1984 PLP 621 (MLD)

The learned counsel for the respondent has contended that the appellant has not proved bona fide requirement of the premises in question. During the course of hearing of this appeal the respondent has also filed an application stating therein that the appellant has purchased a house in Defence Society and his family resides in the said home. The sole question for determination in the case is whether the appellant has satisfied the legal requirement that the premises in question is needed by him in good faith. In the present case the appellant had stated in his application for ejectment that he requires the premises in good' faith for his own occupation and for his wife and children. He appeared himself in the witness box and stated on oath that the premises is required by him for his own residence and that of his family. On the other hand, the only evidence adduced in rebuttal by the respondent was that the appellant had never asked him to vacate the said house on the ground that the same is required by the appellant for occupation of his family. The appellant has not given his address either in the application or otherwise with ulterior motive so that he may not be able to ascertain correct facts about his family. The respondent to a suggestion in cross-examination stated as under:

"It is incorrect to suggest that applicant had asked me to vacate the premises for personal use. It is incorrect to suggest again says I cannot say if the applicant requires the premises for his personal bona fide occupation." I think the evidence of the appellant was not properly appreciated by the learned Rent Controller. Lastly after having assessed the entire case I have come to the conclusion that the bona fide of the landlord /appellant cannot be doubted as he has" the right to get ejectment of the premises in question. The' learned Rent Controller has misread the evidence and drawn inferences which are incorrect. The learned counsel for the respondent has argued that in order to prove that he was residing with his father-in-law, the appellant should have examined his father-in-law or some other person. I am unable to agree with him. The appellant offered himself for cross -examination but he could not be shaken in cross-examination. In these circumstances, his failure to examine his father-in-law did not militate his bona fide. The learned Rent Controller in the impugned order had held that the appellant did not produce his wife's passport, rent-deed or rent receipts. The arguments addressed on behalf of the appellant in this respect was that the learned Rent Controller was influenced by an irrelevant consideration which vitiated his order I think that the learned Rent Controller was influenced much by this factor to the exclusion of the weight of other evidence which established that the premises was required by the appellant bona fide for self-use and for use of his wife and children. In the case of Badruddin Hassan Farooqui v. Manghi Industrial Home P L D 1976 Kar. 620 at p. 622 M.M.A. Rashid (as he then was) held; "This provision does not require that the landlord should not 'have' a house in the same urban area. On the other hand the condition is that the landlord should not be occupying another residential building in the same urban area, where the disputed building is situated, and second condition is that of the suitability of such building. But in any case it is not necessary for the landlord, when he takes the plea of personal bona fide requirement, that he should specifically urge, in the rent application, all the ingredients which constitute his personal bona fide requirement. Those ingredients are a matter of proof. If the landlord has proved the personal bona fide requirement either of himself or of his children the onus is discharged. Any absence, in the pleadings of such averment, does not reflect adversely on the bona fide, if otherwise proved, of the landlord's personal requirement. The first appellate authority, therefore, fell in error when it observed that specific fact, in the rent application that he did not have any other house in the same urban area."- In the case of Ghulam Nabi v. Rao Muhammad Usman Ali Khan 1980 SCMR 751 at p.

752. The Hon'ble Supreme Court has held as follows: "It was urged before us that the respondent had not discharged the onus which was on him to establish that the house was not sufficient for his needs. This contention has no force as the Courts below have on an appraisal of his evidence and that of his witnesses held that he had discharged the onus in the context of the dictum of this Court in A.R. Khan v. Muhammad Ishaque 1972 S C M R 437, which is as under:

" in the last analysis the question becomes one of fact whether a landlord does or does not require a certain premises for his bona fide requirement, as contemplated by the Ordinance, although the intention behind the move is purely subjective, which can only be inferred from the circumstances, which must be alleged and proved by the landlord by reproducing evidence in mani festation of that intention." We have no reason to interfere with that conclusion which is eminently a question of fact," This evidence produced by the landlord appears to be more than sufficient to prove the assertion that the house in question is required for personal occupation. It is not open to the respondent to state that the appellant is residing in his own house. It is the choice of the landlord or landlady and neither the tenant nor for that matter even the Rent Controller can offer any gratuitous advice with regard to the suitability of accommodation for the purpose for which it is being acquired. Their Lordships of the Supreme Court were pleased to observe in the case of Sabumal v. Kikaram alias Remandas 1973 S C M R 185 that where a landlord was living in a small rented accommodation reiterated in the premises of a temple, and bona fide required the house in dispute for his personal residence; "The choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion and the law does not give either to the tenant of the Rent Controller the power to determine where the landlord should personally reside." The principles laid down by the Hon'ble Supreme Court of Pakistan hand the earstwhile High Court of Sind are applicable to the facts of this case. The learned counsel for the appellant has contended that the respondent had committed default for the month of July 1976 to December, 1976. On the other hand the learned counsel for the respondent has contended that the respondent had not committed default in payment of vent. He has further contended that Mushtaq Ahmed Attorney of the appellant had accepted rent up to September, 1976. Later on the rent of October, 1976 was tendered through Money Order which was also refused by him. Thereafter the rent was being deposited in Court. The learned Rent Controller held that the respondent in his written statement stated that he paid rent upto September, 1976 to Mushtaq Ahmed, the Attorney of the appellant and, therefore, the Attorney did not collect the rent for the month of October, 1976 onward. This fact has not been denied by the appellant. The burden was on the appellant which he did not collect the rent then he had sent through money order which was refused as such he started depositing the rent in the Court. The question for consideration is whether the respondent committed default indeed, the question of default has to be viewed in the light of section 15 of the Ordinance according to which tenant commits default if he had not paid or tendered rent due by him in respect of the rented premises 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 sixty days from the period from which rent is payable. It is admitted position in this case, that the respondent had paid rent up to September, 1976 to Mushtaq Ahmed. He had sent rent through money order which was refused by him. Thereafter, the respondent was depositing with the Nazir of Rent Controller after seeking permission in this respect. The assertion of the respondent that the attorney of the appellant avoided to receive rent was also not without basis as 'the learned Rent Controller on appreciation of the material found, as a fact, that the attorney had avoided to receive rent from the respondent. In this view of the matter, learned Rent Controller was perfectly justified and right in holding that the respondent was not a defaulter and refused ejectment of the respondent. I see no substance in this contention. The apprehension expressed by the learned counsel for the respondent that the appellant may not occupy the disputed premises after ejecting the respondent from the premises is, therefore, ill-founded. The law provides sufficient safeguard for a tenant who is ejected from the premises on the ground of personal bona fide requirement of landlord, if the landlord and his wife and children do not occupy the premises themselves after getting it vacated from the tenant. I accordingly accept this appeal, reverse the finding of the Rent Controller, on the ground of personal bona fide requirement and grant the ejectment application accordingly. The respondent is directed three months time to vacate the premises subject to payment of monthly rent regularly during this period. In the circumstances of the case the parties will bear their own costs. M. I. Appeal accepted