15-A of the Ordinance, that the landlady shall be punishable with fine which shall be exceeded one year's rent of the premises and the tenant who has been evicted may apply to the Rent Controller for an order directing that she shall be restored to possession of the premises, and the Controller shall make an order accordingly.
19. ' For the foregoing reason, it is proved that respondent's demand for vacation of the disputed premises has been made in good faith. Accordingly the appeal has no merits which is, therefore, dismissed with no order as to costs. The appellant will deliver the vacant possession of the disputed premises in her occupation to the respondent within six months of this judgment.