' The appellant Mst. Hameeda Begum is aggrieved by the judgment dated 17-2-1988 passed by the learned IIIrd Senior Civil Judge & Rent Controller, Karachi-East in Rent Case No, 2202 of 1985, whereby the appellant was directed to vacate the portion of ground floor of House No, 40-C/2, P.E.C.H.S., Karachi within a period of sixty days.
2. The appellant is a tenant of the respondent in respect of the above-named premises at a monthly rent of Rs, 500 per month only. On 7-8-1983 the respondent filed ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979 in which it is alleged that the premises was let out to the appellant under clear assurance made by her that she would vacate the premises for personal use of the respondent or her sons as and when required. It is averred that the respondent resides in a portion of the said house alongwith her husband and three married sons, among whom Abdul Maueed Khan had four children and Abdul Waheed Khan had five children. At the time when her third son Khalid Hameed was getting married, the respondent asked the appellant to vacate the demised premises for the personal use of her said son, but the appellant requested for some time stating that her flats were not yet vacated. The appellant was also offered another vacant portion of the house, which was refused by her. Thus the respondent required the said premises in good faith for the personal residence of her son Khalid Hameed. The other ground for ejectment in the said application was that the appellant had committed default in the payment of rent to the respondent since 1-2-1983. Prior to filing of the ejectment application the respondent served a legal notice dated 12-6-1983 on the appellant containing the said grounds.
3. In her written statement, the appellant denied the personal bona fide requirement of the respondent's son and also the alleged default committed by her. According to her the building in question is a three-storeyed building comprising of five rooms on the ground floor, five on the first floor and at least two on the second floor. Out of these rooms, 7/8 rooms were in occupation of the appellant and her family members and, therefore, more than sufficient for her needs and for the needs of her three sons, including the said newly-married son Khalid Hameed. It is denied that appellant was ever either approached by the respondent to vacate the premises or the appellant ever promised or offered to vacate the demised premises in question. Similarly, no alternate accommodation was ever offered by the respondent or refused by the appellant. The receipt of legal notice sent by the respondent is admitted by her.
4. The learned Rent Controller held that the appellant had not committed any default in payment of rent as alleged. However, he gave his findings in favour of respondent as to her bona fide personal requirements for her son.
5. Respondent has produced Abdul Hameed Khan, her husband and attorney, and Khalid Hameed, her son and the appellant has examined herself and produced her son-in-law Dr. Mashoor Alam Shah and one Muhammad Iqbal, her servant.
6. Abdul Hameed Khan in his affidavit-in-evidence has confirmed the various averments made by the respondent in her ejectment application. He is a retired Government servant and served in PIDC. In cross-examination, it is stated by him that at the time of the marriage of his son, he had offered alternate accommodation to the appellant, which was half portion of the house and now this portion is on rent. According to him there are three rooms on the ground floor end the same number of rooms on the first floor. It is denied by him that any of his sons is out of Karachi. Khalid Hameed, the son of the respondent for whom the premises is required has supported the respondent's case and stated that the demised premises was required for his use. In cross- examination he states that he is residing with his parents and that there are two floors in the building. There are three bedrooms and one dining room on each floor. He has denied that the accommodation with the respondent is more than sufficient or that the respondent does not require premises for personal bona fide requirement.
7. Hameeda Begum, the appellant in her affidavit-in-evidence has stated that the house is a double-storeyed house with an extra room on 2nd floor and the premises occupied by the respondent is sufficient for her requirement. She has denied that she was approached by the respondent, or her attorney or her son with any offer for altenate accommodation directly or indirectly at any time. In cross-examination it is admitted by her that the respondent had three grown up sons who might have been married. She denies having ever seen the house of the respondent. It is also not within her knowledge if the respondent has ten grandchildren. During cross-examination she changed her earlier statement saying that the respondent had raised two rooms on second floor. Dr. Mashoor Alam Shah, appellant's witness and son-in-law of the sister of appellant, lives about 100 yards away from the premises in question. His mother-in-law is a widow and lives with the appellant. He often visits the premises in question. In cross-examination he states that he is not aware if 18 members of the respondent's family are living in the same building.
It is also admitted by him that presently the appellant is living alone in the demised premises.
8. The testimony of Mohammad Iqbal, another witness produced by the appellant is confined to question of default in payment of rent. He has fully supported the appellant. He is a servant of the appellant and used to make payment of rent to the respondent. He, however, denies that he ever visited the house of the respondent from inside.
9. It was contended by Mr.Farooq H. Naik, learned counsel for the appellant that the respondent has failed to make out a case of bona fide requirement of her son Khalid Hameed. In fact the respondent and her son have clearly stated in their affidavits-in-evidence that a portion of the building was lying vacant adjacent to the portion occupied by the appellant which was not occupied by , the said Khalid Hameed being not suitable for the so-called requirement. No explanation whatsoever was given by the respondent as to why the said vacant portion was unsuitable for the respondent's son. The evidence of the respondent could not inspire confidence and would cast cloud of mala fide on the so-called personal requirement of the respondent.
Reliance was placed on 1986 MLD 1610, PLD 1986 Kar. 84, 1988 MLD 1412 and 1988 MLD 1013.
10. At the outset, Mr.Khajumal D. Ladhar, learned counsel for the respondent, contended that perhaps some objections raised by the appellant would have relevance had the respondent filed ejectment proceedings against the appellant under the West Pakistan Urban Rent Restriction Ordinance, 1959. But the provisions relating to personal requirement of landlord contained in section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 are drastically different and distinguishable from the provisions in respect thereof found in the Sindh Rented Premises Ordinance, 1979. I agree with him. Firstly the Sindh Rented Premises Ordinance, 1979 does not make any distinction under section 15(vii) or anywhere else between a residential building and a non- residential building for which there are separate provisions including section 13(3) in the repealed Ordinance of 1959. Secondly, in order to succeed under the Sindh Rented Premises Ordinance of 1979, a landlord is required to establish his "good faith" and "requirement" of the premises only whereas under the repealed West Pakistan Urban Rent Restriction Ordinance, 1959 an embargo is placed upon him before his "good faith" and "requirement" could be considered by the Rent Controller. This embargo is that (i) he is not occupying another residential building, suitable for his needs at the time in the same urban area in which such building is situated vide section 13(3)(b) of repealed Ordinance, (ii) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area vide section 13(c) of the repealed Ordinance, (iii) where the tenancy is for specified period he will not be entitled to apply on this ground for eviction of his tenant. Having no pre-conditions attached to it, the provisions relating to personal requirement of a landlord under the Sindh Rented Premises Ordinance, 1979 are far more liberal than those found in the West Pakistan Urban Rent Restriction Ordinance, 1959.
11. Next, learned counsel for the respondent brought to my notice the various averments made by the respondent in the ejectment application which have been corroborated by her evidence, but have remained unrebutted and unchallenged. The appellant has not challenged that there were 16 members of the respondent's family putting up on the first floor of the building and at the time of evidence there were 18 members. The desposition of the respondent that the said premises was insufficient for their living has also remained unshaken. None of the witnesses adduced by the appellant ever visited the present accommodation held by the respondent nor brought any material on record as to how the same was sufficient for her requirement as alleged. It was maintained by him that if any portion of the building was vacated and relet by the respondent there is no legal requirement to give cogent reason for her bona tide action. In the present case, however, the respondent had offered a vacant portion of the building to the appellant which would further establish her good faith. According to him, the established legal position is that in case a landlord owns more than one house, it is his choice as to which of them is required by him and/or is suitable for him. In support of his contentions, learned counsel placed reliance on 1988 CLC 2294, 1973 SCM R 185, 1986 SCM R 650, PLD 1990 SC 394, PLD 1987 Quetta 197 and 1987 CLC 157.
12. The evidence adduced by the respondent has remained unshaken and unrebutted and is otherwise convincing in every respect on the basis of which I have no doubt in my mind that the respondent requires in good faith the premises in question.
13. Lastly, it was contended by the learned counsel for the respondent that even though the respondent has obtained ejectment order in her favour on the ground of her requirement of the premises in good faith, she can by way of cross-objection call in question the findings of the learned Rent Controller on the ground of default in payment of rent. Reference was made to Order XLI, rule 22, C.P.C. Whereunder, inter alia, "any respondent though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow." Further "in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit."
' Premises Ordinance, 1979, which has also not been filed by respondent in this appeal. However, under section 21 any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order prefer an appeal to the High Court." The Sindh Rented Premises Ordinance, 1979 is a special law regulating the relationship between landlords and tenants and providing machinery for resolving their disputes in a manner and to the extent provided therein. The right of appeal provided under the Ordinance is defined under section 21 so as to exclude applicability of section 96, C.P.C. What section 21 of the Ordinance, inter alia, contemplates is that a party must be aggrieved by an order of the Controller. If the respondent could show that he was "aggrieved" by the order whereby one of the two grounds taken by him for ejectment of the appellant was rejected, he could have preferred an appeal which he has not done and, therefore, this question cannot be gone into further.
15. With these observations, I dismiss the appeal with costs and direct the appellant to vacate and hand over the premises in question to the respondent within sixty days hereof.