HAZIQ UL KHAIRI, J.-- The appellants are aggrieved by judgment dated 24.9.1988 passed by the learned IIIrd Rent Controller, Karachi-East in Rent Case No. 294/86, dismissing their ejectment application under section 15 of the Sind Rented Premises Ordinance, 1979, on the ground of personal bona fide requirement of the appellant No.'2, namely Mir Shahid Ali.
The appellants are co-owners of the premises whifch devolved on them after the dismissed of their mother Mst. Fatima Begum on 30.12.1984. The respondent was inducted as tenant, on rent of Rs.
1,500/- P.M. Vide tenancy agreement dated 1.8.1987 renewed on 20.6.1977. Appellant No. 1 is stated to be residing in a rented premises on Rs. 3,000/- per month and appellant No. 2, having no other place to live, is putting up with him. The family of the appellant No. 1 has increased. He has three children and it is not possible for him to accommodate appellant No. 2, who being 25 years of age is likely to be married soon. The landlady of appellant No. 1 has also served upon him a legal notice dated 1.4.1986 requiring him to vacate the rented premises. The appellants first filed an ejectment case against the tenant on ground floor on the ground of personal bona fide requirement of appellant No. 1 and now this case against the respondent on the ground of bona fide requirement of appellant No. 2.
2. The respondent in his written statement has resisted the ejectment being mala fide. It is alleged that appellant No. 1 is in collusion with his landlady so as to eject the respondent. The said notice, served by her on appellant No. 1 is an abuse of the due process of law aiming at creating evidence with malicious design. Further, the appellant's object is nothing but to dispose of the building at a higher price. Prior to the filing of the ejectment application, the appellant had been negotiating with the respondent for enhancement of rent and for sale of the house.
The appellant No. 1 Mir Sadiq Ali in his affidavit in evidence while reaffirming the various avertments made in the ejectment application stated that after the demise of his mother, the property devolved on the appellants and his six married sisters named therein. In cross-examination he admitted to have sold his house bearing No. 41, Maqboolabad, Karachi so as to meet the expenses of his sister's marriage. Afterwards, he shifted to the said rented premises alongwith his were, child, mother, two sisters and one brother, namely appellant No. 2. He further stated that appellant No. 2 who had gone abroad would come back and marry. Shahid Ali, appellant No. 2, for whom the demised premises is required, had sent his affidavit-in-evidence from the State of Indiana, U.S A.
And stated that he would be returning to Pakistan in near future to setup his own house and to make arrangements for his marriage for which purpose he required the demised premises. In cross-examination, he stated that he went to United State in June, 1986, for completing two years' course. There was still one year's course to remain, whereafter he would marry, He denied having any knowledge of negotiations between his brother, the appellant No. 1 and the opponent for sale of disputed portion of the house. He denied if his brother had ever demanded Rs. 15,0, 000/- as sale consideration for the whole building.
3. The respondent in his affidavit-in-evidence has reiterated and reaffirmed the allegations made by him against the appellants. According to him, at the time of letting out of the premises in 1976, the appellants offered to sell the demised premises to him and on his acceptance the. Appellants gave him assurance that after completion of documents of the disputed premises, appellant No. 1 would sell the property t6 the respondent. On this assurance, the respondent spent a huge amount on the structures and renovation. Besides, the appellant No. 1 wants to settle down in U.SA.
Negotiations between the parties were in progress even after filing of the case. On 13.4.1986, appellant No. 1 contacted his father in connection with the sale of house and handed over to him photostat copies of the documents. Thereafter, on 5.5.1986 he visited him and demanded Rs.
15,00,000/- and the deed was finalised at Rs. 14,50,000/-. In support, he filed true copies of letters written by him and also tape record of conversation taking place between the appellant No. 1 and respondent. Apart from this, it was alleged by him that appellant No. 1 wants to migrate from Pakistan Whereas appellant No. 2 has already settled down in U.S.A.
Next witness is the father of the appellant Mohammad Izhar. He reaffirmed the various allegations made by the opponent and produced letters written by him to the appellant mentioning the alleged sale of the building by the appellant No. 1, to the respondent. Alongwith these letters, he produced tape record of conversation which took place between him and the appellant. No. 1 and its version reduced into writing. Witness Imtiaz Ali, is the brother of respondent and in his affidavit- in-evidence, he has supported the version of the respondent and his father. Last witness adduced by the respondent is one Raheel Siddiqui, who is a resident of the same locality. According to him, the appellant No. 1 wanted to migrate from Pakistan and there were negotiations for sale between him and the respondent. In cross-examination, he admitted that he has terms with all the members of the family of the respondent, but no negotiation for sale of the said property had taken place in his presence.
4. . While rejecting the ejectment application it was observed by the learned Controller that the appellant No. 1 is not aware if his landlady has filed rent case against him. It was also observed by him that appellant No. 1 avoided to give any approximate date of appellant No. 2 returning to Pakistan. What attracted the attention of learned Rent Controller most was the fact that the respondent had brought on record the telephonic conversations held between appellant No. 1 and the respondent and respondent's father with regard to the sale of the premises, which was not specifically denied by the appellants. Taking these factors into consideration the learned Controller was of the view that the appellants did not require in good faith the premises in question.
The main contention of Mr. Anwar Maqsood, learned counsel for the respondent is, that there is ample evidence on record to show that the appellants intend to sell away the house and they do not require the demised premises in good faith lor the appellant No. 2, Reference was made to tape record of conversation between the appellant No. 1 and respondent's father, the text of which was also reproduced in writing by the latter, which stand unchallanged by the appellants. Learned counsel placed reliance on Ms. Ameena Begum, PLD 1978 Supreme Court 220, in which it was held:- - "Rent Controller and Appellate Authorities in exercise of discretion vested in them are not preclude to allow any bona fide amendments and take note of subsequent event in order to suitable would relief on the basis of alternate circumstances in order to avoid multiplicity of litigation and shorten proceedings."
5. Be that, as it may, the said recorded conversation was produced by the respondent after the appellants had closed their side. Admittedly it took place between the period of appellant's evidence and respondent's evidence. No effort was made by the respondent to recall the appellant No. 1 to the witness box so as to confront him with the recorded conversation. What, however, is quite obvious from its text, is the deceitful methods employed and underhand tactics manipulated by the respondent and his father, to entrap the appellant No. 1 unaware and succumb to the temptation offered by the respondent's father to sell the house to him. The conduct of the.
Respondent does net invoke sympathy for him but manifests a calculated move on his part to create evidence in his favour.
What may further be stated here is that when there are a number of landlords as in the present case, an act of a co-landlord is not binding on others unless the former is empowered by the latter.
There is nothing on record to indicate that appellant No. 1 was authorised by seven other landlords and landladies to negotiate with the respondent or his father in respect of sale of the house. Even otherwise want of good faith on the part of one of them cannot be treated as want of good faith on the part of all, unless corroborated by other evidence. The learned Controller completely overlooked the evidence of appellant No. 2, who had come down from U.S.A, for his cross- examination. He specifically stated that after one year he would complete his studies whereafter he would settle down in Pakistan and get married. He expressed his ignorance if any negotiation for sale had taken place between the appellant No. 1 and the respondent, It is significant to note that the learned Controller completely overlooked the admission of the respondent that he did not know if the premises was required by the appellants for their own use, thus demolishing his own defence.
6. In order to counter the other contention raised by the respondent's counsel that the premises in question was not the immediate requirement of the appellant No. 2 and that the ejectment application was premature, Mr. Abdul Rasheed, learned counsel for the appellant strongly placed reliance on PLD 1982 S.C. 2 8 in which it was held: "When a landlord was seeking for eviction on the ground of personal requirement, he cannot be expected to sit idle for periods of time during the pendency of eviction proceedings. If the landlord during such period had employed himself in a gainful occupation such as going abroad for earnings, such fact cannot negate assertion of bona fides on the part."
In the present case, the appellant No. 2 has convincingly deposed as to his personal requirement of the premises and explained as to why the ejectment proceedings were filed sometime before he left for studies abroad. His evidence has remained unshaken. The very fact that he came down from U.S.A, to offer himself for cross-examination further strengthens his plea for requirement of the premises in good faith.
In the result, I accept the appeal and set aside the judgment dated 24-9-1988 passed by the learned IIIrd Rent Controller, Karachi with direction to the respondent to vacate the premises within two months hereof. However, the parties are left to bear their own costs.