NAZIM HUSSAIN SIDD1QUI, J.- This order will dispose of F.RA. Nos. 93 and 94 of 1991. Both these appeals are in respect of the same premises Viz, C-272, Block No.6, K.D A. Scheme No. I6 F.B. Area, Karachi. F.R A. No.93/91 is for its First floor while F.RA. No.94/91 relates to ground floor. Nusrat Ullah is appellant in both these appeals. Quresh Ahmed is respondent in F.RA. No. 93/91 (Rent Case No. 281/9) and Mahtabul Haq in F.R A. No. 94/91 (Rent Case No.284/89). Learned Rent Controller Karachi Central by separate orders dated 28th January, 1991 rejected both the eviction applications. Sai4 orders have been impugned in these appeals..
2. The case of the appellant is that he is the owner of the premises referred to above and the respondents are his tenants in said premises. Respondent Quresh Ahmed is the tenant of First floor at the rate of 2450/- p.m., while respondent Mahtabul Haq is occupying ground floor as tenant on monthly rent of Rs. 2550/-. Initially, the rent for first floor was Rs. 600/- p.m. And of ground floor Rs.
800/- p.m., but lateron, from time to time, the rent was increased and at time the eviction applications were filed the rent of these two portions was, as mentioned earlier. The appellant has sought eviction of the respondents on the ground of personal bona-fide use. It is his case that at the time the premises was rented out he was un-married. He married in the year 1976 and now is the father of two children namely, Sadia and Muhammad Arshad Noman, who are aged about l2 & 9 years respectively. It is said that presently he is residing with his mother Bismillah Begum in house No. Ll-G-1/8 Nazimabad, Karachi.
3. Both the respondents resisted the claim of appellant and maintained that he does not require the premises in question for his personal bona-fide use.
4. The appellant in both these cases filed his affidavit-in-evidence and that of his mother Bismillah Begum and brother Muhammad Junad., They were cross examined by the learned counsel for the other side. Respondent Quresh Ahmed filed affidavit-in-evidence of his attorney Shakeel Ahmed.
Likewise, respondent Mathabul Haq fild affidavit-in-evidence of his attorney Muhammad Aslam.
Both these witnesses were cross examined by learned counsel of the appellant.
5. Appellant Nusratullah in his affidavit-in-evidence in both the cases reiterated the facts, which he mentioned in the eviction applications. He stated that the area of his mother house is 240 sq. Yds.
He claimed that in said house, as many as 17 persons, are residing. In cross examination, he maintained that he if one portion of the premises in question is vacated it would be in-sufficient for his needs. He stated that he requires both the portions of the premises. He deposed that his father is passing retired life. He vehemently denied that Bismillah building belongs to him. He denied the suggestion that he has given fictitious names, showing as resident of his mothers house. He admitted that in Bismillah building there are 8 bed rooms, two drawing & dining, and two kitchens.
He stated that marriage of his brother Junad has been postponed for want of accommodation. In reply to another question, he stated that he can not say if the letters alleged to have been written by his father were actually written by him (father) or not. He also denied the suggestion that he and his father were continuously demanding increase in rent. Bismillah Begum, in her cross examination, admitted that the appellant had given her an amount of Rs. 9000/- at that time she purchased the house now known as "BISMILLAH BUILDING". Muhammad Junad in his evidence supported the appellant. In cross examination, he stated that rent of both the portions would be Rs.
12000/- p.m. Respondent attorney Shakeel Ahmed, in cross examination, stated that though the house was purchased by the appellant, but the sale-deed was got executed in favour of his mother. He showed his ignorance if 17 persons presently are residing in the house of Bismillah Begum. He produced four letters in cross examination at Ex. 0/1, 0/2 and admitted that these letters do not bear the signatures of the appellant but the signatures on these letters are of rent collector, whose name he does not remember. He denied the suggestion that these letters were manipulated and were never written by the appellant. Mohammad Aslam attorney for Mahtabul Haq, in cross examination, admitted that 17 persons are residing in the house, where presently the appellant is living. He stated that he does not know if the appellant is also owner of any other property. He maintained that the appellant had demanded increase in rent.
From the pleadings of the parties, learned Rent Controller had settled the following issues:- "1. Whether demised premises is required by the applicant for his personal bona fide use in good faith?
2. What should the order be?"
On assessm ent of the evidence brought on record, learned Rent Controller reached the conclusion that the appellant does not bona-fide require the premises in question for his use, and, as such, he dismissed the eviction applications, which orders have been impugned in these appeals.
Learned Rent Controller dismissed the eviction applications for the following reasons:-
1. The house in which presently the appellant is residing though ostensibly belonged to his mother, but, in fact, it belongs to him, as he had given her an amount of Rs. 9000/- for purchasing it and, as such, the said transaction was Ba nami in nature. Said house was purchased by her in the year 1962.
2. The appellant failed to produce Birth certificate of his daughter and also failed to produce any document showing that his brother Muhammad Junad is engaged to Mst. Gul Parveen.
3. The appellant's brother Muhammad Junad, in cross examination, stated that the prevailing rent of both the portions of the premises would be Rs. 12000/- p.m. From this, learned Rent Controller inferred that the ultimate purpose of filing the eviction applications was to realize more rent by letting out the premises to others.
4. The respondent, alongwith his affidavit-in-evidence, submitted four letter Ex.0/1 to 0/4. Th respondent churned that these letters were written by the father of appellant and in these letters request was made for increasing the rent.
5. The appellant, in the eviction applications, has not given the details of accommodation of her mothers house, while his mother clearly admitted that there were 8 bed rooms in her house.
6. It is contended on behalf of the appellant that learned Rent Controller dismissed the eviction applications on in-sufficient grounds and on the basis of assumed facts for which there was no justification. Learned counsel also argued that, after it was established that appellant had no other premises of his own, learned Rent Controller should have passed the eviction order against both the respondents.
7. As against this, learned counsel for the respondents argued that it was proved from the evidence brought on record that the appellant is the owner of "BISMILLAH BUILDING11 which has as many as 8 bed rooms, therefore, there was no justification for eviction of the respondents and leamed Rent Controller rightly dismissed the eviction applications. He also argued that, under the circumstances bona-fide requirement of appellant is not at all proved. In support of his contentions he, cited (1) P.L.D. 1986, Karachi, Page No. 637, Manzoor Ahmed & Others Vs. Karim Bux & Others (2) 1986 C.L.C. Page No. 1751, Miss Sofia Hussain Vs. Ishrat Hussain. (3) 1983 C.L.C. Page No. 468 Syed Israr Alam Vs. S.M. Hussain (4) P.L.D. 1985 Karachi, Page No. 624 Sultan Press Ltd Vs. Muhammad Hassan (5) 1984, M.L.D. Page No. 19 Miss. Dephne Decrugze Vs. Malik Muhammad Yousuf (6) 1988 C.L.C. Page No. 793 Ghulam Rasool Vs. Syed Nazim Hussain Shaibh (7) 1991 C.L.C.
Note No. 35, Abrar Ahmed Khan Vs. Jamil Ahmed Khan.
8. The ratio of the above cited cases is the landlord is required to establish his bona-fide need.
Mere wish, convenience, whim or fancy of landlord, would not be enough to show that he requires the premises in good faith.
9. Coming back to the facts of the instant case, it is noted that the main argument, which prevailed with the learned Rent Controller, is that appellant had given an amount of Rs. 9000/- to his mother and from said amount she had purchased the house in which she is now residing. Learned Rent Controller was of the view that it was Benami transaction, and, in fact, this house belongs to the appellant. Conclusion drawn by the Rent Controller is absolutely in-correct and not according to the material available on record. Neither there was any issue for determination of alleged Benami transaction, nor facts relating to said transaction were stated in the pleadings, and nor Rent Controller in rent proceedings was competent to decide that a particular transaction was a Benami transaction or not. Mere payment of aforesaid amount by the appellant to his mother does not, ipso facto, bring the case within the ambit of Ba nami transaction. The transactions relating to the transfer of property are solemn in nature and strong presumption is attached to the fact that apparent state of affairs is the real state of affairs.
Besides, in the year 1962, the appellant could not visualise that in the year 1989 he could get benefit by purchasing the house in the name of his mother. Probably, learned Rent Controller did not consider the vastness of the consequences which may entail as a result of his above observation.
The observations of learned Rent Controller with regard to alleged Ba nami transaction are absolutely un-justified and irrelevant. In fact, learned Rent Controller travelled too far to find out a ground for rejection of rent applications. On above ground, eviction could not be refused.
10. Next ground on which eviction was refused is non-production of birth certificate of appellant's daughter and also of any document showing that his brother Muhammad Junad is engaged to Mst. Gul Parveen. Non-production of aforesaid documents, could hardly be a ground for refusing eviction of the respondents. Main point was whether the appellant was justified to claim the eviction of the respondents on the ground of personal bona-fide use. From the evidence brought on record, it has been established that the appellant has no other premises of his own to live in.
Although, the respondents alleged that the appellant has other premises also, but failed to substantiate this plea. Both above named attorney, in their respective cross examination, stated that they do not know if the appellant is the owner of any other premises. This, in fact, is an implied admission to the effect that the appellant is not the owner of any other premises. Had it been so, certainly they would have given its particulars. Accordingly, I hold that the appellant does not possess any other premises, except the premises in question. Next point to be considered in this connection is that whether the appellant presently being in occupation alongwith others, of his mother house, can claim eviction of the respondents. Mr. Azad-Bin-Hayder learned counsel for the respondents strenuously argued that, there being eight bed rooms in said house, there is absolutely no legal or moral justification for him to ask for separate accommodation. According to learned counsel, the accommodation available in said house is more than enough for all the persons residing therein. The point that landlord if residing with his father/mother, or relatives, could claim possession of the rented premises for his own use or not had come in discussion in various cases. Mr. Gul Zaman Khan learned counsel for the appellant in this connection cited various cases including (1) 1983 S.C.M.R. Page No., 1058 Suleman Ghazi Vs. Ghulam Hayderand another (2) 1983 S.C.M.R. Page No. 1087 Saeed Mian Ansari & another Vs., Aqeel Ahmed Siddiqul (3)
1982 S.C.M.R. Page No. 1046, Abdul Latif Vs. Faqeer Muhammad. The ratio of above quoted cases is if landlord has no other premises of his own and is residing with his father/mother, or in the rented premises, is entitled to claim possession on the ground of his own personal bona-fide use.
11. Mr. Azad-Bin-Hayder learned counsel for the respondents, as an alternative plea, argued that at the most one portion of the premises would be sufficient for the appellant and his family. There is no substance in this connection. Once it is established that a landlord requires the premises for his personal bona-fide use, the tenant can no suggest him that a portion of the premises would be sufficient for his needs. Under the circumstances, it is the landlords prerogative, and not desire of the tenant, which would prevail. The appellant has clearly stated that he requires both the portions of the premises for his use. Nothing substantial has come on record to rebut his assertions of this point.
12. While dismissing the eviction applications learned Rent Controller observed that Muhammad Junad, in cross examinations, stated that prevailing rent of both the portions of the premises would be Rs. 12,000/- p.m. He also referred to 4 letters allegedly written by the father of appellants', wherein demand was made for increasing the rent. From this, learned Rent Controller inferred that ultimate object of the eviction applications was to increase the rent. Mr. Azad- Bin-Hayder learned counsel for the respondents laid great emphasis on this point and submitted that this was the real cause for filing these applications. Legally, it is not proved that aforesaid letters were written by the father of appellants. Even, if it is assumed for the sake of argument that appellant wanted increase in rent, yet, this by itself would be no ground to nullify the plea of personal use. On this point, Mr. Gul Zaman Khan learned counsel for the appellant cited (1) 1986 S.C.M.R. Page No. 946 M/s. Allied Bank of Pakistan Ltd Vs. Syed Wahid Hussain (2) 1991 C.L.C. Page No. 937, Karachi M/s. Chaudry Brothers Vs. Mst. Asma Irfan. In M/s Allied Bank of Pakistan Ltd case it has been observed by the Hon'ble Supreme Court that "If the landlord proves his bona-fide requirement by independent evidence, the demand for higher rent can not be termed as an act of bad-faith or malafide". In M/s. Chaudry Brothers case a learned Judge of this court observed that "Demand of landlord for increase of rent of premises, would not cast any doubt on plea of landlord about his personal requirement".
Accordingly, I hold that above contention is of no use for the respondents. The principle laid down in above quoted Supreme Court case is applicable to this case. Besides, the rate of rent, as a rule, can not remain stationary for ever. By passage of time, due to the rise in cost of construction/repaid charges and imposition of new taxes, reasonable increase in rent, as permissible under the law, would always be justified.
13. When the landlord does not posses any house except the one which is occupied by a tenant, the plea that the premises presently occupied by him as a tenant or in other capacity is much more suitable for his requirements would be immaterial and not enough to deprive him from seeking eviction of his tenant, despite the fact that his own premises may be comparatively of inferior category.
14. Learned Rent Controller in the impugned order has observed that the appellant, in the eviction applications, has not given details about the accommodation of his mother house. Mr. Azad-Bin- Hayder learned counsel for the respondents, relying upon above observation, submitted that the appellant has not come to court clean hand and has concealed material facts and on this ground alone the appeals are liable to be dismissed. Hon'ble Supreme Court in the case report in 1989 S.C.M.R., 1366 Mst. Sira Bai Vs. Syed Anees-ur-Rehman observed that, in the eviction application, the applicant is required to state material facts i.e. Facts which constitute cause of action, in the instant case, material facts were stated by the appellant and he was not required to furnish particulars in the eviction applications about the accommodation available in his mother house.
So this contention is also without any force.
15. Accordingly, these appeals are allowed with no order as to costs and the impugned orders are set aside; The respondents of these appeals are directed to hand over vacant possession of both the portions of the premises in their occupation to the appellant within 4 months from now.