1. ' This 1st Rent Appeal has some nexus with F.R A. 936/87 between the same parties which also had been placed before me today and which I have decided separately.
2. ' This is a landlord's appeal. The relative ground for ejectment was personal bona fide need on the part of the appellant-landlord. The ejectment application was dismissed, bona fide personal requirement not having been proved. Now this appeal has been preferred.
3. ' I have heard both the learned counsel at some length. Admitted position is that the appellant- landlord is owner of several properties in the area of Qasirnabad. One of such properties namely, 69, Qasimabad, Liaquatabad, Karachi, is the property in dispute here. It is evidently a double- storeyed structure, the first floor being the subject-matter of the present tenancy whereas the ground floor is occupied by another tenant. The appellant-landlord is also the owner of properties bearing Nos.76, 250 and 257, all situated in the same area as the disputed premises. According to his own averments the landlord occupies House No,250, Qasimabad, Karachi, which is not sufficient for his requirements meaning thereby the personal requirements of the landlord and members of his family. This being the landlord's predicament he applied for ejectment of the respondent- tenant from the disputed tenant hold premises. In evidence the landlord was unable to show that there had been any addition in his family members as of late. On the controversy, the learned Controller had framed two distinct issues in this case, one pertaining to the question whether the landlord required the tenant hold for his personal occupation and another relative to the bona fides of the requirement, if established. The learned Controller approached the problem, to my mind, very fairly, by referring to an earlier ejectment case between the same parties which was instituted on 28-2-1983 purely on the ground of default and which was disposed of through an order of dismissal passed on 2-9-1987, a case which in appeal I have decided today itself as already adverted to above. Correspondingly, the proceedings leading to the present appeal, on personal requirement were initiated on 29-84988. In evidence it was revealed that even as from 28-2-1983 namely, the date of the institution of the earlier rent case, directed to seek eviction on the ground of default only, there had been no change in the number of members in the family of the appellant-landlord. It, therefore, arose for examination before the learned Controller whether in such a situation when the ground of personal need could have been joined with the ground of default in the earlier application failure in doing so and seeking ejectment on personal ground, subsequently, upon the refusal of the earlier application would or would not involve lack of bona fides. This was more so because during the intervening period there had been no change in the number of occupants of the premises, continuing to be in occupation of the appellant-landlord.
4. The question need not have been approached in isolation and other factors could have been and were taken into consideration. Such factors, inter alia, subsisted in the fact that another property namely, 76, Qasimabad, was situated just opposite the premises occupied by the landlord and even though the first mentioned property was also with another tenant ejectment in relation to that was not sought. As to this question, it has been contended before me by Mr. Shakil Ahmed that choice in the matter lay absolutely with the landlord and a number of factors can weigh with him in making such a choice. This is correct but where a landlord owns a number of premises and there are obvious objections to the choice of a particular tenant who may have been mala fide singled out by him for eviction something has necessarily to be said on the question, if bona fides of the requirement have to be established. I find nothing on the record or at least nothing has been shown to me explaining this omission. On the other hand, there is material to show that certain circumstances subsisted militating against the specific move against the present respondent- tenant. Thus, not only that the property bearing No,76, Qasimabad, was exactly opposite the occupied premises of the landlord in addition to which and not in substitution whereof the disputed premises was sought but the tenant of such premises namely Rafatullah was admitted to have been a defaulter by the landlord himself when the present respondent-tenant had not been proved to be a defaulter, a circumstance which, at least notionally, could have weighed in her favour, moreso because she is also a widow. There are other material facts as well on the record which could have been adverted to as regards bona fides of the requirement and were actually so adverted to by the learned Controller. Thus while in the affidavit-in-evidence filed by the appellant-landlord he stated that he was only in occupation of House No,250, Qasimabad, he was cross-examined on 21-3-1989 specifically to the effect that it was not only Plot No,250 of which he was in occupation but also additionally Property No,257, Qasimabad, which too was occupied by him. To this he replied that the property last mentioned was in the tenancy of one Malik Aijaz but neither produced any document in support of it nor referred to any other material in substantiation of the plea. On 20-4-1989 the respondent-tenant submitted her affidavit-in-evidence and made a categorical statement that the above-said other property namely 257, Qasimabad, was in the personal physical A occupation of the appellant-landlord and, therefore, there was no case for personal requirement made out. On this averment, the respondent-tenant was not cross- examined at all, implying thereby that this position remained not only unrebutted but even impliedly admitted.
5. In a case involving personal requirement covered by section 15 of the Sindh Rented Premises Ordinance, 1979, a landlord has not merely to establish a case of personal need but has also to show that the requirement or need is an honest or bona fide one. Thus, where a landlord fails to establish any personal requirement at all there is no necessity to go into the further question whether or not good faith has been established. In cases where however, the element of personal requirement stands proved the Court cannot automatically order eviction unless it further satisfies itself that the requirement is also an honest and bona fide one, for even where a requirement has been established the case may fail on good faith not having been so established.
6. In the instant case, the learned Controller has found that the number of the family members of the appellant remaining static at least from 28-2-1983 upto the date of the Ejectment Application namely, 29-8-1988 no case for personal requirement was made out. Such finding, however, has been questioned by Mr. Shakil Ahmed, learned counsel for the appellant-landlord, who has urged that in the meantime the children and family members of the appellant-landlord had come of an age and, therefore, their requirement had come to mature over the years. This may be so but again such had to be supported by cogent averments. On the point learned counsel has referred me to the fact that two of the landlord's sons have been examined and each one of them has stated that he is studying at such and such level in such and such institution. However, no details except the number of the members of the family are set out in evidence from the side of the landlord nor is it stated as to how long would it take for the deposing C sons of the landlord to be established in life.
7. On the basis of this material it is difficult to deviate from the findings of the learned Controller on the ground of personal requirement.
8. As already observed above, even if for the sake of argument it is proved that the landlord had established his personal requirement he had still to establish that the requirement was one based on good faith. Mr. Shakil Ahmad has rightly argued that where a landlord owns more properties than one he has a discretion to decide as to which one of them would be suitable for his personal need and once that choice had been made it does not lie in the mouth of the tenant to resist the requirement merely on the basis of an assertion that there is no particular reason for the axe falling on the specified tenant. However, such a rule is not an absolute one in the context of bona fides which, as said earlier, is an essential requirement of section 15 and which distinguishes that section from section 14 of the Sindh Rented Premises Ordinance, 1979. A Court can and must see in terms of Section 15 ibid, whether the making of the choice does or does not involve absence of good faith, particularly so when the point is specifically taken. As seen and as determined by the learned Controller, the disputed premises were at some distance from the premises already in occupation of the landlord but one which was right opposite that of the landlord was bypassed to select the tenant-hold of the respondent. Not only that as observed earlier, the respondent's . Tenement is situated on the first floor and it would have been more logical and convenient for the appellant- landlord to seek additional premises on the ground floor of the same building which also was tenanted at the same time but again the landlord's choice for, some inexplicable reason, fell on the respondent-tenant. I have deliberately used the expression "inexplicable" because the landlord could have, if he wanted, explained the situation and for all that one may know he could have explained the situation satisfactorily but since he has failed on that score the situation remains inexplicable. Add to this the fact that the application for personal bona fide requirement has followed so soon upon the heels of dismissal of the previous application on the ground of default and against the same tenant again renders the requirement suspect and lacking in good faith.
9. ' There is some authority for the proposition that failure to establish grounds of default etc. If conjoined with a plea for bona fide requirement may not necessarily militate against the good faith concomitant to personal requirement. This is for good reasons and there is logic for the approach. One in genuine personal need may reasonably press all other grounds for eviction, if available to him, and failure in some or all of them may not detract from a case of genuine need.
10. Still the element of good faith is a very exacting one. Thus, failure to establish personal bona fide requirement itself can reflect on a similar requirement to reconstruct, both agitated in the same ejectment application, as was laid down by Supreme Court in Abdullah Baluch v. Adam Ali (PLD 1961 SC 28). The matter of successive eviction actions has to be viewed in this perspective. The failure of the landlord on the ground of default in an earlier F proceeding soon followed by another on personal need may, at the minimum, occasion some clarifications, if not explanations,, on the aspect of good faith as relative to the subsequent move and absence thereof can plausibly reflect on the element of good faith. Such is lacking here. I, therefore, find no merits in this appeal and dismiss it.