' The two appellants are the widow and son respectively of one Hassan Khan, who died in 1973 while this appeal was pending. Hassan Khan, deceased was owner of a house bearing survey No, 79/N/2, P. E. C. H. S., Karachi comprising of a ground floor and first floor. He will hereinafter be referred to as "the landlord". The ground floor is in the occupation of the respondent Munawar Begum as tenant of the landlord on a monthly rent of Rs, 300.
2. On 21-5-1966, the landlord filed an ejectment application against the tenant on the ground that he, being a heart patient, required the ground floor in good faith for his own occupation and also on the ground of default by the tenant in payment of the rent. This application was resisted by the tenant who considered that the landlord's plea that he was a heart patient was false and was an excuse to obtain her ejectment. She also denied that she had defaulted in payment of rent.
3. The Rent Controller framed issues and recorded the evidence of the parties and their witnesses.
On the issue of default, the learned Rent Controller held that although the tenant was in arrears of rent for 2 months or so prior to the date of the ejectment application, the circumstances snowed that she had been depositing the rent in lump sum amounts from time to time into the bank account of the landlord, without any objection on his part and, therefore, the tenant had not committed wilful default in the payment of the rent. On the issue regarding the bona fide requirement of the house by the landlord for his own use, he held that the landlord had failed to establish by medical evidence that he was really a heart patient, and that as there were only two members of the family, namely, he and his wife, it was incredible that these two persons would require the large accommodation on the ground floor premises in dispute. In the result, he dismissed the landlord's ejectment, application.
4. The landlord then filed an appeal to the Additional District Judge, Karachi. The Appellate Authority agreed with the findings of the Rent Controller on both issues. In particular, on the issue of default, he examined in detail the statement of the landlord's Bank account (Ex. 12) produced by Rani Ahmad, the clerk of the National Bank of Pakistan Ltd., P. E. C. H. S. Society Branch, Karachi and came to the conclusion that a practice had developed of the tenant depositing the rent into the landlord's Bank account for many months, at a time, in lump sum without any objection by the landlord and hence, the tenant could not be termed, as a defaulter.
5. On the issue relating to bona fide requirement of the house, he observed that the case of the appellant was not that he required the premises for his personal use (which he admitted was a stronger ground), but that he wanted the premises for his personal use only on the ground that he, being a heart patient, could not climb upstairs and wanted to live on the ground floor, the burden of proving which ground lay heavily upon the appellant. He then examined the evidence and, like the Rent Controller, he held that the landlord had failed to prove by medical evidence that he was a heart patient. He disbelieved the evidence of Dr. Ziauddin on the ground that he was not a heart Specialist but only a general physician. He further discarded the two medical prescriptions of Dr. Major S. A. Hassan dated 16-1-67 and 16-3-67 (Exbs. 4 and 5) on the ground that they were issued after the ejectment application was filed and also that Dr. Major Hassan had not been examined.
He also observed that the landlord had failed to examine the other Heart Specialists, namely Dr. Casim and Dr. Sharif, who were said to be treating him. Nor was any case history of the appellant's ailment produced before the Court. In the result, he disbelieved the medical evidence and dismissed the appeal of the landlord.
6. Dealing with the finding on the lower Courts on the issue relating to default, Mr. Hassan A. Shaikh, learned counsel for the appellants submitted that both the lower Courts erred in law in recognising the alleged practice of paying the rents of several months together in lump sum. His submission is that the practice, even if proved, is contrary to the mandatory provisions of section 13 (2) (1) of the Rent Ordinance, which requires the tenant to tender the rent within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within 60 days from the period for which rent is payable. In support of his submission, he referred to the observations of the Supreme Court in Hafiz Dawood v. Abdul All Khan (1) and in Sh. Muhammad Hassan and Co. v. Mian Mahmood Ahmad Khan (2). Both cases were petitions for special leave to appeal to the Supreme Court. In the latter case, the tenant set up an implied contract on the basis of a practice which he contended had grown up of paying rents in a lump sum every six months or one year. The alleged implied contract was neither pleaded in the written statement nor proved in evidence. Salahuddin Ahmad, J of the Supreme Court in delivering judgment observed that:- "In any event such a contract was contrary to the provisions of section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), and therefore, the former could not prevail over the latter."
' While, no doubt, the observations of the Supreme Court, are entitled to the highest respect, in my opinion, they do not apply to the present case. The distinguishing feature of the present case is that the tenant did not set up any implied contract or any practice justifying her payment of rents in lump sum amounts. The fact was that the landlord's Bank account showed that the tenant was depositing rents for 2 or 3 monthes, at a time, in lump A sum, because of the circumstances created by the landlord himself. He was absent from Karachi for three months in 1963 and for twenty-two months from 1964 to 31st January, 1966, during which period, he was in East Pakistan and had made no arrangement for collecting the monthly rent from the tenant. The evidence shows that he had agreed to the tenant depositing the rent into his bank account, and he had even supplied the account number to her. He also did not protest against the irregular payments.
Therefore, in my opinion, the Appellate Court came to the right conclusion that the rents were being deposited in lump sum with his willingness. Moreover, as Mr. M. I. Merchant learned counsel for the tenant rightly submitted the question of default is purely a question of fact and it cannot be reviewed in second B appeal, except when there is no evidence to support the finding, which is not the case here. I am, therefore, in agreement with the finding of the Appellate Authority that in the circumstances, the landlord had failed to establish c wilful default on the part of the tenant.
7. On the second issue relating to bona fide requirement for personal use, the submission of Mr. Hassan A. Shaikh is that neither of the lower Courts considered this plea of the landlord. Instead, they embarked upon an enquiry whether the landlord had proved by medical evidence that he was a heart patient. I am inclined to agree with this submission. Both the lower {{FOOT NOTE}}
(1) 1973 SCM R 598 (2) 1975 SC MR 355 {{FOOT NOTE}} 'Courts decided the issue of bona fide personal requirement as if the landlord wanted the premises in dispute only on the ground that he, being a heart patient, wanted to live on the ground floor, which ground he had failed to prove. It seems to me that the lower Courts have not appreciated the plea of the landlord in the right perspective. The landlord was pressing his plea that he was a heart patient only with a view to justify his requirement of the ground floor of the house in preference to requiring the first floor. In Sabu Mal v. Kika Ram alias Heman Das (1), Their Lordships of the Supreme Court observed that if a landlord possesses more than one house in the same urban area, the choice as to the house in which he would prefer to live himself, is surely a matter within his prerogative and discretion. The choice is his and the law does not give either to the tenant or to the Rent Controller the power to determine where or in which of the two houses the londlord should personally reside. Both the lower Courts failed to realise that proof by the landlord of his illness as a heart patient, was really immaterial. The real question in issue was whether he wanted the ground floor bona fide for his personal use. The Appellate Authority conceded in his judgment that had this been the case, the appellant would have had a strong case. Both, in his notice to the tenant dated 29-3-1966 (Exb. 2) as well as in the ejectment application, he had stated that he had no other house of his own to live in and he needed the ground floor in good faith for his own residence. The evidence showed that the appellant on his return from Bombay, was accommodated by Dr. Ziauddin in the latter's house and that on the date of his ejectment application, he and his wife were living with their son in a rented house in Nazimabad. These facts were not rebutted by the tenant and no evidence was produced by her to disprove the bona fides of his requirement for his own personal use.
8. In Muhammad Siddique v. Mistri Muhammad Aslam (2), it was observed that the assertion of the landlord that he required the premises for his personal use should be determined in the context of the provision contained in subsection (4) of section 13 of the Ordinance, which enables a tenant to regain possession from his landlord who had obtained it on a false plea of bona fide personal need, but he had failed to occupy the premises within one month of the date of obtaining possession or who re-let it within two months of the said date to any person other than the tenant.
This is said to be a safeguard for the tenant against being ejected on a false plea of bona fide requirement by the landlord. The effect is that the assertion or claim on oath by the landlord that he required the premises far his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal. The evidence in this case fully justified the claim by the landlord that he required the premises bona fide for his own use as he had no other accommodation of his own. To have dismissed this plea as not proved, merely because he had failed to prove his illness as a heart patient by medical evidence, was arbitrary and contrary to law. I am therefore, of the opinion that the finding on this issue by both the lower Courts is against the law.
9. The landlord having died pending the appeal, the relevancy of the ground of his medical illness becomes meaningless. But the question that now remains is whether the wife and the son can claim the benefit of the cause of {{FOOT NOTE}}
(1) 1973 SCMR 185 (2) PLD 1975 Lah. 308 {{FOOT NOTE}} ' action which clearly had survived. In Adamali Hasanali v. Mst. Rubab Bai (1); it was held that the requirement of own occupation includes also the requirement of the wife and the family of the landlord. This judgment was affirmed on appeal by a Division Bench of this High Court and is reported in PLD 1957 Kar.
437. I am, therefore, of the opinion that the wife and the son could pursue the cause of action for requirement of the premises on their own behalf, they being members of the deceased's family and the only legall heirs.
10. For the foregoing reasons, I would allow this appeal and set aside the impugned judgment. In the circumstances, I would give two months' time to the respondent to vacate the ground floor.
Parties to bear their own costs.
(1) PLD 1965 Kar. 408
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