1. ' By a short order dated 27-1-1999, this rent appeal was allowed and the respondent/tenant was ordered to hand over the vacant possession of the disputed premises to the appellants/landlords, within a period of 60 days. These are the detailed reasons for the above said short order.
2. ' The appellants are three brothers, they are the landlords while respondent is the tenant in respect of residential rooms on the ground-floor of the premises on City Survey Nos.A/1765, 1766, 1768 and 1769, located in Silawat Pura, Hyderabad. Respondent was paying monthly rent of Rs,7 to the 'previous owners namely Mst.Mariam and Mst. Shreen while the appellants were occupying the first floor of the premises, as also were tenants of the said two ladies.
3. ' The appellants become the owners of the entire premises when they purchased the same by registered-deed with effect from 28th February, 1977.
4. A notice under section 13-A of Sindh Urban Rent Restriction Ordinance (the law applicable at that time) was served on the respondent/tenant by the appellants on 16-3-1978. The appellants in their notice to the tenant had claimed that the residential unit on the ground-floor of the premises which was in possession of the tenant be vacated and its possession be handed over to the appellants as:
(1) Appellants had purchased the said premises on 28-2-1977 by a registered-deed and the tenant having been contacted to pay rent to the new owners had failed to pay the rent to the owners from 1-3-1977.
(ii) The appellants needed the premises for their personal bona fide use as appellants Anwar Ali, Nazir Ali were shortly going to get married and that the accommodation in their possession at the time was not sufficient to accommodate the appellants if they married.
(iii) Intimation under section 13-A of the Sindh Urban Rent Restriction Ordinance, of the .Transfer of the property of the appellant was being notified to the tenant.
5. ' The tenant hating received the above notice replied through his counsel in which it was contended that the respondent/tenant had started depositing the monthly rent in a miscellaneous rent case, on having learnt about the transfer of the ownership of the property in favour of the appellants. As regarded the ground of personal bona fide need of the appellants, the tenant had not specifically denied the same in the reply to the notice.
6. ' The appellants then filed rent application in the Court of Rent Controller, Hyderabad, which was contested by the respondent/tenant.
7. ' The grounds taken by the appellants in the application for the ejectment of the tenant were two- fold, firstly, it was pleased that the tenant had committed default in payment of rent as he never offered any rent to the appellants and secondly, that the appellants needed the premises for the personal use and occupation of appellants 2 and 3 Anwar Ali and Nizar Ali, who were unmarried and they required the premises as they were shortly going to get married. The opponent in his written statement denied the commission of the default as he contended that he had been depositing the monthly rent in a miscellaneous rent case before the Rent Controller and he in general terms denied the paragraph in which the appellants had contended that the premises were required for the personal use of appellants Nos.2 and 3. In fact merely one line in the written statement was the plea of the respondent against the contention that the appellants required the premises for the personal use of appellants Nos.2 and 3, who were unmarried and that they required to occupy the same on account of their proposed marriage. The answer of this plea in the written statement in paragraph 6 is re-produced as under:- "6. That the contents 'of para. 6 are denied."
8. ' From the side of The appellants all the three appellants filed their affidavit-in evidence and all of them tendered themselves for cross-examination. The notice dated 16-3-1978 was produced in evidence of appellant Mushtaq Ali as Exh.13-A, the reply of this notice was also produced as Exh.13- B, and appellant Mushtaq Ali stated expressly that the appellants 2 and 3 were unmarried and that they required the residential accommodation in possession of the tenant for their personal use as the previous accommodation was /insufficient for them. Appellant Anwar Ali in his affidavit contended expressly that he had to marry and the 'marriage was withheld only for want of accommodation.
9. ' From the side of the respondent, Inayat Ali filed his own affidavit-in-evidence, in which he stated that on coming to know from some persons that appellant No,1, had become the new owner of the premises he sent the rent by money order to appellant No,1, Mushtaq Ali. He stated expressly in the affidavit that he did not know about any right or interest of the other appellants. He had denied having received the notice under section 13-A, in his affidavit. But he did not expressly explain as to why reply to this notice on his behalf was sent by a counsel. In respect of default, however, he contended that he had been depositing the rent in miscellaneous rent case. He also stated that the appellants did not require the disputed premises for their personal use as they had sufficient accommodation for their families in the first floor residence of the same premises. He contended that the first floor's accommodation in possession of the appellants consisted of 6 rooms, courtyards with sets of kitchen, bath rooms and toilets etc. He also pleaded that appellants had another house located behind eye-hospital Hyderabad, while for himself he contended that he had no other accommodation in his possession.
10. ' In cross-examination he admitted that the premises in his possession was "Katcha construction" and that the appellants were three brothers all residing together on the first floor of the said building. He admitted in cross-examination conducted in the year 1981 that appellant Nizar Ali had married 2-3 years back. (Notice was issued in the year 1978 by the appellants mentioning that Anwar Ali and Nizar Ali were going to get married shortly). He stated in his cross-examination that there were in all six rooms on the first floor in occupation of the appellants and that appellant Mushtaq Ali had 5/6 children, mother of the appellants was so residing with them. He admitted that appellant Nizar Ali had two children. He stated further that all the appellants had separate cooking arrangements.
11. ' During the proceedings before the Rent Controller, the premises were got inspected through the Nazir of the Court, who was appointed as Commissioner for that purpose. The report of the Nazir is a part of the record. It described premises in dispute as under:-- FIRST FLOOR
(1) Two "rooms i,e, room to room in possession of applicant No,1 Mushtaque Ali.
(2) Two rooms i,e, room to room in possession of applicant No,2, Anwar Ali.
(3) One room in possession of applicant No,3, Nizar Ali. One common courtyard in joint possession of the above persons. They are also in joint possession of one bath room, one kitchen, one latrine.
GROUND FLOOR
(1) Three rooms i,e, room to room in possession of opponent Inayat Ali.
12. ' The learned Rent Controller framed the following points for determination:--
(1) Whether the opponent is defaulter in payment of rent to the applicants?
(2) Whether the premises in question, is required by the applicants for their personal bona fide use?
(3) What should the order be?
13. ' The learned Rent Controller, came to the conclusion that the opponent/tenant had neither committed any default nor the applicants had established their case for personal bona fide use.
14. Consequently, rent application was dismissed on 29-3-1986. The said order was challenged by this appeal filed on 23-4-1986.
15. ' The contention of the learned counsel for the appellants was that the tenant had committed default as he never offered in rent to the appellants even after service of the notice under section 13-A of Sindh Urban Rent. Restriction Ordinance and the deposit of the rent in miscellaneous rent case was in name of only one appellant which was not the compliance of tendering the rent to the appellants. Secondly he forcefully argued that the point of personal bona fide use of the appellant was genuine and legally proved us all the three appellants were examined on oath and they were subjected to cross-examination and their personal need stood proved on record. The tenant/respondent had not been able to find fault with the contention of the appellants and had no reasonable explanation to offer so that the words of the appellants may not be believed. The circumstances, which led me to take exception with the finding of the Rent Controller on the point of personal bona fide need of the appellants to occupy the premises in dispute were that the Commissioner, to inspect the premises in dispute was appointed with the consent of the parties in the lower Court. When the report of the Commissioner reached the Court, the respondent/tenant did not object to the same, on the contrary the learned counsel for the tenant gave in writing that he had no objections to file to the report of the Commissioner. On the other has counsel for the appellant by way of explanation submitted his objections to the Commissioner's report by stating that the report of the Commissioner suggested that the premises described as room to room meant thereby it was one room and they cannot be called six rooms in all. In fact the premises on the first floor, according to the Commissioners' report, comprise of three rooms only in which three married appellants were living with their mother and the -.Amber of children of the appellants wits also not less than eight. They had only one bathroom, one kitchen and one latrine in their premises and that they had purchased the premises in question from the previous owner it must have been in their mind to get the ground floor room vacated. The accommodation in possession of the appellant appears definitely to be inadequate for such a large family and the respondent has failed to prove that the contention of the appellants was incorrect. Although the respondent/tenant had contended that appellants owned another house but no proof of existence of such property of the appellants was produced before the Rent Controller.
16. No doubt, the rent laws provide protection to the tenants so that they may not be ejected Ly the landlords to put them in inconvenience and hardship, but at the same time the purpose of the rent laws is not that genuine landlords should themselves feel the same hardship and inconvenience at the hands of the tenants who occupy their premises which in fact the landlords want to use bona fidely for themselves and for their families. The learned Rent Controller has failed to consider the above aspect of the case apart from the fact that he has not given due weight to the evidence of the appellants/landlords on the point of personal need of the landlords. I am supported by the decision iii the case of M/s. F,K. Irani & Co. v. Begum Feroze, 1996 SCM R 1178, wherein Justice Salem Akhtar, the erstwhile Judge of the Supreme Court, had relied on the case of Tauheed Khanam v.
17. Muhammad Shamshad, 1980 SCM R 593, and had observed that on the issue of personal need, statement on oath, if consistent with contents of the application and not shaken in cross- examination, and not disproved in rebuttal, is sufficient to prove that it is bona fide. The above principle is applied in the present case and after reading entire evidence I have no hesitation in holding that the contents of the application and the evidence of the applicants is consistent, the evidence of the applicants have not been shaken in cross-examination, it has not been disproved and rebutted by the tenant. Therefore, I hold that appellants have successfully proved their personal bona fide need to occupy the premises in dispute. The proof on the question of personal bona fide need will always depend on case to case. The appellants who are three brothers living in Silawat Para, Hyderabad, jointly with their families on the first floor of small premises have been trying to get possession of the ground floor room of the premises since 1978, cannot be said to be doing so merely to put the tenant in difficulty with whom they have no other disagreement except that they have been trying to get possession of the room from the tenant which they wanted for themselves. Under all these circumstances, I and that the appellants succeed on their ground of personal bona fide need to occupy the premises in dispute and therefore. The findings of the Rent Controller, to that extent are set aside and this appeal is allowed. The respondent/tenant is directed to vacate the premises in dispute and hand over its possession to the appellants within a period of 60 (sixty) days.