1. ' This First. Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the tenant/appellant against the order of eviction passed in Rent Case No, 5494/81 on the application of respondent on the sole ground of personal and bona fide requirement.
2. ' The respondent in her ejectment application in paragraphs 4 and 5 pleaded the personal and bona fide requirement as follows:-- "4. That the present premises in possession of applicant are not sufficient for her needs, and the need of her other family members including her children and she requires the premises for her personal bona fide needs and the needs of her children.
5. That one son of the applicant is married while the other son has just been engaged and her needs."In reply to the above allegation of the respondent the appellant contended that the present accommodation with the respondent consisted of 5 rooms and several store rooms, box room, kitchen, 3 bath rooms which is sufficient for the requirement of the respondent as the total number of family members of respondent are only 4. It was further contended-that the eldest son of the respondent has migrated to Canada and is permanently settled there. The respondent in support of her case examined her son Bhesham M. Saina, who stated that the present accommodation with the respondent consisted of only two bedrooms besides drawing and dining rooms. That in the above accommodation the respondent is residing with her mother-in-law, one son, one sister- in-law. That after filing of the application the son of the applicant got married and one son is also born. That in addition to the above persons who are permanently residing with the applicant the eldest son of the applicant who is in Canada regularly comes to Karachi and stays with the applicant every year for about 15 days and one of the daughters of the applicant who is married to a Doctor who is serving at Airport comes and stays with the applicant at least twice a week when her husband performs night duties. It has also come in the evidence that one of the bedrooms is exclusively occupied by the mother-in-law of the applicant who is a sick person while the other bedroom is used by the rest of the family members, and after the marriage of the son of the applicant and birth of the new baby the accommodation has become absolutely insufficient for them. The appellant in her evidence before the Rent Controller contended that besides the flat on the ground floor occupied by the respondent there were three other flats in the same building which are rented out and against other two tenants the respondent had instituted ejectment cases on the grounds of default and conversion of premises and in those cases she never advanced the plea of bona fide and personal requirement. The learned Rent Controller after hearing the parties came to the conclusion that the personal and bona fide requirement urged by the respondent was established and accordingly ordered ejectment of appellant. I have heard the learned counsel for the parties at length.
3. The learned counsel for the appellant contends that the order of ejectment was passed by the Rent Controller on insufficient evidence. It is also contended that the applicant herself did not appear in the witness-box to support allegation of personal and bona fide requirement but examined her son/attorney whose evidence was not admissible in view of sections 71, 119 and 122 of Qanoon-e- Shahadat of 1989. The learned counsel went on to argue that the evidence of the attorney in the present case could not be a substitute for the evidence of landlady as the application was filed on the ground of person and bona fide requirement. The learned counsel also urged misreading of evidence by the Rent Controller besides contending that the application was not a bona fide one as prior to the filing of the present application the landlady has instituted two other cases against other tenants of the same building in which the ground of personal and bona fide requirement was not urged. It was lastly urged by the learned counsel that the present accommodation, 'in any case, was sufficient to meet the requirement of the landlady. Learned counsel for the respondent on the other hand supported the order of the Rent Controller and urged that there is neither any misreading of evidence nor it was necessary for the applicant to have come in the witness-box as direct evidence of the person for whose benefit the premises was required was available in this case. After hearing the learned counsel for the parties I am of the view that the present appeal must fail. I have already reproduced earlier the personal and bona fide requirement urged by the applicant in her application. It is quite clear from paragraph 5 of the application that the extra accommodation was sought by the respondent on the ground that one of her sons is married while the other son was engaged at the date of filing of the application and, therefore, the present accommodation with the respondent was not sufficient for her requirement. To support her averments in the application the respondent examined her son who was engaged at the time of filing of ejectment case and who not only got married by the time evidence was recorded in the case but became father of a child. The respondent's son categorically stated that out of 2 bedrooms in the house one is exclusively occupied by her grandmother (mother-in-law of applicant) who is ailing while the other room in the house is used by all other members of the family including his married sister who comes and stays with them at least twice a week. He further stated that some of the members of family has to use the drawing room as sleeping room due to shortage of accommodation and whenever his brother comes from Canada then some of the family members have to sleep in Verandah. It has also come in evidence that after the marriage of respondent's son and birth of a new baby the problem has further increased and the above evidence could not be shaken in cross-examination. The evidence of the respondent's son in the case is direct on the issue of personal bona fide requirement as the premises is required by the respondent for him. Besides, the respondent's son being a member of the family of respondent, his evidence was quite relevant in the circumstances of the case. In the case of Arshad timer v. Begum Nazrul Askari PLD 1985 SC 138 a similar argument was examined by the Supreme Court and it was held that where a person examined by the landlord was conversant with the facts and was a member of the family then in sixth circumstances the non-production of the landlady in the case could not be considered as fatal to the case of the landlady. The following observations of the Court are reproduced herewith respect:-- "No limitations are prescribed in the law to fetter the discretion of the Rent Controller in this connection nor is there any prescription with regard to the nature of the evidence which must be produced before him to satisfy him on this point. His satisfaction is to rest on the material placed before him by the parties and no conditions are laid down as to the exact nature of the evidence which must be produced before him so that he can be satisfied. In this case, the son-in-law of the landlady had appeared before the Rent Controller. He is a retired Major in the army and the eldest son-in-law of the landlady. As he was living in Karachi it was convenient for him to appear before the Rent Controller, rather than the landlady who was residing at Quetta. As for the son, though living at Karachi he is working in the National Construction Company, while the son-in-law of the landlady being a retired person had more time at his disposal. Even otherwise he too is a member of the family having knowledge of all the relevant facts. Moreover, the facts deposed by him, namely, that the landlady was the owner of the premises; that she was presently living at Quetta; and that she now wanted to shift to Karachi where her other members of her family were residing; that her son was employed at Karachi and had no separate accommodation but was living in his house, that the landlady too has no other house in Karachi, were not seriously contested. In these circumstances, we cannot appreciate why the Rent Controller was not satisfied about the bona fide need of the landlady to get possession of her house and the learned Judge in the High Court was, therefore, fully justified in setting aside the erroneous view taken on this point by the Rent Controller. In fact, this Court has, in several cases held that the order of eviction of a tenant cannot be challenged on the ground of failure of the child to appear in Court for whose benefit the landlord is seeking eviction of the tenant and his omission to appear before the Rent Controller to depose about the said need is not fatal. See, for instance, Muhammad Sharif v. M.S. Sultan 1981 SCMR 844 and Dilshad Muhammad v. Mst. Zubaida Begum 1981 SCMR 895."
4. ' Learned counsel for the applicant relied on the case Muhammad Younus v. Dr. S.Muzamal 1981 CLC 387 to contend that non-production of the landlord in evidence is fatal in a case where landlord pleads personal and bona fide requirement. The above-cited case is quite distinguishable on facts. It is quite clear from the evidence in the present case that the present accommodation with the respondent consisted of only two bedrooms, one drawing and one dining room and there are five adults and a minor who are sharing this accommodation. It has also come in evidence that out of two bedrooms one room is permanently occupied by the grandmother of the witness (mother-in-law of the applicant) who is ailing and, therefore, there is only one bedroom which is shared by all other inmates of the house. Keeping in view number of the family members and the change in the family of respondent with the, marriage of her son, the demand for extra accommodation by the respondent is quite genuine and bona fide. The learned counsel also urged that while discussing issue No,1 the Rent Controller held that the respondent was living along with her mother-in-law, grandmother, sister-in-law and paternal-uncle which was clearly misreading of evidence as the number of inmates of the house was increased. Although there appears to be some confusion with regard to mention of grandmother and paternal-uncle being part of the family of the respondent, but this mistake apparently erupt into the order because the respondent examined her son as witness with whom the mother-in-law and sister-in-law of the respondent are related as the grandmother and paternal-aunt respectively. However, this mistake in the order of Rent Controller is not very material as the admitted position on record Is that the present family members occupying the house along with despondent are 5 adults and a minor and, therefore, the requirement urged by the landlady is neither unreasonable nor it can be described as male fide/learned counsel for the appellant laid much stress on the fact that prior to the filing of Rent Case No, 5494 of 1981 on the ground of personal and bona fide requirement, the respondent had filed two more cases against the two tenants of the same building on ground of default and conversion of the premises but she did not allege personal and bona fide requirement in those cases. This position is sufficiently explained in the evidence. It is clearly stated both in the eviction application as well as in the evidence that the personal and bona fide requirement arose when the respondent's son who was examined in the case got engaged. The respondent's son was engaged in 1981 and he got married in 1982 while the two cases referred to above were instituted much earlier to the engagement of the respondent's son. Apart from it the Rent Controller rightly held that the choice to select a premises out of several premises owned by the landlady for his personal and bona fide requirement lies with the landlord and the Controller cannot question such selection of premises by the landlord. I may mention here that the learned counsel for the appellant urged at length that a person holding Power-of-attorney is not entitled to depose on behalf of donor and relied on the provision of power-of-attorney Act, 1887 in this behalf. It is not necessary to go in this contention of the appellant as I have already found that the evidence of respondent's son on the plea of personal and bona fide requirement in the present case is otherwise relevant and direct evidence. In view of the above discussion I find no merit in this appeal which is dismissed but the appellant is allowed six months' time to vacate the premises subject to the condition that she will continue to pay monthly rent to the landlady during this period and if she failed to vacate the premises after six months she will be evicted from the premises without any further notice. The parties will bear their respective costs.