' This is tenant's appeal against the order of ejectment.
2. Admittedly appellant Qazi Abdul Qayyum was in possession of the ground floor of Property No,71- 3, Bahadurabad Karachi as its tenant, when the entire building was purchased on 7-8-1985 by respondent Mst. Khursheed Nisar. Admittedly no notice under Section 18 of the Sindh Rented Premises Ordinance (Hereinafter to be mentioned as the Ordinance) was sent by the respondent to the appellant after purchase of the property.
3. Respondent filed Rent Case No,156 of 1988 on 25-2-1988 for eviction of the appellant from the rented premises on the ground of bona fide personal requirement and on the ground of non- payment of rent. Respondent claimed rent from the appellant at the rate of Rs,1,500 per month with effect from September, 1985.
4. In his written statement the appellant contested the rent case, which was challenged to be non- maintainable. Ground of personal need was denied on the ground that the first floor of the building consisting of five rooms was in possession of the respondent. It was denied if family of the respondent consisted of seven members. Respondent denied if he had defaulted in payment of rent. He claimed to be paying rent at the rate of Rs,700 per month. Rent for August 1985 sent to the respondent by M.O. On 17-8-1985 was not received, as alleged. The rent was being deposited in Court as added.
5. After recording evidence of the parties, learned Rent Controller under the impugned judgment dated 14-9-1989 accepted the application and ordered eviction of the appellant within a period of one month. Hence this appeal.
6. Mr. Abdul Majeed, learned counsel for the appellant argued that the respondent had come to the Court with mala fide intention and this was clear from his conduct in demanding the rent at the rate of Rs,1,500 per month, although the appellant had been paying the rent to predecessor of the respondent at the rate of Rs,700 per month. It was further argued that the respondent avoided to take rent from the appellant for the period from September, 1985 till January 1988 with the result that the appellant had to deposit the monthly rent in Court in Misc. Rent Case No,1059/85. It was also argued that the ground of default in payment of rent was not available to the respondent, who had failed to give notice to the appellant under Section 18 of the Ordinance. On the point of personal requirement, learned counsel for the appellant argued that the premises already in possession of the respondent consisted of four rooms (besides both rooms and kitchen etc.) on the first floor and one room with bath room on the ground floor and such accommodation was quite sufficient for the respondent and her husband and her children. As against that, the premises in litigation consisted of two bedrooms only, as further argued. It was vehemently stressed that bona fide personal need was not established. It was next argued that filing of the ejectment case two years after purchase, showed that the house was not purchased for personal need. That the respondent had not come to the Court with clean hands as he already possessed enough accommodation. Learned Counsel for the appellant cited the cases of (i) M.S. Khan v. S.M.
Sirajuddin (1985 CLC 562), (ii) Associated Sales Agencies v. The Standard Insurance Company Ltd.
(1985 CLC 2419), (iii) M/s. John Traders and others v. Ahmed All (1986 CLC 561), (iv) Abdullah Khan v. Abdul Majid (PLD 1984 Kar 178), (v) Ikramullah Khan v. Mohammad Umar 1984 CLC 645 and (vi)
Mst. Begum Jan v. Abdul Rasool 1984 CLC 755.
7. Mr. Muzammil Siddiqui, learned counsel for the respondent did not urge the ground of default but he argued that the respondent had been able to make out case that he required the premises in question for personal bona fide use. It was argued that the respondent was in possession of a house, which had two bedrooms and that the existing accommodation for the respondent and his family members was not sufficient. It was added that the accommodation on the ground floor, which was in possession of the appellant was similar to the accommodation on the first floor which was in possession of the respondent. It was next argued that the respondent had been occupying the demised premises since June, 1977 and that he cannot be allowed to remain the premises for ever.
8. Respondent examined her husband and attorney S. Nisar Ahmed and Syed Mumtaz Akbar Kazmi.
S. Nisar Ahmed said in his affidavit that the respondent was suffering from pain in 'Spinal Chord" and the doctors had advised her not to take strain and not to ascend or descend any stair-case.
He did not state any thing else about requirement of the premises by the respondent for personal use, except that the facts given in the rent application were correct. Nisar Ahmed also stated that when the respondent purchased the house in question on 7-8-1985 the appellant was tenant in the ground floor, and that the respondent had purchased the property for personal use. In his cross- examination S.Nisar Ahmed admitted that the respondent, while purchasing the property knew that the appellant was a tenant of the premises. He admitted that there were four rooms in the upper part of the building besides one extra room with bath at ground floor. As against that, the respondent has S. Nisar Ahmed her husband and four daughters and one son. Out of four daughters one is living in Shah Faisal Colony and another daughter is married with a person, who lives in Mecca. S.Nisar Ahmad did not state, as to, why he wanted his daughter living in Shah Faisal Colony to be shifted to his house, except that there were disturbances in said colony. He did not state, as to where his other daughter was living, whose husband was living in Mecca. This shows that the respondent is living in her present house, with her husband and two unmarried daughters and one son. For them four rooms on first floor and one room on ground floor should be sufficient accommodation. Moreover, the respondent already knew that a part of the house she was purchasing, was in occupation of the appellant. It is to be assumed that the respondent was mentally prepared to have the appellant as her tenant in the disputed house. In other case he would not have purchased the house, or she would have put condition with the previous owner, that possession of the house would be surrendered to her at the time of sale of the house. The ground about illness of the respondent and her inability to climb up the staircase or go downward appears to be an after-thought, because such ground was not set out in the rent application.
9. The case-law cited by the counsel for the appellant requires to be discussed. In (i) above the evidence showed mala fides of the landlord and his need did not appear bona tide and his original intention was to increase rent and he had concealed the facts from the Court and the order of ejectment was set aside. In (ii) above the landlord company claimed to have purchased the premises for its own occupation, but the notice for ejectment was sent after three years of purchase and the ejectment case was filed one year thereafter and the view taken was that if intention of the landlord was to occupy the premises immediately on purchase, they could not have waited for four years to take steps for ejectment of the tenant. In (iii) above the view taken was that the burden would be on landlord seeking eviction of his tenant on ground of bona fide personal requirement to establish good faith through evidence inspiring confidence. In (iv) above the personal requirement expressed by the landlord was not the same as stated by him before the Rent Controller and there was failure to establish bona fide personal requirement and the order of eviction was set aside. In (v) above the landlord in his rent application set up a case that the premises were required for his own personal use, but in evidence he set up a case that the premises were required for use of his son, and the view taken was that the need for personal use was not bona fide. In (vi) above the view taken was that a landlord seeking ejectment of tenant on the ground of personal requirement had, to prove his bona fides.
10. Learned counsel for the respondent cited the cases of (a) Bashir Ahmed v. Mohammad Shall (1989 SCMR 538), (b) Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 S.C. 394),
(c) Haji Mohammad Ibrahim v. Hamzoo Khan (PLD 1987 Kar 520), (d) Ashiq Hussain v. S. Abdullah Qureshi (1987 CLC 1146), (e) Abdul Qadeer v. S. Azeemuddin Ahmed (1987 CLC 2347), (f) Raza Ali Shah v. Agha Hassamul Haque and another (1989 CLC 2003) and (g) Tariq Shall v. Mrs. Shamshad Begum (1990 CLC 698). In (a) above it was held that the landlord is the best judge of his need and the Court can only interfere in that field when claim of the landlord is visibly extraordinary. It was also held that possibility that new plea being pressed was an afterthought could not be excluded.
In (b) above it was held that all that was required by the landlord was to prove that the premises were required by him in good faith for his own occupation or for occupation of his spouse or any of his children. There can be no cavil with such view. In the same case it was held that if a landloid possesses more than one house in the same urban area, the choice as to the house in which he would like to live, is surely a matter within his prerogative. In the cited case the landlord had let out 20 flats, which had fallen vacant from time to time and had failed to occupy any of them and he had sought eviction of his tenant from the portion of a building. In the instant case the respondent is already occupying the accommodation, which is identical with the accommodation in possession, of the appellant. In (c) above the view taken was that right of landlord to claim possession from a tenant would be regulated by Court only to the extent to examine whether request of landlord for possession is inspired with good faith or it is frivolous and mala fide. This observation can help that landlord, who has established godown faith. In (d) above it was held that if the landlord requiring residential building for his residential purposes, did not disclose in evidence that he was possessed of certain commercial premises in commercial area, that would not amount to suppression of material fact by him before Court. In the cited case the ground of personal bona fide requirement pleaded by the landlord in his rent application, remained unshaken in cross-examination and the Rent Controller was held to have rightly granted eviction of the tenant on the ground of personal bona fide eviction application about personal requirement of the landlord had been fully supported in his deposition and nothing had been brought out in his cross-examination which could show the claim to be false or based on wrong statements and it was held that assertion of the landlord on oath, as to requirement of the premises for his personal use has to be accepted as bona fide if consistent with his averment in his application and not shaken in cross-examination or disproved in rebuttal. In (f) above it was held that for the purposes of establishing personal requirement all that a landlord has to do so, to make positive assertions in that behalf, to step into the witness-box to prove such assertions, and if the same remains unshaken in cross-examination, the relevant ground of personal bona fide need stands established. In (g) above, view taken was that a landlady requiring the ground floor of her building for being used by her son for commercial purpose, had the choice to seek eviction of the same, although she was in possession of two residential units in the same building on first, second and third floor, which were not suitable for type of the business, which her son wanted to carry out.
Cited cases had facts materially different from facts of the instant case and none of them supports case of the respondent.
11. In my view the respondent had not been able to prove her bona fide requirement. The respondent is already in possession of more accommodation than the accommodation occupied by the appellant. In her rent application the respondent did not take the plea that she was having asthama and was unable to ascend a staircase and such ground taken in the affidavit of her attorney is an afterthought and the supporting medical certificate appears to have been managed. The other witness examined by the respondent viz. Mumtaz Akbar appeared to be an interested person, as he has been giving tuition to children of the respondent. The respondent knew, while purchasing the disputed premises, that the appellant would be her tenant and with such knowledge she agreed to purchase the property. In view of all these reasons, I am of the view that the respondent had not been able to make out that she bona fidely required the disputed premises for personal requirement.
12. I, therefore, accept this appeal and set aside the impugned order and dismiss rent application of the respondent, with no order to costs.