1. ' This First Rent Appeal is directed against the order dated 31st May, 1986, passed by the learned IVth Senior Civil Judge and Rent Controller Karachi (West), 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/tenant inter alia therein that he has purchased B/F-92/1, North Karachi-36, on 11th April, 1978, by a registered sale-deed. That the appellants were tenants of the previous owner in respect of one shop at the monthly rent of Rs,70 and the rent was payable by 5th of every month vide Rent Agreement dated 15th February, 1978. That on 20th April, 1978, the applicant called upon Abdul Rehman, predecessor of appellant, that the portion of the shop in his possession is required by him as the same is to be included in the residential portion as the accommodation was insufficient and dingy. The predecessor of the appellant first promised to vacate the shop but ultimately refused to do so. That the applicant had served necessary notice on 23rd October, 1978 on opponent which was replied to. That even after service of notice the predecessor of the appellant failed to pay rent.
3. ' That Abdul Rehman, predecessor of appellants was served with notice and he was filed written statement in which he admitted that he was in possession of one shop as a tenant but the rate of rent was denied. According to him, the rent was Rs,40 per month. The receipt of notice was admitted, however rent which was paid to the previous landlord till March, 1978. In the months of April, 1978, the Attorney of the landlord did not turn up to collect rent, .Therefore, the rent for April and May 1978 was sent by money order but the same was refused and the opponent was informed that the applicant had purchased the property on or about 11-4-1978 hence the previous landlord was not entitled to accept the rent and the same should be paid to the new landlord. Accordingly, the rent for the months of April and May 1978 was remitted by money order to the applicant which was refused. Rent for the months of April, May and June 1978 was again sent through another money order, but it was also refused. After this refusal, the applicant came to him and demanded rent from April 1978 at the rate of Rs,200 per month. He further told the opponent that in case the rent is not enhanced he will dispossess the opponent from the shop, to which the opponent did not agree and, therefore, the application has been mala fide.
4. ' The learned Rent Controller framed the following issues:-
(1) What is the rate of rent?
(2) Whether the opponent has committed default in payment of monthly rent as alleged.
(3) Whether the shop in question is required by the applicant bona fide in good faith for inclusion in the residential portion due to shortage of accommodation?
(4) What should the order be ?
5. ' In support of their respective contentions, the applicant/respondent filed his own affidavit in evidence and also produced tenancy Agreement as Ex.4/A, photo copy of notice dated 23-2-1978 as Ex.4/B.
6. ' In rebuttal, one Anisur Rehman son of opponent and attorney of appellants Nos. 1 and 2 filed his own affidavit-in-evidence. He also produced certified copy of receipt dated 11-3-1978 allegedly issued by previous landlord as Annexure "A". He has also produced certified copy of the receipt dated 8-8-1978 regarding deposit of rent in Misc. Rent Case No, 3505 of 1978 as Annexure "B", Sub- power of Attorney as Annex. 'C'. They have also examined M/s. Mohammad Rafi and Abid Hussain.
7. ' At the time of argument, the learned counsel for the respondent/ landlord did not press Issue No, 2, regarding default. However, the learned Rent Controller after taking into consideration the evidence produced by the parties came to the conclusion that the agreed rent was Rs,70 per month and that the shop in question was required by the respondent for his personal bona fide need and consequently the ejectment application was allowed. The present appeal is directed against the said order.
8. ' I have heard Mr. Munawar Ali, learned counsel appearing for the appellant, Mr. Farman A. Hashmi, learned counsel appearing for the respondent and have also gone through the R & P of the case.
9. ' It has been contended by Mr. Munawar Ali, that the respondent had failed to prove that the demised shop was required by him bona fide and the learned Rent Controller has erred in deciding this issue in favour of the respondent.
10. ' It has been contended by Mr. Farman A. Hashmi that the area of the plot on which the disputed shop is situated was 120 sq. Yds. That four shops were constructed on part of the area of the plot in dispute out of which shops Nos. 2 and 3 were in possession of the tenant. That the respondent had twelve children and one, Wife living with him and, therefore, the demised shop was required by him for his personal bona fide need. It was further contended that it was the prerogative of the landlord to choose any of the shop for his personal bona fide need and the learned Rent Controller has rightly allowed ejectment application.
11. ' I have considered the contentions of the learned counsel. The affidavit in evidence filed by the respondent shows that the rent of the demised premises/shop was Rs, 70 per month and was payable by 5th of every month. In support of his contention he has produced the Agreement which was executed by the deceased tenant in favour of the previous owner. That he reasonably and bona fide requires the said shop for his personal occupation as the same is to be included in the quarter for residential purposes. He had personally called upon the deceased tenant Abdul Rehman on 12th April, 1978, and told him that the portion of his shop is required by him as the same is to be included in the residential portion of his house as the accommodation is short and dingy.
12. The deceased tenant first promised to hand over possession to him but later on he backed out. In cross-examination, he has deposed that when he purchased the premises there were three tenants in the building including the opponent. He was at Sukkur on those days when he purchased the said building. He has denied that the opponent used to pay Rs,40 per month as rent to the previous owner. He has admitted that the opponent had filed a Civil Suit against him. He did not know if the opponent had paid rent to the previous owner at the rate of Rs,40 per month till March, 1978. He has denied that the opponent paid him first time rent for the month of April, 1978 at the rate of Rs,40 per month. The Agreement Ex. 4/A does not bear his signature. At present he is jobless.
13. He has denied that the whole area of the shop in question is commercial Area. The bill of electricity is charged for residential purposes. He has denied that the opponent had not promised to vacate the premises. He has denied that he wanted to rent out the said shop to someone else after ejectment is allowed. He has denied that he does not require the premises in question for his personal need. He does not own, any other house. He has denied that he has filed ejectment application on false grounds.
14. ' Anisur Rehman son and Attorney of the other legal heirs of deceased tenant Abdul Rehman has stated in his affidavit in evidence that the monthly rent of the demised shop was Rs,40 per month.
15. On purchase of the demised shop, the applicant demanded enhanced rent at Rs,200 per month and on refusal of his father to pay the same, he refused to accept rent and, therefore, the same is being deposited in Misc. Rent Case No, 3505 of 1975. That the applicant has sufficient accommodation for his residence and he is doing business in one of the three shops (portion of Quarter No, 92/1); that the shop in question admeasures 11' X 10'. That the applicant has filed this case on false ground. In cross-examination he has admitted that there was written agreement between his father and previous landlord. His father used to sign in Urdu, he could not say if Ex. 4/A bears signature of his father. He did not remember as to when the rent was refused and he sent money order. He is in possession of the money order coupons. He did not remember as to since when he started depositing rent in Court. It may be correct that the applicant has twelve children and one wife. The area of the premises where the shop is situated is 128 Sq. Yds. He does not know about the total rooms. He has admitted that he has not, stated in written statement that the applicant is not personally residing with his family in the premises in dispute. He has also produced two rent receipts and special power of attorney.
16. ' Mohammad Rah examined by the appellant has deposed in his affidavit in evidence that he knows the parties and is fully aware about the facts. That the applicant has been doing business in one of his three shops and he has sufficient accommodation for his residence. In cross- examination, he has stated that the plot on which the shop is situated admeasures 120 sq. Yds. He has also admitted that the shop in question is within the area of the quarter of the applicant. He does not know the total number of family members of the applicant. 'He cannot identify the signatures or deceased Abdul Rehman father of Anisur Rehman.
17. ' Abid Hussain, another witness produced by the appellant has given similar evidence as that of Mohammad Rail and has admitted that the shop in question can accommodate two cots and is within the area of the quarter of the applicant. He does not know about number of family members of the applicant.
18. ' From the above evidence produced by the parties, it is clear that the landlord/respondent has a large family consisting of twelve children he himself and his wife. It is also admitted position that the total area of quarter of which the shop in question is a part of 120 sq. Yds. It is also an admitted position that there are three shops constructed on part of the quarter out of which two are on rent and in one shop the applicant/respondent is running his own business. Merely because the landlord is in possession of one shop in which he is carrying on business, the ejectment cannot be refused on the ground that he could include his own shop in the quarter. It is the discretion of the landlord to choose as to which shop will be more suitable to be included in the residential portion of his quarter.
1. In the case of Sabumal v. Kikaram alias Hemandas (1973 SCMR 185); wherein it was contended on behalf of the tenant that the landlord owns several other houses in the same Urban area and therefore, the ground of personal need of the landlord was not sustainable in law. The contention was repelled by their Lordships of the Supreme Court and it was observed that:- "If a landlord possess more than one house in the same urban area, the choice as to the house in which he would like to live himself is purely a matter within his prerogative and discretion, and the law does not give either to the tenant or the Rent Controller the power to determine where the landlord should personally reside."
2. In the case of Rajab Ali v. Darius B. Kandawalla and another (PLD 1984 Kar. 14); wherein it was contended on behalf of the tenant that the respondent/landlord did not need all the four tenements and even one tenement was sufficient for her personal requirement and, therefore, the need was no bona fide. The contention was repelled and it was observed that:- "Admittedly the whole building with two floors each floor having two independent tenements is the property of the respondent. It is entirely left to her to decide if she wants whole of the building or any of the tenements for her resident. If she decides to have whole of the building for her use and occupation, she cannot be prohibited from doing so it is not for her tenants to determine suitability and sufficiency of accommodation for her. Moreover, the need for accommodation varies from one landlord to another depending upon his or her social status. In one case certain accommodation may be suitable for the landlord's need but the same accommodation in the other case may be considered as unnecessary extravagance. In the instant case the respondent comes from rich family of Parsis. In view of her social status her demand for vacation of the whole house is by no means unreasonable. Even the present house with admittedly 29 rooms which the respondent No, 2 is sharing with her son may be too big for two middle class families but it is not so in the instant case involving rich families of the respondents. Assuming for the sake .Of argument that by demanding the vacation of the whole building the respondent No, 2 has shown her extravagance that is no reason to declare her demand having been made in bad faith. After all she is the master of the property. If she wants to retain whole of the property for her own use and occupation she could do so without any legal difficulty in her way. It is none of the business of the appellants to tell her to keep particular portion for her use and let out the other one and the appeal was dismissed."
3. In the above case, Supreme Court's decision in the reported case of Tiger-Wire Product Limited v.
19. Ibrar Hussain (1980 SCMR 772) was relied upon wherein it was observed that:-- "As to whether the respondent/landlord is showing extravagance for occupying a big house which is owned by him is not such a circumstance of which the tenant can object."
20. ' No other point was raised or argued by the learned counsel appearing for the appellant.
21. ' In view of the above factual as well as legal position, I am of the considered view that the respondent has proved that he required the demised premises/shop for his personal bona fide need in order to include the same in his quarter for residential purposes and the learned Rent Controller has rightly allowed the ejectment application. The learned Rent Controller has given cogent reasons for allowing ejectment application and the order does not call for interference. The Appeal is accordingly dismissed with no order as to costs.
22. ' However, by consent, the appellant is allowed six months' time to hand over vacant possession of the demised shop to the respondent subject to the condition that he continues to pay monthly rent at the rate of Rs,70 per month regularly. In case the appellant fails to hand over the possession as directed the learned Rent Controller shall issue writ of ejectment without issuing prior notice to the appellant if any execution application is filed.
23. ' I had decided the above Appeal on 12-10-1989 by a short order and these are the reasons for the same.