This judgment shall dispose of F.R.A. No.442/88 and F.R.A. No.443/88 as facts and evidence in both the appeals are the same and both of them were heard together.
An order for eviction has been made against the appellants Nasir Ahmed and Bashir Ahmed on 13- 3-1987 on the ground that the respondent/landlady requires the two rooms in their possession for her bona fide use and the appellants/tenants have come in appeal. The premises in dispute are two rooms which were given to the appellants for commercial purposes in which the appellants are running their business and using it as shops. After discussing the evidence learned Rent Controller vide order dated 21-7-1983 came to the conclusion that the premises being commercial, the landlady could not seek the ejectment of the tenants on the ground of her personal requirements of residential nature because the commercial premises could not be turned into residential premises. The landlady had come in appeal and this Court- vide order dated 13-1-1985 decided that the entire house was one residential unit and the mere fact that the landlady had rented out two rooms for commercial purposes did not change the original status of the premises which remained residential. The case was thereafter remanded to the learned Rent Controller to decide it afresh on merits. After remand, some further evidence was lead and vide impugned order the learned Rent Controller has decided that the respondent /landlady required the premises for her bona fide needs. It is contended in this appeal that the landlady had failed to prove the bona fides of her requirements and that the learned Rent Controller had failed to consider the directions given by the Hon'ble High Court in the remand order, that the affidavit-in-evidence filed by the respondent and her son Muhammad Yousuf were not considered by the learned Rent Controller while making the impugned order and this additional evidence had proved that the alleged requirements of the landlady were not bona fide, that the landlady had concealed the fact that her son Muhammad Ismail owned a double-storeyed house consisting of 10 rooms and lying in a better locality. Learned counsel of the parties have been heard and record perused.
2. As per averments made in the ejectment application, the respondent claimed that she had six children, the eldest son Muhammad Ismail was married and was employed abroad but most of the time his wife and children lived with the respondent and that her other sons, Haroon aged 24 years, Muhammad Yousuf aged 17 years, Yaqoob aged 15 years and one daughter Anis Akhtar aged 18 years lived with her in the same house, that her house was a very small house and it was not sufficient for her needs even at the time when the appellant was inducted as a tenant but due to her acute financial difficulties she had been tolerating this inconvenience so long but now the children had grown up and the accommodation had become absolutely inadequate and, therefore, she was constrained to seek ejectment of the appellants, that after oral request proved to be of no effect she served the appellants with a notice dated 12-2-1978 but the appellants, although they duly replied this notice, did not agree to vacate the same. The appellants in their written statements denied the bona fide requirement of the respondent and claimed that the landlady in fact had asked them to enhance the rent and this was the real ground for seeking ejectment. The appellants, however, did not explain in the written statements as to where the sons of the respondent were living, if they were not living with her. In her affidavit, the respondent stated that she had six children. Out of them, her son Muhammad Ism who was employed in Saudi Arabia was married and had two children and the wife and children of Muhammad Ismail were living with her here at Karachi. As to the accommodation in her possession, she stated that she had one room and this was quite insufficient for her 8 family members because three of her sons were now major and grown up and there was too much congestion in the house. In cross examination she was asked whether her daughter who was married to Mayal lived with her. She stated that this daughter did not live with her and she lived with her husband. It may be noted that the respondent had not claimed that this daughter was living with her. She had only claimed that her sons and one unmarried daughter were living with her and one son's family, that of Ismail , often stayed with her: She further stated that her son Haroon was employed in Telephone Department. She denied that this Haroon alone lived with her. The next witness examined by the respondent is her son-in-law Kifayat Hussain. According to this witness the respondent had a family of eight and there was only one room in the house, that her son's wife -had died and his two children were also living with her.
He denied a suggestion in cross-examination that none of the children of the respondent except Haroon were living with the respondent. The third witness examined by the respondent is a neighbour, Abdul Hameed. According to him only one of the three rooms in the house were in occupation of respondent. In cross-examination he stated that the family of the respondent consisted of seven persons. The appellants were then examined and they claimed that the respondent had asked them to enhance the rent from Rs.95 per month to Rs. 150 per month and on their refusal to do so they were asked to vacate the shops. They further stated that the respondent had refused to receive rent and then it was sent by money order which was also refused whereafter they deposited the rent in Court. They further stated in their affidavits that when the respondent was informed of the deposit of rent in the Misc. Applications, she got annoyed and disconnected their electric supply and litigation in this respect was also pending. They further stated that the electricity was later on restored but even thereafter it was often disconnected. They clarified that the electric supply was through a plug from that portion of the house which was in possession of the respondent/landlady. They denied that the family of Ismail (son of the respondent) was living with the respondent and they further stated that another son Haroon had also proceeded abroad and as such present accommodation with the respondent was sufficient for her needs. In cross-examination they denied that the respondent had six children and conceded that she had five children. They admitted that the children of the respondent did not have a room for their studies. They denied that the respondent had only one room and asserted that she had two rooms. After remand, the respondent filed and additional affidavit in which she reiterated her requirements. By this time, the premises were inspected by the local commissioner appointed by the learned Rent Controller and as per report of the local commissioner dated 6-5- 1982, the accommodation in possession of the respondent consisted of one room measuring 10' x 10', a store room measuring 6' x 8', a small courtyard, one kitchen, a 3 feet wide bath room and one W C. As per report of the local commissioner the store room was full of attache cases, boxes and quilts. The respondent at this stage also examined her son Muhammad Yousuf Qureshi.. He said that there was congestion in the house and that he was also planning to get married. In cross- examination he stated that his brother Ismail and his family were now living in Saudi Arabia and that his elder brother Haroon had as yet no children. He denied that his brother Anwar and his. Wife were in Saudi Arabia but conceded that Anwar was employed in Saudi Arabia. He-further conceded that his elder brother Haroon was employed in Telephone Department -before getting employment in Saudi Arabia. He also stated that he and his brother Yaqoob were unmarried. He denied that his sister Mst. Anis Akhtar was married. He also admitted that `they had constructed a house in Bagh-e-Malir consisting of 10 rooms. This is all the evidence on record. The stress in the cross-examination of the respondent and her witnesses was also on the fact that the premises in question were let out to the respondent for commercial purposes and yet the respondent was seeking ejectment of the appellant on the ground of her residential requirements.
3. Even during the course of hearing of these appeals, learned counsel for the appellants had brought to the notice of the Court the fact that the evidence on record sufficiently proved that the premises in question were let out to the appellants as shops and the respondent was seeking the ejectment of the appellants for her residential purposes. This point has already been decided by this Court in F.R.A. No. 646/83 whereby the case had earlier been remanded to the learned trial Court, as discussed in earlier part of this judgment, and it was held that the entire house was a residential unit and the mere fact that two rooms' had been let out as shops did not convert the two rooms into commercial ; premises and that the entire house retained its original status of a residential unit. This point stands settled and arguments in this behalf were unwarranted. The only point which can be legitimately raised in these appeals is as to whether the respondent had succeeded `in proving the bona fides of her personal requirements.
4. So far as the accommodation in possession of the respondent is concerned, the case of the respondent is that she is in possession of only one room. Although it was not disclosed in the ejectment application that she was in possession of one room but this fact was disclosed m the affidavit of the respondent. On the contrary, according to the appellants, the respondent is in possession of two rooms. To resolve this difference in the averments of the parties, learned Rent Controller had appointed Miss Wallail Zahid, Advocate, as the local commissioner to inspect the premises. Her report is on record and, as stated above, the respondent was found to be in possession of only one living room besides a store room measuring 6'x 8' which was found full of attache cases, boxes and quilts. According to learned counsel for the appellant this is also a living room and the respondent should be deemed to be m possession of two rooms. In my view, a room measuring 6' x 8' can hardly be called a living room and in any case this room was being used as store room and it should be treated as such. The respondent had thus one living room and one store room. Learned counsel for the appellant referred me to the cross-examination of Muhammad Yousuf Qureshi, son of the respondent, in which he stated that they had constructed a 10 rooms house in Bagh-e-Malir. It is not the case of the appellants that the respondent has constructed this house or is its owner. It appears that two sons of the respondent who are serving in Saudi Arabia have constructed this house. It is, however, the property of the sons and not of the respondent. The respondent cannot be compelled to-go and live with her sons in their house. She has got her own property and has every right to live in it. Since the appellant has failed to show that the respondent is the owner of this house its existence is irrelevant in the present context.
5. According to the respondent, her unmarried daughter Mst. Anis Akhtar and her sons Yousuf and Yaqoob are living with her. Haroon is also temporarily in Saudi Arabia at the moment and the family of the other son Ismail is also not at present living with the respondent. The appellant had denied that Mst. Anis Akhtar was living with her mother and that Yaqoob was also not living with her but no cogent evidence was brought on record to show where these two children of the respondent were living. Mst. Anis Akhtar is unmarried daughter of the respondent and it is only natural to expect that she is living with her mother. According to the appellant Mst. Anis Akhtar is married. The onus to prove this was on the appellant but this onus has not been discharged. It is thus evident that daughter Mst. Anis Akhtar and sons Muhammad Yousuf Qureshi and Yaqoob Qureshi are living with the respondent. This makes a total of four persons in the family of the respondent. The fact that the store room was found by the local commissioner to be full of attache cases, boxes and quilts also goes to show that more than two persons are living with the respondent. The one room in possession of the respondent is certainly inadequate for the needs of such a family. At least the sons must have a separate room from their mother and sister. The fact that the respondent was bearing up with such a small accommodation so far is no ground to hold that her requirements are not genuine. Besides, the children of the respondent were not grown-up in the past and with the passage of time they certainly required more accommodation. Even the appellants concede that at least one son of respondent is living with her. Even on this assumption, the respondent seems entitled to more accommodation as I am of the view that a grown-up son should have a separate room from her mother. The accommodation in possession of the respondent is thus not sufficient even for two persons and, if it is held that the family of the respondent consisted of herself, her two sons and one daughter, as appears to be more probable, the bona fide requirements of the respondent become all the more pressing.
6. The learned counsel for the appellants has relied on a number of authorities in support of his contention that the requirements of the respondent were not bona fide. 1984 MLD 1983 was relied upon on the point that if a landlord suppresses exact accommodation in his possession then his requirements cannot be said to be bona ride. It is true that the respondent `did not state in the ejectment application what accommodation was in her possession apart from saying that it was too inadequate for her requirements, but in her affidavit she clearly stated that she was in possession of one room. It is immaterial if she did not say, that she was in occupation of a store room as well. The present case is not a case in which the landlady can be accused of suppressing exact accommodation in her possession. This litigation is pending fur the last about 11 years. If during this litigation one or two of her sons builds a house, the respondent cannot be accused of suppressing this fact. Besides, the respondent is not supposed to give details of the properly of her sons. As such the appellants cannot get the benefit of the decision in this authority. 1985 M LD 110 was relied upon on the point that if certain averments made in the examination-in-chief (or an affidavit) were not challenged in the cross-examination of the witness, then it should be assumed that such an averment was accepted. Here, the position is this that on the date when the case was fixed for cross-examination of the appellants, counsel of the respondent failed to appear and as such the evidence of the appellants was closed without their being cross-examined. This places affidavits of the appellants in a different position from the, position where appellants were subjected to cross--examination and a certain point was not contested therein. Besides, I have been referred to 1984 CLC 90 in which it is held that even in such a case the evidence of a party must still be seen in the light of the entire evidence on record. 1987 SCM R 2051 is in respect of a case where some vacant premises were available with the landlord but it was not shown why they were not suitable for his requirements and, therefore, it was held that the alleged requirements of the landlord were not bona fide. This authority is not applicable in this case because no vacant premises arc available with the respondent/landlady. 1988 SCM R 401 is on the point of misreading of the evidence and it is held therein that a Finding based on a misreading of evidence is liable to be set aside. In my view, learned; Rent Controller may not have properly discussed the evidence but his assessm ent,,: on the whole, is based on its proper appreciation. In the present case, the facts' and circumstances brought on record show genuine requirements of the' respondent. The fact that the respondent did not 'seek ejectment of the appellant on any other ground except that of her personal requirements goes to show, in,, conjunction with the evidence on record, that the requirements of the respondent are bona fide. The respondent is a widowed lady who must have reasonable accommodation for her requirements. She cannot be compelled to go and live with any of her sons. The two rooms which are the subject-matter of these appeals are clearly required by the respondent for her bona fide needs. I am in overall agreement with the observations of the learned Rent Controller and find no force in these two appeals which are accordingly dismissed with costs. The appellants are, however, allowed two months' time to vacate the premises.
M.Y.H/N-194/K