1. ' This First Rent Appeal is directed against the orders dated 16-11-1983 and 15-10-1983 passed by the Xth Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to hand over the vacant possession of the premises in question to the respondent within two months of the order.
2. ' The facts which give rise to this appeal are that the respondent is the owner/landlord of the building standing on plot of land bearing No,138 in Block No,3 of Kokan Muslim Co-operative Housing Society Ltd., Karachi and the appellant is tenant in respect of one of the upper floor of the building at the monthly rent of Rs,350 plus Rs,50 per month as water and gas charges (total Rs,400 per month). The respondent filed Eviction Application No,1607 of 1980 on the ground of personal need for additional accommodation (of contiguous flat). The appellant resisted the eviction application.
3. ' The respondent filed his own affidavit in evidence in support of the eviction application. In rebuttal the appellant filed his own affidavit in evidence. They were cross-examined by the respective counsel for the parties.
4. The learned Rent Controller on the,basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided issue No,1 in the affirmative and allowed the eviction application vide order dated 16-11-1983.
5. ' The appellant being aggrieved against the order dated 16-11-1983 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.
6. ' Mr. Muhammad Ali Sayeed, the learned counsel for the appellant has raised the following submissions:-
(1) The respondent has not proved his bona fide need.
(2) That during the pendency of the eviction application the respondent re-let the flat which was, occupied by his tenant on ground floor at the improved rent.
7. ' The learned counsel for the appellant has placed reliance on the following decisions in support of his contentions:-
(i) 1980 CLC 1082.
(ii) PLD 1981 Kar.
8. 67.
(iii) 1984 CLC 2714.
9. ' On the other hand Mr. H. A. Rehman the learned counsel for the respondent has submitted that the respondent has established the personal requirement. He has placed reliance on the following cases.
(i) PLD 1976 Kar. 382
(ii) 1980 SC MR 893
(iii) PLD 1982 Kar. 770
(iv) PLD 1982 Quetta 45
(vi) 1983 CLC 1418
(vii) PLD 1967 Kar. 233
(viii) PLD 1967 Lah. 1138
(ix) PLD, 1969 Pesh. 118
(xi) 1985 CLC 1861
(xii) PLD 1979 SC 815
(xiii) 1985 CLC 2155 and 2295
(xiv) 1983 CLC 2950 and
(xv) 1985 CLC 287 ' The respondent in his eviction application stated that the upper floor of the said building consists of two flats, one of them is in his possession which consists of one bedroom of about 15 x 14 feet and one room of about 19 x 12 feet. The family consists of himself, his wife, two school-going sons and one daughter. In the meantime his children have grown up and are studying in the school. Due to short of accommodation he is undergoing inconvenience, harassment and hardship and he cannot and is not passing -a comfortable life for that reason. He feels further harassment and inconvenience when his friends or relatives visit him as he cannot comfortably receive them due to shortage of accommodation. He further stated that "due to the aforesaid reasons and due to the growing needs of the applicant and the members of his family, the present accommodation in his occupation and possession has become absolutely insufficient and unsuitable. He needs in good faith the additional accommodation on the first floor in order to make his life and living and that of the members of family reasonably comfortable and convenient." The respondent required bona fide and in good faith the residential premises in occupation and tenancy of the appellant for his own use and occupation and that of the members of his family. He further stated that two flats of the upper floor shall constitute as one unit of better and comfortable accommodation for him: ' The appellant filed written statement wherein he stated that the respondent was living in one flat on the ground floor, with his wife and children. In 1975-76 he constructed the fourth floor on the first floor. The new flat consists of three spacious rooms. He has three children, two boys aged about 12 years and 5 years and one daughter aged about 10 years. As regards contents of pare 3, the appellant stated that the original rent was Rs,300 per month and it was successively raised serveral times, the last time it was increased to Rs,400 per month.
10. ' The appellant denied contents of paras. 4, 5 and 6 and stated that the premises in dispute were specially designed to fulfil his requirements. His plea of personal requirement is malicious, mischievous and false and has been made with ulterior motive of letting out the same on higher rent as he did with the ground floor flat formerly under his occupation. He further stated that one of his tenants on the ground floor, namely "Zaki had constructed his own house in the locality, the same was expected to be ready when he proposed to shift .Thus if the respondent at all needed any more accommodation he could avail of the same." He lastly stated that "the present application thus has been made maliciously, capriciously and with dishonest intention to cause unfair loss to the opponent and unlawful gain to the applicant".
11. ' The respondent repeated the same facts in his affidavit in evidence. He stated that "in all five persons are living in the flat This flat has one bedroom having the area of 15 x 14 feet, and one room of about 19 x 12 feet. He also stated that "in case of emergency and during the illness of members of my family and more particular of my wife, I feel more inconvenience and hardship. I cannot call my sister or sister-in-law to stay in the house and to look after my ailing wife, due to shortage of accommodation at my disposal. I cannot invite my relatives to stay with me even for one day and night." The respondent admitted in his cross-e&amination that Zaki vacated the flat in the year 1979 and same was re-let to another tenant Muhammad Essa. He admitted the suggestion that his family members are the same as at the time of letting out of the disputed premises but they have only grown up. He denied the suggestion that he demanded enhancement in the monthly rent. He also denied the suggestion that he wanted to re-let the disputed premises on rent. He also gave the ages of his eldest son as 12/ years, daughter as aged about sixteen years, his younger son aged about seven years.
12. ' As against the above evidence, the appellant filed his own affidavit wherein he stated that the flat under the occupation of the respondent comprises of three spacious rooms, verandah, kitchen, bath and W.C. He also stated that "it was made according to his requirements. The number of his family members was also the same as when he constructed the present premises and shifted therein in 1977 on vacating the ground floor flat, previously occupied by him. The claim of the applicant that he needs the flat under my occupation for his personal use in vexatious, mala fide and false, being aimed at pressurising me into raising the rent. Therefore he filed the present case he never informed me that he needed the flat in question for his own use. But he repeatedly asked me to raise the rent. It was raised in stages from Rs,320 to Rs,400 in January, 1980. The applicant demanded higher rent but I declined in February, 1980 he refused to receive the rent. I then sent the amount by money order till March/April 1980 when I received notice of the present case." The appellant in his affidavit stated "that early 1980 Mr. Zaki, a tenant of the building vacated the flat under his occupation and shifted elsewhere. He had been paying Rs,250 per month as rent. The applicant re-let the said flat to Mr. Muhammad Essa admittedly on Rs,1,000 per month. The object of the applicant is to harass me and to force me to raise the rent or to vacate when he can let out the flat on higher rent and he does not need the same bona fide for personal use." The respondent admitted in his cross-examination that the rent was mutually enhanced. The appellant to a question in cross-examination replied that "it is not a fact that the applicant has never demanded for enhancement of rent". The appellant to a question in cross-examination replied that "I and the applicant are in occupation of the first floor flats and the stair-case is common. Both the flats are adjacent to each other. It is a fact that the flat was vacated on the ground floor in the year 1980. I never asked the applicant for the ground floor." The appellant replied to a question in cross- examination that the respondent is only occupying one bedroom and other room but in fact he has got three rooms.
13. It is apparent that the assertion of the respondent in his eviction as well as in his affidavit in evidence is consistent and the same has not been shaken in cross-examination nor any evidence in rebuttal has been brought on record by the appellant which cast any doubt about the assertion of the respondent which could show that the claim of the personal use for himself and his family members is to be false or is based on wrong statements.
14. ' In Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832 Mr. I. Mahmud, J. Held as follows:- "The effect is that the assertion or claim on oath by the landlord that he required premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross- examination or disproved in rebuttal. The evidence in this case fully justified the claim by the landlord that he required the premises bona fide for his own use as he had no other accommodation of his own."
15. ' The principle laid down in the above case was approved by the Hon'ble Supreme Court in the case of Mst. Toheen Khanum v. Muhammad Shamshad 1980 SC MR 593 and observed as follows:- "In this connection we would refer to the opinion of I. Mahmood, J., in Hassan Khan v. Munawar Begum PLD 1976 Kar. 832 which we have recently approved in another case which correctly lays down the mode of assessing the bona fide requirement of the landlord."
16. ' It is well-settled legal position that the assertion of the landlord on oath as to the requirement of the premises of his present use is to be accepted if consistent with his averment in his application and nothing has been brought out in cross-examination or disproved in rebuttal. The evidence of the respondent in the instant case fulfilled the standard laid down by the Hon'ble Supreme Court.
17. ' The learned counsel for the appellant has submitted that the respondent demanded enhancement in rent and on his refusal, the respondent filed the eviction application. The respondent denied the suggestion. In the case of Badruddin Hasan Farooqui v. Manghi Industrial Home PLD 1976 Kar. 620 Mr. M,A. Rashid, J. (as he then was) held as follows: - "But in any case a demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirements is independently proved."
18. ' The above dictum was approved by the Hon'ble Supreme Court in the case of Peerzada Rafiq Ahmed v. Choudhry Abdul Rehman 1980 SCMR 772. The observation of the Supreme Court is as follows:- " We do not find any reason for interference and agree with the dictum contained in Badruddin Hasan Farooqui and others v. Manghi Industrial Home that a demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirements is independently proved."
19. ' It is evident that the object of the respondent was not to obtain enhancement of rent from the appellant but that too was not a circumstance which lent any positive support to the case of the respondent.
20. ' The appellant's contention that the flat in question was not required by the respondent for his own use and that he had initiated ejectment proceedings against him simply because he had not acceded to his demand for enhancement, does not merit any consideration, firstly because the evidence produced by the appellant in support of the said contention was not reliable and, secondly bona fides of the respondent to get the flat in dispute for his personal use could not be doubt for the reason that before the filing of eviction proceedings against the appellant he was asked to pay enhanced rent.
21. The other contention of the learned counsel for the appellant that the plea of personal requirement is malicious, mischievous and false, ard has been made with ulterior motive of letting out the same on higher rent, as he did with the ground floor flat, formerly under his occupation. This contention does not merit any consideration. It may be seen that it is the assertion of the respondent himself which he stated in his statement on oath that determines his bona fides in seeking eviction of the appellant on the ground that the flat in question required by him for his own use. The respondent in his cross-examination stated that the flat vacated by him was re-let to Ahmed at Rs,500 per month.
22. ' The safeguard provided by section 15-A of the Sind Rented Premises Ordinance, 1979 ensures that if the landlord who has obtained possession of the premises for his bona fide use, re-lets it to some other person or does not use it personally within one year then he will not only be punished but the tenant would be entitled to obtain the possession of the said premises. This safeguard protects the rights of tenant and also imposes a check on the landlord.
23. Clause (viii) of subsection (2) (iii) of section 15 lays down that a landlord may apply to the Controller for an order directing th tenant to put the landlord in possession of the premises if he 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. Subsection (2) of the section lays down that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the premises. Accordingly the jurisdiction of the Controller to order eviction on this ground is depended upon his satisfaction that the claim of the landlord is bona fide and his requirement is in good faith. The expression 'good faith' that the claim for possession must be honestly made. The respondent owned a building consisting of four flats, out of four flats two are on the ground floor and two flats are on the first floor. He filed eviction proceedings of a contiguous flat on the ground that it was required for his personal use and asserted in his eviction application that the two flats of the upper floor shall constitute as one unit of better and comfortable accommodation for him. This assertion has not been denied by the appellant.
24. I am of the view that when the respondent stated in his evidence that he required the premises in question as he was short of accommodation, there was no cross-examination of the respondent challenging the truth or bona fide of his statement and no attempt was made on behalf of the appellant to show that the respondent was not in a position to occupy the same, and his statement coupled with the other objective and outlined facts must, therefore, be taken as sufficient to establish that he required the premises in question for his own occupation and his requirement was bona fide. The outlined and objective facts on which the Controller relied as supporting the assertion of the respondent were; firstly, the respondent had sought to recover possession of the contiguous flat as the flat in his possession consists of one bedroom about 15 x 14 feet and one room of about 19 x 12 feet and both the flats will be one unit and it was not for the purpose of letting out at higher rent that he dishonestly put forward this idea only with a view to securing possession of the flat in question from the appellant and secondly, the children grew up in ages as they needed separate rooms and it is difficult for them to live in one room and it was, therefore, natural for him to want more accommodation. The learned Rent Controller has gone through the evidence and after giving cogent reasons has recorded a finding that the flat was required by the respondent in good faith for his personal use. This finding on the point of fact is duly supported by the attending circumstances and the evidence on the record. The appellant has not shown any misreading or any material evidence which could dislodge such a finding.
25. ' The respondent sought possession of a contiguous flat on the ground that the present accommodation was insufficient and unsuitable. The respondent sought eviction of the appellant that the flat in his possession consists of one bedroom of about 15 x 14 feet and one room of about 19 x 12 feet. He gave the ages of children varying from 141 years (eldest son), daughter 13 years and the youngest son as 7 years. The children grew age and they required one room each. The case of the appellant is that the respondent has three rooms in his possession. The burden was on him which he failed to discharge. The evidence of the respondent is consistent with the averment and/or assertion in the eviction application and nothing has been brought in rebuttal.
26. ' The learned counsel for the appellant has contended that during the pendency of the eviction application the respondent rented one of the flats on the ground floor (vacated by Zaki). He has placed reliance on 1984 CLC 2714, 1980 CLC 1082, PLD 1981 Kar. 67 and 1968 C M R 1087.
27. ' In Ghulam Farooq v. Ghani 1980 CLC 1082 the facts of the case were that the appellant approached the Rent Controller for the eviction of the respondent on the ground of default, personal use and the injurious use of the property by the tenant. The respondent resisted the eviction application wherein it was pleaded that the appellant was not in need of the shop. The Controller granted eviction application by holding that the need of the shop was established. An appeal was taken to the Additional District Judge, Peshawar, which was accepted by the reversal of the finding of the Controller on the need of the appellant. The appellant filed second appeal in High Court of Peshawar. Mr. Kareemullah Durrani, J. After placing reliance on the proviso to section 13(3) of the repealed Ordinance, 1959 observed as follows:- "As far as the letter of Law is concerned the proviso bars the subsequent institution of an application after the landlord has got any shop vacated in the same urban area and not that which was moved before any such vacation, but the purpose behind the. Incorporation of this proviso was that a landlord after getting one shop vacated for his personal use should not be allowed to disturb the possession of another tenant on the same ground. It could not be denied that an appeal is a continuation of the same original matter. As the application for the ejectment of respondent is, by virtue of this appeal, still under adjudication, the prevalent position is that this application in its all intents and purposes is equivalent to a subsequent application for ejectment.
28. By keeping in view the spirit of law, I am constrained to hold that the instant application did not remain maintainable after the landlord succeeded in obtaining possession of the adjacent shop from the tenant under the said parallel proceedings."
29. ' In Mirza Farooq Beg v . Muhammad Arif PLD 1981 Kar. 67 the contention of the learned counsel for the appellant was that during the pendency of the application for eviction, the respondent succeeded in getting two shops 8 and 9 in the same building. Mr. Muhammad Saeed-us-Zaman Siddiqui, J. Held as follows:- "In my humble view, the effect of the 2nd proviso to subsection (3) of section 13 of the Ordinance in such a case on the pending application of a landlord on the ground of personal and bona fide requirement will be that the landlord in addition to proving his personal and bona fide requirement shall have to futher satisfy the Controller, before succeeding in the pending case, that the premises so get vacated was not suitable to his needs. In my view the embargo on the right of a Landlord to move a second application on the same ground provided in the 2nd proviso to section 13(3) of the Ordinance is not complete. If later on, the landlord, who had earlier applied and got vacated a premises for his personal need, is able to show that the premises, so got vacated by him is no longer suitable for his need there is nothing in law which could prevent him from moving a second application on the same ground and succeeding on it. Considering the contention of the learned counsel for appellant in the above perspective, I am of the view, that the ejectment application on the ground of personal and bona fide requirements filed by the respondent did not become non- maintainable or infructuous as a result of his succeeding in getting two shops namely Shops Nos.8 and 9 in the same building vacated during the pendency of the ejectment case against the appellant."
30. ' In Haji Ahmed Zaheer Khan v. Anwar A. Rahim 1984 CLC 2714, the appellant filed eviction application against the respondent and during the pendency of the eviction proceedings, an identical flat on the ground floor falling vacant. The appellant instead of occupying himself rented out the same to another tenant. Mr. Fakhruiddin H. Shaikh, J. Held as follows:- "The fact that the appellant had another flat in the same building available for occupation, but instead of occupying the same, he rented it out to another tenant unmistakably points to male fide of the appellant/landlord. If he had any bona fide need for additional accommodation, then he could have occupied the flat on the ground floor which was vacated by his tenant, instead of insisting upon the respondent to vacate that flat. It is an admitted fact that the flat in possession of the respondent is identical with the flat on the ground floor, so far as accommodation was concerned."
31. ' The above decision will not help the appellant, firstly they were decided under the repealed Ordinance, 1959. The second proviso to section 13(3) bars the subsequent institution of an application after the landlord has got any flat vacated in the same urban area or in the same building. The incorporation of the proviso was that a landlord after getting one flat or shop vacated for his personal use should not be allowed to disturb the possession of another tenant on the same ground. The eviction application was not filed under the repealed Ordinance but under the 1979 Ordinance. In the new Ordinance there is not such bar as incorporated in the repealed Ordinance.
32. ' The respondent filed eviction application on the ground that the accommodation in his possession was insufficient and the flat in possession of the appellant is a contiguous flat and both the flats of the upper flats shall constitute as one flat. The dictum laid down in the case of Nooruddin and others v. Asghar. All and others 1968 SC MR 1087 is applicable to the facts of the case.
33. ' Mr. M.A. Sayeed, the learned counsel for the appellant has also placed reliance on the unreported Judgment dated 22-1-1985 of the Hon'ble Supreme Court in C.P. No,207-K of 1984 Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi in which the Hon'ble Supreme Court while refusing leave to appeal observed that: "in the absence of a specific pleading as to the vacant premises not being sufficient for her needs she should seek ejectment of the respondent from the disputed premises."
34. ' The dictum laid down in the above case are not applicable to the facts of this case as in the present case the respondent specifically pleaded that the accommodation in his possession is not sufficient.
35. ' In Adam Ali, Hasan Ali Mst. Rubab Bai PLD 1965 Kar. 408, Mr. Qadeeruddin Ahmed, J. Observed, that the words 'for his own occupation' which occur in paragraph (a) should be taken to include all genuine requirements of the landlord and not to be restricted to the requirement of a shelter for his own body and the bodies of his children. This is indicated by the words "suitable for his needs" which occur in paragraph (b). The needs of the landlord cannot be discriminated so as to separate the inner needs and outer needs of his body because both of them are projected on his environments. His hunger may be projected in the form of a need for a kitchen and his need for physical comfort may be projected in the form of a, need for servants; nor can "his needs" be restricted to physical needs in contradistinction to social, economic, intellectual, emotional and spiritual needs, which may be projected in the form of a need for a sitting room, for an office, for a wife, for children, for a room reserved for prayers or for a room reserved for maintaining a library.
36. The needs would differ from landlord to landlord and some of those which may be genuine in one case may not be so in another case; nor is it open to the landlord to declare his needs as his own subjective decisions, firstly, because his needs reflect the ideas of the society and secondly because his rights are controlled by the society. The character of the social order to which he belongs places the general limits on his needs and his own characteristics place special limits on them. Mr. Dalai has rightly pointed out in the abovementioned commentary that:- "In order to determine what is family or dependent or person essential or necessary for occupation in each case, it is proper and desirable for the Court to bear in mind the context of social order, habits and ideas of living and the socio-religious customs of the community to which the landlord belongs."
37. ' The writer could add that personal characteristics of a landlord, when relevant, also constitute a necessary set of consideration for determining his needs. If he is a poor man his genuine needs must be within his means; if he is a non-believer he is not likely to need a room for prayer and if he is an illiterate person he is not likely to need a room for a library. The point is: What life he leads, can lead and may lead.
38. ' It is such life, and not merely the need to occupy a place for having a roof over his head, that is significant."
39. ' The appeal against the above decision was dismissed PLD 1967 Kar.
40. 437.
41. Applying the principles of these decisions, the respondent has established his requirement for the contiguous flat. The evidence of the Respondent in the case before me fulfilled the standard laid down by the Superior Courts. I am satisfied that the learned Rent Controller rightly granted eviction of application on this ground. I am of the view that the respondent has succeeded in establishing that he bona fide required the flat in question for additional accommodation and since he had admittedly the accommodation in his possession insufficient.
42. ' As a result of above discussion this appeal is dismissed but there will be no order as to costs. The appellant is allowed two months time to vacate the premises.