1. ' Appellants Tariq Aziz Siddiqui and Shaheena have challenged an order of eviction passed against them on 12-8-1990 by IVth Senior Civil Judge and Rent Controller, Karachi East in Rent Case No,831 of 1988.
2. ' Parties in their pleadings were agreed that appellant No,1 Tariq Aziz is tenant of the respondents in the premises in litigation situated at right side portion of first floor of a double-storeyed building bearing No,G-149 in Block 2, P.E.C.H.S., Karachi, belonging to the respondents. Said property was previously owned by Swaleha Begum who transferred the same to the respondents by way of gift on 18-10-1987. The respondents through a notice informed appellant No,1 Tariq Aziz, their tenant, that they were transferred the entire property including the premises in litigation by Swaleha Begum. They also called upon appellant No,1 to pay them the rent from 18-10-1987. Appellant No,1 replied the notice in which he acknowledged the respondents as his landlords and he started paying monthy rent through cheques.
3. ' Rent Case No,831/88 was filed by the respondents for eviction of the appellants from the premises in litigation on the grounds that they required the said premises for personal bona tide use, as they had no house of their own and were living with their father in K.D.A. Scheme No,1 and that appellant No,1 had sublet the premises in litigation to appellant No,2.
4. ' Rent Case was contested by the appellants who contended that the premises in litigation were rented out to their father in 1972 by Muhammad Mst. Swaleha Begum and that their father occupied the premises alongwith the appellants till his demise on 4-5-1975. Appellants added that they continued to be in possession of the demised premises after death of their father and that they had become tenants of the premises in litigation. It was admitted that the appellant No,1 was residing in the United States of America due to service. The ground about personal requirement was controverted.
5. ' After recording evidence of the parties, learned Rent Controller under the impugned judgment accepted the application and directed the appellants to hand over the vacant possession of the disputed premises to the respondents within a period of sixty days. Said order was passed due to affirmative finding on the issue about bona fide personal requirement as the issue of subletting was decided against the respondents.
6. ' Mr. Z.U. Ahmed, learned counsel for the appellants argued that the rent application filed by the respondents was not an application under section 15 of the Sindh Rented Premises Ordinance (hereinafter to be mentioned as the Ordinanace) because facts necessitating filing of an application for ejectment on the grounds of subletting and personal requirement were not present in the instant case. It was next argued that the rent application was not signed by all the respondents and this gave rise to a presumption that the respondents who had not signed the rent application were not party to the proceedings initiated for eviction of the appellants. It was also argued that verification of the rent application was not according to law because Mahmood Hassan, respondent No,5, had not stated in the verification clause if he was verifying for self and for other respondents. On the point of subletting, it was argued that appellant No,2 like appellant No,1 got right of tenancy from her father, who was tenant in the disputed premises till his death. In this respect, learned counsel referred to definition of tenant given in W.P. Urban Rent Restriction Ordinance, 1959 which prevailed in 1972 when father of the appellants died. In respect of the ground of bona fide personal requirement, it was argued on behalf of the appellants that general desire of all the respondents was shown and it was not specified as to which portion of the building would be occupied by which of the respondents and that accumulative desire of a number of persons for using the premises in question for their personal need cannot be accepted as sufficient for ordering eviction under section 15(2)(vii) of the Ordinance. It was also argued that good faith cannot be judged when there are five persons requiring the premises for personal use. Learned counsel was of the view that the cases relied upon by the Rent Controller were distinguishable from facts of the instant case. Lastly it was contended .That 5 brothers cannot be accommodated in 4 tenements and there can be no equitable distribution of four tenements among 5 respondents and there was nothing on record to show, as to which of the two respondents would be sharing a single tenement.
7. ' Mr. Usman Ghani Rashid, learned counsel for the respondents agued that the rules of Civil Procedure Code did not strictly apply to the rent cases. Referring to section 20 of the Ordinance, he contended that only those provisions of Civil Procedure Code apply to the rent cases which deal with summoning of evidence and compelling production of documents and inspecting the sites and issuing commission for examining witnesses or documents. In respect of the ground of subletting, it was argued on behalf of the respondents that appellant No,2 cannot be treated as tenant in the property because she was not in possession of the disputed premises at the time of death of her father or before that and hence she was sub-tenant. In this respect, it was submitted that appellant No,1 was liable to be evicted from the disputed premises if it was proved he had handed over possession of the premises to some other person, as per sub-clause (a) of clause (iii) of subsection (2) of section 15 of the Ordinance. In respect of ground about personal bona fide requirement, learned counsel for the respondents argued that all the 5 respondents were major and it was not necessary for them to establish that which of them would occupy which of the portion of the property and that one tenement was already vacated by a tenant and was self- occupied and the second tenement was agreed to be vacated by a tenant. It was also argued that one of the 5 owners can move for eviction of a tenant.
8. ' The provisions contained in Civil Procedure Code are not strictly applicable to the proceedings under the Rent Ordinance but equitable principles of the Civil Procedure Code can be adopted by a Rent Controller trying a rent case. According to Order VI, Rule 14 of C.P.C. a pleading shall be signed by the party and his pleader but where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same. In the instant case, the rent application has been signed by Mahmood Hassan who is one of the respondents and who claimed to be attorney of the remaining respondents although the power of attorney was not produced in the trial Court. However, non- signing of the rent application by the respondents other than Mahmood Hassan, is an irregularity and a defect of procedure not affecting jurisdiction of the Court, and such defect can be allowed to be corrected at any stage of the litigaticm by amendment. Verification of pleading as per Order VI, Rule 15 of C.P.C. Shall be by a person proved to the satisfaction of the Court to be acquainted with the facts of the case. Such verification is to be made by party or by one of the parties. In the present case, the rent application was properly verified by one of the respondents. The rent application could not have been thrown out for want of signatures of remaining respondents even if the provisions contained in C.P.C. Are held to be applicable to a rent case. In this view of the matter, I hold .That there is no legal defect in filing of the rent case by Mahmood Hassan, respondent No,5, even if he did not file power of attorney in the trial Court.
9. ' Learned counsel for the respondents referred to the definition of tenant given under section 2 (j) of the Ordinance. The provisions contained in section 2 (j) of the Ordinance show that even heirs of a tenant in possession or occupation of the premises after death of the tenant are covered by the definition of tenant. I am unable to agree with the learned counsel for the respondents that on death of a tenant, his heirs who were already in possession or occupation of the premises do not become tenants. The interpretation suggested by learned counsel for the respondents ignores word "after" appearing in sub-clause (ii) of clause (j) of section 2 of the Ordinance. If appellant No,2 is occupying the premises in litigation after death of her father, she becomes tenant in possession of the premises even if she was not in such possession before death of her father. In this view of the matter, the appellant No,2 is tenant in the premises like the appellant No,1 and consequently the I D ground of subletting is not made out.
10. ' Eviction of a tenant can be ordered under section 15 (2) (vii) of the Ordinance if the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. To prove this ground, the respondents filed affidavit of Mahmood Hassan who stated that respondent No,1 after his marriage was living with him in a rented house for want of proper accommodation and that respondent No,2 has also been engaged and is to be married. Mahmood Hassan added that when the property was gifted, one portion of the property was vacant but it was not habitable and hence it was used for storing of household articles by Mst.
11. Swaleha Begum. Subsequently vacant protion was occupied by the respondent No,2. Mahmood Hassan further stated that the present accommodation available in the house of his mother situated in K.DA. Scheme No,1 was hardly sufficient to meet the requirements of his parents, and that the respondents can not force their parents to allow them to live in their house when they were gifted separate property. He also stated that the premises in his possession were of inferior quality and that the premises in litigation were required in good faith. In his cross-examination Mahmood Hassan admitted that appellant No,1 was rented out the premises in question by Swaleha Begum.
12. He admitted that when the property in question was gifted to him and other respondents, its left portion was lying vacant and the same was occupied during pendency of the rent case. Mahmood Hassan further said in cross-examination that he and his one brother, with their families were living at 2-B, Faisal Apartments consisting of 3 bedrooms and that his 2 other brothers were living with their parents, in a house of 4 bedrooms. Mahmood Hassan also admitted that residential area of K.DA. Scheme'No,1 was better than that of P.E.C.H.S. Evidence of Mahmood Hassan that he is sharing accommodation with his brother in a house having 3 bedrooms has not been shattered in cross- examination and it has not been properly rebutted in the evidence adduced on behalf of the appellants. Appellants filed affidavit of Aman Aziz, their brother. He stated that the premises in dispute were rented out in 1972 to his father Aziz Ahmed who died on or about 4-5-1975. That after death of Aziz Ahmed, the appellants continued to live and occupy the disputed premises in their own rights. Aman Aziz added that the appellant No,1 was in United States of America while appellant No,2 was living in the disputed premises. Aman Aziz added that the respondents were businessm en of repute and they had acquired the property to realize business gains by renting out some one else on a higher rent. In the conclusion, Aman Aziz stated that none of the respondents had any complaint in connection with their accommodation and all were living in a better locality in their family house and they did not require the premises in litigation. In his cross-examination, Aman Aziz admitted that the appellant No,1 was residing for two years with his family in U.SA.
13. Excepting his daughter who was at Karachi. Ail= Aziz showed ignorance if respondent No,5 had 3 issues or if respondents Nos,1 and 2 were married. He admitted that his sister, appellant No,2 was at that time living in U.SA. Although she was normally living with the appeallant No,1 in the disputed premises. Aman Aziz showed his ignorance about respondent No,5 and respondent No,1 living in a rented house. It is a settled principle of law that assertion of the landlord on oath as to requirement of the premises for his personal use has to be accepted as bona fide if it is consistent with his averment in the rent application and is not shaken in cross-examination and is not disproved in rebuttal. Such observations were made by this Court in the cases of Hassan Khan v. MRs, Munawwar Begum (PLD 1976 Karachi 832) and Abdul Qadeer v. S. Azeemuddin Ahmed (1987 CLC 2347). In the case of Rajib Ali v. Darius B. Kandawala and another (PLD 1984 Karachi 14) it was held that the premises jointly owned could be got vacated even for use and occupation of any of the owneRs, In this case, there is joint prayer by 5 respondents for the premises in litigation but all of them have not signed the rent application. Even if the rent application is treated to be one filed, by respondent No,5, he has been able to make out a case in terms of clause (vii) of subsection (2) of section 15 of the Ordinance.
14. ' As result of the above findings, I maintain order of the Rent Controller and dismiss this appeal with no order as to costs. The appellants are given a period of two months to vacate the premises in litigation.