1. ' Appellant has impugned the order, dated 28-4-1991 passed by IInd Senior Civil Judge and Rent Controller, Karachi (East) in Rent Case No,723/1989 (Mrs. Parin Jal Kapadia v. Adi Jehangir Parsi), whereby appellant is directed to be evicted from Flat No,3 of Plot No,41, Parsi Colony, Karachi, on the ground that disputed flat is required by respondent for bona fide personal need of her son Rohinton Kapadia, who is living in the flat of respondent's sister Khurshid Langrana.
2. ' Brief facts leading to this appeal are that on 19-8-1989, respondent filed application under section 15 of Sindh Rented Premises Ordinance, 1979 against appellant, seeking his eviction from Flat No,3, situated on Ground Floor of Plot No,41 Parsi Colony, Karachi, on the sole ground that disputed flat was needed in good faith for respondent's son Rohimton Kapadia, who is living in a flat, belonging to respondent's sister without paying any rent. Also that respondent's sister needed the flat for her own use and had sent a notice to Rohinton Kapadia to vacate the same. In these circumstances, respondent sent a notice to appellant calling upon him to vacate the Flat No,3 but as the direction is notice was not complied with, she filed ejectment case.
3. ' On 12-12-1989 appellant filed written statement and stated that he was living in the flat since about 52 years as a tenant, on initial monthly rent of Rs,26 which in course of time was enhanced and presently he is paying Rs,121 p.m. It was also averred that disputed flat is owned by respondent and her two sisters Dina Langrana (since deceased) and Khurshid Langrana (a British National residing in London permanently for over 40 years) who has no mind to come to live in Pakistan. For that, the flat in which respondent's son Rohinton Kapadia is living since over 52 years, is not required to be vacated by him for occupation by Miss Korshid Kapadia, living in London.
4. ' It is further the case of appellant, that the building in which disputed flat is situated, comprises of 4 independent flats. One of the flats is occupied by respondent herself, the second one on ground floor is lying vacant and is closed. On the first floor there are two flats, one of which is occupied by respondent's married daughter and the other is occupied by Rohinton Kapadia. The disputed flat on ground floor is in addition to the other flats. It was denied that disputed flat was required for bona fide personal need of respondent's son Rohinton Kapadia as the flat on first floor in occupation of Rohinton was to be vacated by him, since Khurshid Kapadia living in London wanted to shift and occupy the same.
5. ' It was lastly averred by appellant that in fact respondent wanted increase in rent which was refused, whereafter respondent did not even accept monthly rent since June, 1989, which appellant is depositing in Court in Rent Case No,694 of 1989. Eviction of appellant was maliciously sought with a view to force appellant to increase monthly rent.
6. ' Respondent filed her own affidavit-in-evidence and produced photostat copies of International Passport of Miss Khurshid, legal notice dated 28th April, 1989, sent by Miss Khurshid Langrana through Mr. M.M. Vassu, Advocate to Rohinton Kapadia and a receipt of rent purporting to have been issued by respondent in favour of Mrs. Mucca D. Sachinwa. Respondent also filed affidavit-in- evidence of her son Rohinton Kapadia. Appellant filed his affidavit-in-evidence. Parties were cross- examined at length and the learned Rent Controller framed following points for determination:---
(1) Whether the applicant requires the demised premises in good faith for the use of her son Rohinton Kapadia?
(2) What should the order be?
7. ' On assessm ent of evidence, the learned Rent Controller answered Point No,1 in affirmative and directed appellant's ejectment by impugned order.
8. ' Mr. Khalid Anwar, the learned Advocate for appellant has contended that the flat where respondent's son Rohinton Kapadia is presently living belongs to Miss Khurshid, who is a British National residing in London since over 40 years and has never desired that Mr. Rohinton Kapadia should vacate her flat, or that she would occupy it herself. There is no evidence that Miss Khurshid even asked respondent to prevail upon her son to vacate the flat except a notice purporting to have been sent by Miss Khurshid to Rohinton through her Advocate. The notice is a managed affair as would appear from evidence of respondent and her son Rohinton. The original notice is not produced, nor is it shown that it was sent by an Advocate who really had such instructions from Miss Khurshid.
9. ' It is next contended, that a flat on first floor, belonging to respondent is occupied by her daughter, who is married to one Mr. K. Romer, who had since migrated to Canada and his family is in the process of following him. The said flat is available for occupation by Rohinton if at all he has to vacate, the flat of Miss. Khurshid. Similarly another flat on the ground floor, occupied by one Mrs Sachinwa is lying vacant and closed on account of death of Miss Sachinwa; on 16-2-1991, during the pendency of ejectment proceedings before Rent Controller. These facts were suppressed by the respondent and as such this is a case in which further enquiry is needed, either by this Court or through Rent Controller. An application under section 21(3) of Ordinance has also been filed and is opposed by respondent who has filed counter-affidavit.
10. ' The last contention of appellant's learned Advocate is that bona fides and good faith have not been proved and on the contrary it is evident from the record that respondent acted mala fide, by manipulating documents to justify her demand for getting appellant's eviction from disputed flat, although such grounds never existed. He has referred to following judgments in support of his contentions:---
(i) Mst. Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220, where the Hon'ble Supreme Court referred to the following portion of the judgment from Indian jurisdiction AIR 1959 Andh. Pradesh 9.
11. "It is now well-settled that in proper cases the Court is entitled to take notice of the subsequent events and grant relief to the parties accordingly if by so doing it can shorten litigation and best attain the ends of justice." and observed at page 226: "Indeed in our considered opinion a discretion is vested in this behalf in the Court to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances, in the larger interest of justice."
(ii) Muhammad Aslam through his L.Rs, v. Wazir Muhammad PLD 1985 SC 46, where the Hon'ble Supreme Court observed as follows:- "These general principles of law, viz., the vesting of the property rights, i,e, of the estate of the deceased in the legal heirs, and the need to give certainty and finality to adjudications by reference to the date of institution of the proceedings and its hearing are controlled by yet another principle, that in appropriate cases an appellate Court may mould the relief according to the changed or altered circumstances, on facts or law. This last overriding principle finds statutory recognition in sections 107 and 151, Order VII, Rule 7, Order XLII, rule 27 of Civil Procedure Code, section 15 of Urban Rent Restriction Ordinance, 1959 and section 21 of Sindh Rented Premises Ordinance, 1979. It finds recognition as a principle of equity in the words that follow:-- "A decree in equity generally operated on the parties and subject-matter as they stood at the commencement of the suit, but it does so only to subserve the needs of justice and where a radical change in the ultimate rights of the parties had been brought about by the passing of time, and knowledge of this change is judicially before the Court or is brought in by appropriate pleadings, its decree is addressed to the rights existing, not at the commencement, but at the time of determination of the suit or date of the decree provided there was sufficient foundation for the suit when it was commenced, and such relief is pertinent to that sought by the bill, and provided further it would be equitable and just to recognise the intervening rights."
(iii) Attia Begum and 6 others v. Mustafa Ghaffar 1988 CLC 1793 where this Court held that landlord who otherwise had sufficient accommodation at his disposal, got vacant possession of ground floor of premises in dispute prior to filing of rent case and instead of occupying same rented it out to other tenant after about 4 months from filing of ejectment case, the personal bona fide requirement in respect of premises having not been established, rent case filed by landlord on the ground of personal bona fide requirement was held to be rightly dismissed by Rent Controller.
(iv) Zahid Khan v. Abdul Lateef 1989 M LD 592 where this Court held that onus to prove personal bona fide requirement was on landlord and mere wish or intention of landlord would not be sufficient to give him right to evict tenant. It was also held that basic and essential distinction between requirement in good faith and mere wish or intention should be borne in mind and totality and cumulative effect of all circumstances should be taken into account and not any particular feature of the case in isolation.
12. ' Mr. Fazil Hussain, learned Advocate for respondent, defended the order of the Rent Controller and contended that the bona fide personal need of respondent for the occupation of disputed flat by her son was established and that this fact has gone unchallenged during evidence. It was also contended that respondent's son is admittedly residing in the flat of her Aunt Miss Khurshid Langrana for the last 18 years alongwith his wife and family and a legal notice was addressed to respondent's son for vacating the flat as it was required by Miss Khurshid herself, who intended to come from London and occupy the said flat. He also contended that even if respondent's son was not paying rent to his Aunt Miss. Khurshid, that would not disentitle respondent from seeking eviction of appellant from the flat, which respondent wishes to be occupied by her son. He referred to 1981 SCM R 844 and argued that although it was not necessary to examine Rohinton Kapadia (son of respondent) for whom the disputed flat is required, yet he entered witness box and stated that the flat in disputed was needed for his occupation.
13. ' He then contended that it was a prerogative of the landlord to choose the premises which would suit his need, keeping into consideration his status and taste. He referred to Sulman Ghazi v.
14. Ghulam Hyder and another 1984 CLC 2213 in support of his contention, where this Court held: "The standard of living and requirement of accommodation of different persons is totally different and since it is admitted position that the respondents belong to a rich family of traders and are themselves well off, it is not for the tenant to say what should be their requirement and the only point to be considered for the purposes of this appeal is whether there is bona fide requirement on their part for the particular premises."
15. ' The flat in dispute is owned by respondent, who sought appellant's eviction on the ground that her son Rohinton Kapadia is to be accommodated. The premises in occupation of Rohinton Kapadia are said to be required for the use and occupation of Miss Khurshid, who although resides in London, desires to come to Pakistan and occupy her own flat. A notice dated 28-4-1989 purporting to have been sent by Mr. M.M. Vassu, Advocate to respondent's son under instructions from Miss Khurshid is on record. It is a photostat copy and the original is not produced. It is sent by ordinary post and is challenged by appellant that it is manipulated. Except the notice, there is nothing on record, other than oral version of respondent and her son, that flat where Rohinton Kapadia is residing, is required to be vacated for occupation by Miss Khurshid who desires to come from London and occupy it herself. It is the case of respondent that Rohinton Kapadia is living in his aunt's (Miss Khurshid) flat without paying rent, i,e, as a licensee, whereas, notice under reference shows that Rohinton Kapadia is a tenant. I am therefore clear in my mind, that in order to seek appellant's eviction on the ground of proposed requirement of respondent's son, a notice is manipulated to strengthen respondent's case, although there is nothing on record to determine that Rohinton Kapadia is really required to vacate his aunt's flat and occupy the disputed flat, belonging to his mother (respondent), from which appellant's eviction is sought.
16. There is another circumstance, which also needs thorough enquiry. A flat on the ground floor owned by respondent had fallen vacant and is lying closed, due to the death of Miss Sachinwala, during the proceedings before Rent Controller. Yet another flat on the first floor owned by respondent and in occupation of her daughter is likely to fall vacant, due to her proposed migration to Canada as her husband has already migrated to Canada. These facts came to appellant's knowledge during pendency of this appeal and appellant moved application under section 21(3) of the Ordinance for holding enquiry at the appellate stage through Rent Controller.
17. Counter-affidavit is filed by respondent but the above facts are not controverted.
18. There is no cavil for the proposition that landlord has prerogetive to choose for the premises which better suit him/her and the tenant has no right to object to landlord's such choice. But it has to come in evidence that landlord, although has other accommodation in same urban area, selects particular premises for her need or for the need of his/her children. This aspect of the case has not been thoroughly enquired into. In the circumstances it is considered necessary to remand the case to learned Rent Controller to enquire into following points.
(1) Whether other flats in the same building belonging to respondent Mrs. Parain Jal Kapadia have fallen vacant and could be suitably occupied by respondent's son, for whose bona fide need, the disputed flat is sought to be vacated?
(2) Whether, even if it is proved, that other flats are lying vacant, the need of respondent for seeking appellant's eviction from disputed flat would be in good faith and bona fide?
19. ' In the result, the appeal is allowed and the impugned order is set aside. The case is remanded to the Rent Controller who shall hear the parties and allow them proper opportunity to lead further evidence if they so desire and decide the case in accordance with above formulated points. These are the reasons for the short order dated 7-5-1992.