' For a proper appreciation of the points involved in this appeal it is necessery to refer to the relevant points in some detail.
2. The appellant is the owner/landlady of the building situated on Plot No.89-L, Block 2, P.E.C.H.
Society, Karachi, consisting of two flats on the first floor and two flats on the ground floor. All these four apartments were rented out to one Muhammad Essa, brother of respondent No.1 and son of respondent No.2, through an agreement dated 21-10-1967 at the rate of Rs.1,500 P.M. The said Muhammad Essa wanted to leave Pakistan permanently and he, therefore, vacated the premises in his occupation. However, at the request of said Muhammad Essa, the appellant let out two apartments to respondents Nos. 1 and 2; one on the ground floor and the other on the first floor on a rent of Rs.2,200 P.M. Exclusive of electricity, gas, water and conservancy charges. It is alleged that the respondents continued to pay rent at the aforesaid rate of rent till February 1984, and thereafter stopped making payment. They have also committed such acts which have impaired, the utility of the premises. The appellant who had been residing in the house of her father even after the marriage wanted these apartments for an independent living alongwith her family members. She, therefore, approached the respondents asking them to vacate the disputed premises but with no result. Consequently on 23-12-1984 the appellant filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, before the Rent Controller seeking the ejectment of the respondents on the aforesaid grounds.
3. The respondents resisted their eviction on various grounds. They disputed the relationship of landlady and tenants between the parties and claimed to be tenants of one Anwar Sethi, father of appellant. They have also denied the default in payment of rent by pleading that they had been depositing the rent in the Office of Rent Controller after said Anwar Sethi refused to accept rent.
Their defence in main is that they were asked to sign certain declarations by Anwar Sethi and on their refusal to do so, the proceedings of ejectment were initiated against them. As regards the personal bona fide requirement of the appellant it was asserted that since she was not their landlady, the question of such requirement did not arise.
4. The parties went to trial on the following issues:--
(i) Whether there exists any relationship of landlord and tenant between the parties and whether present application is maintainable?
(ii) Whether opponents have committed default in payment of rent as alleged?
(iii) Whether opponents have committed such acts which have impaired the material value and utility of the case premises?
(iv) Whether applicant required the premises for her own use and occupation in good faith?
(v) What should the order be?
5. The appellant examined Muhammad Rafique, her attorney and Rent Collector (P.W-1), and Muhammad Shafi (P.W.2), while respondent No.I examined herself (D.W-1), and then closed the side.
6. On the assessm ent of evidence, both oral as well as documentary, the learned Rent Controller decided issue No.1 in favour of appellant, while rest of the issues were decided against her and in consequence thereof he dismissed the application for ejectment filed by the appellant against the respondents. This order dated 6-7-1987 is the subject-matter of the present appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979.
7. I have heard Mr.Mahmood Baloch, learned counsel for the appellant and Mr.Muhammad Haneef Khetana, learned counsel for the respondents. Mr.Baloch has not pressed issue No.3 and has confined his arguments to issues Nos.2 and 4 only.
8. There is over-whelming evidence, both oral as well as documentary, on record to prove that the appellant is the owner/landlady of the disputed premises. A copy of deed of conveyance is on record (Ex.P/1) which is dated 9th November 1974. This deed also recites about the agreements entered into by the vendor and the appellant on 12-9-1966 and 15-10-1967. The letter of the Society (Ex.P/2) and the entry in record (Ex.P/3) fully establish this position. The tenancy agreement executed by Muhammad Essa, brother of respondent No.1, and son of respondent No.2, in favour of the appellant is also on record (Ex.1/10), which makes it clear that the appellant is the owner/landlady of the disputed premises from the very inception of tenancy. The genuineness of this agreement (Ex.P/10), which is dated 21-10-1967 is not questioned by the respondents. Besides the evidence of Muhammad Shafi (P.W-2) who is the attesting witness of this agreement, the same is proved from the following admissions made by respondent No.1 (P.W.1):- "I came as tenant in the premises in question alongwith my brother in year 1967. Tenancy agreement is in name of my brother---It is correct there are in all 4 flats on the plot and it is correct that all the four flats were obtained by one tenancy agreement by my brother."
9. It is again an admitted position that all the bills relating to electricity, gas, etc, which were being received by the respondents were in the name of the appellant. The copies of such bills are on record (Exs.P/4 to P/9). The respondent No.1, as her own witness (D.W.1), has also not disputed this position by stating:- "It is correct bills of electricity, gas and water conservancy charges used to come in the name of applicant as well as property taxes---------
10. Both Muhammad Rafiq (P.W.1), and Muhammad Shat (P.W.2) have again testified that the rent of the disputed premises was being collected from the respondents on behalf of the appellant.
Nothing has been brought out in the cross-examination which would shake the veracity of these witnesses or establish that the actual landlord was Anwar Sethi, father of the appellant and the rent was being collected on his behalf.
11. In this view of the matter, when all the material facts in this case are either admitted or proved, there was no occasion for the respondents to have deposited arrears of rent in the names of wrong persons, viz, Anwar Sethi and M.Rafique (Ex.0/6), by disputing the tenancy of the appellant. The finding of the learned Rent Controller on issue No.2, was in fact destructive to his own finding on issue No.I holding that there existed relationship of landlady and tenants between the parties. Since there was disclaimer of the title of appellant by the respondents it was futile to proceed further. An order of ejectment against the respondents should have been passed straightaway as they are undesirable tenants. My own judgment in the case of Khursheed Alam v. Mst.Qamar Jahan, reported in 1989 CLC 1467 is clear on this subject.
12. As to the issue of personal requirement, I have carefully examined the evidence available on record and I think that the finding recorded by learned Rent Controller on this issue in not sound.
Admittedly the appellant who is mother of two children is residing jointly in the house of her father who has got a big bungalow. There is nothing on record to show that besides these four apartments constructed on Plot No.89-L, Block 2, P.E.C.H. Society, Karachi, the appellant owns any other property. The desire of the appellant to shift to her own premises for an independent living at no stretch of imagination can be said to be unreasonable. The cases reported as Samiuddin Khan v. Mst. Jamila 1983 CLC 2730, Rajab Ali v. Darius B, Kandawala and another PLD 1984 Karachi 14, Syed Khadim Abbas Rizvi v. Miss Gohar Fatima 1984 CLC 2440 and Nikhat Riaz v.Manzoor Hassan 1986 PSC 403, lend support to this conclusion. In the last cited judgment the Supreme Court has made it clear that the occupation of landlord with a relative or in a rented house is no ground for disentitling him to occupy his own premises. It may be added that the respondent No.1 has herself not questioned the bona fide requirement of the appellant. She has simply shown her ignorance in this regard in the following words:-- "1 do not know if applicant required the premises for her own use."
13. Again a tenant cannot object if the landlady shows extravagance in occupying big premises owned by her. If any authority is needed the case of Messrs Tiger Wire Products Ltd. v. S.Abrar Hussain, reported in 1983 SCMR 402, may be cited with advantage.
14. In these circumstances and for the reasons mentioned above the impugned order is set aside and the ejectment of the respondents from the demised premises is ordered. The respondents are, however, allowed two months' time to vacate the demised premises. The appeal is allowed, but the parties are left to bear their own costs.