' For a proper appreciation of the points involved in these proceedings which are to be disposed of by this judgment it is necessary to refer to the relevant facts in some detail.
2. The respondent is the owner/landlord of residential premises bearing No,R.C. 10/5, P-IV-A- 270(G/4), situated near Raja Mansion, Karachi, which was leased out to Muhammad Bux, predecessor-in-interest of the appellants on a monthly rent of rS,50. The tenancy was regulated through an agreement dated 9-11-1963. It is alleged that the said Muhammad Bux infringed the conditions on which the premises was let out to him by converting a portion thereof into commercial one and by raising unauthorised construction he impaired the material value and utility of the premises. The respondent also required the said premises for this own occupation and the occupation of his grown up sons whose marriages were held up for want of proper accommodation. On these grounds the respondent filed eviction application against the said Muhammad Bux, predecessor-in-interest of the appellants on 4-11-1984, who was dead at that time, and consequently the appellants who are his legal representatives were brought on record.
3. The appellants resisted their eviction by controverting the' allegations based on facts. It was pleaded by them that the construction was raised in the year 1966 within the knowledge of the respondent who remained silent for a period of 18 years. The personal need of the respondent and his sons to occupy this premises was also challenged and it was alleged that the respondent was interested to re-let it on huge Pugree. The payment of rS,4,000 as Pugree to respondent by the original tenant at the time of hiring this premises was also alleged.
4. On the pleadings of the parties the following issues were framed:---
(i) Whether the applicant requires the tenanted premises in good faith for his own occupation or use or for the occupation or use of his sons?
(ii) What should the order be?
5. The respondent examined himself (P.W.1) and his son Khalid Anwar (P.W.2), while the appellants examined one of them, namely, Ghulam Mustafa (D.W.1).
6. On the assessm ent of evidence available on record the learned Rent Controller (Mr. Iqbal Ahmad) decided issue No,1 against the respondent and consequently dismissed the application for ejectment vide order, dated 30-4-1988. The respondent challenged this order before this Court in F.RA. No,521 of 1988, which was decided by my learned brother Syed Haider Ali Pirzada, J. on 10-4- 1990 in the following words:-- "Zikrur Rehman, appellant, is present in person alongwith his counsel Mr. Rehmat Ellahi. Mr. Rasheed A. Rizvi, Advocate for the respondent, is present. After hearing the learned counsel for the parties, both the parties have filed the statement, stating therein that this is a fit case for remand. The request is just and proper in the circumstances of the case. The impugned order is set aside. The case is remanded to the Court of learned IVth Senior Civil Judge---Rent Controller, Karachi (South), for disposal of eviction application on merits according to law on the following two points:---
(i) Whether the opponent/respondent has impaired the value and utility of the premises by making additions and alterations in the same?
' Whether the applicant/appellant requires the tenement in question in good faith for his own occupation or for the use of his son?
' Both the parties state that they do not want to lead any evidence in support of the above points, but they will submit their arguments on the present evidence. Parties through their Advocates are directed to appear before the learned IVth Senior Civil Judge and Rent Controller, Karachi (South) on 12-5-1990. The learned Rent Controller is directed to decide the case in accordance with law on or before 31-7-1990.
' F.RA. No,521 of 1988 is disposed of in the above terms with no order as to costs."
7. On remand the learned Rent Controller (Mrs. Fahmeeda Qadeer), decided Issue No,1 against the appellants directing their eviction from the demised premises within 30 days. Issue No,2 was, however, decided against the respondent. This order, dated 12-7-1990 is the subject-matter of the present appeal.
8. I have heard Mr. Rasheed A. Rizvi, learned counsel for the appellants and Mr. Rehmat Elahi, learned counsel for the respondent. I have also gone through the record of the case carefully.
9. It is contended on behalf of the appellants that the disputed premises was hired by Muhammad Bux, their predecessor-in-interest on payment of rS,4,000 as Pugree, and since the landlord rendered himself ineffectual after imparting to the tenant something more than the tenancy rights, the learned Rent Controller should have refused the prayer of the respondent on this score alone.
The learned counsel for the appellants should have known that a complete answer to this contention is provided by the Surpeme Court in the case of Sheikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others reported in 1987 SCM R 307, wherein the following observations were made:--- "According to the lease agreement the shop had been let out to the tenant-petitioner for a fixed period of ten years with a right of re-entry reserved by the respondent landlord, but it is not mentioned in the lease-deed that the respondent-landlord had received rS,11,000 as Tugree' from petitioner-tenant, although it is so stated by him in his statement before the Rent Controller (page 134 of the paper-book). However, that being mutual arrangement between the parties would not debar the respondent-landlord from instituting eviction proceedings on the ground of bona fide personal need." (Underlined is mine).
10. This view was followed by this Court in cases of Muhammad Ilyas v. Mst. Khursheed Begum reported in 1989 CLC 506 and Mst. Wahabunnisa v. Haji Abdul Sattar reported in 1989 CLC 517. So even if it is accepted for argument's sake that the respondent had received a sum of rS,4,000 as Pugree from Muhammad Bux, the predecessor-in-interest of the appellants, that factor alone will not defeat the plea of personal need, if made in good faith, viz. honestly.
11. Admittedly the disputed premises was rented out to Muhammad Bux, predecessor-in-interest of the appellants in the year 1963. A period of 21 years had elapsed at the time when the respondent claimed the possession of the said premises. The family members of the respondent who were either minors or were not even born had grown up during this period of 21 years. The respondent as his own witness (P.W.1) has deposed that the premises presently in his occupation does not cater his needs and the needs of his family members who now want privacy. The evidence which has come on record shows that the respondent and his family members are forced to live in a house which has got only two rooms, out of which a portion of one room is used as kitchen. Para. 12of the affidavit-in-evidence is relevant on this issue, which is reproduced below to understand the correct position:-- "That I am living with my family consisting of myself, my wife, and two adult sons, namely, Khalid Anwar and Tariq Anwar in a flat of 2 rooms. There is a common latrine and the kitchen is in the second small room. This flat is quite insufficient at present and after the marriage of my these sons it will be quite impossible for us to live therein."
12. Khalid Anwar (P.W.2), one of the sons of the respondent whose marriage is held up due to paucity of accommodation has fully supported the version of his father. The evidence of these witnesses further shows that the daughter of the respondent who was earlier married has now become widow and she too is residing with the respondent alongwith her three children. Nothing is brought out in cross-examination of these two witnesses to shake their credence. The respondent being the owner of the disputed premises has got every right to occupy his own premises for a better and comfortable living and he cannot be denied this right only because of the fact that the appellants are in occupation of this premises since 1963. The law makes no distinction between an old tenant and a new tenant, and if the landlord is able to satisfy the Rent Controller that he needs his own premises honestly, the Rent Controller is left with no other option, but to order the eviction of tenant irrespective of the hardships caused to him.
13. The agreement of tenancy (Annexure A), which is on record makes it clear that premises consisting of three rooms, bathroom, latrine, compound, etc. was rented out as residential unit. The use of open compound for commerical purposes will not change its character and as observed by the Supreme Court in the case of Sycd Amjad Ali Shah v. Iqbal Ahmad Farooqi and others reported in PLD 1985 SC 242, the change in the use of a residential unit to a non-residential unit, with or without the consent of the landlord would not amount to change of character of the building for the purpose of eviction as from a residential building.
14. It is also contended on behalf of the appellants that the respondent wants to re-let the premises after getting the same vacated on a huge Pugree. I Section 15-A of the Sindh Rented Premises Ordinance, 1979, safeguards the interest of the tenants evicted under clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, and it provides a check on re-letting. In fact the apprehension of the appellants is totally baseless. The respondent needs the premises honestly and he has successfully proved his requirements to justify the eviction of the appellants.
15. In the circumstances stated above, no exception can be taken to the impugned order which is maintained. The appeal has got no merits and is accordingly dismissed with no costs. The appellants arc, however, allowed two months' time to vacate the demised premises.