1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is directed against the order dated 25-8-1998, by the learned IVth Rent Controller, Karachi East, whereby the ejectment application filed by the appellant in the -Rent Case No,354 of 1996 was dismissed.
2. ' The relevant facts are that the appellant is a landlady/owner of the tenement i,e, Annexy No,1, Dilkusha Apartments, K.D.A. Scheme No,1, Karachi, while the respondent is tenant therein from 1-2- 1987. The appellant is residing in Bungalow No,13, Khayaban-e-Bahria, Phase V, D.H.A., Karachi constructed on a plot admeasuring 1000 sq. Yds. Consisting of 5 Bed Rooms, Drawing, Dining, Kitchen, Lounge and Bath Rooms. This bungalow is owned by the husband of appellant. At the time of filing of ejectment application the applicant's husband and their one unmarried daughter was living with them. Rest of their family members have settled outside Pakistan. During the pendency of these proceedings, unmarried daughter has been married with the result that the appellant and her husband are living in the huge bungalow constructed on 1000 sq. Yds.
3. ' The appellant whose family has shrunk to two persons only, felt difficulty in maintaining a big house and paying taxes and other charges, she therefore, requested the opponent/respondent to vacate the tenement in his possession which is small one. The applicant stated in the ejectment application that the tenement in question which is built on 81 sq. Yds. And consists of drawing/dining and the kitchen on the ground-floor and 2 bed rooms with attached bath-room and T.V. Lounge on the first-floor is required in good faith for their personal use as it is suitable for the applicant's residence, looking to the size of family. The respondent, however, refused to vacate the premises.
4. ' The opponent/respondent filed written statement contending that the ejectment application was mala fide and did not fall within the ambit of section 15 of the Sindh Rented Premises Ordinance, as the applicant had not made out any case for personal bona fide requirement of the premises. He alleged that dispute arose between the appellant and the respondent on the sale price of premises as the appellant wanted to sell the property but demanded very excessive and exorbitant price. In support of the contention that the appellant was demanding very high price for the premises under consideration, the respondent produced valuation report dated 31-3-1996, which was prepared by an Architect.
5. ' On the pleadings of the parties, the learned .Rent Controller framed the following points:-
(1) Whether the applicant requires tenement in question for her own use and occupation in good faith?
(2) What should the order be?
6. ' On behalf of applicant her husband and attorney Qazi Muzaffarul Haque was examined and respondents examined himself. The attorney/ husband of the appellant admitted in cross- examination that the premises in question was got valued through an Architect but denied that the appellant wanted to sell out the premises. He stated that the valuation was got made for assessing the value of the premises. He has further stated that he has two daughters and two sons. One daughter is living in Canada permanently and two sons are living in U.S.A. Permanently. Whenever, they visit Pakistan they stay with him. He denied the suggestion that the applicant wanted to let out the premises on higher rent.
7. ' On the other hand, the opponent/respondent admitted that the premises was evaluated prior to 24-3-1996. He further stated that he is not willing and prepared to vacate the premises even if the landlady gives in writing that she will not dispose of the premises.
8. ' The learned Rent Controller, did not accept the contention of appellant/applicant that the premises was required for bona fide personal use, for the reason that her attorney admitted that the premises was got evaluated from an Architect. He held that the evil action of the premises was with the purpose of sale of the premises. The learned Rent Controller further held that the appellant/applicant was residing in her husband's house and observed that, the accommodation presently occupied by the applicant is more than sufficient as admitted by her in the pleadings.
9. The learned Rent Controller observed as follows:-- "From the contention of the applicant and her evidence there appears no transparent need for the tenement as the applicant is residing with her husband in a better accommodation than she is asking for the tenement for personal need in good faith. The applicant may have the good faith for the tenement but under the circumstances she has not proved personal need, which in this present case is not established on record.. The contention of learned counsel for the opponent in his written arguments seems to be plausible that the ground of personal need is not proved within the requirement of law. I am in respectful agreement with the case-laws relied upon by the learned counsel for the opponent in support of his written arguments. In view of the aforesaid circumstances the issue is answered in negative."
10. ' Consequent to above findings, the rent application was dismissed.
11. ' I have heard Mr. Zamiruddin Ahmed, learned counsel for the appellant and the respondent in person.
12. ' The facts in the case are very simple and the only point for consideration is, whether in the fa:ts and circumstances of this case the requirement of the appellant/landlady can be held to be in good faith for her own occupation and the occupation of her spouse.
13. ' Learned counsel for the appellant has submitted that the learned Rent Controller has given contradictory findings. He has referred to the finding of learned Rent Controller that, "applicant may have the good faith for the tenement but under the circumstances she has not proved personal need which in this present case is not established on record". He has submitted that the finding is self-contradictory. On one hand, the learned Rent Controller has observed that the applicant may have the good faith for the tenement but has made a conflicting observation to the effect that she has not proved personal need. He has contended that once the good faith is proved it does not lie with the learned Rent Controller to say that the personal need was not established. He has maintained that according to section 15(2)(vii), the Rent Controller shall make an order directing the tenant to put the landlord in possession of the premises if he is satisfied with the landlord's requirement for his own occupation or for the occupation of any of his children. Thus, under the law a landlord is required to establish good faith and once the Rent Controller is satisfied that the applicant has the good faith, he has no option but to give direction to the tenant to put the landlord in possession of the premises.
14. ' He has vehemently argued that the requirement of landlord is to be considered in the facts and circumstances of each case and the good faith is also to be determined in the light of facts and circumstances of each case. He has contended that in some cases the premises in possession of landlord may become insufficient because bf growth in the family with the result that the landlord may be requiring in good faith additional premises or bigger premises in order to cater requirements of his family which has grown bigger. Conversely if the family has shrunk as in the present case, then the landlord may require in good faith smaller premises which is easily maintainable by a small family. He has contended that the fact that the family of appellant has shrunk and at the time of filing application comprised three persons only and thereafter consists of two persons is not denied even by the respondent and, therefore, in the wake of admitted facts and circumstances the bona fide requirement of the appellant in good faith is unassailable. He has lastly contended that, it is for the landlord to decide as to what are his/her requirements and in order to prove his/her bona fide, is required to substantiate the contention with the objective conditions. The requirements of landlord are not to be determined by the tenant and the tenant cannot compel the landlord to continue to live in bigger premises which is not manageable by the landlord and to bear unnecessary liabilities in spite of having the right to occupy a smaller premises which is easily manageable with lesser liabilities.
15. ' On the other hand, the respondent has vehemently 'contended that the appellant does not require the premises in his possession in good faith. He has submitted that the appellant wanted to dispose of the premises and he was prepared to purchase the same but the demand was very excessive therefore, he was not able to purchase the same. He has maintained that the appellant in fact intends to sell the premises for higher price. However, he has stated that even if the appellant gives undertaking that she will not sell the property to anybody else, he is not prepared to vacate the same. He has argued that the appellant is living in a much bigger house owned by her husband and the expenses for the maintenance of the said house and the taxes thereon are being borne by her husband therefore, it does not .Appeal to common sense that the appellant and her husband would like to live in a very small house which is of the size of the garage of the bungalow presently occupied by the appellant. He has reiterated that the market value of the premises in dispute was got assessed through architect because negotiations for the sales of the same were going on between him and the appellant. He has fully supported the impugned order of the learned Rent controller. However, he has as not denied that at present the appellant and her husband only are living in a big bungalow spread over 1000 sq. Yards; comprising 5 bed rooms, drawing room, dining room, kitchen, lounge and bath rooms.
16. ' I have carefully considered the contentions raised by the learned counsel for the appellant and the respondent and have gone through the material available on record. I am of the view, that the expression "good faith" cannot be given any rigid definition. It has to be decided keeping in view the facts and circumstances of the each case. In order to establish the good, faith, landlord is required to prove that he has a genuine need of premises, which should certainly be more than a mere wish or desire.
17. ' The good faith and the reasonableness are the matters which are to be inferred from the circumstances of each case. The good faith, reasonableness and bona fide requirement have to be judged from the objective view-point and not on mere assertion or denial of the parties. By now, there is plethora of rulings on the point that if the landlord is living in premises which have become insufficient because of the growth in the family and day to day requirements of the members of the family, B the landlord is entitled to have the possession of a bigger house occupied by the tenant. 'Thus, the moot point for consideration is whether in a given circumstances, a premises occupied by the landlord is suitable to his/her requirements or not and if a premises in possession of the landlord is not suitable in the peculiar facts and circumstances at the time of seeking ejectment of the tenant then, the requirement of the landlord would be deemed to be bona fide, genuine, reasonable and in good faith entitling the landlord to get the possession of the premises in possession of the tenant. However, if premises in possession of the landlord are found suitable in given circumstances, the requirement of the landlord would not be treated as bona fide and in good faith. It has been held in the case of Mrs. Mumtaz Sultana Begum v. Mrs. Ishrat Jehan 1989 CLC 639 (Karachi), that suitability and sufficiency of accommodation for the landlord/landlady cannot be determined by the tenant. Similar view has been taken in the case of Rajab Ali v. Darius B.
18. Kandawalla PLD 1984 Kar. 14, wherein it has been held that, "It is not for her tenants to determine suitability or sufficiency of accommodation for her. Moreover, the need for accommodation varies from one landlord to another depending upon his Or her social status. In one case certain accommodation may be suitable for the landlord's needs but the same accommodation in the other case may be considered as unnecessary extravagance".
19. ' In the above judgment, it has been held further as follows:-- "On the above reasoning, I am also inclined to hold the view that even if the respondent has expressed her desire to sell the disputed house, that should not be permitted to come in her way in getting her tenant's ejected if she has succeeded otherwise in establishing her case on the ground of personal requirement."
20. ' In the case of Abdul Rehman v. Mst. Ilyasee Begum 1989 CLC 536 (Karachi), guidelines have been outlined for determining the requirement of landlord in good faith. It has been held as follows:-- "The word 'requires' possesses an objective element and is to be construed with reference to the requirement of the landlady. In determining the reasonableness of the requirement, the Court may take into consideration all the surrounding circumstances and facts, e.g. The status of the landlord, the state of his health, the nature of his work or avocation, social habits, the style of living, the size of his family, amenities and space requirement, social customs, conventions, habits, usages and practice of the society."
21. ' Again in the case of Karimuddin Shad v. Mst Fatima Mian Ahmed, 1989 CLC 545 (Karachi) it has been held that, "ordinarily the Rent Controller and the High Court should accept the requirement of landlord/landlady, if reasonably proved on record, without imputing bad faith, unless strong circumstances to the contrary exit". It has been further held that, "it is the prerogative of the landlady to select any house suitable for her requirement. The law does not give the tenant the power to determine where the landlady should presently reside".
22. ' In the case of Syed Hamid Hussain v. Mst. Humaira Ghias 1986 CLC 1973 (Karachi) it has been held as follows:-- "It is admitted that the respondent/landlady is presently living with her husband in his house. The appellant has failed to show that excepting the disputed house the respondent owns any other house anywhere. Since she expressed her desire that she needs the disputed house for her own use particularly when she does not own any other house, her demand for vacation of the disputed house cannot be frustrated on the ground that she is putting up with her husband with whom she is in ordinary course, expected to reside. In a case. Like this, the view taken by the Supreme Court is that despite the fact that the wife has sufficient accommodation in her husband's house, she is free to live in her own house and can get her house vacated for her own use if the same is in occupation of the tenant."
23. ' Reliance was placed in this behalf, on the dictum laid down by the Honourable Supreme Court in the case of Muhammad Abdul Rauf v. Mst. Mahmooda Begum 1985 SCM R 1960, wherein it was held that, it is well-recognized that under the law of the land a wife can independently hold property and there is no embargo in law against her assertion of the right to live in her own house. The embargo contained in subsection (2) of section 14 of the Sindh Rented Premises Ordinance, which disentitles a landlord to avail the benefit of subsection (1) of the said section stipulates that the landlord must be in occupation of the building owned by him in any locality. It was not denied by the learned counsel that the house in which the respondent is at present living belonged to her husband and she did not own the same. The question of better accommodation in such a house was, therefore, wholly irrelevant and did not in fact react upon her right to occupy her own house".
24. ' In the case of Anwar Ahmed v. Ghulam Qadir 1988 CLC 2338 (Karachi) a contention was raised that the landlord was living with his two sons in a very spacious house and therefore, he was disentitled from seeking ejectment on the ground of bona fide personal requirement. The contention was repelled.
25. ' In the light of the precedents referred to above, it is held that the personal requirement of landlord in good faith is relative in terms and has I D to be decided in the context of facts and circumstances of each case. As already observed earlier, by now, it stands established that if the family of landlord has expanded and grown or the landlord has genuine desire to live in better circumstances, it shall be treated as bona fide personal-.. Requirement in good faith and the landlord shall be entitled to get the tenant ejected. Conversely there can be no reason to discard a plea of landlord that with the shrinking of family, a more bigger and spacious house has become unsuitable and the bigger size of the house has become an unnecessary liability, therefore, a family comprising two old persons requires a similar piemises which is manageable by them. In the present case, the facts are admitted that the appellant's family in Pakistan consists of two old persons namely appellant and her husband and the house in which they are living is constructed on an area of 1000 sq. Yds. Itcannot be denied that, it is very difficult for the two old persons to properly manage such a big house comprising 5 bed rooms, drawing rooms, dining rooms, lounge etc. It must be having a lawn/garden as well and in order to maintain such a big house several servants are required to be employed and other allied expenses are also to be borne. In these circumstances the contention of the appellant that a single. Unit house constructed on 81 sq. Yds.
26. Having 2 bed-rooms on first floor and drawing room/dining room and kitchen on the ground-floor is suitable for their requirement cannot be held to be in bad faith. I fully subscribe to the view held in the judgments referred to above, that the personal bona fide requirement of a landlord is to be determined by him and it is not for the tenant to determine as to what is suitable and reasonable for the landlord. It is further held that merely because the premises in dispute was got evaluated by an Architect would not disentitle the landlady from obtaining ejectment of the tenant.
27. ' In the facts and circumstances of the case, it appears to be a case of very genuine personal bona fide requirement of the, appellant in good faith. The learned Rent Controller has misdirected in holding that there appears Ito transparent need for the tenement as the appellant is residing with her husband in a better accommodation than she is asking for .The I tenement for personal need in god faith. I am, also persuaded to agree with the contention of Mr. Zamiruddin Ahmed, learned counsel for the appellant that after holding that the appellant may have the good faith, the learned Rent Controller was not justified in holding that the appellant has not proved her personal need. ##TE# ' For the foregoing reasons, the impugned finding of the learned Rent Controller is not sustainable which is hereby set aside. The appeal is J allowed and the respondent is directed to vacate the premises in his possession within two months from today.