1. This First Rent Appeal is directed against the order, dated 22-5-1984 passed by the Xth Senior Civil Judge and Rent Controller, Karachi whereby he dismissed the eviction application filed by the appellant. The facts leading to the filing of this First Appeal are that the appellant is the owner of the property bearing No.21-A, Muhammad Ali Memorial Co-operative Housing Society, Karachi. An agreement was entered into between the appellant on one hand and the respondent No.1 on the other hand through its director on 27-5 1974 and it was agreed that appellant would let out the said premises at a monthly rental of Rs.1,500 for a period of one year commencing from 27-5-1974. The premises being occupied by respondent No.2, the appellant filed an eviction Application No.2168 of 1978 on the ground of personal requirement. The respondent resisted the eviction application. The appellant filed an affidavit-in-evidence of her son and attorney. The respondent No.2 filed an affidavit for himself and on behalf of respondent No.1. They were cross-examined by their respective counsel. The learned Rent Controller, on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No.1 in the negative and dismissed the eviction application, vide order, dated 22-5- 1984.
2. The appellant abovenamed being aggrieved by the order, dated 22-5-1984 of the Xth Senior Civil Judge and Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal. Mrs. Rashida Patel the learned counsel for the appellant has contended that the learned Rent Controller has misconstrued the evidence on record and failed to appreciate that the premises are required bona fide for the personal use of the appellant and occupation of the sons of the appellant. On the other hand Mr.Ikram Ahmed Ansari the learned counsel for the respondents has submitted that the order of the learned Rent Controller is on accord with the evidence on record and the appellant failed to establish bona fide requirement Mr. Ikram has further submitted that there are three requirements of section 13(3)(a) of the Repealed Ordinance which have not been fulfilled in the instant case. Reverting to the .Contention of the learned counsel for the appellant that the Rent Controller has misconstrued the evidence on record. It is the case of the appellant that the premises in question Nis let out to the respondent for a period of one year, commencing from 1-6-1974 and expiring on 30 5-1975. It seems that the appellant did not call upon the respondent to hand over vacant possession of the premises on the expiry of tenancy agreement. The appellant sent a letter, dated 20-7-1977 and asked the respondent to vacate the premises in question. The appellant did not file any proceeding against the respondent for more than five months. Instead of filing any proceeding, the appellant sent a notice through her counsel on 9-2-1978. The respondent sent a suitable reply. The appellant filed eviction application No.2168" of 1978 on 6-5-1978 on the ground of personal requirement and stated therein that "the applicant requires the said house for her sons who have not their own families and the present house is inadequate for their requirements. Moreover the applicant's husband is a Doctor and needs more rooms for his dispensary." The respondent filed written statement and stated therein that "paragraph 9 of the application as framed is denied. It is submitted that the demand of the applicant to have the demised premises vacated is mala fide. It is further submitted that the sons and husband of the applicant own and possess their own properties and moreover the demised premises being residential premises cannot be converted into commercial premises as desired to be converted by the applicant". Doctor Irshad Waheed son and attorney of the appellant filed an affidavit-in-evidence in support of eviction application'. He stated in his affidavit-in-evidence that "the present accommodation situated in the Shewani Colony, Karachi bearing House No.23/5. Is very insufficient. In this house my mother, the applicant's husband Dr. Waheeduddin my brother Dr. Iqbal alongwith his family (7 members), .My brother Dr. Islam alongwith his family (6 members) and I myself alongwith my family (3 members) are residing. This house is very small one for our all the families residing in a troublesome condition and have no other residential house for our residence or any of our families." He also stated that "my mother, the applicant, requires the demised premises for her own personal use and for the use of her real sons who have large families". It is pertinent to note that her son and attorney has admitted in his cross-examination that his mother required.. The 'premises in question for Dr. Iqbal Waheed and Islam Waheed. He also admitted that Islam Waheed is at Canada and was working as Signestic. It is also pertinent to note that he admitted in his cross-examination that the house adjacent to the house in question belongs to his mother and the same is occupied by his sister and her husband. He has also admitted that the house occupied by his sister is being used for residential and commercial purposes. His cross-examination was recorded on 30-3-1981 and 15-7-1972. It is an admitted position that during the pendency of the case Mrs. Rubia wife of Dr. Irshad Waheed purchased a Bunglow No.D/199-KDA Scheme No.1-A Extension, Karachi, from Mst. Khatoon Bi. He also admitted in his cross-examination that his wife and children are residing in D/199, KDA Scheme No.1-A Extension. He also admitted that his father. Retired and was not practising. As against the above evidence the respondent No.2 filed his own affidavit-in-evidence. The respondent stated that the eviction application was moved with ulterior motive and mala fide intentions and raised inconsistent pleas. In the letter, dated 20-7-1977 she stated that her three sons with their families have returned to live in Karachi and she developed severe heart disease which necessitated her living in a quiet and peaceful atmosphere as advised by the doctor but in her eviction application she averred that she required the rented premises for her own sons. She further pleaded that her husband needed more rooms for his dispensary. Her son stated in affidavit-in-evidence that his brothers used to reside in Canada with their families but now they had permanently come back to Pakistan but in cross-examination stated that his brother Dr. Islam came to Karachi about two months back. The respondent also summoned Sub-Inspector of Excise and Taxation who stated that property (Shawani Colony) where the appellant is residing consists of double-storeyed building. According to his deposition ground floor consists of four rooms with covered verandah, kitchen, two bathrooms, two W. C. And one garage. First floor consists of four rooms with one W.C.
3. In my opinion, the appellant has not given details in her application. She must give details as to number of rooms. She must also give details as to number of family members including number of sons. It appears from evidence on record that she is already in occupation of double-storeyed house consisting of seven bed-rooms and covered verandah. It appears from the evidence that the appellant required the house in question for Dr. Lqbal Waheed and Dr. Islam Waheed. This shows that appellant did not require the premises in question either for herself and other sons or for her husband. In the present case, she has not given details of family members and details of rooms. As such the respondent cannot be expected to meet the case of the appellant. The statement of her attorney as to her requirement of the premises in question must be supported by valid reasons as to how her requirement is bona fide or in good faith and which has not been done in this case. A bare reading of section 13(1), 13(2), 13(3) and 13(4) of the repealed Ordinance as .a whole would show that the landlady must satisfy the controller about her claim being genuine and to reach the conclusion the Controller must be satisfied about the reality of the claim by the landlady and this can be established by looking to all the circumstances, such as the number of rooms in her possession, number of family members, the present accommodation is sufficient or insufficient or inadequate and so on. It is not enough that the appellant comes forward and says that she required the premises in question for her sons and their families. From these facts it is clear that the appellant has not been able to establish that she required. The premises in question for her sons. In these circumstances, the order of the learned Controller on this issue does not require any interference. There is another important aspect of the case which although not taken into consideration but cannot be ignored. Under section 13(3) (a) a landlady can obtain possession of the premises in question for her sons occuaption. It is common ground that there are three requirements to make out a case for eviction under that provision and indeed this is apparent from a bare reading of the provisions In the present case the appellant averred that he required the premises in question for her sons. But the legislature has taken care to insist upon two more conditions, namely (b) she is not occupying another residential building, suitable for her needs at the time in same urban area in which such business is situated, and (c) she has not vacated such 'building without sufficient cause after the commencement of the Ordinance in the said urban area. There is not a scintilla of evidence her indeed there is any averment in compliance with these two conditions. The necessary consequence follows that not merely is there inadequacy of pleading to make out a cause of action but total absence of proof on two vital requirements. The Sub-Inspector cf Excise and Taxation stated in his deposition before the Controller that there is a double-storeyed hbuse on the same plot adjacent to the premises in question which is owned by the appellant. This house is in occupation of appellant's daughter who is residing on the ground floor and the upper floor is in use for commercial use. This position is admitted by her son and attorney in his cross-examination. I am of the humble view that the Statute legitimately designed to protect tenants from unreasonably eviction, has taken care to put restriction which must be rigorously construed to fulfil the purpose of the Statute. The appellant has, therefore, failed to fulfil these two conditions prescribed by laws for being entitled to be put in possession. The learned counsel for the appellant has contended that the rights of the parties have to be regulated by the new Ordinance, 1979 and not by the repealed Ordinance. A Division Bench of this Court in the case of Abdul Rehman v. Haji Mir Ahmed Khan and another PLD 1982 Kar. 532 held that the rights of parties in other words to be regulated in accordance with old Ordinance (VI of 1959), while procedure to be adopted for disposal of cases filed under old Ordinange to be one under new Ordinance XVII of 1979. Remedy in cases filed under old Ordinance for eviction of defaulters from hotels being available under old Ordinance, is not destroyed by new Ordinance due to hotels being not included in definition of premises in section 2(h) of-new Ordinance. This decision was approved by the Hon'ble Supreme Court in the case of Abdur Rehman v Haji Mir Ahmed Khan and another PLD 1083 SC 21. In view of the authoritative pronouncement of the Hon'ble Court, it cannot be said that the rights of the parties will be regualted under the Sind Rented Premises Ordinance, 1979. I am of the humble opinion that the order of the learned Rent Controller is in accord with law. Apart from above, there is no doubt that there was evidence to affirm the order of dismissal of eviction application. The appellant had been trying to obtain possession of the premises in question since as far back as 20th July, 1977 and it was apparent that the appellant was any-how bent upon evicting the respondents from the premises in question. Though the period for which tenancy was granted by the appellant expired in 1975, the appellant allowed the respondents to continue as a monthly tenant in respect of the 'premises in question, and did not for a period of about two years, took any step to recover possession from the respondents. If the appellant 'was serious about requiring the premises in dispute for herself or her sons, she would not have waited for a period of three years before taking action to recover possession of the premises in question from the respondents she would have be stirred herself immediately as soon as tenancy which prevented her from asking for possession, expired. Moreover she did not ' file any eviction application cn her personal ground. This circumstance is borne out by the evidence on record. For the foregoing reasons, I find no merits in this appeal and would accordingly dismiss the same but leave the parties to bear their own costs.