1. This First Rent Appeal is directed against the order dated 25th July, 1987 passed by the learned IIIrd Senior Judge and Rent Controller (South) Karachi, directing ejectment of the appellant on the ground of personal bona fide need.
2. The brief facts giving rise to the present appeal are that the respondent filed an ejectment application against the appellant before the learned Rent Controller stating therein that she was owner and landlord of building situated on plot No.S.K.2/77, Kharadar, Karachi and the opponent is her tenant in respect of tenement No.15 situated on the 3rd floor of the said building on a monthly rent of Rs.65. That the family of the applicant consists of 10 members, and they are residing in a rented house which consists of only two bed-rooms and one drawing room, and therefore she bona fide needs the premises occupied by the opponent for her use and that of her children. It was further stated that the applicant has filed a plan for approval of reconstruction of the building on the said plot, and when the said plan is approved by the competent authority the same shall be produced during the course of these proceedings.
3. The appellant filed his written statement in which the relationship of landlady and tenant was admitted so also the rate of rent. However, it was denied that the applicant was residing in a rented house or that she required the premises in question for her personal use. It was further submitted that the building where the opponent is residing has been got vacated by the applicant and is in her occupation except the flat in question. It was further submitted that the applicant had constructed ground plus two storeyed building on the ejected plots. Since the opponent has filed a suit against the applicant for Declaration and Injunction restraining her from construction against approved plan thereby blocking the light and air of the premises in occupation of the opponent and therefore the present application has been filed. That the application was not maintainable. In law as the plan was not yet approved and the applicant has no cause of action. In support of their respective contentions the respondent examined Iqbal her son and Attorney, he has produced a rent receipt as EX.A/3 issued in the name of Mr. Jamil Ahmed. On the other side the appellant/tenant filed his affidavit in evidence.
4. On the pleadings of the parties the learned Rent Controller framed the following issues:--
(1) Whether the applicant requires the case premises for personal bona fide use?
(2) What should the order be?
5. The learned Rent Controller after taking into consideration the evidence produced by the parties allowed the ejectment application on the ground of personal bona fide use. The present appeal is directed against the, said ejectment order.
6. As far as the question of reconstruction was concerned, since the respondent did not produce approved plan nor it was stated in the affidavit-in---evidence filed by Iqbal son of the respondent that the plan was sanctioned, and therefore this ground could not be considered.
7. As far as the question of personal requirement was concerned, witness Iqbal son and Attorney of the respondent has stated in his affidavit-in-evidence that the appellant is residing in a rented house i.e. Room No.10 Rehmat Manzil alongwith her husband and children. The rented premises consists of only two bed-rooms and one drawing room and the applicant has got his two sons married, who are living with their wives and children with her. Pam-Bai Building consists of only 1- 1/2 rooms and that is not suitable for the needs of the family of the applicant and is kept for the guests arriving from India and up country. The present accommodation in possession of the opponent is required by applicant herself, her husband, and three children who are also married, The other tenement in possession of Sadaruddin tenant, is required by the applicant for her second married son namely Irshad Ahmed and his family and the third tenement in possession of Saleem is required for him (Iqbal) and for his wife and children. He has produced photostat copy of the last rent receipt in respect of rented premises as Ex. A/3. The requirement is bona fide and is in good faith. The other tenements which have fallen vacant have no amenities and as such are not fit for human habitation. Moreover the applicant has also filed a plan for reconstruction on the building which is under process but because of the uncalled for attitude the Building Control Authority no formal approval has been accorded so far although under the law in absence of objection after the expiry of 60 days it shall be deemed to have been sanctioned by the Authority. He has produced the receipt of Karachi Building Control Authority dated 13-5-1986, and receipt of payment of amount with the application as Ex.A/4 and A/5. In cross-examination he has deposed that the old building consists of ground floor plus three floors. New building consists of ground plus two floors. There are three shops and three godowns on the ground floor of the old building out of which one shop is in new possession. There are three flats on first floor of the old building. Two are vacant. Each flat consists of one and half room. There are six flats on second floor. Two are vacant and four are in occupation of tenants. There are five flats on third floor out of which one is vacant.
8. They have filed similar applications against three tenants of the old building. He has admitted a suggestion that these three tenant are same who have filed civil suits against the applicant. He has also admitted that these three suits relate to construction of the new building on the portion of the same plot. He has also admitted that in all the three rent cases they had taken same ground of personal bona fide requirement. They are four brother is one sister parents, his wife with two children, brother's wife with one child. His father is carrying on business abroad. He has admitted a suggestion that his two brothers often remain with his father abroad. His mother remains with his father off and on. In new building there are two flats on first floor and two flirts on the IInd floor.
9. These flats are incomplete. The structure of these flats is complete, and the finishing work remains to be completed. Finishing work will take 8/10 months. They have started construction of new building in March 1986. The structure of ground plus two floors has been completed till December, 1986. The electric connection has been provided but no meter has been provided connection has also been provided. They have applied for Sui Gas connection. The four flats in the new building are not fit for habitation. The work in the new building is in progress. They have not decided whether to live or not in the new building. They have filed ejectment application against their tenant, Mansoor.
10. He has denied that there is Pagree system in the locality. He has denied a suggestion that they do not require the premises in question for their personal bona fide need but they want to have more Pagree and therefore they have filed the ejectment application. He has denied that new building was not yet rented out as they wanted to earn more Pagree.
11. Respondent A.I Muhammad has stated in his affidavit that the applicant is not residing in rented premises. She is residing in her own house mentioned in the ejectment application. That the building she is residing in has been got vacated by the applicant and there are only three flats which have been occupied by three tenants. That the applicant has got constructed two storey building on the adjacent land of the said plot. Since the applicant wanted to eject him forcibly, he has filed a suit for Declaration and Injunction against her as she was raising construction against approved plan on account of which the present application has been filed against him. That the requirement of the applicant is not bona fide but is mala fide. That the applicant has got sufficient accommodation as well as entire building which has been got vacated by her from other tenants, if she wanted to stay in the building she can occupy the old building which has been got vacated as well as new building which has been contracted and is lying vacant. In cross-examination he has admitted that there is no electricity and Sui Gas in the vacant flats in the building. He has denied that the building under construction is incomplete. He has admitted that there is no electricity and Sui Gas connection in the newly constructed building. He has admitted that m the old building there is one common W.C. On every floor. He has admitted that he, Saleem and Sadruddin use one common W.C. On the 3rd floor. He did not know whether the applicant is living in a rented house. He has denied a suggestion that the applicant requires the rented flat for her use as well as for her children.
12. I have heard M/s. Muhammad Akmal Wasim learned counsel appearing for the appellant, Mr. S. Hassan Asghar learned counsel appearing for the respondent and have gone through the R&P of the case.
13. It has been contended by Mr. Muhammad Akmal Wasim learned counsel appearing for the appellant that as far as the question of reconstruction was concerned; the plan was not sanctioned by the. KDA and therefore, it could not be a ground for ejectment. He has further contended that the new building constructed by the respondent consisting of two floors having two flats on each floor was lying vacant. In addition thereto the applicant was in possession of five flats of old building and therefore the need was not bona fide. The new building was complete in all respects and it was situated on the same plot, and therefore the Rent Controller had erred in allowing the ejectment application.
14. Mr. Syed Hasan Asghar, learned counsel appearing for the respondent has contended that there is no light and gas available in the flats which were in possession of the respondent and therefore the same could not be occupied. It was further contended that no question was asked from Iqbal, attorney of the respondent that they were not living in rented premises. In support of his contentions the learned counsel has relied upon 1981 SCMR page 971 and PLD 1984 Karachi page 14.
15. I have considered the contentions of the learned counsel. It has been admitted by Iqbal son and attorney of the respondent that there are three flats on first floor of the old building and' two are lying vacant. There are one and half rooms in each flat. There are six flats on second floor, two are vacant and four are in occupation of tenants. There are five flats on 3rd floor, one is lying vacant.
16. They have filed ejectment applications against three tenants of old building. He has admitted a suggestion that those three tenants are the persons who have filed civil suits against them for injunction. He has also admitted that his father resides abroad in connection of his business. That two of leis brothers often remain with him so also his mother. He has also admitted that--in the new building there are two flats on first floor and two on the IInd floor. According to him the structure was complete but finishing work will take 8 to 10 months. He was examined in Court on 5- 1-1987 and therefore by now the new building must have been completed. He has also admitted that electricity connection has been provided but not mete: had yet been provided. He has admitted that they have been provided water connection. That they have applied for Sui Gas connection as well. According to the appellant the entire old building has been got vacated by - the applicant and there are only three flats which are under occupation of three tenants on 3rd floor. That the applicant has got sufficient accommodation as well as entire building which she has got vacated, and the new building constructed by her was also lying vacant. The evidence of the appellant that first floor and second floor of the old building has been got vacated and was, lying vacant has not been challenged in cross-examination. The admissions made by Iqbal son of respondent in cross-examination clearly show that they have got electric connection and water connection in the new building and according to his replies the building must have been completed now and the statement of the appellant in this respect has not been challenged in cross-examination that the same was not yet completed.
17. The above narration of facts and admissions of Iqbal clearly show that the respondent was in possession of one new building consisting of four flats and two floors of the old building consisting of six flats. It was further clear that the respondent, her husband, and two of her sons are residing abroad in connection with business of her husband.
18. As far as the case of Rajab A.I v. Darius B. Kandawalla and another PLD 1984 Karachi page 14 relied upon by the learned counsel for the respondent was concerned, it was observed that:- "Under the new arrangement all that a landlord has to show is that the house in possession of his tenant is needed by him in good faith. Thus, it is now possible for him to succeed in getting his house vacated even if he is occupying some other accommodation in the same locality, Of course his success would be dependent on proof of good faith on his part. The fact that the landlord is living in the house which does not belong to him, and that he wants to occupy his own house is in itself a strong factor to prove good faith on his part".
19. Mere ownership of property in the same urban area is by itself not a ground to refuse the application of the landlord for eviction of his tenant on ground of personal requirement'.
20. With utmost respect the above two decisions are not applicable to the facts of the present case. In the present case it has been proved from the admissions of the attorney of the respondent, and the evidence of the appellant that there are as many as four flats lying- vacant in the new building and six flats lying vacant in the old building in which flat in question is situated, and therefore there was sufficient accommodation available in possession of the respondent. As far as mala fides was concerned, it has been admitted by Iqbal, son and attorney of the respondent that the appellant and the only two other tenants had filed Civil suits against the applicant/respondent for Declaration and Injunction for restraining the respondent from raising construction of new building in a way to affect their air and light. Therefore on one hand it is clear that there was sufficient .Accommodation available in possession of the respondent, and on the other hand the relations between the parties were strained and therefore the application was mala fide.
21. I, therefore, allow this appeal, set aside the order of the learned Rent Controller and dismiss the ejectment application.
22. I had decided the above appeal on 15-11-1988 by a short order and these are reasons for the same.