' This is landlord's appeal against the dismissal of his Rent Case No,1332 of 1986 moved for eviction of respondent/tenant Niazuddin from the first floor of Building No,10/751-A, Liaquatabad, Karahci.
2. Admittedly the premises in litigation was rented out to the respondent by Haji Muhammad Khairati, who was owner of the same. Subsequetly on 7-6-1976 the entire building including the disputed premises were transferred by Haji Muhammad Khairati to applicant Masjid-e-Rizwan under a Waqfnama.
3. It was case of appellant that after creation of Waqf and after death of Waqeel Haji Muhammad Khairati, he was accepted as landlord by the respondent, who started paying him rent and continued to pay the rent till the month of January, 1983. The appellant claimed rent of the disputed premises to be Rs,100 per month. Appellant sought eviction of the respondent on the grounds of default in payment of rent and requirement of the premises for personal bona fide use. In respect of the default it was averred that the respondent failed to pay or tender rent for the period February, 1983 to 31-10-1986 and that the premises in litigation were required for using the same as a Madresa where Quranic education would be given to girls who were getting such education with the boys in the premises of the Mosque: The rent case was opposed by the respondent, who claimed to have taken the disputed premises from Haji Muhammad Khairati on rent at the rate of Rs,90 per month in 1972. It was added that subsequently the rate of rent was enhanced to Rs,150 per month and that rent at said rate was being paid without obtaining of receipts. Respondent claimed to have paid rent at the rate of Rs,150 per month till January, 1986. After January, 1986 the appellant refused to receive the rent, as alleged. Thereafter rent for February, 1987 and for subsequent months is being deposited in M.R.C. No,314/86. In this way it was denied if the respondent had defaulted in payment of rent. In respect of the ground of personal requirement, the same was alleged to be mala fide because Haji Abdul Salam, President of Committee of the appellant and Ch. Azizuddin were inimical to the respondent, as alleged. It was added that the disputed premises were situated at a distace from the appellant Mosque and that it would be more convenient to establish "Madresa" on the ground floor, which was on rent with a tenant. The respondent took plea that he was not given any notice about change of ownership as required by section 18 of the Sindh Rented Premises Ordinance, 1979. It was added that there were many shops attached to the Mosque and they were also with the tenants.
4. After allowing parties to lead eivdence learned 3rd Senior Civil Judge and Rent Controller, Karachi, Central, under the impugned judgment dated 31-7-1988 dismissed the rent application, after holding that rent of the premises was Rs,150 per month and that the respondent had not failed to pay the rent as alleged. The finding on the ground of personal requirement was given against the landlord. Hence this appeal.
5. Mr. Syed Shoaib Ahmed Bukhari, learned counsel for the appellant argued that notice under section 18 of the Rent Ordinance was not necessary because the respondent had accepted the appellants as his landlord and had paid him rent. No authority was cited in support. The provisions contained by section 18 of the Rent Ordinance, are mandatory in nature and they have provided penalty for non-compliance of the provisions. In the present case appellant's witness Riazuddin admitted in cross-examination that no notice of change of ownership was sent to the respondent.
In view of this the respondent shall not be deemed to have defaulted in payment of rent for the purposes of clause (ii) of subsection (2) of section 15 of the Rent Ordinance, as provided by section 18 of the said Ordinance. In view of this legal position, learned counsel for the appellant did not press the ground of default in payment of rent.
6. Learned counsel for the appellant argued that there was no dispute about the fact that the appellant was running a Madresa in the Mosque where boys and girls were taught Holy, Quran. It was argued that the appellant desired to make separate arrangement for teaching the Holy Qur'an to the girls and for that purpose the disputed premises were required. Replying to the contention raised in the trial Court, learned counsel for the appellant argued that the Madresa could not be run in any of the shops of the Mosque where there was no water connection and that the accommodation in the shops was not suitable for Madresa. In this respect he referred to the report of the Commissioner appointed by this Court. However, report of the Commissioner has not been brought on record. It was further argued that even Waqeef Haji Muhammad Khairati desired the premises to be used for a Madresa. Learned counsel referred to para. 5 of the written statement, where the respondent stated that he did not know if Madresa was being run in the Mosque by the appellant and argued that it would be more convenient to establish the Madresa on the ground floor. Refuting such statement learned counsel for the appellant argued that it was the prerogative of the landlord to determine as to which of the premises would be more suitable for his use. On this point learned counsel for the appellant cited the cases of (i) Bashir Ahmed v. Muhammad Shah (1989 SCMR 538), (ii) Dr.Juzar. Ali v. Mrs. Mani Bai. PLD 1987 Kar. 462, (iii) Mst. Sakina v. Khaliq Bari (1984 CLC 1971), (iv) Muhammad Ishaque v. Fatch Muhammad and others (1984 CLC 2527), (v)
Feroz. Amed v. Mst. Asifa Khatoon (1983 CLC 1247),(vi) Ishaq v. Wali Muhammad (1983 CLC 1953),
(vii) Muhammad Shaft v. Muhammad Alam Khan (1983 CLC 2657), (viii) Muhammad Ishaque v.
A.R. Khan (1982 CLC 562), (ix) Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832) and (x) Mst.
Toheed Khanum v. Muhammad Shamshad (1980 SCMR 593).
' In (i) above it was held that it is the judgment and the need of the landlord about which he is the best judge and regarding status also the prhnary consideration is choice about his need and his comforts and the Court can interfere only when claim of the landlord is visibly extra-ordinary. In (ii).
Above the view taken was that the tenant of the premises cannot dictate to the landlord as to which accommodation is suitable for him. In (iii) above the view taken was that it is not open to the tenant to state that the locality in which the shop in question is situated is not suitable for opening electric shop and that it was choice of the landlord and neither the tenant nor the Court can offer any gratuitous advice with regard to suitability of the accommodation for the purpose for which it is being acquired. In (iv) above the statement of the landlord was consistent with his pleading and this was considered proof of his bona fide requirement and the fact of the landlord's father having many shops was held irrelevant. In (v) above the view taken was that if a landlord owns more than one house in the same urban area, the choice as to the house in which he would like to live, is a matter within his prerogative and discretion and the law does not give either to the tenant or to the Rent Controller the power to determine where the, landlord should personally reside. In (vi) above the view taken was that it is the privilege of the landlord to select premises, he considers most suitable to his need. In (vii) above similar view was taken and it was observed that it is choice of the landlord to choose any of the 32 shops owned by him or the disputed shop, for his personal requirement and if he has other shops this would not preclude him from choosing a particular shop for his own personal use. In (viii) above, the Lahore High Court held that where the landlord owned property at two places the choice of place was matter for him to decide. In (ix) above the view taken was that assertion or claim on oath by a landlord that he required the premises for his personal use, if found to be consistent with his averments in his application and if not shaken in cross-examination or disproved in rebuttal, should be accepted as bona fide. In (x) above, the evidence of landlord's witnesses seeking eviction on the ground of personal requirement was not held to be false or lacking in establishing landlord's plea and the lower Appellate Court failed to give effect to the provisions providing safeguard to a tenant in case of landlord's failure to occupy the premises and the application of the landlord was accepted by the Supreme Court of Pakistan.
7. Mr. Najamuddin, learned counsel for the respondent argued that the rent case was filed by Abdul Salam while evidence in the case was given by Riazuddin, who was not authorised either by Abdul Salam or by the appellant Mosque to depose in Court and that the resolution mentioned in para. 5 of the rent application was not produced in evidence.' It was further argued that the respondent had alleged enmity with Abdul Salam and Azizuddin, but none of them was examined. It was next argued that there was a big hall on second floor of the building of the Mosque besides seven shops on the ground floor and that the girls can be taught Holy Qur'an either in the Hall on second floor or in one of the shops on the ground floor. It was also argued that there was no need to separate girls from the boys because all of them are of tender age and that there could also be two shops one for boys and another for girls in the same premises. It was further argued that the ejectment application was motivated by enmity and that ground floor would be more convenient for the girls students. Lastly it was argued that the appellant had not proved bona fides and he had not examined any independent witness to prove bona fides.
8. The rent case was filed by Masjid-e-Rizwan through Haji Abdul Salam, President Masjid-e-Rizwan wa Majlise Taleemul Quran Committee. The rent case was not filed by Haji Abdul Salam in his personal capacity, or even as President of said Committee. Hence it was not necessary for the appellant to examine in Court Abdul Salam. Riazuddin, who was examined by the appellant claimed to be General Secretary of said Committee and such claim was not challenged by the respondent. Consequently there was no harm if the appellant examined Riazuddin General Secretary of said Committee. In his written statement the, respondent has not given specific particulars about alleged enmity with Abdul Salam or with Azizuddin. Such enmity has not been proved at all. Respondent Niazuddin Exh.7 in his evidence stated that Abdul Salam was related to him and Azizuddin was his brother-in-law and that office-bearers of the Committee were persons of his brotherhood. After saying so he added that all of them were on inimical terms with him. He has not been specific about the enmity and he has not given cause of quarrel between him and other members of the Committee, who are either related to him or are persons of his brotherhood.
Moreover, this was not personal case of Abdul Salam or Azizuddin. It was not put to Riazuddin in cross-examination as to what sort of enmity existed between Abdul Salam and the respondent.
Respondent did not give cause of such enmity. Such plea appears to be fallacious.
9. In his written statement the respondent did not state if there was hall on second floor of the building of the Mosque. Consequently he cannot be allowed to take this plea at appellate stage.
The seven shops on the ground floor are with the tenants. Moreover, as held in the various authorities cited by the learned counsel for the appellant it is prerogative of the appellant to choose as to which 8 premises would be more suitable for his requirement. The respondent has remedy in law because if the appellant does not use the premises in litigation for the purpose, which has been pleaded in the rent case as ground for ejectment, the c respondent would be entitled to be restored possession of the same, as provided under section 15-A of the Rent Ordinance. It does not lie in the mouth of the respondent to suggest to the appellant to have two shifts or to run the Madresa for girls in one of shops or at the second floor. As a result of all this discussion, I am convinced that requirement of the appellant is genuine and bona fide.
10. I, therefore, accept this appeal and set aside the impugned order and direct ejectment of the respondent from the premises in litigation within four months from today. The appellant shall be entitled to move execution application if possession is not surrendered to it by the respondent within four months. No order as to costs.