1. This is First Rent Appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 17-11-1992 passed by learned Senior Civil Judge and Rent Controller of Court No.II, Karachi-Central, in a Rent Case No.331 of 1991, Mst. Shamsa Khatoon v. Ejaz Ahmad Mir, whereby ejectment application filed by the respondent/landlady was allowed and the appellant/tenant was ordered to vacate the premises in question within 45 days from the date of impugned order, hence the present appeal.
2. Brief facts of the case are that the respondent/landlady filed ejectment application under section 15 of the Rent Ordinance against the appellant/tenant in respect of the portion of bungalow in his possession on the ground that respondent/landlady required the premises for herself and for the use and occupation of her husband and children in good faith and that the appellant/tenant has committed default in payment of watqr and conservancy charges. The appellant/tenant filed written-statement wherein he denied that the respondent/landlady's requirement was not based on good faith but was mala fide one as she wanted to enhance the rate of rent beyond the terms of the agreement and further that she was already in occupation of sufficient accommodation as to her needs. On the pleadings of parties, learned Rent Controller settled the following issues: -- (1)Whether the applicant requires the case premises for herself as well as for the use and occupation of her husband and children in good faith?
3. (2)Whether the opponent has defaulted in payment of water and conservancy charges?
4. (3)What should the order be?
5. The respondent/landlady filed affidavit-in-evidence of Dr. Syed Hamid her husband and attorney who produced a photo copy of power of attorney Exh.A/1 and photo copy of lease agreement Exh.A/2, notice to the Advocate of appellant/tenant Exh.A/3(a), postal receipt Exhs.A/3(b) and A/D receipt Exh.A/3(c), notice in Urdu sent by the respondent/landlady to appellant/tenant Exh.A/4, receipt alongwith note Exh.A/5 of the respondent, eleven payments challan in respect of water and conservancy Exhs.A/6-1 to A/6-11. Appellant/tenant filed his affidavit-in-evidence and produced one letter Exh.A in Urdu and seven photo copies of rent receipts deposited in the office of Controller as Exhs.B/1 to B/7, notice, dated 24th April, 1991, sent to respondent/landlady by the Advocate of the appellant/tenant Exh.B/8, photo copy of telegram of counsel for appellant/tenant Annexure ' C, notice dated 21-3-1991 from the Advocate of the appellant to respondent/landlady Annexure D'
6. Parties were cross-examined at length by the learned counsel of the respective parties.
7. After recording the above evidence and hearing the learned counsel for parties, impugned judgment of eviction was passed against the appellant/tenant on the only ground that the respondent/landlady required the portion in possession of the appellant in good faith.
8. I have heard learned counsel for parties and perused the record and proceedings of the case and the case-law cited by the respective counsel for parties.
9. Mr. Muhammad Umer Qureshi, learned counsel for appellant, has referred to tenancy agreement, dated 24th of September, 1983 executed between the parties where the details of portion leased out to appellant/tenant has been stated and also referred to para. 9 of the said agreement where after the expiry of lease period of 12 months, option was given to the appellant/tenant for renewal of another period of 12 months or part thereof subject to payment of advance rent and annual increase by five per cent. Or Rs.100 per month. He has also referred to para. 7 of ejectment application where the respondent/landlady has given details of her children for whom she would require the portion asked for in possession of the appellant/tenant. He has further argued that the learned Rent Controller has ordered the ejectment of.' the appellant/tenant on the ground that the children of the respondent/landlady who were in America used to visit occasionally to the respondent/landlady, therefore, she would be entitled to have the possession of the premises in dispute, under the law which need could not be termed to be in good faith. Learned counsel has further argued that as per para.2 of ejectment application, it would appear that there was another portion on the ground floor which was either in possession of the respondent/landlady or was in possession of someone else but the said fact was suppressed by the respondent/landlady hence, she would not be entitled to have the possession of premises in dispute. He has also referred to cross-examination of respondent/landlady and the written-statement. Learned counsel has argued that the category ' D' of plot consists of IGW sq. Yds out of which half of the ground floor was in possession of the appellant/tenant and the remaining half was in possession of another tenant which fact was disclosed in the cross-examination of the respondent/landlady while the entire first floor was in possession of the respondent and the accommodation of first floor was more than sufficient for the need of the respondent/landlady, her husband and her children, therefore, the respondent/landlady was not entitled to possession of disputed premises in good faith. Learned counsel fir the appellant has admitted that he has not challenged the fact of occasional visits of the children of the respondent/landlady to her and their stay tin the bungalow and the fact that the said children were residing in America anal other places. However, the learned counsel argued that said occasional visit, of the children would not bring the requirement of the respondent/landlady to be one of good faith. He has placed reliance upon Jamilur Rehman v.
10. Ghulam to Mehboob 1988 MLD 2718, Mst. Begum Jan v. Abdul Rasool 1984 CLC 755 and Mst. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 in support of his contentions. He in the end has prayed that the case be remanded on .He ground that the inspection be made to find out as to how much accommodation, was in possession of the respondent.
11. Mr. K.A. Wahab, learned counsel for the respondent, has argued that there is no need for inspection of the bungalow in view of the fact that in para. 3 of ejectment application stated a out the accommodation with the respondent/landlady and the said fact h been admitted in the written- statement where the respondent was admitted to b e in possession of five rooms including drawing and dining room while in the cross-examination the appellant/tenant stated that there were six rooms in the occupation of the respondent, hence there was no ambiguity about the number of rooms and accommodation available with the respondent hence no remand in the circumstances could be ordered on that account. He has further argued that one son and two daughters of the respondent are married, one son is residing in U.S.A. While remaining eight members reside in the portion in occupation of the respondent/landlady whereas there were only five bed-rooms in the portion in possession of the respondent which accommodation was insufficient for the` need of the respondent and her children and husband keeping in view that one niece has also been residing with them though the learned counsel admitted that she could not be termed to be dependent under the law upon the respondent. He has further argued that there has been no suppression of the fact and all the facts have been stated and that another tenant has been in occupation of the said portion prior to the occupation of the appellant acid further, it was prerogative- of the landlady to have the portion of her choice of the bungalow. He has further argued that option to renew the lease with the lessee, i.e. The appellant was only for one year and further, the lease agreement was not registered, therefore, it could not be termed to be a lease in perpetuity, therefore, the appellant/tenant could not compel the respondent/landlady on that account not to seek his ejectment and to allow him to continue to reside there in the said portion and that it would not disentitle the respondent from evicting the appellant'. Learned counsel of the respondent has further argued that the respondent/landlady has proved her bona fide need in good faith and has also proved that she was having insufficient accommodation and the evidence adduced by the respondent/landlady respondent/landlady was consistent with her pleadings, therefore, the requirement in good faith has been proved hence the impugned judgment passed by the lea ed Rent Controller was legal-and called for no interference in this appeal he has placed reliance upon Muhammad Bashir v. Muhammad Shaft and others 1984 CLC 681 and Mrs. Rehana Abrar v. Imamuddin Malik 1989 CLC 616 in support of his contentions.
12. The main contention of learned counsel for appellant/tenant is that the occasional visits of the children of the respondent to her from abroad would not entitle her to the eviction of the appellant as the said need for the said children would not be bona fide one. It is admitted by the appellant/tenant that the family of the respondent consists of eleven m members excluding the niece, out of whom one son and two daughters are married and one son was studying in U.S.A.
13. Which would mean that four persons ere not permanently residing with the respondent while the seven excluding the niece were residing with the respondent/landlady in the portion con "sting of three bed-rooms excluding the drawing-cum-dining room. Mr. Umer Qureshi, Advocate for the appellant, was called upon to explain as to how the respondent would accommodate her children if they come from abroad to heir parents, should the parents make arrangements for their stay in the hotel somewhere else or the parents should shift to some other place or they should confine all the permanent residents in one room and allow the children who vi it them occasionally in the rest of the two rooms but Mr. Umer Qureshi could not explain and could not give satisfactory reply to the said question put to him. It would be strange to restrict the respondent/landlady not to keep and allow her children to stay with her who occasionally visit her from abroad. In fact, the children come to see and meet their parents and they would not like to be away from their parents when they come to their own country from abroad. The occasional visit of the children of the respondent cannot be said that it would reflect adversely to the -bona fide need of the respondent considering that three bed-rooms would not be sufficient to accommodate the permanent resident of the first floor and the other children who occasionally would come to their parents to stay with them.
14. Nothing has come on record that the respondent was having any other house or portion except the first floor consisting of three bed-rooms and drawing-dining room where she could accommodate their children. The evidence adduced by the respondent/landlady has gone unchallenged. The appellant's learned counsel has admitted the version of the respondent as disclosed in the affidavit-in-evidence as well as in the cross-examination, therefore, there would be no justification to refuse the right of respondent to seek eviction of the appellant from the disputed premises which the Rent Ordinance has provided considering that respondent has proved her need to be bona fide one. The mere fact that option for one year more was given to the appellant/lessee subject to enhancement of rent under the law could not mean that all the time to come the respondent/landlady would not be entitled to get the possession of the premises from the appellant even when she would require the same in good faith Considering also that the said option was for further period of :one year which period also expired by the end of 1985. The respondent/landlady cannot be deprived to have the possession of the premises for all the time to come which the one was rented out by her. The next contention of the learned counsel for appellant is that the respondent should have sought ejectment of another tenant who was in occupation of another portion on the ground floor. The contention has no merit as it is the choice of the owner/landlady to have any portion of her premises for her personal need. There are number of decisions of superior Courts that it is the prerogative of the landlady or landlord to have the premises of her/his choice for her or his use and such right of choice is not with the tenant.
15. Reference is made to Mrs. Rehana Abrar v. Inamuddin Malik 1989 CLC 616 and Haroon Kassam v.
16. Azam Suleman Madhe PLD 1990 SC 394.
17. The facts of decision cited by the learned counsel for the appellant are distinguishable to the facts of the instant case. In Jamilur Rehman v. Ghulam Mehboob 1988 MLD 2718 the landlord was found to be in possession of quite sufficient accommodation to meet the requirement of family, therefore, his need was found not to be bona fide. In the instant case, it has been held that the accommodation in possession of the respondent/landlady was not sufficient to accommodate her family members out of whom seven permanently resided on the first floor while four members of family occasionally visit the respondent. In the circumstances, the said authority has no application to the instant case. In Mst. Begum Jan v. Abdul Rasool 1984 CLC 755 case, the landlady has falsely stated that she was widow at the time of filing of ejectment application in order to gain the sympathy of Court and thereby made misrepresentation and it came in evidence that landlady was putting with some other relations and not with her daughter and the averments made in the application were found to be vague, therefore, need of landlady was not considered to be bona fide. So far the last citation Mst. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, there is no cavil about the principle laid down in the said decision. The facts of instant case are different and the clause regarding option of renewal of lease pertained to one year which period expired by the end of 1985, therefore, principles regarding the terms of the agreement on its termination laid down in the cited case-law would not be attracted. No other plea has been raised before me.
18. I do not find anything illegal or improper with the judgment of the learned Rent Controller, therefore, no interference is called for Consequently, appeal has no merits which is hereby dismissed. The appellant/tenant is directed to hand over the vacant possession of the premises in dispute, within two months subject to payment of rent to the respondent or be deposited in the office of Rent Controller.