1. ' Appellant Chiragh Ahmed has challenged dismissal of his Rent Application No, 4 of 1982 ordered on 23-1-1985 by the Senior Civil Judge and Rent Controller Kotri.
2. ' Admittedly the house in litigation bearing No, 581/C (upper storey of C.S. No, 1206 Ward B) at Darya Road, Kotri, was in possession of Fazal Karim who was tenant of the Settlement Department and on his death his right of possession devolved on the respondents 1 to 7 who are his heirs. It is also admitted fact that prior to filing of Rent Case No, 4 of 1982, the appellant claiming to be transferee of the house in litigation, had filed Rent Application No, 12 of 1969 against respondent No, 1 Shaukat Iqbal, which was dismissed by the Rent Controller Kotri on 29-9-1971 but it was accepted by the Additional District Judge, Dadu as appellate authority on 20-7-1973 and at execution stage the respondents Nos. 2 to 7 and their mother Mst. Irshad Begum filed Civil Suit No, 1 of 1974 against the appellant and others seeking declaration that they were tenants in possession of the house in litigation and for issue of injunction against their eviction. Said suit No, 1 of 1974 was decreed by the Civil Court, Kotri on 28-5-1978.
3. ' In his rent application, the appellant claimed being transferee of the house in litigation by virtue of a P.T.O. Dated 22-5-1965, after he participated in the auction of the said house held on 13-2-1962.
4. Appellant also claimed to have obtained the PTD and to have got the City Survey Record mutated in his favour. Appellant acknowledged Fazal Karim and after his death his legal heirs, to be his statutory tenants in the house in litigation. He claimed to have sent notice under section 30 of the Displaced Persons (C & R) Act to the respondent No,
1. Appellant sought eviction of the respondents on the grounds (i) that the respondents had become wilful defaulter in payment of rent and (ii) that he required the house in litigation for his personal requirement, as the existing accommodation in his possession was not sufficient for his needs and needs of his family.
5. ' The rent application was contested by the respondents who in their written statement challenged maintainability of the rent application and jurisdiction of the trial Court. It was also averred that proper notices under the law, had not been given to the respondents and that the respondents Nos. 6 and 7 had been sued without appointment of any body as their guardian ad litem. On merits, the grounds taken for ejectment of the respondents were controverted. It was pleaded that the accommodation in possession of the appellant was sufficient for his needs, and that he had filed the rent application with a motive to get enhanced the rate of rent. The appellant was said to have sold a house during pendency of the previous rent proceedings to one Abdul Hameed.
6. According to the respondents they were not issued notices under the Rent Ordinance or under the Displaced Persons (C & R) Act, before initiation of rent proceedings against them.
7. ' After receiving evidence of the parties, learned Rent Controller under the impugned order dated 23-1-1985 dismissed the rent application, after recording adverse findings on both the grounds put forth by the appellant for ejectment of the respondents. Hence this appeal.
8. ' Mr. Rafique Ahmed learned counsel for the appellant argued that the appellant had purchased the demised premises in an auction held on 13-2-1962 when the same was occupied by Fazal Karim as tenant of the Settlement Department. That later on Fazal Karim died leaving behind the respondents and Irshad Begum as his heirs. It was added that notice under section 30 of Displaced Persons (C & R) Act was sent to respondent No, 1 Shoukat Iqbal because he was head of the family.
9. That for same reason previous rent case No, 12/69 was filed against Shoukat Iqbal. That the second rent application No, 21/78 was filed on 8-11-1978 against all the respondents because of the Civil Court's decree passed on 28-5-1978 in Suit No, 1/74. It was further argued that the respondents in Suit No, 1/74 admitted the appellant to be owner of the demised premises and yet in para. 8 of the written statement filed in present case the respondents had denied the fact that they were duty bound to pay the rent due to the appellant. Learned counsel for the appellant also argued that respondents 2 to 7 cannot claim notice under section 30 of Displaced Persons (C & R) Act because such notice was already given to the respondent No, 1 and Displaced Persons (C & R) Act had been repealed on 30-6-74. In respect of the ground of default in payment of rent learned counsel for the appellant argued that on 1-2-1974 the respondents filed Suit No, 1/74 claiming to be tenants in the demised house and their suit was decreed on 28-5-1978 but in spite of all this no rent was paid either before or after passing of the decree. It was pointed out that in the written statement, the respondents had not even pleaded if rent was tendered personally or through money order or by any other mode and that the money orders sent to the appellant were by one Abdul Malik who was not known to the appellant. On the point of requirement of the premises for personal use, learned counsel for the appellant referred to para. 9 of the rent application and argued that there were 18 members in family of the appellant and for them three rooms were not sufficient. In support learned counsel for the appellant cited cases of Muhammad Ramzan v. Ch. Bashir Ahmed (PLD 1981 SC 340), Muhammad Jumman v. Muhammad Bachal (1985 CLC 48), Munshi Siraj-ul-Haq v.
10. Nizamuddin (1981 CLC 864) and Abdul Rehman v. Atta Muhammad Khan (1982 CLC 1838).
11. ' Mr. Raja Khan counsel for the respondents conceded that the respondents were liable to pay rent from 28-5-1978 viz. The date on which their Suit No, 1/74 was decreed, declaring them as tenants. It was argued that rent payable by the respondents was sent by money order through Abdul Malik but the same was refused and this was admitted by the appellant in his cross-examination. Abdul Malik is said to be attorney of all the respondents and he is husband of Mst. Nasreen Akhtar respondent No,
3. It was further argued that even in case of default in payment of rent, the Rent Controller has discretion to decline eviction of a tenant, when non-payment of rent is not conscious and intentional. In respect of the ground of personal requirement, it was argued on behalf of the respondents that at the time of filing of the rent case, West Pakistan Urban Rent Restriction Ordinance, 1959 was in force and the appellant was required to disclose in his rent application that he was occupying or not occupying any house in the same locality but this had not been done. In support learned counsel for the respondents cited the cases of (i) Muhammad Nasim Yar Khan v.Sh. Attaullah (1979 CLC 805), (ii) Syed Jalilur Rehman etc. v. M/s. Johar Trading Company (1982 CLC 219), (iii) Mirza Jawad Baig v. Pakistan State Oil Co. Ltd. (1985 MLD 536), (iv)
12. Syed Muhammad Ahmad v. Malik Basharat Ahmad (1986 CLC 1502), (v) Muhammad Younus and another v. Mst. Hajira Bi (1989 SCMR 1670), (vi) Muhammad Younus v. Dr. S. Muzammil Ali (1981 CLC 327), (vii) Major Feroze Din Khan and others v. Sh. Muhammad Amin (PLD 1967 Lah. 966), (viii) Mst.
13. Sadiqa Begum Waheeduddin v. Crescent Pak. Industries Ltd. And another (1986 MLD 1788) (ix)
14. Shakir Hussain Chishty v. E.A. Breganza (PLD 1984 Karachi 141) (x) Abdul Ghani v. Ismail Ibrahim Lakhani (1986 CLC 696), (xi) Mst. Safia Hussan v. Ishrat Hussain (1986 CLC 1751), (xii) Mst. Thariani v.
15. Yousuf (1989 MLD 1786), (xiii) Mst. Zulekha Bai v. Muhammad Yakoob (1989 MLD 2882), (xiv) Mst.
16. Hajra Bai Sulaiman v. Mst. Aisha Bai (1982 CLC 1444), and (xv) Malik Lal v. Manzoor All (PLD 1985 Quetta 142).
17. ' While dismissing the Rent Application No, 21/78 new No, 4/82, the Rent Controller found the same to be maintainable and held that he had jurisdiction and that relationship of landlord and tenant existed between the parties. In respect of the ground of default the Rent Controller took view that a Certificate Exh.77 issued by Civil Judge Kotri indicated that rent from 15-7-1979 to 10-11-1982 was paid. For the subsequent period the Rent Controller accepted the plea that after promulgation of new Rent Ordinance 1979 and before issue of Notification dated 25-3-1981 the offices of the Rent Controllers were not accepting the rent and as such there was no wilful default. On the point of personal requirement, the view taken was that one house was sold by the appellant, after filing the rent application in 1969, and before filing Rent Application No, 4/82 and that the ground of default was not proved.
18. ' The relationship of landlord and tenant between the parties, was created by section 30 of Displaced Persons (C & R) Act, 1958. However liability to pay rent arises only after notice under section 30 of said Act is given by the transferee to the occupant of the evacuee house. At the relevant time Fazal Karim was in occupation of the demised house. It has not been claimed in the rent application if such notice was sent to Fazal Karim. For the first time the appellant sent notice under section 30 of said Act on 11-10-1968 and that also to respondent No, 1 only. After the death of Fazal Karim who was living in the house in litigation, the rights of tenancy devolved on all the respondents.
19. ' Hence notice was required to be given to all the respondents. The liability to pay rent could arise only after service of notice under section 30 of said Act. Position of the respondents, even in absence of receiving notice under section 30 of said Act, was that of tenants after death of Fazal Karim. This position was affirmed by decree of the Civil Court passed on 28-5-1978 in Suit No, 1/74 decided by Civil Court, Kotri. No doubt said Act was repealed on 30-6-1974 and after said date it was not necessary for the appellant to send any notice under section 30 of the said Act to the respondents. In the case of Muhammad Ramzan (PLD 1981 SC 340) it was held that the character and intention underlying the provisions contained in section 30 of Displaced Persons (C & R) Act, were of transitory and temporary character and were not intended to create permanent rights and liabilities and that after repeal of said Act the occupant of an evacuee house was not entitled to any notice or the protection and the transferee was not under any liability to send such a notice to the occupant, before filing the eviction application. It was also held in the case of Muhammad Jumman (1985 CLC 48) that Displaced Persons (C & R) Act having been repealed on 1-7-1974, the service of notice under section 30 of said Act was not necessary in view of section 6 of the General Clauses Act. In absence of receiving notice under section 30 of said Act, liability of the respondents to pay rent arose on 28-5-1978 when their' suit was decreed and they were declared to be tenants of the appellant in the house in litigation.
20. In his affidavit, appellant Chiragh Ahmed stated in one line that the respondents had committed wilful default in payment of rent since 1969. In his cross-examination, he admitted that rent was remitted to him by money order through Abdul Malik attorney of the respondents but the same was refused by him. In this situation the appellant has destroyed his own case.
21. ' Respondents examined Shoukat Iqbal one of them. He admitted that tenancy was originally .In name of Fazal Karim and it was inherited by the respondents. Although Shoukat Iqbal did not say much in his affidavit, but, in his cross-examination be said that he had tendered the rent through money order addressed to Chiragh Ahmed, before filing of Rent Case No, 4/82. He admitted that all the respondents were tenants of the appellant. He produced certificate Exh. 62 dated 22-10-1983 issued by Nazir regarding deposit of rent. He also produced original receipts Exh. 63/1 to Exh. 63/9.
22. He also produced certificate Exh. 64 dated 23-10-1983 by the Civil Judge. In the circumstances finding of the Rent Controller on the point of default in payment of rent having not been proved, is affirmed.
23. On the point of personal requirement, appellant Chiragh Ahmed in his affidavit said in one sentence that ejectment of the respondents was intended on the ground of his personal bona fide use as the case house was required by him for his personal bona fide use. This was not sufficient for making out case of eviction of appellant's tenants on ground of personal need. However in his cross-examination, the appellant was made to say that there are 19/20 persons in his family, for whom the house in litigation is required. Out of those, 8/9 members belong to the family of appellant's brother, as admitted. Appellant was also made to state that his family has 13 persons including 5 sons and 5 daughters, a daughter-in-law and her child. The appellant was also made to give ages of his sons. Appellant was also made to state in cross-examination that wife of his elder son, was not on good terms with him, as her grievance was about residential accommodation. All this evidence coming from mouth of the appellant, at instance of learned counsel for the respondents, strengthens evidence of the appellant rather than shattering it.
24. Appellant also stated in his cross-examination that his elder son was from his first wife and that there are 4 rooms in the disputed house. In respect of his existing house, the appellant stated in cross-examination that it has 3 rooms with each room being 15 X15 sq. Ft. Excepting one room which was 8 X 5 sq. Ft. And that said house may have been constructed over an area of 100 sq. Yds.
25. Appellant admitted in cross-examination that in his affidavit he had not mentioned the particulars of his personal use and details of his family members. He admitted having sold a house to Abdul Hameed but did not remember the date of sale although it was sold before filing of the Rent Case No, 4/82. He admitted that in the previous rent application tentative rent order was passed and that the rent was being deposited in Court and that he moved application for withdrawal of rent. It appears that learned Advocate who cross-examined the appellant, helped him in bringing on record certain facts which the appellant was bound to bring on record, in order to succeed in obtaining order of eviction, on the ground of bona fide personal use.
26. ' As against aforesaid evidence, there is affidavit of respondent No, 1 Shoukat Iqbal, who stated in para. 8 of his affidavit that the appellant had sufficient accommodation for his own purposes and he had taken a concocted plea that he was in need of the demised premises for his own use.
27. Respondent No, 1 also stated that the appellant had sold his other house to Abdul Hameed during pendency of previous proceedings. This solitary word of the respondent No, 1 would not rebut evidence of the appellant which he gave during his cross-examination. In his cross-examination respondent No, 1 denied that the demised house was required by the appellant for his personal use.
28. He denied if the house was in dangerous position. He claimed to have spent Rs,6,000 on repairs of the disputed house without seeking permission from the appellant because he received a notice from local Municipality and permission to repair the house was given to him by the Chief Officer of the local Municipality. On the point of personal requirement, learned counsel for the appellant cited the case of Munshi Siraj-ul-Haq (1981 CLC 864) where landlord's family consisting of 9 members including a son about to be married and an ailing grand daughter, was found to be having sufficient requirement of the house, from where the landlord sought eviction of his tenant. In the case of Abdul Rehman (1982 CLC 1838) the landlord was living with his father, mother, one adult brother and 10 other members of his family, in his father's house consisting of 3 bed rooms and a drawing-cum-dining room and said accommodation was held to be insufficient for 14 people.
29. ' A large number of cases were cited in support of the respondents by their counsel. The respondents have not been held to be guilty of default in payment of rent and such finding is not assailed in this appeal. Hence the authorities cited on the point of default in payment of rent are not being discussed. The authorities cited on behalf of the respondents on the point of bona fide personal requirement require to be discussed. In the case of Mst. Sadiqa Begum (1986 MLD 1788) the view taken was that for establishing bona fide personal requirement, the landlord has to assert that he requires the premises in good faith and that he is not occupying any other building in the same urban area and that he has not vacated such building without sufficient cause. In the case of Shakir Hussain (PLD 1984 Kar. 141) the landlord in his rent application for eviction of his tenant on ground of bona fide personal need, did not disclose that he owned another flat in the same urban area where the premises in litigation was situated and did not establish in evidence that such other flat was either occupied or was not suitable for his own accommodation and the view taken was that requirement of section 13 (3) (a) (i) (b) of West Pakistan Urban Rent Restriction Ordinance was not fulfilled. In the case of Abdul Ghani (1986 CLC 696) the landlord was found to have other sufficient accommodation in his possession and his application for eviction was disallowed. In the case of Mst. Safia Hassan (1986 CLC 1751) the evidence on record showed that the landlady already possessed sufficient accommodation in her occupation and the personal need was vague and no attempt was made to state as to how much accommodation was already with landlady and her prayer for eviction of her tenant on the ground of personal requirement was disallowed. In the case of M.S. Thariani (1989 MLD 1786) the landlord was unable to convince the Court about his bona fide personal requirement and he had mentioned that he had no other property except the disputed one but a list of 10 buildings owned by the landlord was placed on record and hence his need was held to be mala fide. In the case of Mst. Zulekha Bai (1989 MLD 2882) the view taken was that the landlord has to establish that he required the premises in good faith for his own occupation or use and that mere desire or wish to have the accommodation was not sufficient. In the case of Mst.
30. Hajra Bai (1982 CLC 1444) the view taken was that where ground of bona fide requirement was not established, oath of the landlord regarding bona fide requirement cannot be accepted. In the case of Abdul Ghani (1986 CLC 696) requirement of the demised premises in good faith for personal use of the landlord and his family, was held to have not been made out because after filing of the rent case he had shifted from his two-roomed flat at Victoria Road, Karachi to the three-roomed bungalow of his wife in Clifton area, with one daughter in his family having left the family due to her marriage. In the case of Mst. Safia Hassan (1986 CLC 1751) it was observed that mere wish to have the demised premises for personal use and use of family members is not enough and the need is to be specified in clear terms and further some evidence is to be produced to show reasonableness of that need. In said case six rooms in possession of the landlady whose family consisted of six members, were considered to be sufficient Tor needs of her family, which had not increased since her letting out of he demised premises 2-1/2 years earlier. In the circumstances the landlady was held to have failed to prove that she required in good faith the demised pre ises for her use and use of her family members. In the case of Mst. Zulekh. Bai (1989 MLD 2882) the view taken was that mere desire or wish to have . Ccommodation is not sufficient. In said case the landlady was living with her fa ily members in a bungalow, while she sought eviction of her tenant from the remises situated in a commercial area with an obvious purpose of converting he demised premises into commercial. In the circumstances eviction of the tenant was declined. In the case of Mst. Sadiqa Begum Waheeduddin (1986 MLD 1788), Shakir Hussain Chishty (PLD 1984 Kar. 141) and M.S. Thariani (198 MLD 1786) the rent applications were filed under the old Ordinance 1959 (West Pakistan Urban Rent Restriction Ordinance) where a landlord requiring eviction of his tenant on the ground of bona fide personal need, had to establish not only his requirement in good faith but had also to show that he was not occupying another residential building suitable for his need in the same urban area and that he had not vacated such a building without sufficient cause. Under the present rent Ordinance 1979 the landlord has only to establish that he requires the premises in good faith for his own use or for me of his spouse or any of his children. Under new Ordinance of 1979 the landlord is not required to establish that he is not occupying another residential building in the same urban area or that he has not vacated another residential building or residential building without sufficient cause. In the rent cases filed under the old Ordinance of 1959 but not concluded before its repeal, the right. Of the parties are to be regulated in accordance with the old Ordinance 19 although procedure laid down by the new Ordinance 1979 is to be follower, as per the view taken in the case of Abdul Rehman v. Haji Mir Ahmed Khan and another (PLD 1982 Kar. 532) which view was affirmed by the Supreme Court of Pakistan in the case of Abdul Rahman v. Haji Mir Ahmed an and another (PLD 1983 SC 21). Same view shall prevail in the instant case. Said cases however do not further case of the respondents. In the case o Sadiqa Begum emphasis has been laid on the requirement that the plea of p rsonal bona,fide requirement must be supported by valid reasons and the ent Controller must be satisfied about genuineness and reality of landlord's claim. In the case of Shakir Hussain Chishty there were concurrent findings by two Tribunals that the accommodation available with the land lord was sufficient for his use and use of his family. In the case of M.S. Thariani, list of ten residential and commercial buildings, said to be owned by the landlord was placed on record, which fact falsified his statement that he had no other property except the disputed one. His requirement was found to be mala fide.
31. ' This Court has taken view in the cases of Abdul Qadeer v. S. Azeemuddin Ahmed (1987 CLC 2347) and Hassan Khan v. Mrs. Munawar (PLD 1976 Kar. 832) that assertion of the landlord on oath that he requires the premises for his personal use, has to be accepted as bona fide if consistent with his averments in his rent application and not shaken in cross-examination or disproved in rebuttal.
32. Similar view was taken in the cases of Muhammad Hashim v. Mst. Aleeman Khatoon (1987 MLD 430), Abdul Hamid v. Nasreen Akhtar (1986 CLC 1567) and Ashiq Hussain v. Abdul Kabir (1987 CLC 1146). In the instant matter, case of the appellant during his cross-examination has not been shaken but has been strengthened. For this the appellant should thank counsel for the respondents rather than his own counsel. Learned counsel for the respondents while cross-examining the appellant, has put him questions which elicit his replies going in his favour. In this way, whatever lacunas have been left over in evidence of the appellant, the same have been filled in during his cross-examination due to such questions, having been put to him. In this way case of the appellant about his requirement of the disputed premises in good faith for his own occupation and for occupation of members of his family, stood established. On this ground, eviction of the respondents could have been ordered.
33. ' For the foregoing reasons I accept this appeal, set aside dismissal of the Rent Application No, 4 of 1982, which stands accepted. Consequently I order eviction of the respondents from the premises in litigation after expiry of three months.