1. By this common order I propose to dispose of First Rent Appeals Nos.399 and 400 of 1998.
2. First Rent Appeal No,399 of 1998 impugns the order, dated 12-5-1998 passed by the Rent Controller- II, Karachi (East) in Rent Case No,837 of 1994 whereby it was found that the rented premises were required by the respondent/applicant for his own use as well as for the use of his children and accordingly the appellant/tenant was directed to vacate and hand over peaceful possession of the rented premises within 60 days to the respondent/applicant.
3. The brief facts of the matter are that the respondent had let out the ground floor of Annexe situated in Plot No,26/A/1, Muhammad Ali Cooperative Housing Society, Karachi, to the appellant on a monthly rent of Rs,2,200 besides the obligation to pay Rs,150 p.m. being the water pumping charges etc. The said tenancy was renewed from time to time and lastly this was done on 15-2- 1991. Thereafter, in December, 1994, the respondent filed Rent Case No,837 of 1994 before the Rent Controller-II, Karachi-East, praying that he required the rented premises for his personal bona fide use and for that of his two married sons and one divorced daughter who are presently residing with him and consequently sought the eviction of the appellant from the said premises. It was further asserted by the respondent that he had obtained vacant possession of the first floor of the building from the tenant thereof in Rent Case No,218 of 1991 in January, 1992 and now he required the entire building for his own personal bona fide need and for that of his children. It was further submitted by the respondent that he had not moved into the first floor of the premises as the entire premises required extensive repairs as well as additions and reconstruction before they could be fit for use for himself and for his two married sons and one divorced daughter. It was further alleged by the respondent that the appellant was fully aware of these circumstances and had even agreed to vacate the ground floor after the respondent had obtained vacant possession of the first floor. However, thereafter, the appellant refused to oblige with the result that the respondent's eldest daughter-in-law moved to her parents' home as the present accommodation in which she was living with her husband was not suitable for her and her children. Consequently, in these circumstances, the respondent had no other option but to file the instant Rent Case bearing No,837 of 1994.
4. In the written statement filed by the appellant, the main thrust was that the ground floor premises were not at all required for the personal bona fide need of the respondent as he had failed to move into the first floor even after the same was vacated in 1992. It was further contended by the appellant that in fact the story about the respondent's daughter-in-law moving into her parents' home was concocted as the real reason was that she did so due to matrimonial differences between the couple in consequence of which she had already filed Family Cases before the Family Court seeking maintenance etc. It is also pleaded that the younger son of the respondent Ahmedullah Khan is living with his wife's family due to differences between him and the respondent. Consequently, it was asserted that in these circumstances the respondent did not need the ground floor of the premises for his personal need or for that of his two married sons.
5. The parties led their evidence and after hearing the arguments of the respective learned counsel, the learned Rent Controller came to the conclusion that in fact the ground floor of the premises was required by the respondent for his personal need and that of his family and hence this appeal.
6. I have heard the learned counsel for both the parties and after having perused the record and proceedings of the learned trial Court my conclusions are as follows:-- Basically one question has to be decided in this appeal i,e, whether the respondent needs the demised premises for his personal bona fide requirement and for that of his children. In this regard, learned counsel for the appellant has vehemently argued that the premises occupied by the respondent are enough for his need as it has come through evidence that only one of his married sons is living with him as well as his divorced daughter and her child. Secondly, learned counsel has submitted that the word "children" appearing in section 15(2)(vii) of the Sindh Rented Premises Ordinance does not include grandchildren of the landlord. Learned counsel submits that as per the cross-examination of the respondent before the learned trial Court, he has admitted that his family composes of himself, his divorced daughter Parveen Jehan and his two married sons Zafarullah Khan and Ahmedullah Khan and his daughters-in-law Shahana Zafar and Qamer Ahmed and his five grandchildren, Sanaullah Khan, Uzma Khan, Faiza Zafar, Urooj Zafar and Sehar Zafar. Learned counsel further submits that in his cross-examination the respondent has also admitted that at the relevant time his daughter-in-law Shahana Zafar was living in the house of her parents alongwith her children and that she had filed Family Suit No,947 of 1994 pending in the Court of Vth Civil Judge, Karachi (Central) whereby in the plaint it has been mentioned that the respondent and his other family members had turned her out from the house. It is also submitted that his son Ahmedullah Khan is living with his in-laws since after the time he got married and, therefore, there is no question of his need for the demised premises. Learned counsel further submits that it has also been conclusively established that the respondent has not been using the first floor of the demised premises, which are identical to the ground floor since he obtained the vacant possession thereof in January, 1992. In support of his contention, learned counsel has relied upon Muhammad Zahir Khan v. Ch. Shah Muhammad PLD 1980 Lah. 125, Bismillah Begum v. Fazal Muhammad 1987 CLC 1113, Nisar Hussain Rizvi and 3 others v. Mst. Aiyesha and 5 others 1988 CLC 349, Muhammad Atique v. Muhammad Haneef 1986 SCMR 1236.
7. As regards the interpretation of section 15(2)(vii) of the Ordinance i,e, the requirement of the rented premises in good faith by the landlord, for his occupation and use or for the occupation of his spouse and children and their families, by now it is well-settled that the landlord only has to show that he requires the premises in good faith and not on a mere whim or fancy. As long as this can be established by the landlord there is no need of any further enquiry as to whether the required premises are too large for the landlord's needs. Sufficiency and insufficiency of accommodation desired by the landlord is a matter of individual taste and discretion with which a Court of law is hardly able to interfere. What has to be seen is whether the landlord has approached the Court with clean hands and with bona fide intent. In this regard, reference can be made to F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178, Saira Bai v. Hifz-ur-Rehman 1989 SCMR 1366 and S.M. Nooruddin v.
8. Saga Printers 1998 SCMR 2119.
9. After having gone through the evidence brought on the record, it is my considered opinion that the respondent has been able to establish that he does require the premises in good faith for his own accommodation as well as for the accommodation of his two married sons, one divorced daughter and their families. In this connection it would be seen that the respondent has steadfastly adhered to his version to the effect that his married son Ahmedullah and his family is living with him, which could not be shaken in cross-examination. As regards learned counsel for the appellant's other contention that the respondent's daughter-in-law Shahana Zafar is not living with them any more due to matrimonial differences as a result of which there were litigation between the parties, suffice it to say that the personal bona fide need of a landlord and of his children or their spouses cannot be faulted on the vagaries of litigation. It may be that Shahana Zafar the wife of the respondent's son Ahmedullah has or had some matrimonial differences due to which she may have left the house of her husband. However, this does not mean that she cannot come back and rejoin him. Regarding learned counsel's submission that the word child appearing in section 15(2)(vii) of the Ordinance does not include the grandchildren of the landlord, in my view, if a landlord has married children living with him, it would be unjust to hold that the needs of his grandchildren can be disregarded. It may be that the Legislature in their wisdom have only mentioned the word children in relation to the landlord in section 15(2)(vii). However, this does not exclude his grandchildren who are living with him. Such interpretation of the said section would not only be illogical but would in my view be quite burdensome and harsh as far as the bona fide need of a landlord and his children living with him are concerned. Reference can be made to Tiger Wire Products Ltd. v. S. Abrar Hussain 1983 SCMR 402, Wali Muhammad v. Zainab Khatoon 1983 CLC 321 and Muhammad Aslam v. Sultan Shah PLD 1988 Kar. 362.
10. As regards the learned counsel's last submission that since identical premises on the first floor were lying vacant since 1992, the respondent could safely occupy the same and, thus, his need would be satisfied, in my opinion, this too would be fettering the landlord's right to obtain such living space as desired provided the same was for his personal occupation and for that of his spouse and children and their families. In this regard reference can be made to Mrs. J.C. Rehman v.
11. Mrs. Sultan Ahmed 1997 CLC 2271 where in identical circumstances a Single Judge of this Court held that it was up to the landlord to decide and choose any one of the premises belonging to him for his use and occupation and consequently the landlord's demands for the ground floor could not be frustrated on the basis that the upper portion was lying vacant. In any event, in my view, it has been sufficiently established by the respondent that it would be both feasible and economical to have both the ground floor and the first floor vacated in order for necessary renovations and alterations before the entire building could be occupied by him.
12. In the circumstances, in my view, the learned Rent Controller was correct in ordering the appellant to vacate the rented premises and, consequently, this appeal is hereby dismissed. The appellant is directed to hand over vacant possession of the premises to the respondent within three months from the date of this order.
13. First Rent Appeal No,400 of 1998 impugns the order, dated 12-5-1998 passed by the learned IInd Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case No,313 of 1995 whereby the appellant was directed to vacate the rented premises on the ground of default. As I have dismissed First Rent Appeal No,399 of 1998 on the ground that the respondent therein had established his personal bona fide need for the rented premises and as the parties in both appeals are the same and so also the rented premises, in my opinion they is no requirement to decide this First Rent Appeal i,e, 400 of 1998, which is hereby dismissed as having become infructuous.