1. Appellant Mrs. Naseer Fatimah, Syed Ghazanfar Hussain and Shagufta Zahra have appealed against their eviction from the house in litigation ordered on 30-3-1989 in Rent Case No.75 of 1988 by .IIIrd Senior Civil Judge and Rent Controller, Karachi Central.
2. Parties in their pleadings were agreed that Wali Muhammad predecessor of the appellants was tenant of respondent Mst. Surayia Abid Ali in the house in litigation bearing City Survey No.741, Block-8, Azizabad, Karachi on monthly rent of Rs.130 P.M.
3. Rent .Case No.75 of 1988 (Code No.1931 of 81) was filed by the respondent for eviction of Wali Muhammad on the ground of default in payment of rent since January 1980 till 27-4-1981 when the rent case was filed and for bona fide personal use. Respondent averred that she was living in a rented flat in Gulshan-e-Iqbal and was paying Rs.800 per month as rent and that she had purchased the house-in litigation with the sole purpose to live there.
4. The rent application was opposed by Wali Muhammad who in his written statement controverted the grounds taken for his eviction. In respect of the ground of personal requirement, Wali Muhammad stated that he was never served with any notice to that effect. He added that respondent was issueless lady and the accommodation in her possession was more than her requirement as she was occupying a five-roomed apartment in a better locality. It was further stated that real purpose of filing the rent case was to get increase in rent.
5. After recording evidence of the parties, learned Rent Controller under the impugned judgment dated 30-3-1989 ordered eviction of the appellants, who were substituted for Wali Muhammad as his legal representatives after latter's death. The eviction was ordered after recording of a finding that the respondent required the house for her personal use in good faith. Finding on the question of default was against respondent/landlady. Present appellants being legal heirs of deceased Wali Muhammad have filed this appeal.
6. Mr. Syed Safdar Hussain learned counsel for the appellants argued that the respondent had never resided in the house in litigation and she was not likely to reside there, which had accommodation of two rooms as against five rooms in the house occupied by the respondent. It was further argued that no notice was issued to the appellants or their predecessor Wali Muhammad, telling them that the house in litigation was required by the respondent in good faith for her own occupation. In support learned counsel for the appellants cited the cases of:
(i) Shakir Hussain Chishty v. EA. Breganza (PLD 1984 Kar.141)
(ii) Malka Begum v. Mehr Ali Hashmi (1984 SCMR 755). .
(iii) Mst. Shirin Bai and another v. M/s. Habib Bank Ltd. (1985 CLC 2455).
(iv) Mst. Aziz Sultana v. Abdul Jabbar Khan (1987.CLC 539).
(v) Muhammad Aslam v. Muhammad Aslam (1987 CLC 686)
7. Mr. Abdul Karim Siddiqui learned counsel for the respondent argued that the respondent preferred to live in her own house, rather than in a rented house and that her husband Syed Abid Ali, who was working in Abu Dhabi, had been released and he was to join the respondent. In this respect reliance was placed on. The photo copy of passport Exh.12 and a letter from a foreign firm of Abu -Dhabi Exh.15. It was next argued that the respondent was paying Rs.800 as rent, while she was getting from the appellants Rs.130 p.m. As rent. Learned counsel referred to the evidence of the respondent and evidence of Syed Ali and evidence of Muhammad Rashid given in .The shape of affidavits. In support learned counsel for the respondent cited the cases of (i)Abdul Salam Akhtar v. Dr. Najam Pervez (1.976 SCMR 52).
8. (ii)Muhammad Asif Khan and another v. Mubarak Ahmed (PLD 1982 Kar. 557).
9. Negative finding by the Rent Controller on the question of default in payment of rent, was not challenged by the respondent and hence the point of default does not require discussion.
10. In her affidavit, respondent Surayia Abid Ali repeated the contents of her rent application. She explained that her husband was employed in oil company at Abu Dhabi and hence she was living in a flat at Al Azam Apartment Gulshan-e-Iqbal. She added that her husband had retired from service with effect from March 1981 and had come to Pakistan permanently and that it had become difficult for her to pay heavy amount of Rs.800 per month as rent. Respondent further stated that the apartment in her possession has accommodation much more than her needs, while her need would be fulfilled if she was given the house in litigation. In her cross-examination the respondent stated that she purchased the house in litigation 8 years back and she sent a notice to the tenant intimating to him purchase of the house. She added that she was living in Al-Azam Apartment for preceding six or seven years and that her parents were also living with her. She failed to state if her parents would continue to be living with her in the house in litigation. Respondent admitted that there was no written agreement of tenancy between her and her landlord. She admitted that the apartment in which she is tenant, has five rooms, while the disputed house has two bedrooms and that the apartment in her possession was better than the disputed premises and that previously she was residing in the locality where the disputed house is situated. --- She stated in reply to a question by the appellant's counsel that present rent of a house similar to the house in litigation in same locality would be Rs.1,000 per month. Instead of shattering the evidence of the respondent, the Advocate for the appellants has filled in certain lacunas by putting 'so many questions to the respondent, the replies of which go against the appellants. Respondent also examined Syed Abid Ali her husband. He deposed that the respondent had purchased the disputed premises for accommodating herself. Abid Ali added that he was outside the country in connection with his job at Abu Dhabi and that he had retired from service and had returned back to Pakistan, where he has become jobless and is facing financial set back in paying exorbitant rent of Rs:800 per month, to the landlord of his wife. He admitted. That the flat in possession of the respondent was bigger than her needs, while the disputed house was quite sufficient for the respondent to live in and be saved from living in rented house. Abid Ali produced photo copy of Exh.12 of his passport, letter of his employer Exh.15 and certificate of service Exh.16. No question was put to him in cross- examination. Respondent also examined Muhammad Rashid, who in his affidavit stated that he had been realizing from the respondent the rent on behalf of her landlord for the apartment in her possession. He added that respondent was requested to vacate the premises, where the landlord wanted to shift. Muhammad Rashid further stated that husband of the respondent had come back from Abu Dhabi after his retirement. Muhammad Rashid was not cross-examined.
11. As against this, there is evidence of appellant Ghazanfar Hussain who deposed that he was son of Wali Muhammad. Ghazanfar Hussain stated in his affidavit that the respondent was living in the locality where the disputed house existed, but she had migrated to AI-Azam Apartment for the purpose of better living. Ghazanfar Hussain alleged that the respondent had been demanding increase in rent and such demands were followed by threats. He also stated that respondents husband was mostly living out of the country in connection with his service and getting an excellent salary and .Hence the respondent/landlady had chosen to live in an `A' Class society of Gulshan Iqbal. Ghazanfar Hussain further stated that requirement of the premises in litigation by the respondent, was not bona fide and in good faith. Case of the respondent was put in cross- examination to Ghazanfar Hussain, but he denied the suggestion about the premises in litigation being required in good faith by the respondent. This solitary denial cannot rebut the overwhelming evidence brought on record by the respondent.
12. In the case of Muhammad Asif Khan and another (PLD 1982 Kar. 557) the view taken was that the provisions contained in section 15(2)(vii) of the Sindh Rented Premises Ordinance (hereinafter mentioned as the Ordinance) require satisfaction of the Controller as to the fact that the landlord requires the premises in `good faith' for his own use and occupation or for the use and occupation of his spouse or any of his children. In the cited case the landlord was occupying a rented house and he required his own house for his own occupation. In the circumstances it was held that occupation of the rented house by the landlord, was not a bar for making an application for eviction of the tenant for the purpose of occupying the house for his own use. In the case of Abdul Salam Akhtar 1976 SCMR 52 the view taken was that a landlord occupying a rented premises was entitled to get his own premises vacated for his own occupation.
13. The authorities cited on behalf ,of the appellants require to be discussed. In the case of Shakir Hussain Chishty PLD 1984 Karachi 141 landlord's application for eviction on the ground of personal requirement was dismissed, because in his application he . Did not disclose that he also owned another flat in same urban area and that the same was occupied or was not suitable for his needs.
14. In case of Malka Begum 1984 SCMR 755 there was discussion about the point of default in payment of rent. There was no discussion about the ground of personal requirement. In the case of Mst.
15. Shirinbai and another 1985 CLC 2455 the view taken was that a landlord already doing business in rented shops had to show through positive evidence as to, why he wanted to shift his business from building already in his occupation notwithstanding the fact that he has the choice to start business in his own building. In the case of Aziz Sultana 1987 CLC 539 the view taken was that the grounds on which a landlord seeks ejectment of his tenant can only be proved by cogent and sufficient evidence and not by mere word of the landlord. In the case of Muhammad Adam 1987 CLC 686 the view taken was that burden of proof that the landlord requires the demised premises in good faith for the use of his sons, was upon him and that there can be no doubt, that the person concerned would be in the best knowledge of his ownrequirement. Cited cases are distinguishable from the instant case.
16. In the present case there is no allegation that the respondent owns another flat/house in the same urban area and she concealed this fact in her rent application and hence case of Shakir Hussain Chishty would not apply. Finding on ground of default in payment of rent, has already been given against the respondent, and such question is not being discussed and hence of Malka Begum is inapplicable. The respondent is not running any business in the premises in her possession and she does not intend to run any business in the premises in litigation and hence the case of Mst. Shirin Bai has no application. Case of Muhammad Aslam 1987 CLC 686 does not help the appellants. In said case it was emphasized that the person concerned viz. The landlord would be in the best knowledge of his own requirement and he has to satisfy the Rent Controller that he requires the premises in good faith. The view expressed in the case of Mst. Aziz Sultana 1987 CLC 539 that word of the landlady that she needed the rent premises for her own use, is not sufficient evidence to prove the ground of bona fide personal requirement and the view taken in case of Muhammad Aslam 1987 CLC 686 that mere knowledge of the landlord about his requirement is not sufficient to obtain eviction on the ground of personal bona fide need, is no more a sound view. It has been held by the Supreme Court of Pakistan in the case of Qamaruddin v. Hakeem Mehmood Khan 1988 SCMR 819 that if a statement has-been made by the landlord before the Rent Controller, that he required the premises in dispute to run a general store to earn livelihood .And if such statement has not been challenged in cross-- examination nor rebutted by any evidence produced by the tenant, then the order of ejectment is to be restored. This Court has taken view in the cases of Abdul Oadeer v. S. Azeemuddin 1987 CLC 2347, Hassan Khan v. Mrs. Munawar PLD 1976 Kar. 832 and M/s. Ever Ready Factories Ltd. v. Mst. Chaman Begum PLD 1982 Kar. 770 that assertions of the landlord on oath as to his requirement of the premises for his personal use, have to be accepted as bona fide if consistent with his averments in his application and not shaken in cross-examination or disproved in rebuttal.
17. In the present case appellant have admitted that the respondent is living in a rented house by paying Rs.800 per month as rent and that she was getting Rs.130 per month as rent of the house in litigation. It has satisfactorily been brought on record that husband of the respondent severed all his connections with 'his ex-employer in Abu Dhabi. It is inalienable right of an owner of a property to use his property in any way he likes. If the respondent has decided to stay in her own property rather than in the rented premises, there is no any legal obstacle which can come in her way. The respondent has stood the test of cross: examination, where her evidence has not been shattered. 1 There is nothing in the solitary word of appellant Ghazanfar Hussain to rebut evidence of the respondent. In the circumstances the respondent has been able to, prove her requirement of the demised premises being bona fide.
18. For the foregoing reasons, the appeal filed by the appellants is dismissed with no order as to costs and they are given a period of three months to surrender possession of the demised premises or else they would be forcibly evicted. Such short order was passed on 21-4-1994 and these are reasons for the same.