1. This First Rent Appeal is directed against the order dated 16th August, 1987 passed by the learned Senior Civil Judge and Rent Controller No. VI, (South) Karachi, directing ejectment of the appellant on the ground of personal bona fide use.
2. The brief facts giving rise to the present appeal are that the respondent riled ejectment application on 11-2-1985 before the learned Rent Controller inter alia stating therein that he is the owner/landlord of Flat No. 2, Akbar House, Hussain D'Silva Gardens, Karachi, and the opponent was his tenant in the said flat at the monthly rent of Rs. 650 exclusive of other charges. That he requires the flat in question bona fide and in good faith for his own occupation and that of his family. That he has no other property of his own in Karachi. He is residing in rented house. That his landlord has filed ejectment proceedings against him under Section 14 of Sind Rented Premises Ordinance, 1979 being Rent Case No. 2759 of 1983 which is pending in the Court of IIIrd Rent Controller Karachi. That the opponent was requested orally as well as by written notice to vacate the flat but he refused to do so.
3. The appellant/tenant filed his written statement in which the relationship of landlord and tenant, and the rate of rent were not disputed. However, it was denied that the applicant required the premises in question for personal bona fide use. That the applicant had taken Rs. 20,000 as Pagree from him in the year 1975 at the time when the flat was rented out to him. That the present accommodation where the applicant is residing belongs to him and that it was more than sufficient for his needs: That the house constructed an Plot No. 143/P/2 P.E.C.H.S., Karachi belongs to the applicant, apart from other properties. It was denied that the applicant was residing in a rented house. 1t was further stated that the applicant had increased the rent from Rs. 550 to Rs. 650. That he wanted to enhance rent from Rs. 650 to Rs. 1,000 per month to which he did not agree and therefore the ejectment application has been filed.
4. From the pleadings of the parties the learned Rent Controller framed the following issues:-- .
5. (1)Whether the applicant requires the flat in question for his personal bona fide use?
6. (2)What should the order be?
7. The learned Rent Controller after taking into consideration the evidence produced by the parties came to the conclusion that the flat in question was required by the respondent/landlord for his personal bona fide need, and therefore the ejectment application was allowed. The present appeal is filed against the said ejectment order.
8. I have heard Mr. Syed Hassan Asghar Rizvi, learned counsel appearing for the appellant, Mr. Rashid Tariq Khan learned counsel appearing for the respondent, and have gone through the R & P of the case.
9. It was contended by Mr. Syed Hassan Asghar Rizvi learned counsel appearing for the appellant, that the respondent had other properties of his own and in order to prove this fact the appellant had made an application before the Rent Controller for summoning record but the same was rejected. It was further contended that the police for handing over possession was served by the, respondent on the appellant in March, 1984 but the application was filed 10 months thereafter which clearly shows that the need was not bona fide.
10. Mr. Rashid Tariq Khan learned counsel appearing for the respondent has contended that the respondent had no other property of his own and he was residing in rented premises. That the landlady of the respondent had filed ejectment application against him which was proved from the summons issued against respondent and therefore, the learned Rent Controller had rightly allowed ejectment application. He has further contended that the landlord of the respondent had filed another Rent Case being Rent Case No. 256 of 1986 in which the ejectment application has been allowed against the respondent. In support of his contentions, he has filed order dated 15th December, 1987.
11. I have considered the contentions of the learned counsel. The affidavit filed by Inamul Haq son and Attorney of the respondent shows that the flat in question is required by his father in good faith for his own occupation and that of his family. That his father has no other property of his own in Karachi and he was residing in a rented house in P.E.C.H.S., Karachi That the landlady of his father has fled a case under Section 14 of Sind Rented Premises Ordinance, 1979 being Rent Case No. 2759 of 1983 against his father and he has produced Court notice as Annexure `B'. He has denied that the house where they were living is owned by his father. That his father had requested the opponent orally as well as in writing to hand over vacant possession of the flat in question to him but he has refused to do so. He has produced copies of two notices and reply as Annexures `C', `D' and `E'. He has denied that the opponent had paid Pagree to his father for the flat in question, and according to him this plea was taken in order to extract money from his father for vacating the flat. In cross- examination he has denied a suggestion that the house in which they were living belongs to his father. He has also denied a suggestion that they did not want the disputed house for their personal use but they want to enhance rent. '
12. Appellant Abdul Waheed has stated in his affidavit that the applicant has created false ground of personal use just to get ejectment order. He has denied that the house in question is required by the respondent/landlord for his personal bona fide use and that he was living in a rented house.
13. That the house which the respondent was occupying belongs to him, and that there was no change in the Constitution of his family, after the day the flat in question was rented out to him.
14. That he had paid Rs. 20,000 as Pagree which fact is mentioned in his reply. That the respondent had already increased the rent from Rs. 550 to Rs. 650 and he further wanted to increase the -rent but he refused and therefore, the ejectment application was filed. He has denied that the landlady has filed any ejectment case against the respondent. In cross-examination he has stated that he had no proof regarding payment of Pagree in writing. The rent was enhanced to Rs. 650 after one or 1-1/2 years of the tenancy. The applicant demanded enhanced rent thereafter but he did not agree. The demand was not in writing. There is no mention in letter dated 7-3-1984 about enhancement of lent. He has denied a suggestion that the applicant resides in a rented house. The case filed against the applicant is collusive one. He has denied a suggestion that the applicant has no other house of his own. The applicant has house in Defence Phase V which is on rent. There is another house on Anqle Road owned by Begum Muhammad Ziaul Haq. He has further stated that he cannot produce any proof of these properties in writing.
15. From the affidavit filed by Inamul Haq son and Attorney of the respondent, it is clear that the respondent has no other property in Karachi and that he was living in a rented house. That ejectment cases were filed against him by the landlady and in one of the cases ejectment order has been passed again him which is dear from the notice as Annexure `B' produced before the Rent Controller and the photostat copy of order dated 15th December, 1987 passed if another Rent Case No. 256 of 1986 by the learned Vth Senior Civil Judge Karachi (East) as Annexure `E'. On the other hand the appellant has failed to prove that the respondent had any house of his own or the house which he was occupying belonged to him. This stand of appellant is belied by the documents referred to above. In the case of Abdul Salam Akhtar v. Dr. Najam Parvez (1976 SCM R 52), it was observed that:-- "The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view, extend to cover rented premises, for, otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation, which the landlord is occupying at the time, must be shown to be his own and not merely rented premises."
16. However, while I was dictating the order the learned counsel appearing for the applicant requested for six months time to vacate the premises, but Mr. Rashid Tariq Khan learned counsel appearing for the respondent stated that six months time was excessive and therefore I allow four months time to the appellant to handover vacant possession to the respondent subject to the condition that he continues to deposit monthly rent regularly. In case he fails to hand over vacant possession to the respondent as directed, the learned Rent Controller shall issue writ of ejectment without issuing any prior notice, if any, execution application is filed.