1. ' This appeal has been filed challenging the orders passed by the Rent Controller and 2nd Senior Civil Judge, Karachi (Central) in rent case No,246 of 1988 (Old No,5499/1980).
2. ' Briefly the facts of the case are that the respondent had filed an application for ejectment of the appellant/opponent wherein it is pointed out that she is the owner of premises on plot No,26/10- 5/F, New Karachi, hereinafter referred to as the premises. She has further asserted that the 'two rooms of the said premises were let out to the opponent on a monthly rent of Rs,70 and that opponent had defaulted in payment of rent since February, 1979 till the filing of the case. It is also asserted that the premises were required by the applicant landlady for her personal bona fide use and when she approached the opponent in the month of February, 1979 he had agreed to vacate the premises within eight (8) months but did not honour his commitment and, therefore, the landlady filed the said case seeking his ejectment on the ground of default in payment of rent and personal requirement. The present appellant/tenant filed his written statement wherein he admitted the ownership of the respondent and his being tenant therein. He, however, contended that he was in occupation of the entire premises and that he had got the electricity installed at his own expenses. The appellant further alleged that in the year 1980 the landlady had agreed to sell the premises to him for a consideration of Rs,12,000 and that her husband received Rs,5,000 from the appellant but subsequently avoided to execute the proper sale documents and the said amount of Rs,5,000 was refunded to the appellant. The appellant denied to be a defaulter of payment in rent and contended that he paid the rent up to the month of October, 1980 and thereafter he deposited the rent in Court regularly. On the point of personal requirement, the appellant stated that the landlady is in occupation of sufficient accommodation and that this plea has been taken only to caftse harassment to the appellant. On these pleadings of the parties the Rent Controller settled the following points for determination:--
(1) Whether opponent is defaulter and has not paid the rent to the applicant from February, 1979?
(2) Whether the case premises is required for her personal use of the applicant?
(3) What should the order be?
3. ' The respondent landlady filed her own affidavit-in-evidence and that of one Nawabuddin, her grandson, both were cross-examined. The appellant also filed his own affidavit-in-evidence and was cross-examined. He also filed the affidavit-in-evidence of two witnesses, namely, Muhammad Saleem and Muhammad Naseem of whom he gave up witness Muhammad Saleem while witness Muhammad Naseem was not cross-examined and the side was closed by order passed by Rent Controller on 8-8-1990. The learned Rent Controller found first issue against the landlady while the issue with regard to requirement of premises for personal bona fide use was answered in favour of the landlady and consequently the appellant was directed to hand over the vacant possession to the landlady within two months. Being aggrieved the appellant has preferred this appeal.
4. ' I have heard the learned counsel for the parties. The learned counsel for the appellant has argued that the landlady is in occupation of one quarter in Jamshad Quarters and that she does not require these premises for her personal use. He has referred to paragraph three of the affidavit-in- evidence filed by his witness Muhammad Naseem wherein this witness has stated that she does not require the premises for her personal requirement and that she is living alongwith her husband in the house which is sufficient for her use. He has also submitted that the premises were let out to the present applicant and at that time also the landlady was residing in the premises where she is residing at present and thus it should be presumed that she had waived her right of personal occupation and that this will operate as an estoppel against her. I have perused the affidavit-in- evidence filed by the landlady and her cross-examination and also the affidavit-in-evidence filed by D.W. Muhammad Naseem. The learned counsel for the appellant has contended that because the D.W. Muhammad Naseem was not cross-examined his evidence should be accepted as it is. Of course, there is no cavil about this proposition but it has to be seen if this witness would be trustworthy and whether he is a credible witness in the circumstances of the case. This witness in his affidavit does not state if he is related to either of the parties or the husband of the landlady. He also does not state whether he resides in the neighbourhood where the premises in dispute is situate or where the landlady at present resides (Jamshad Quarters). Mere statement by this witness that the landlady does not require the premises for her personal use would not be sufficient to undo or shatter the evidence given by the landlady specially when this witness does not mention as to where the landlady is residing at present, how many are her family members, what is the accommodation and how that accommodation would be sufficient for her use. I am not inclined to accept this vague statement of this witness, as against the evidence given by the landlady herself.
5. ' The landlady in her affidavit-in-evidence has stated that from out of the premises two rooms were let out to the present appellant while she remained in the remaining accommodation and she is not living with her husband as her husband is not maintaining her. She has also stated that she does not own any other house or accommodation in Karachi. She has further stated in her affidavit that after the appellant learnt of the present proceedings he forcibly entered the portion of the premises in occupation of the landlady and on 4-11-1980 he criminally assaulted her by trespassing into her portion of the premises and dispossessed her for which she made a complaint to the S.H.O, New Karachi and a Cr. Revision (No,304/1981) is now pending with the Vth Addl.
6. Sessions Judge, Karachi. She has also stated that she is presently residing in an unauthorised Jughi in Jamshad Quarters area. She is fully supported by her witness Nawabuddin who is also her grandson. This witness in his affidavit has stated the appellant had forcibly occupied the remaining portion of the premises on 4-11-1980 and that he and the respondent are living in two Katchi Jughis in Jamshad Quarters area alongwith ten family membeRs, All this material on record shows that the present respondent is not in occupation of any authorised premises but is leading a miserable life with her family members in unauthorised Jughi in Jamshad Quarters Area. Learned counsel for the appellant has laid stress that the landlady has failed to prove her bona fides and that she requires the premises in good faith. He placed reliance on the following cases:--
(1) Rehmat Khan v. Anjum Hayat Mirza (1992 CLC 1102), in this case a learned Single Judge of this Court had accepted the appeal of the landlord and the facts of this case show that the same do not favour the contention of the learned counsel. However, in this case the appellant had merely stated that he required the disputed house for his personal use but he had elaborated upon such personal requirement and that no plausible case was made out. The other case relied on by the learned counsel for the appellant is that of Faquir Muhammad and other v. Mst. Muhammad Bibi and others (PLD 1991 SC 590), relying on this case the learned counsel has submitted that the law and the course of law assist only those litigants whose claim and approach to Court are based on honesty and good faith and when these things lack, relief is to be denied. There is no cavil about this principle of law but it has to be seen in view of the facts of the case if the landlady in the present case has been able to show her requirement to be in good faith and bona fide. As discussed above I am of the view that she has so proved. The third case relied on by the learned counsel is that of Mushtaque Ahmed v. MRs, Mumtaz Zohra Rizvi (PLD 1978 Kar 188), facts of this case are also not helpful to the present appellant. It may be observed that the jurisdiction of the Controller to order eviction on the ground of personal requirement in good faith is dependent on his satisfaction that the claim of the landlord is bona fide and that such requirement is in good faith. The term good faith or the bona fides has not been defined in the Sindh Rented Premises Ordinance but the term good faith is defined in section 2(27) of the West Pakistan General Clauses Act, 1956 as follows:-- "A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not."
7. ' From this definition it may be inferred that the demand for possession of rented premises must be honestly made by the landlord. Honesty is a state of mind which is a psycological factor capable to prove or disprove only by evidence or conduct. It is, therefore, necessary for a person alleging that an action has been taken mala fide, which term is converse to bona fide, to show that the present respondent taking action has been motivated by any of the considerations otherwise. The normal course a landlord would be deemed to have satisfied the aforesaid contention by leading evidence to the reasonableness of his needs and if he succeeds in doing so, the onus would shift to the tenant to prove the facts which militate against the existence of good faith or positively establish the dishonesty on the part of the landlord. As discussed above the present respondent landlady residing in a Jughi with 10 family members cannot be said to have any dishonest intention or motive to dispossess the present appellant. No evidence of any sort has been brought on record by the appellant to show if the landlady is in occupation of any other premises suitable for her use or that of her family.
8. ' In this view of the matter I do not find any reasons to interfere with the orders passed by the Rent Controller. The appeal is accordingly dismissed. However, there will no order as to costs. The appellant will hand over the peaceful vacant possession to the respondent within a period of two months from the date of this order.