1. ' Appellant Mst. Razia Sultana has challenged dismissal of her rent case No.973/87 ordered by II, Senior Civil Judge and Rent Controller Karachi Central on 31-8-1988.
2. ' Admittedly, the premises in litigation viz. a ground floor portion of the building on Plot NoA-11, 7/11, Nazimabad, Karachi, were let out by the appellant to the respondent in 1976 on monthly rent of Rs.
3. 1,800 which was later on enhanced to Rs.2,100 and then to Rs.4,000 per month. Prior to this, the appellant filed rent application No.566 of 1986 for eviction of the respondent and the same was accepted. Respondent filed FRA No.295/85 in this Court against the order of ejectment. Said appeal was disposed of in this Court on 26-4-1987 when the appellant accepted enhancement of rent from Rs.2,100 to Rs.4,000.
4. ' On 15-9-1987, appellant filed Rent Case No.973/87 for eviction of the respondent on the ground that she required the premises in litigation for her husband who was Medical Practitioner and running Yahya Eye Hospital at Sukkur and for her two sons Kamran and Naveed who were studying Medicine and were intending to specialize as eye specialists and join medical profession.
5. ' Rent application was opposed by the respondent who in his written statement challenged requirement of the appellant to be not bona fide. It was averred that the appellant was lured by her greed to move fresh rent application.
6. ' After adducing evidence of the parties, learned Rent Controller under the impugned order dated 31-8-1988 dismissed the application. Hence this appeal.
7. ' Mr. Khaliq Humayun, learned counsel for the appellant argued th the appellant had examined her husband Dr. Muhammad Yahya and her so Kamran and Naveed to establish that she required the disputed premises good faith for personal requirement of her husband and sons. Learned counsel challenged evidence of Athar Javed witness for the respondent on the ground that he was not given power of attorney by the respondent to give evidence in Court and that he was not competent to give evidence into the case in view of the observations made in the case of Rafaqat All Khan v. Fida Muhammad Khan PLD 1986 Pesh.50. Learned counsel for the appellant cited the cases of:--
(i) Noor Muhammad v. Iqbal Ahmed 1985 CLC 1007.
(ii) Ch. Faqir Muhammad v. C.W. Scott PLD 1983 Kar.
8. 606.
(iii) M/s. Atiq Silk Mills v. Tar Muhammad 1984 CLC 997.
(iv) Naimuddin Siddiqui v. S.M. Ahmed Habibur Rahman 1983 CLC 1378.
(v) Akhtar Jehan v. Zamir Ahmed 1982 CLC 1923.
(vi) Amanullah Khan v. Hafiz Abdul Ghaffar PLD 1985 Kar.
9. 7.
(vii) Haji Muhammad Ibrahim v. Hamzo Khan PLD 1987 Kar.
10. 520.
11. ' Mr. Sohail Muzaffar, learned counsel for the respondent argued that the respondent was not an individual but it was a statutory body and any of its authorised officers can give evidence on its behalf. It was next argued that the appellant had put forth fabricated ground for seeking eviction because her husband was practising as a doctor at Sukkur since 1%3 and it is inconceivable that he would leave his practice and shift to Karachi, where he would be a new person. In respect of requirement of the premises for Kamran and Naveed it was argued that said boys may have cleared M.B.,B.S. but there was nothing to show that they had become eye specialists as there was no course for specialization in Opthamalogy in Pakistan. Learned counsel for the respondent wanted note to be taken about conduct of the appellant, who while being armed with an order of ejectment on 26-4-1987 bartered away the same for increase in rate of rent from Rs.2,100 to Rs.4,000. Lastly it was argued that the appellant cannot be said to have come to the Court bona fide and with clean hands, where she filed application for ejectment on 15-9-1987 after having given up previous order of ejectment dated 26-4-1987 in consideration of increase in rent. In support learned counsel for the respondent cited the cases of:--
(i) Amar Lal and another v. Moulvi Muhammad Saeed 1983 CLC 1000.
(ii) Amir Bux v. Nawab Mukhtar Ahmed 1985 CLC 13.
12. Affidavit on behalf of the respondent was filed by Athar Javed, assistant Directo wapda who, as per cerficate Exh. O/1,was autorised by the Director (Inspection) WAPDA to give evidence on behalf of WAPDA. In the circumstances, the case of Rafaqat Ali Khan PLD 1986 pesh. 50 has no application, as in said case competency of an attorney to file the suit was challenged. Moreover, a party can produve anybody as a witness and it is not necessary that the witness deposing on behalf of a party should be armed with a power of attorney.
13. ' On merites Dr. Muhammd Yahya husband of the appellant stated in his affidavit that he was Medical Practitioner at Sukkur where he was running Yahya Eye Hospital for many years and that due to severe climate in Sukkur he had decided to settle and practice at Karachi. He added that due to his advanced age it was impracticable for him to continue as eye surgeon at Sukkur. In cross-examination Muhammad Yahya stated that he did not possess power of attorney on behalf of the appellant and that the premises in litigation were situated on the ground floor, while first floor of the building was lying vacant for two years. On second thought he voluntarily stated that he had left his cousin sister on top floor of the building to look after the same. Muhammad Yahya further stated that he completed his. medical education in the year 1963 as Eye Specialist from London and that since the year 1960 he was practising at Sukkur, where he was running his clinic in his own premises. There is force in the contention raised by learned counsel for the respondent that a person who has practised at Sukkur since 1960 or 1963 and has withstood extreme climate of that area would not leave that place because of severe climate of upper Sindh.
14. ' Appellant filed affidavits of her sons Kamran and Naveed who said that they were studying in M.B.,B.S. while their father was eye specialist with his long experience and that they intended to practice as eye specialists after qualifying in final M.B.,B.S. Examination and that they had been helping their father. It is a matter of common knowledge that mere passing of M.B.,B.S. does not make one specialist in any field of medical profession. Even if they have cleared M.B.,B.S., there is nothing on record to show, as to what they have done after attaining the Degrees of M.B.,B.S. ' Respondent's witness Athar Javed stated in his affidavit that Kamran and Naveed were medical students and on completion of their examinations they had to do house job in their colleges and they required six years to join medical profession. Even if this statement may not be accepted, there is no evidence to show that appellant's sons have become qualified to practice independently as Medical Practitioners at Karachi. Had they been in genuine need of the premises at Karachi for running a hospital or a Clinic, they would have used first floor of their building which is lying vacant. There is no evidence on record to show, that the premises in litigation alone are fit, for being used by sons and husband of the appellant as a hospital.
15. ' Before seeking eviction of a tenant on the ground of personal requirement for self or for members of his family a landlord has to establis, his requirement to be bona fide. In Mst. Farukh Nisa v. Safdar Ahmed others PLD 1985 Kar. 639 the view taken was that there must be an element need which must be reasonable and in good faith before a landlady can be said to require the premises for her own occupation. A mere wish, convenience, whim or fancy of a landlord would not be enough to show that he requires the premises in good faith as observed in said case. In Dr. A.R. Khan v.
16. Muhammad Ishaque 1972 SCMR 437 it was held that the penal provisions contained in section 13
(4) of the W.P. Urban Rent Restriction Ordinance do not relieve the landlord of the basic onus on him to prove affirmatively that he does require the premises for his bona fide requirement or that of his male child.
17. ' In most of the cases cited on behalf of the appellant emphasis has been placed on proof about the need and the requirement being bona fide. In the case of Noor Muhammad 1985 CLC 1007 it was held that the landlord has to establish his good faith by tangible evidence and not by only making simple statement that he needs the premises for his own use. In said case an order of ejectment was set aside. In the case of Ch. Faqir Muhammad PLD 1983 Kar. 606, the view taken was that demand of higher rent by landlord does not cause any doubt in bona fide requirement of landlord. In said case the tenant made no reference to the enhancement of rent at any time. In the case of Naimuddin Siddiqui 1983 CLC 1378, the view taken was that earlier demand by landlord for vacation of the premises for his personal requirement, cannot militate against landlord's bona fides unless tenant shows from evidence that claim of the landlord was not true. In said case landlord required the residential premises after his return from abroad and his application for eviction was accepted not only on the ground of personal requirement but also on the ground of default in payment of rent. In the case of Messrs Atiq Silk Mills 1984 CLC 977, the main point for consideration was, whether conduct of the tenant, in fixing his own looms in the demised premises consisting of a plot a shed thereon and some fixtures for running Silk factory, converted nature of the premises so as to exclude if from purview of the Rent Ordinance. In the case of Akhtar Jehan 1982 CLC 1923, the view taken was that if a landlord by his statement on oath with cogent reasons establishes his bona tide need for acquiring possession of his property and establishes that he has no other suitable premises for needs of his family in his possession in the same area, his evidence is sufficient for grant of his application. This was in respect of a residential house for which the bona fide personal requirement was established, with cogent reasons. In the, case of Amanullah Khan PLD 1985 Kar 7 the view taken was the question of necessity has to be judged by the Rent Controller in context of different circumstances. In the cited case the averments in the rent application, about requirement of the landlord for his own use and for use of his son, were fully supported and nothing was brought in the cross-examination which could show that claim of personal need was false or based on wrong statement. In the case of Haji Muhammad Ibrahim PLD 1987 Kar. 520 the view taken was that the expression 'good faith' should not mean to include investigation whether a landlord can be forced to make a sacrifice by sandwitching a large number of his family members in a short space to facilitate a decent living to a tenant, who can find another rented premises, which may prove to be a bit expensive, but which may be a necessity of life.
18. ' In the case of Amir Bux 1985 CLC 13 cited on behalf of respondent, the landlord in his ealier application for ejectment failed to prove the ground of personal requirement and thereafter he filed fresh application on same ground by bringing on record some additional evidence and the view taken was that accrual of fresh cause of action after dismissal of previous rent application is to be proved, in order to maintain fresh application. In the case of Amar Lal 1983 CLC 1000, which was an application for eviction on the ground of personal requirement, it was held that fact of the landlord being in occupation of rented shop was a relevant factor to be considered alongwith the attending circumstances, which in the cited case negativated the ground of personal requirement.
19. ' In the instant case the appellant has not been able to establish her need or requirement to be bona fide. Her husband is running a full-fledged eye hospital in his own name at Sukkur where he is practising since 1960 or 63. It is difficult to believe that appellant's husband would give up his well- established practice at Sukkur, for starting as a fresh practitioner at Karachi. Had the appellant's husband an intention to establish practice as Eye Specialist at Karachi, he would not have waited for the premises in litigation to be vacated and would have started practice in the portion of the same building already lying vacant or would have hired accommodation for the purpose. No evidence has been led about present requirement of Kamran and Naveed, who were Medical students on 5-1-1988 when they swore affidavits-in-evidence. There is nothing on record to show if they passed M.B.,B.S. or if they have attained specialization in eyes. There is only assumption about their having cleared M.B.,B.S. and about their having joined the medical profession. The evidence further shows that the elements of good faith and bona fides are lacking in the case and the requirement is tainted with mala fides. During the time the respondent had remained tenant of the appellant, twice the rent was enhanced from Rs.1,800 p.m. to Rs. 2,100 and then from Rs.2,100 to Rs.4,000 per month. After agreeing to continuance of the respondent as tenant on rent of Re.4,000 p.m. on 26-4-1987, the appellant came with a fresh Rent Application for ejectment of the respondent on the ground of personal requirement on 15-9-1987 viz. within five months, without showing if any fresh cause of action has accured to her. On 24-4-1987 the appellant/landlady was armed with an order of ejectment against the respondent but she succumbed to the offer about rise in rent and bartered away the order of ejectment (obtained in rent case No.566/85) for enhancement of rent from Rs.2,100 to Rs.4,000. A mere ipse dixit of the landlord that he required the premises in good faith is not enough and it must be supported by valid reasons as to how his requirement is genuine, as held in the case of Sultan Press Ltd. v. Muhammad Hasan PLD 1985 Kar.
20. 624.
21. ' As a result of above discussion, no case is made out for reversal of the impugned order and this appeal stands dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.