1. ' This order will dispose of F.RAs. Nos.93 and 94 of 199L Both these appeals are in respect of the same premises viz. C-272, Block No,6, K.D.A. Scheme No,16 F.B.Area, Karachi. F.R.A. No,93/91 is for its first floor while F.R.A.No,94/91 relates to ground floor. Nusratullah is appellant in both these appeals.
2. Quresh Ahmed is respondent in F.RA.No,93/91 .(Rent Case No,281/89) and Mahtabul Haq in F.R.A.
3. No,94/91 (Rent Case No,284/89). Learned Rent Controller Karachi Centrally separate orders dated 28th January, 1991 rejected both the eviction applications. Said orders have been impugned in these appeals.
4. ' The case of the appellant is that he is the owner of the premises referred to above and the': respondents are his tenants in said premises. Respondent Quresh Ahmed is the tenant of first floor at the rate of 2,450 p.m., while'respondent Mahtabul Haq is occupying ground floor as tenant on monthly rent of Rs,2,550. Initially, the rent for first floor was Rs,600 p.m. And of ground floor Rs,800 p.m., but later on, from time to time, the rent was increased and at the time the eviction applications were filed the rent of these. Awo portions was; as mentioned earlier. The appellant has sought eviction of the respondents on the ground of personal bona fide use. It is his case that at the time the premises was rented out he was unmarried. He married in the year 1976 and now is the father of two children namely, Sadia and Muhammad Arshad Noman, who are aged about :12 and 9 years, respectively. It is said that presently he is residing with his mother Bismillah Begum in House No,11-G-1/8, Nazimabad, Karachi.
5. ' Both the respondents resisted the claim of appellant and maintained that he does not require the premises in question for his personal bona fide use.
6. ' The appellant in both these cases filed his affidavit-in-evidence and that of his mother Bismillah Begum and brother' Muhammad Junad. They were cross-examined by the learned counsel for the other side. Respondent Quresh Ahmed filed affidavit-in-evidence of his attorney Shakeel Ahmed.
7. Likewise, respondent Mahtabul Haq filed affidavit-in-evidence of his attorney Muhammad Aslam.
8. Both these witnesses were cross-examined by learned counsel of the appellant.
9. ' Appellant Nusratullah in his affidavit-in-evidence in both the cases 'reiterated the facts, which he mentioned in the eviction applications. He stated that the area of his mother house is 240 sq.Yds.
10. He claimed that in said house, as many as 17 persons, are residing. In cross-examination, he maintained that he if one portion of the premises in question is, vacated it would be insufficient for his needs. He stated that he requires both the portions of the-premises. He deposed that his. Father is passing retired life. He vehemently denied that . Bismillah Building belongs to him. He denied the suggestion that he has given fictitious names, showing as resident (this mother's house. He admitted that in Bismillah Building there arc bedrooms, two drawing and dining, and two kitchens.
11. He stated that marriage of his brother Junad has been postponed for want of accommodation. In reply to another question, he stated that he cannot say if the letters alleged to have been written by his father were actually written ' by him (father) or not. He also .Denied the suggestion that he and his father were continuously demanding increase. In rent. Bismillah Begum, in her cross- examination, admitted that the appellant had given her an amount of Rs,9,000 at that time she purchased the house now known as "BISMILLAH BUILDING:. Muhammad Junad in his evidence 'supported the appellant. In cross-examination, he stated that rent of both the portions would be Rs,12,000 p.m. Respondent's attorney Shakeel Ahmed, in cross-xamination, stated that though the house was purchased. By the appellant, but the sale-deed was got executed in favour of his mother. He showed his ignorance if 17 persons presently are residing in the house of Bismillah Begum. He produced four letters in cross-examination at Exh.0/1, 0/2 and admitted that these letters do not bear the signatures of the appellant but the signatures on these letters are of Rent Collector, whose name he does not remember. He denied the suggestion that these letters were manipulated and were never written by the appellant. Muhammad Aslam attorney for Mahtabul Hag, in cross-examination, admitted that 17 persons are residing in -the house, where presently the appellant is living. He stated that he does not know if the appellant is also owner of any other.
12. Property. He maintained that the appellant had demanded increase in rent.
13. ' From the pleadings of the parties, learned Rent Controller had settled the following issues:- "(1) Whether demised premises is required by the applicant for his personal bona fide use in good faith?
(2) What should the order be ?"
14. On assessm ent of the evidence brought on record, learned Rent Controller reached the conclusion that the appellant does not bona fide require the premises in question for his use, and, as such, he dismissed the eviction applications, which orders have been impugned in these appeals. Learned Rent Controller dismissed the eviction applications for the following reasons:-
(1) The house in .Which presently the appellant is residing though ostensibly belonged to his mother, but, in fact, it belongs to him, as he had given her an amount of Rs,9,000 for purchasing it and, as such, they said transaction was Benami in nature. Said house was purchased by her in the year 1962.
(2) The appellant failed to produce Birth certificate of his daughter and also failed to produce any document showing that his brother Muhammad Junad is engaged to Mst. Gul Parveen.
(3) The appellant's brother Muhammad Junad, in cross-examination, stated that the prevailing rent of both the portions of the premises would be Rs,12,000 p.m. From this, learned Rent Controller inferred that the ultimate purpose of filing the eviction applications was to realize more rent by letting out the premises to, others.
(4) The respondent, alongwith his affidavit-in-evidence, submitted four letters Exh.0/1 to 0/4. The respondent claimed that these letters were written by the father of appellant and in these letters request was, made for increasing the rent.
(5) The appellant, in the eviction applications, has not given the details of accommodation of her mother's house, while his mother clearly admitted that there were 8 bedrooms in her house.
15. ' It is contended on behalf of the appellant that learned Rent Controller dismissed the eviction applications on insufficient grounds and on the basis of assumed facts for which there was no justification. Learned counsel also argued that, after it was established that appellant had no other premises of, his own, learned Rent Controller should have passed the eviction order against both the respondents.
16. ' As against this, learned counsel for the respondents argued that it was proved from the evidence brought on record that the appellant is the owner. Of "BISMILLAH BUILDING" which has as many as 8 bedrooms, therefore, there was no justification for eviction of the responderits and learned Rent Controller rightly dismissed the eviction applications. He also argued that, under the circumstances bona fide requirement of appellant is not at all proved. In support of his contentions.He cited (1) Manzoor Ahmed and others v. Karim Bux and Others PLD 1986 Karachi 637, .
(2) Miss Safia Hussain v. Ishrat Hussain 1986 CLC 1751, (3) Syod Israr Alain v. S.M. Hussain 1983'CLC 468, (4) Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Karachi 624, (5) Miss Dephne Decrugze. v.
17. Malik' Muhammad Yousuf 1984 MLD 19 (6) Ghulam Rasool .v. Syed Nazim Hussain Shaikh 1988 CLC 793, (7) Abrar Ahmad Khan v. Jamil Ahmed Khan. 1991 CLC Note 35 at p.24.
18. The ratio of the above-cited cases is that the landlord is, required to establish his bona fide need.
19. Mere wish, convenience, whim or fancy of A landlord, would not be enough to show that he requires the premises in good faith.
20. ' Coming back to the facts of the instant case, it is noted that the main argument, which prevailed with the learned Rent Controller, is that, appellant had given an amount of Rs,9,000 to his mother and from said amount she had purchased the house in which she is now residing. Learned Rent Controller was of the view that it was Benami transaction, and, in fact, this house belongs to the appellant. Conclusion drawn by the Rent. Controller is absolutely incorrect and not according to the material available on record. Neither there was any issue for determination of alleged Benami transaction, nor. Facts .Relating to said transaction were stated in the pleadings, and nor Rent Controller in rent proceedings was competent to decide that a particular transaction was Benami transaction or not. Mere payment of aforesaid amount by the appellant to his mother does not, ipso facto, bring the case within the ambit of Benami transaction. The transactions relating to the transfer of property are solemn. In 'nature and strong presumption is attached to the fact that apparent state of affairs is the real state of affairs. Besides, in the year 1962, the appellant could not visualise that in the year 1989 he could get benefit by purchasing the house in the name of his mother. Probably, learned Rent Controller did not consider the vastness of the consequences which may entail as a result of his above observation. The observations of learned Rent Controller with regard to alleged Benami transaction arc absolutely unjustified and irrelevant. In fact, learned Rent Controller travelled too far to find out a ground for rejection of rent applications. On above ground, eviction could not be refused.
21. Next ground on which eviction was refused is non-production of birth certificate of appellant's daughter and also of any document showing that his brother Muhammad Junadis engaged to Mst.
22. Gul Parveen. Non-production of aforesaid documents, could hardly be a ground 'for revising eviction of the respondents. Main point was whether the appellant wad, Tkistified to claim the eviction of the respondents on the ground of personal bolide use. From the evidence brought on record, it has been established that the appellant has no other premises of his own to live, in.
23. Although, the respondents alleged that the appellant has other premises also, but failed to substantiate this plea. Both above-named attorneys, in their respective cross-examination, stated that they do not know if the appellant is the owner of any other premises. This, in fact, is an implied admission to the effect that the appellant is not the owner of any other premises. Had it been so, certainly they would have given its particulars. Accordingly, I hold. That the appellant does not possess any other premises, except the premises in question, Next point to be considered in this connection is that whether the appellant presently being in occupation alongwith other& of his mother's house, can claim eviction of the respondent& Mr. Azad Bin Hayder learned counsel for the respondents strenuously argued that, there being eight bedrooms in said house, there is absolutely no legal or moral justification for him to ask for separate accommodation. According to learned counsel, the accommodation available in said house is more than enough for all the persons residing therein. The point that landlord if residing with his father/mother or relatives, could claim possession of the rented premises for his own use or not had come in discussion in various cases.
24. Mr. Gul Zaman Khan learned counsel for the appellant in this connection cited various cases including including (1) Suleman Ghazi,v. Ghulam Hayder and another, 1983 SCMR 1058 (2) Saeed Mian Ansari and another v. Aqeel Ahmed Siddiqui 1983 SCMR 1087 (3) Abdul Latif v. Faqeer Muhammad. 1982 SCMR 1046. The ratio of I above-quoted cases is if landlord has no other premises of his own and is residing with his father/mother, or in the rented premises, is entitled to.Claim possession on the ground: of his own personal bona fide use ' Mr. Azad-Bin- Hayder learned counsel for the respondents as an alternative plea, argued that at the most one portion of the premises would be sufficient for the appellant and his family. There ,is no substance in this connection. Once it is established that a landlord requires the premises for his personal bona 'fide use; the tenant cannot suggest him that a portion of the -premises would be sufficient for his needs. Under the circumstances, it is the landlord's prerogative, and not desire:of the tenant, which would prevail. The appellant. Has clearly stated that he requires both the portions of the premises for his use Nothing subkantial has come on record to rebut his assertions on this point.
25. ' While dismissing the eviction applications learned Rent Controller observed that Muhammad Junad in cross-examinations, stated that prevailing rent of both the portions of the premises would be Rs,12,000 p.m. He also 'referred to 4 letters allegedly written by the father of appellants; wherein demand was, made for increasing the rent. Fronr this, learned Rent Controller inferred that ultimate object of the eviction applications was to increase the rent. Mr. Azad-Bin-i-layder learned counsel for the respondents laid great emphasis on this point and submitted that this was the real cause for filing these applications. Legally, it is not proved that aforesaid letters were written by the father of appellants. Even, if, it is assumed for the sake of argument that appellant wanted increase in rent, yet, this by itself would be no ground .To r _iffy the plea of personal use. On this point, Mr. Gul Zaman Khan learned counsel for the appellant cited (1) M/s. Allied Bank of Pakistan Ltd's. v. Syed Wahid Hussain, 1986 SCMR 946, (2) M/s. Chaudry Brothers v. Mst. Asma Irfan, 1991 CLC 937. In M/s. Allied Bank of Pakistan Ltd.'s case it has been observed by the Hon'ble Supreme Court that it "If the landlord proves his bona fide requirement by independent evidence, the demand for higher rent cannot be termed as an act of bad faith or mala, fide". In M/s. Chaudry Brother's case a learned Judge of this Court observed that "Demand of landlord for increase of rent of, premises, would not cast any doubt on plea of landlord about his personal requirement". Accordingly, I hold that above contention is of no use for the respondents. The principle laid down in above-quoted Supreme Court case is applicable to this case. Besides, the rate of rent, as a rule, cannot remain stationary for ever. By passage of time, due to the rise in cost of construction/repair charges and imposition of new taxes, reasonable increase in rent, as permissible under the law, would always be justified.
26. When the landlord does not possess any house except the one which is occupied by a tenant, the plea that the premises presently occupied by him as a tenant or in other capacity is much more suitable for his requirements would F be immaterial and not enough to deprive him from seeking eviction of his tenant, despite the fact that his own premises may be comparatively of inferior category.
27. ' Learned Rent Controller in the impugned order has observed that the appellant, in the eviction applications has not given details about the accommodation of his mother's house. Mr. Azad-Bin- Hayder learned counsel for the respondents, relying upon 'above observation, submitted that the appellant has not come to Court with clean hands and has concealed material facts and on this ground alone the appeals are liable to be dismissed. Hon'ble Supreme Court in the case report in Mst. Sira Bai v, Syed Anees-ur-Rehman 1989 SCMR 1366 observed that, in the eviction application, the applicant is required to state material facts i,e. Facts which constitute cause of action. In the instant case, material facts were stated by the appellant and he was not required to furnish particulars in the eviction applications about the accommodation available in his mother's house.
28. So this contention is also G. Without any force.
29. ' Accordingly, these appeals are allowed with no order as to costs and the impugned orders are set aside. The respondents of these appeals are directed to hand over vacant possession of both the portions of the premises in their occupation to the appellant within 4 months from now.