1. ' The appellant/tenant has impugned the judgment dated 9-4-1989, passed by Ilnd Senior Civil Judge and Rent Controller, Karachi (East) in Rent Case No,466/89, whereby the appellant was directed to vacate the Flat No,A-5, Suleman Terrace, Gulshan-e-lqbal, Karachi, within three months thereof and hand over its possession to the respondent/landlord.
2. ' The respondent filed the said rent case against the appellant on the ground of default in payment of rent for four months beginning from March, 1988 amounting to Rs,5,600 and also on the ground of personal bona fide requirement. It is alleged that the applicant has four children, a wife and presently he is residing in a rented premises in P.E.C.H.S. Karachi. The landlord of this rented premises is pressing him to vacate the premises as he himself requires the same for his own personal use. Further, the children of the applicant are school going and of tender ages and while going to and coming from the first floor of the house they are exposed to mishaps to their very lives.
3. ' The appellant resisted the ejectment application and in his written statement has refuted having committed any default in payment of rent as alleged. With regard to the personal requirement of the respondent, it is alleged that the same is not bona fide as the respondent is not living in a rented premises but in a house owned by his sister, thereby concealing a material fact.
4. ' Learned counsel for the appellant Mr. M.M. Mahmoodi, confined his arguments to the question of personal bona fide requirement on the basis of which the eviction order of appellant was passed.
5. At the outset it was contended by him that the learned Rent Controller failed to apply his mind to clause (b) of the Lease Agreement dated 13-10-1990, which clearly debars the respondent to evict the appellant as long as the appellant pays the rent reserved and performs his obligation as agreed. This clause reads as follows:- "A lessee paying the rent hereby reserved and performing its obligation as agreed shall enjoy the demised premises peacefully and without interference by the lessor or any person claiming through or in trust for them."
6. ' In support of his contention, learned counsel for the appellant placed reliance on Zohra Begum v.
7. Pakistan Burmah-Shell Limited (PLD 1984 SC 38) and Mohammad Azizullah v. Abdul Ghaffar (1984 CLC 2837).
8. ' In PLD 1984 SC 38, the lessor demolished his bungalow and leased out plot to the lessee for establishing at his own cost and investment a petrol pump and service station. The lease was initially for a period of 10 years with two options made available to the lessee to get it renewed, in all for 30 years. Among others, the lessee was entitled to assign or sublet the demised premises and the lessor undertook not to evict or interrupt the enjoyment of the lessee if the lessee continued paying the rent reserved and observed the convenants. The lessor prior to the expiry of the said term of thirty years, instituted an application for ejectment under section 15(2)(viii) of the Sindh Rented Premises Ordinance, 1979. The Supreme Court, on these facts and circumstances in keeping with the historical background of Rent Laws in Sindh and Karachi, held as follows:- "The provisions of the Ordinance permit freedom of contract based on equality of bargaining power in both parties. It formalizes the contract. It does not profess to protect any one class against the other. In this view of the matter if at the time of entering into lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force for a period of thirty years, he cannot under the statutory provision made in the Ordinance turn back to repudiate the term of the agreement. In the first place the Ordinance keeps alive the contract, lends in continued validity and force and professes to protect as much the right of the tenant as that of the landlord, referable always to a valid subsisting contract. In the second place even if there was such a right available under the law, (for agreement's sake but not as a fact) it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration."
9. ' In Muhammad Azizullah v. Abdul Ghaffar, 1984 CLC 2837, the landlord under an agreement with the tenant declared that under no circumstances he will demand for eviction of the shop. Further it is stated that the demand will not be made even in case of sale, mortgage or any other reason and under all circumstances such demand will be illegal. The learned Judge while holding that no evidence has been given by the landlord to establish in what circumstances he decided to start his business further held that the appellant/landlord had bartered away his personal need under the law and, therefore, he cannot be allowed to press this ground for ejectment.
10. ' It is thus evident that whereas in PLD 1984 SC 38 there was an express convenant to lease out the premises for a period of thirty years giving permission to the lessee to construct buildings and structures at his own cost with further right to sublet or assign the demised premises to any one, in 1984 CLC 283, there is an express declaration made by the landlord at the time of the lease agreement bartering away his personal need under the law and waiving his right for valuable consideration. However, there is nothing in the lease agreement in this case to suggest that the respondent/landlord had bartered away or waived his right of eviction on the ground of personal requirement for valuable consideration. The ejectment application was filed after the expiry of lease agreement for 11 months, whereafter the tenancy had become month to month. No fresh agreement extending the lease for a further period was subsisting when the ejectment application was filed. Thus there is no force in the argument advanced by the learned counsel for the appellant that the respondent/landlord bartered away or waived his right of eviction on the ground of personal bona fide requirement for valuable consideration or otherwise.
11. Besides, the appellant cannot be allowed to raise at the stage of appeal his objection as to the so- called bar to evict the appellant on the ground of bona fide personal requirement of the respondent by virtue of clause (b) of the lease agreement as no such objection was taken by him in his defence before the learned Rent Controller.
12. ' It was next contended by the learned counsel for the appellant that in his cross-examination it is admitted by the respondent that the premises where he is putting up belongs to his sister which fact was dishonestly concealed by him in his ejectment application as well as in his affidavit in evidence. Further the respondent has neither produced his sister nor his brother-in-law, a medical practitioner who wants to shift to the premises presently occupied by the respondent. Moreover the respondent has not produced any lease agreement to support his so-called version.
13. ' Learned counsel for the respondent, Mir Syed Shoaib Ahmed Bukhari on the other hand contended that the respondent has given full details and particulars of circumstances in his deposition which compelled him to file eviction application on the ground of his personal bona fide requirement namely (1) His brother-in-law Dr. Abdul Rauf Usman intends to run his clinic on the ground floor and wants to shift on first floor where the respondent is presently putting up. (2) The respondent has a wife, two daughters and two sons. (3) Three of his children are school-going and are admitted in morning shift in different schools. (4) His children being of tender ages it is apprehended by him that while going to or coming from schools through the stairs any mishap may take place. Besides the present house has its opening to main road which remains busy for the whole day and in the evening time, tidal flow of traffic becomes very heavy, which also poses a constant danger to his children. (5) The flat in question is situated on ground floor and is more spacious than the premises where he is putting up presently. (6) His office is situated in Haroon Chambers, Saddar Karachi.
14. Having no conveyance of his own, he has to catch two buses to reach his office. Because of this transport problem he leaves for his office at 7.00 A.M. In case he is able to shift to the demised flat in question he will be able to reach his office directly through a minibus or bus within a shorter time.
15. It is pertinent to note that the deposition of the respondent with regard to the above averments having direct bearing on the question of his personal bona fide requirement have gone unrebutted and unchallenged by the appellant. What a landlord is required to establish is his bona fide personal requirement which can be gathered from ,facts and circumstances of the case. There is no controversy that the respondent is putting up at a place other than own. Concealment or disclosure of the name of the sister of the respondent as owner of the house in either case will not improve the case of the respondent. Similarly the question whether the respondent is a tenant of his sister or not will not help the appellant. In the face of unrebutted evidence of the respondent, learned counsel for the appellant was unable to show how the alleged concealment of the name of respondent's sister as owner of the house where he is putting up or his failure to prove his tenancy with her will result into demolishing his ground for personal bona fide requirement of the premises in question. In the result, the appeal is dismissed with costs and the appellant is directed to vacate and hand over the premises in question to the respondent within ninety days hereof.