' The appellant is the owner of Saeeda House situated in Artillery Maidan, near Frere Market, Karachi and the respondent is tenant in respect of Flat No,7 in the said building on monthly rent of Rs35. The appellant filed Rent Case - No,4200/78 (renumbered as RC. No,963/85) against the respondent alleging that the respondent had committed default in payment of rent from February 1978. In paras 3, 4, 5 and 6 of the application the appellant has given details with regard to alleged malicious conduct of the respondent to show that he was chronic defaulter.
' In para. 7 of the application it is stated that the appellant requires the premises in question in good faith for the occupation of his grown up children.
2. The respondent in her written statement denied the allegations of default made in paras. 2 to 6 and with regard to the personal requirement it was stated that the aforesaid ground has been raised with mala fide intentions. It was further stated that the appellant is a big landlord with sufficient accommodation to live in. The appellant was annoyed with the respondent as she did not pay enhanced rent at the rate of Rs,70 p.m. And the appellant with mala fide intention withheld receipts of the rent of two months which was duly paid, to seek her eviction. It is stated that the ground of personal need is added by the appellant surreptitiously though his need is neither genuine nor bona fide. The appellant has let out the premises on Pagree and intended to let out the same on Pagree, if he succeeded in ejecting her.
3. The appellant examined himself and the respondent examined Muhammad, her husband and attorney.
4. The Rent Controller by his order dated 14-11-1985 held that the respondent had committed no default in payment of rent. But however granted eviction application on the ground that the flat in question was required by the appellant for his bona fide use.
5. The respondent assailed the aforesaid order before this Court in F.RA. No,34 of 1986. By consent of the parties the order of the learned Rent Controller was set aside and the case was remanded by judgment dated 1-11-1987. It would be advantageous to reproduce the relevant portion of the said judgment which reads as under:-- "The contention of the learned counsel for the appellant is that the respondent has not disclosed the name of his grown up children in the eviction application, and the respondent has not pleaded the requirements as contemplated by sub-clauses (b) and (c) of clause (i) of subsection (3) of section 13 of the Repealed Ordinance in the eviction application. The learned counsel for the respondent submitted that the application is silent about the names of the grown up children and the requirements as contemplated was specifically pleaded in the affidavit-in-evidence. Both the learned counsel for the parties have jointly submitted that this is a fit case for remand. I think the request is just and proper in the circumstances of the case. In these circumstances I accept that request. The appeal is allowed and the impugned order is set aside. The parties are allowed to amend their pleadings and the parties be given fair and full opportunity to lead evidence.
6. After the remand of the case the appellant did not file amended application. However, both the parties filed their respective further affidavitsin-evidence. The appellant in his further affidavit depicted the personal requirements in the following words:-- "(3) That I require the above house/flat for my personal use and occupation and for the use and occupation of my son Jalil-ur-Rehman and his wife Ghazala Begum.
(4) That at present I am living in House No,7/A, 301 Delhi Mercantile Housing Society, Street No,23, Block No3, D.M.C.H.S., Karachi with my wife who is owner of the house and the family consists of 24 members whose details are given under:-- (It is then followed by names of 24 persons including the applicant and his wife, his sons, daughters-in-law and their children and one daughter)."
The para. Following thereafter, is again numbered as para. 4 and reads as under:-- "(4) That I want to live separate as I do not have peace in the house where I am living due to big family and I do not have cordial relations with my wife.
(5) I don't own any other house except the building on Plots Nos,369, 370, near Frere Market, Shahrah-e-Liaquat, Karachi."
7. The respondent's attorney in his evidence deposed that the eviction application was filed with mala fide intention, as the respondent had refused to pay enhanced rent. It is further stated that Flats Nos,5, 10 and 17 were vacated by the tenants, but they were not occupied by the appellant and were relet by him in October 1979, March 1979 and July 1984. The appellant filed Rent Case No,1430/82 against Abdul Majeed in respect of Flat No,9 in the same building on the ground of personal requirement and in this manner the said tenant was coerced to purchase the said flat and subsequently the rent case was withdrawn. The appellant sold Flats Nos, 2, 4, 5, 8, 9, 12, 14 and 15 situated on 1st, 2nd, 3rd and 4th Floor of the same building during pendency of the rent case. The flats sold by the appellant were more spacious and better than the flat in possession of the respondent which is very small having an area of 400 sq.Ft. Only. It is further disclosed by the respondent that the appellant was residing alongwith his family members in two luxury flats situated in Saeeda Mansion and has sold out the same after filing of the case. The said two flats consisted of over 1700 sq.Ft. It is stated that the appellant had constructed Saeeda Mension consisting of 60 flats in the name of his wife and two other buildings one consisting of 54 flats in the names of his two sons namely Javed and Aftab, the other consisting of 10 flats and 50 shops in the name of his son Jamilur Rehman. All the above properties are situated in Artillery Maidan. The applicant also constructed a bungalow of 1506 sq. Yds. In Delhi Mercantile Housing Society, Bahadurabad, in the name of his wife.
8. The learned Rent Controller on consideration of the evidence on record dismissed the case by her order dated 17-41988, which has been assailed in this appeal.
' Learned Rent Controller has observed that in the case filed by the appellant he had omitted to give number of his family members and therfore the parties had agreed to remand of the case allowing the appellant to amend his application in consonance with the requirement of section 13(3)(a)(i)(a)(b)(c) of the Repealed Ordinance. Since the appellant had failed to amend the pleadings, he cannot be allowed to prove the case, other than the one pleaded in the application and for such reason observed that the facts which have not been mentioned in the eviction application but have been introduced in affidavit, cannot be taken into consideration. It was also observed that the appellant was changing the case of his personal requirement from stage to stage. The learned Trial Judge reached the conclusion that the appellant had failed to prove bona fide need.
9. I have heard the learned counsel, Mr. Gulzar Ahmad for the appellant and Mr. Haroon Ishaque Jangda for the respondent.
10. The respondent in his additional affidavit-in-evidence assailed the case of the appellant as set up by him in his additional affidavit. It was pointed out that the appellant in his affidavit filed by him on 16-10-1986 in the First Rent Appeal had deposed that the flat in question was required for his son Javed and subsequently realising the fact that the said Javed himself was owner of a building consisting of 54 flats, the appellant on second thought has changed his plea to the effect that it was required for his son Jalilur Rehman. It is further deposed that the appellant gifted two flats in Saeeda House to his son Jamilur Rehman on 16-34983 and 12-3-1987, who filed rent case against the tenant of one of the said flats and coerced her to purchase the same. The appellant also gifted one of the flats in the said building to his daughter Shahida Ithatoon and her son on 27-2-1972, who filed Rent Case No3291/82 on the ground of personal requirement and subsequently sold out the flat.
11. The law is settled by now that the landlord is not supposed to give all the details with regard to the requirement of the premises for his personal use but at least he is bound to disclose sufficient facts which will put the other side on notice as to what case he is to meet at the trial. Reference may be made to Riaz Muhmmad v. Mst. Bismillah Jan (1968 SCM R 981) and Carina v. MRs, Dhrm Mhi Phiraze Dala (PLD 1991 SC 265).
' It is also a cardinal principle of law that a party cannot be allowed to prove any case, other than the one pleaded. It was for the above reason that 19 the parties by consent sought specific orders from the Court with regard to amendment in the pleadings.
' In the case of Sher Muhammad and others v. Muhammad (1988 SCM R 881) it has been observed that the proceedings pursuant to an order of remand are to be regulated by the directions contained in the remand order.
' The appellant, however, did not amend the pleadings and thus the appellant had to prove that the premises in question was required by him for use and occupation of his grown up children. In this context the maximum view that can be taken in favour of the appellant, on the reading of his affidavit in evidence is that the premises in question is required for the use and occupation by the appellant and his son Jalilur Rehman and his wife Ghazala Begum.
12. The question is whether the above case as set up by the appellant, bereft of necessary particulars, would be enough to reach the conclusion that the alleged requirement is bona fide and in good faith. The appellant has neither stated .Anywhere that the house presently in occupation of the family is not sufficient to meet the requirements of his family, nor he has given the total accommodation available in the house presently occupied by the family, to enable the Court to judge the bona fides and good faith of his need. On the contrary when such details were sought to be elucidated in the cross-examination, he remained evasive.
' It is further noted that in the further affidavit-in-evidence, the appellant has not made categorical statement that he is living in the said house with all the family members which have been mentioned in the para. On the contrary it has been stated that he is living in the said house with his wife, who is the owner of the said house.
13. The learned Advocate for the respondent had contended that in the application filed by the appellant in the High Court, he had stated that he wanted the disputed flat for his son Javedur Rehman. The appellant was confronted with the above fact in his cross-examination and his reply was that the name of Javedure Rehman was mentioned in the affidavit due to mistake. The learned Advocate for the appellant in reply stated that the need of the appellant may vary from time to time and at the given time when the additional affidavit was filed by him, he wanted to shift to the flat in dispute alongwith his son Jalilur Rehman. In this regard the learned counsel placed reliance on the case of Zahoor Din v. Ayub Ahmed (1991 SCMR 1081), Abdul Ahad Khan v. Sufi Muhammad Yasin and others (PLD 1984 SC 200), Subah.Sadiq v. Taj Din (1979 SCM R 297) and Abdul Rahman v. Fazal Karim (1982 CLC 2641). In the aforesaid authorities, no doubt it has been observed that the requirement of the premises may vary, with the passage of time, for the use of landlord himself or his son or under the changed circumstances by both landlord and his son or vice versa.
' It is not a case of change brought about by the course of events with the passage of time, where the relief could be moulded in favour of the appellant. There is element of mala fides in the substitution of the name of Jalilur Rehman for Javed. The name was substituted because the appellant's son himself was owner of a building consisting of 54 flats, which fact was realised by the appellant subsequently, on second thought and the substitution of the name followed accordingly; as it is obvious that the proof of bona fides of requirement of the premises for the said son, would have been an uphill task.
13-A. In this case there are other factors also which mitigate the bona fides of the appellant. It has come in evidence that several flats had fallen vacant in the same building and were let out during the pendency of the case against the respondent. The appellant had filed rent case in respect of Flat No,9 on the ground of personal requirement, but subsequently the matter was compromised, after forcing the tenant into bargain of sale of the flat to him. The above facts have not been assailed by the appellant, although he could have done so, when he filed additional affidavit-in- evidence. Therefore these facts are to be deemed to have been admitted by him. Had the need been bona fide, the appellant could have occupied any one or more of those flats.
14. The learned counsel for the appellant contended that the choice of the house in which the appellant or his children would live, is the prerogative of the appellant. In this regard he also referred to the case-law, but it is not necessary to discuss the same, because in this case the respondent's witness in his first affidavit had specifically deposed that the flats that were vacated by the tenants or were sold, were better than the flat in dispute or at least of the same nature, with respect to size location and such evidence of the respondent remains unrebutted. The appellant did not depose that the said flats were not suitable for his needs. On the contrary he concealed the fact that the said flats were vacated by the tenants and were relet by him and such concealment again rebounds against his good faith.
15. It has come in evidence that the appellant had sold out Flats Nos,1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 14, 15, 18 and 19 of Saeeda House to different persons during the pendency of the rent case. He has gifted some of the flats in the said building to his chidlren who also sold out the flats. Some of them sold out the flats after filing rent case against the tenants.
' These facts suggest that the appellant is interested in disinvesting the building flatwise and does not require the flat for his personal use.
16. In view of the rule laid down in the case of Sher Muhammad and others, the new case set up by the appellant that he wants to live separately because of the alleged loss of peace of mind and absence of cordial relations with his wife, does not deserve to be considered. Since the case in this respect was argued by both the sides, it is being considered.
' In his cross-examination, which was recorded in February 1988, the appellant disclosed that his relations with his wife are strained for the last 10 yeaRs, The rent case was filed on 7-9-1978. If it were so, such ground would have been reflected in the eviction application itself or at least in the affidavitin-evidence filed by the appellant in March 1980. Additionally he could have occupied any of the flats vacated by his tenants. The appellant alongwith his wife was living is Saeeda Mansion in two luxurious flats as described by the respondent. It was during pendency of the rent case that the appellant shifted to the bungalow situated in Delhi Mercantile Cooperative Housing Society and sold the aforesaid two flats. If his need was genuine and bona fide, he could have very well occupied one of the said two flats for his and his children's use. According to the learned counsel for the appellant thse flats were owned by his wife and therefore he could not occupy the same.
But the same is true about the bungalow in which he is living alongwith his wife. In case appellant was in search of peace of mind, he would have availed the very first opportunity when the tenants vacated the flats is Saeeda House in the year 1979 and thereafter.
17. The learned Advocate for the appellant lastly contended that the appellant is not living in his own house, but with his wife and since relations between the spouses are not cordial, the appellant cannot be forced to live in the house of his wife and is entitled to get his own flat vacated for his personal use. In support of his contention he relied on the following cases: (1) Nilchat Riaz v.
Manzoor Hasan (1991 SCM R 1434), (ii) Azmat Hayat Khan v. Q. Mushir Azam (1984 CLC 2635), (iii)
Abul Kalam v. Mst. Dilshad (1991 SCM R 1421) and (iv) Muhammad Bashir v. Vensimal and others (PLD 1980 Kar. 409). All the above cases are distinguishable as far as in none of the said cases the husband or wife had projected the need for the premises for living separately from the spouse. In the first case unmarried daughter, who was living with her father, in the house owned by her step- mother, had sought eviction of the tenant for her personal requirement. It was observed that the fact that she was living in a house which did not belong to her, was not a relevant consideration for dismissing ejectment application. The second case was under section 14 of the Sindh Rented Premises Ordinance, 1979 and it has been observed that the house of the wife cannot be considered as that of the husband, to deprive him of the benefit under the said section. It is settled law that the factor of bona fides of requirement is not relevant in deciding the case under the said section. In the third case the landlady, who was a divorcee was living, alongwith her son, in the house of her mother. In the proceedings for eviction commenced by her against her tenant it was observed that the landlady was not under any moral or legal obligation to put up with her mother, alongwith her son, for all the time to come. In the last case, the landlord was living in the house of his son with the courtesy of the son. Amongst his sons, none except the said son owned his property. The personal requirement of the landlord was held to be bona fide.
' In the circumstances of the present case, it is not necessary to decide the question whether the occupation of the house by the appellant, which belongs to his wife is a relevant consideration, for determining the bona fides of his requirement of the demised flat, as there are other mitigating factors that have been noted above, to lead to the conclusion that the requirement as projected by the appellant is not bona fide and in good faith.
18. In cross-examination of the respondent it was suggested that Flat No,17 of Saeeda House was neither let out nor sold by the appellant which means that Flat No,17 is lying vacant or at least was lying vacant on .The day when the respondent was being cross-examined. If the need of the appellant had been genuine to live separately from his wife and children for his peace of mind, he would have shifted to the said flat.
' There is no justification to interfere with the order passed by the learned Rent Controller. The appeal is dismissed accordingly.