M. HUSSAIN ADIL KHATRI, J.-This appeal is directed against order dated 3.8.1987, passed by the VIth Senior Civil Judge and Rent Controller Karachi, West, whereby he dismissed Rent Case No.8 of 1986, filed by the appellant against the respondent.
2. The eviction application was filed by the appellant on the ground that he required the residential tenament in possession of the respondent, situated at plot No. 13/8, Firdous Colony Karachi, for his own personal bonafide use and occupation.
3. It was stated that the appellant was in occupation of only one residential room where he was living with his were and three children out of whom two were students.
4. The respondent in his written statement denied that the appellant required the aforesaid premises for his bonafide use and occupation. It was pleaded that the respondent was inducted as tenant by appellant's father against fixed deposit of Rs. 30,000/-. It was stated that the appellant wanted to increase the rent from Rs. 150/- to Rs. 300/- per month and the ejectment application was filed to coerce the respondent to enhance the rent. For such purpose the appellant also got prepared an agreement. According to written statement filed by the respondent the appellant was in possession of sufficient accommodation in the same building. It was pleaded that when he was inducted as tenant on payment of Rs. 30,000/- to the appellant's father, it was agreed that the respondent will not be ejected on any ground except that of non payment of rent.
5. I have heard M/s. S.M. Abbasi and Khalilur Rehman's the learnedcounsel for the appellant and the respondent respectively.
6. The learned counsel of the appellant has contended that the appellant is residing in one room tenement. The number of family members of the appellant are increasing with the passage of time. At the time of filing of the rent case, the family consisted of 5 members, when affidavit in evidence was filed there were seven members and now they are eight. The respondent has admitted in his evidence that the appellant is living in one room. The requirement of the appellant cannot be termed as malafide looking to the above size of the family, which cannot be accommodated in one room.
7. It was next urged by the learned counsel that mere demand of the higher rent will not reflect on the bonafide of personal requirement, the fact having been established that the accommodation in possession of the appellant is not sufficient to meet the requirement of his family.
8. The learned counsel for the respondent contended that the appellant had inducted new tenants by changing receipts in their names and in case he was in need of the premises, he would have not changed the receipts. He further submitted that the appellant had failed to prove that he was living in one room or that it was not sufficient for his requirement. He urged that the appellant had not come to court with clean hands and therefore the learned Rent Controller was not impressed by the evidence produced by him in proof of the requirement of the premises in good faith.
9. From the record it is established that the appellant has expanding family and presently it consists of eight members. With the growing member and ages of his children, the need for bigger size of accommodation has also increased correspondingly. The fact that the appellant is living in one room, has been admitted by the respondent in his cross-examination. It is obvious that one room accommodation was too small for family of the appellant as it was at the time of filing of the rent case, when only two of his children hud attained the school going age, and by now, more than five years have passed and his heed also has increased proportionally, with the members and ages of his children.
10. The respondent has alleged that the appellant had been changing rent receipts and thereby inducting new tenants and therefore bonafide stands mitigated. But the respondent has failed to prove, if any out going tenant ever handed over physical possession of any tenement to thhe appellant and he thereafter relet such tenement to new tenant, instead of occupying it for his own use. Had it been so, the contention would have deserved consideration. The mere fact or changing receipts in the name of new tenants would hardly reflect adversely on the bonafide of the requirement.
11. The learned Rent Controller had non-suited the appellant for the following reasons:
(a) The appellant had not obtained consent from other co-owners for filing ejectment application;
(b) He had improved his case by introducig family settlement with regard to the properties inherited by the applicant, his brother and four sisters;
(c) He has not obtained any letter of administration;
(d) He demanded higher rent and prepared fresh agreement and handed it over to the respondent.
(e) The applicant had not given full particulars of his personal bonafide requirement.
12. It is settled law that one of the several owners can maintain eviction application and that it is not necessary that he should obtain consent of the other co-owners or letter of administration, as succession opens in case of Muslims by operation of law, on the death of predecessor. The demand of higher rent does not by itself mitigate the bonafides. The respondent was inducted as tenant in the year 1979 on monthly rent of Rs. 150/- which was not increased at any stage. It was for the first time that the rent was sought to be increased from Rs. 150/- to Rs. 180/- and not Rs. 300/-, in the year 1985. It is not the requirement of law that the landlord should mention all the details with regard to his bonafide personal requirement. It is noted that the appellant as a matter of fact had mentioned all the required details in his application, regarding the number of his family members and the accommodation available with him, but, as it appears, the learned Controller closed his eyes to the above particulars.
13. The appellant had established the bonafide and good faith of requirement of the demised premises for his and his family's use and occupation and there was no reason whatever available to refuse him the relief sought. Neither the agreement executed between the respondent and the appellant's father was produced, nor the learned counsel for the respondent urged the point that the respondent cannot be evicted by virtue of alleged stipulation in the said agreement.
14. During pendency of this appeal, the respondent filed CMA No. 404/91 for recording additional evidence, necessitated by the so called subsequent developments. The same application was also heard alongwith the appeal.
15. The respondent in his above application has disclosed that after filing of the rent case, sub- licences in respect of commercial as well as residential plots, which were in the name of appellant's father have been secured by the appellant by registered sub-leases executed in his favour and has become exclusive owner of both the properties. The appellant in his affidavit stated that the appellant has vacated the residential premises in his occupation and rented out a portion thereof to M/s. Paramount Hosiery, who were already tenants on the ground floor and remaining portion has been converted by him into office for his own use and that he has constructed additional three rooms with amenitied on the second floor and has shifted his family therein and has also constructed two rooms with courtyard on the second floor over the premises which was previously occupied by him. It is further alleged that tenements in the names or Abdul Khalid and Moeeuddin have been changed in the names of Mohammad Zubair and Saukat Ali respectively.
16. The appellant in his counter affidavit to the above has denied that he is sole owner of the property. It is stated by him that the property belonged to his father and on his death it has been inherited by his mother, two sons and four daughters. On the death of mother, her share devolved on her son and daughters. It is the case of appellant that his brother and sisters had executed a deed of relinquishment in his favour only with a view to get the mutation affected in his name and according to him the title of the co-sharers in the property is not disturbed. He has further stated that his father had made oral will and to respect the said will, a family settlement was prepared by the appellant and his brother, with the consent of their sisters, where under four flats were built on commercial plot and were given to each of the four daughters and the residential plot with construction thereon was given to the appellant and his borother as they had paid debts of their late father.
17. In respect of te construction raised on the second floor it is stated that the said construction was raised by the appellant's sister Mst. Roshan Jabecn who was allowed by the appellant and his brother, at her request, to construct one room at her own costs without claiming any right or title in the property. It has been denied that there is any tenant by the name of Paramount Hosiery and has also denied the other allegations in this record. With regard to the allegation that the premises vacated by a tenant has been rented out to one Zubair Siddiqui, it is stated that he was tenant from the year 1986 and the premises in possession of Shoukat Ali belonged to his sister Mst. Hajra Begum, in terms of the family settlement and the appellant has no concern with the same.
18. In the affidavit in rejoinder, the respondent has pointed out that Paramount Hosiery is tenant of the appellant. However, the name of the business has been changed to Cotex Garments and Knitwear Industries, (Pvt) Ltd. He has denied the other allegations made in the counter affidavit, Alongwith his rejoinder, the respondent has filed photostat copies of the title documents executed by the President of Pakistan and Firdous Co-Operative Housing Society Limited in favour of the appellant.
19. This application was filed at belated stage when the appeal was fixed for regular hearing.
20. The appellant has denied the allegation that he has raised any additional construction. He has, however, admitted that his sister has constructed one room with his permission. With regard to tenements in possession of the out going tenants, there is no allegation that possession thereof came in the hands of the appellant.
21. If it be assumed that the appellant has shifted to the alleged newly constructed rooms, it does not adversely reflect on the bonafide requirement of the appellant, whose number of children has risen to six and with the growing ages of his children, his need of more accommodation would be nothing but natural phenomenon. Need of the premises is not to be seen only in the context of mere shelter, but in its widest sense, with all cannotations and denotation of the term and would include the need of better accommodation that would meet the spritual, educational and social needs of the family in the form of room for prayers, study and respectable place to receive in the house the visitors and guests, which one can well imagine for the growing family of the appellant whose children are acquiring education, as is reflected from the material on record.
22. In case the appellant relets the premises in question to any person or puts it to a use other than personal use, the respondent can invoke S. 15-A of the Sindh Rented Premises Ordinance (XVII of 1979) which provides required protection to the respondent.
23. CMA. No.404/91 is hereby dismissed. The appeal is allowed. The impugned order is set aside and reversed and the rent case filed by the appellant is hereby allowed. The respondent is directed to put the appellant in possession of the demised premises with in two months from the date of this order.
24. The appellant has admitted that the respondent had paid a sum of Rs. 30,000/- to his father at the time of commencement of tenancy. The possession of the premises, therefore, will be delivered to the appellant only after he has deposited the said amount in Court.