1. ' This First Rent Appeal is directed against the order dated 16-4-1989 passed by the IInd Senior Civil Judge and Rent Controller, Karachi Central, allowing the eviction application filed by the respondent and directing the appellant to hand over the vacant and peaceful possession of the tenement within sixty days from the date of the order.
2. ' The facts leading to the filing of the above appeal are that the respondent is the owner and landlady of building standing on Plot 'No, D-501, Block-R, North Nazimabad, Karachi and the appellants are tenants in respect of the ground floor of the said house at the monthly rental of Rs,2,800. The premises in question were let out by Tenancy Agreement executed between the parties on 22-10-1983. This Tenancy Agreement was for a period of eleven months. The respondent filed eviction application being R.C. No,342 of 1988 against the appellants on the grounds that the appellants have, without the written consent of the respondent, used the premises for the purpose other than that for which it was let out. The respondent sought eviction on the ground of personal requirement. The appellants have made additions and alterations in the existing structure of the property by raising an office room, installation of the press, removal of sink from the kitchen, blocking passage of the air to underground/trench portion of the building, which has resulted in seepage of the water in the said underground portion thereby endangering the structure of the building. The appellants resisted the eviction application and denied the various allegations made therein. The appellants pleaded in their written statement that it is the habit of the respondent to harass her tenants for pressurizing them to enhance the rent, otherwise there is no truth in saying that the respondent required the property for her son Syed Mehmood Zubair.
3. ' The respondent filed her own affidavit-in-evidence besides affidavit in evidence of her husband Syed Saeed Ali Shah in support of the eviction application. The appellants filed affidavit-in-evidence of their Director Akhtar Rahim in rebuttal.
4. They were cross-examined by the respective counsel of the parties.
5. ' On the pleadings of the parties, the learned Controller framed six issues.
6. ' The learned Controller, on the assessment of evidence, decided issue No,1 in the negative, issues Nos. 2 and 3 in the affirmative. On issue No,4, he came to the conclusion that it was not proved.
7. Issue No,5 was decided in the affirmative.
8. ' In view of evidence for issues No,1 to 5 and for reasons thereof, the eviction application was allowed as stated in the earlier part of the judgment.
9. ' The appellants being aggrieved against the order dated 16-4-1989, have preferred the present appeal.
10. ' I have heard Mr. M. Ahmed Shaikh, learned counsel appearing for the appellants in support of the above appeal and Mr. Ataullah Khan, learned counsel appearing for the respondent.
11. ' The respondent reiterated the same facts in her affidavit-in-evidence. She stated that the premises forming the subject-matter of this case, was constructed by her for residential purposes and was assessed by the Excise and Taxation Department as residential building. The respondent further stated that she rented out the premises in question to one Taj Muhammad Abbasi vide agreement dated 1-4-1983 for residential purposes as would appear from the enclosed agreement dated 1-4-1983. The respondent further stated that the appellants after having occupied the premises in question for residential purposes only, converted the use of the same from residential to industrial which led her to serve a legal notice. The said notice though was received by the appellants but they did not care to reply the same.
12. ' In response to a question in cross-examination, the respondent replied that commercial meter was installed at her request. In response to another question, she replied that the tenement in question was let out for residential purposes but appellants, without her permission, started using the same for commercial purpose. In response to yet another question, the respondent replied that the tenement in question was converted for commercial purpose after some time from letting out the same.
13. ' Syed Saeed Ali Shah stated in his affidavit-in-evidence that the premises in question was let out for residential purposes only but the appellants converted the use of the same from residential to industrial by starting a garments factory thereon without any consent of the respondent in any manner whatsoever. He denied the suggestion in cross-examination that the premises in question were let out for commercial use. He also denied the suggestion that the appellants started to use the same for commercial purposes from the date when they got possession of the same. To another question, he replied that the appellants used to pay the rent, at his residence but after 5/6 months he did not come to him to pay rent, he therefore went to them at the tenement in question and came to know about the use of the tenement in question for commercial use. He denied the suggestion that the appellants had not converted the use of the tenement in question. To another question he replied that notice in this regard was served in the year 1984 which was received by them but they did not send any reply.
14. ' As against the above evidence, appellants filed affidavit-in-evidence of Akhtar Rahim. He stated in his affidavit that the tenement in question was rented out to the appellants which is a commercial organization for doing their business. He reiterated the same facts as were pleaded in the written statement i.e, the tenement in question was rented out for commercial purposes. He admitted in his cross-examination that the building is a residential building and the same is mentioned in agreement dated 22-10-1983 (Ex.O/1). He denied the suggestion that it was let out as residential premises.
15. ' The Controller, on the basis of the above evidence, came to the conclusion that the building is a residential building as per Ex.O/1 and the appellants converted the same without the consent of respondent into commercial use subsequent to its letting out to them.
16. I have been taken through the pleadings and documentary and oral evidence led by the parties. I find that the building is a residential building. The appellants had without the consent of the respondent, converted the same from residential use to commercial use. The respondent produced copy of notice in this regard. The respondent and her husband appeared before the Controller and stated on oath that this notice was received by the appellants and they did not send any reply. It is pertinent to note that the respondent and her husband were cross-examined at length but no question was put about the notice.
17. ' It is not established by the appellants that the tenement in question was taken for commercial use. In this view of the matter, 1 think the Controller decided the point in accordance with the evidence on record. The learned counsel for the appellants is unable to point out any misreading of evidence on this point.
18. ' As regards the additions and alterations, the respondent averred in her eviction application that the appellants made additions and alterations in the existing structure of the property by raising an office room, installation of the press and removal of sink from the kitchen, blocking of the passage of air to the underground/trench portion of the building, which has resulted in the seepage of the water in the said underground portion thereby endangering the structure of the building. The appellants denied the allegations in their written statement.
19. ' The respondent reiterated the same facts in her affidavit-in-evidence. She further stated that the appellants have closed the underground portion of the building by paving shutters on the passages meant for providing air circulation to the underground portion of the building on account of which the said underground portion has happened to be flooded by the underground water.
20. ' The respondent's husband also filed affidavit-in-evidence wherein he repeated the same facts. He denied the suggestion in cross-examination that the appellants have not made additions and alterations. To another question, he replied that the kitchen has been converted into a press. To another question, he replied that the underground has been closed by shutter. To yet another question, he replied that they have set up an office in the verandah by affixing partition.
21. ' The Director of the appellants filed his affidavit-in-evidence in rebuttal wherein he denied the allegations of additions and alterations. To a question in cross-examination, he replied that he has affixed the shutter in basement after tenancy was started, with the permission of the respondent.
22. To another question, he replied that he has no documentary proof about this permission but it was oral. To yet another question, he replied that he has not carried out any additions and alterations in question. He admitted that he has constructed the office in tenement in question.
23. ' The Controller, on assessm ent of the evidence, led by the parties, decided this point in the affirmative. Sub-clause (c) of clause (iii) of subsection (2) of section 15 of the Ordinance provides that if the tenant has, without the written consent of the landlord/landlady infringed the conditions on which the premises was let out, the Controller shall/make an order directing the tenant to put the landlord/landlady in possession of the premises within such period as may be specified in the order. In the instant case, the appellants agreed that they shall not make any alterations etc. Of any kind in the said premises, any damage to fittings and fixtures would be payable by the tenant in full (see clause 8 of the Agreement dated 22-10-1983 Ex. 0/1). It has come on record that they have affixed shutter in basement, constructed office in the verandah after putting partition. It has also come on record that due 'to closure of basement, water started seeping. In this view of the matter, I think that the finding on this point, is in accord with the evidence on the record.
24. ' The respondent sought eviction on the ground that she needed the demised premises to meet with the demand of her expanded family as her children have grown up and she required the premises for accommodating them and herself. She averred that the premises in her possession, is situated on a plot adrileasuring about 70 square yards which consists of two rooms only while her family comprises five members and her elder son was going to be married, while his marriage has been delayed on account of shortage of accommodation. She stated that name of her son is Syed Muhammad Zubair.
25. ' The respondent averred in para 7 of the affidavit-in-evidence that she required the premises for personal bona fide use and the use of her son whose marriage was held up for want of accommodation as the accommodation in her possession was not sufficient comprising two rooms only without any drawing room etc. While the number of her family members is five who are all young and require separate accommodation keeping in view the customs prevailing in the family. She stated that she does not possess any other building. The premises situated in Gulberg is owned by her husband but the same is in possession of a tenant and is comparatively less suitable to the needs of her family as compared to the one in possession of the appellants.
26. ' To a question in cross-examination, she replied that her family consists of five members i.e, she herself, her husband and three sons who have become major. To another question, she replied that her elder son is aged about 23 years and he is in service at a ship.
27. ' The respondent's husband filed affidavit-in-evidence wherein he supported the assertion of the respondent that she required the premises for her son whose marriage was held up. To a question in cross-examination, he replied that he owns a house which is in possession of his uncle. In response to another question, he replied that his son is aged about 22-23 years. To another question, he replied that his son has been engaged.
28. ' As against the above evidence, the appellants stated in their affidavit that the premises in question has not been required as two independent tenements situated on first floor and second floor are lying vacant and the respondent did not occupy the same and the respondent was trying to relet out the same to any third party on a higher rent. To a question in cross-examination, he replied that he does know about the sons of the respondent. To another question, he replied that he does not know if the respondent's son is in Pakistan Navy. To a suggestion in cross-examination, he denied that tenement in question is required by the respondent for the marriage purpose of her son who is in Pakistan Navy. To another question, he replied that he does not know about the area of house in which the respondent is residing at present.
29. ' The Controller, on assessm ent of the evidence adduced by the parties, held that the respondent has very successfully discharged her burden to establish her bona fide requirement for the tenement in question. In this view of the matter, his findings on this issue are in the affirmative.
30. ' In a case reported in PLD 1975 Lahore at page 308, it was observed that the assertion of the landlord that he required the premises for his personal use should be determined in the context of the provisions contained in subsection (2) of section 13 of the Repealed Ordinance or section 15-A of the Sindh Rented Premises Ordinance, 1979, which enables a tenant to regain possession from his landlord who had obtained it on a false plea of bona fide personal need but he failed to occupy the premises within the prescribed time or relent it to any person other than the tenant. This is said to be a safeguard for the tenant against being evicted on false plea of bona fide requirement of landlord. The effect is that the assertion or claim on oath by the landlord/landlady that he/she required the premises for his/her personal use or for the use of his/her children, should be accepted by the Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his/her averments in the application and is not shaken in cross- examination or disproved in rebuttal. The evidence in this case fully justified the claim by the landlady that she required the premises in question for her eldest son's use as she had no sufficient accommodation of her own. I am satisfied that the finding of the Controller on the question of personal requirement for her eldest son is correct and is in consonance with the evidence on record. It cannot be denied that respondent's three sons have grown up. I am inclined to concur with the findings of the learned Controller on the above question. Apart from it, the Controller rightly held that the choice to select a premises out of several premises owned by the landlady for her son's use and bona fide requirement lies with the landlady and the tenant or the Controller cannot question such selection of premises by the landlady. (See 1973 SCM R 185, 1968 SCMR 1087 and the recent pronouncement reported in PLD 1990 SC 394).
31. ' I may mention that the learned counsel for the parties have cited a number of decisions on these points. For these propositions, it is not necessary to cite decisions, although 1 have been taken through case-law by counsel on both sides.
32. In view of the above discussion, 1 do not find any merit in this appeal which is dismissed but the appellants are allowed two months' time to vacate the premises in question subject to the condition that they will continue to deposit monthly rent in accordance with the tentative order passed by the Controller and if they fail to vacate the premises after two months, they will be evicted from the premises without any further notice. The parties will bear their own costs.