1984 PLP 432 (MLD)

(2) Whether the opponent is nuisance with locality? (3) Whether the Opponent has damaged the property? (4) What should the order be ?

3. At the trial the respondent /landlord examined himself in support of the application while the appellant /tenant also examined only himself. The parties filed their affidavits in evidence on which they were cross examined. After the evidence was recorded and statement in writing was given on 19-9-1981 by the advocate for the respondent /landlord that he pressed only the Issue No. l and thus restricted his claim for ejectment of the appellant from the premises in dispute on the ground of bona fide personal use and occupation. The other Issues were given up.

4. The learned Rent Controller after hearing the arguments of the learned advocates, by the impugned order passed on 23rd September, 1981 came to the conclusion that the family of the respondent /landlord consists of two wives and 6 children. Amongst the children, (i) Azra Fatima was then aged 19 years and was studying in the first year in the Government Islamia College, (ii) Hajra Fatima, aged about 17 years and (iii) Zohra Fatima, aged about 16 years were students of XI Classes in Khatoon-e-Pakistan College, Karachi and (iv) his son Muhammad Habibuddin then aged about 13 years was also studying in a school. Besides them he has daughter, (v) Surayya Fatima aged about 12 years and (vi) sixth child a daughter was then aged about 6 months. The learned Rent Controller also held that the landlord's second wife Umtul Khadija is suffering from paralysis and has difficulty in climbing the staircase for going to the first floor where the family resides and that the accommodation in possession of the respondent landlord, consisted of only two rooms and a Verandah, which was insufficient for their needs. For the reasons recorded in the judgment, the learned Rent Controller held that the evidence led on behalf of the appellant/ tenant did not rebut the case set up by the landlord and accordingly it was held that the premises are required by the landlord/ respondent in good faith for his own use and use of his family. ' The application for ejectment was granted and the appellant/tenant was directed to hand over vacant possession of the premises in question to the landlord within a period of two months.

5. Against the above order the tenant has filed this appeal under section 21 of the Sind Rented Premises Ordinance of 1979.

6. The learned advocate for the appellant /tenant in support of the appeal submitted that the premises in dispute in possession of the tenant /appellant is not required by the respondent /landlord, bona fide. The learned counsel raised the following grounds on which the order of the Rent Controller was challenged:

"(i) That since Umtul Khadija (the second wife of the respondent/ landlord) suffered from paralysis even at the time when the landlord married her, the said illness could not be made a ground for seeking eviction of the appellant from the premises in dispute. The learned counsel submitted that having married the said lady knowingly that she was a crippled woman, the tenant could not be evicted or 'penalised' for the sake of accommodating her on account of her sickness. (ii) That the accommodation on the first floor consisted of 5 rooms and not merely two rooms and a Verandah as alleged by the landlord. It was contended that the landlord was using the first floor for residential as well as commercial purposes and that the accommodation on the first floor was sufficient for the landlord and his family. (iii) That the application for ejectment was filed not only on the ground of requirements of the premises for personal use and occupation but also on the ground that the tenant was a nuisance in the locality and also on the ground that he caused damage to the property. After the evidence had been recorded the latter pleas were dropped which goes to chow the mala fide of the landlord. It was also contended that a false allegation was made in the affidavit, filed by the respondent /landlord that the appellant /tenant was asking for Rs.8,060 to Its.10,000 as consideration for vacating the premises in dispute. According to learned counsel this plea was false and shows mala fide of the landlord.

7. I have heard the learned advocates for the parties with whose assistance I have gone through the record of the case. I proceed to dispose of the contentions raised as above. (i) Regarding the first contention raised by the learned counsel I hardly find any substance in the same. The learned counsel was unable to point out any rule of law, under which the landlord could be debarred from seeking eviction of the tenant on the plea that the lady whom he married suffered from some illness even since before the said marriage. It was argued that the landlord ought to have been careful before contracting the marriage and should have married a lady with a sound health and that having not taken such care, he cannot seek eviction of the tenant from the ground floor premises on the ground of illness of his wife. As observed above the learned counsel was unable to substantiate the contention thus raised by any, rule of law. What is required under the law is that the landlord satisfies the Court that he reasonably and bona fide requires the demised premises for his use and occupation and for the use of members of his family. It is significant to note here that the statement made on oath by the respondent /landlord that his second wife Umtul Khadija is suffering from paralysis and faces great difficulty in climbing up stairs (which statement was supported by medical certificate) was not even challenged by the appellant in cross-examination. Even at the time of arguments before this Court, the learned Advocate for the appellant did not dispute the fact that the second wife of the respondent /landlord suffers from paralysis and thus faces difficulty in climbing upstairs though it was contended that for the reasons stated above, the landlord was not justified in seeking ejectment of the appellant from the ground floor tenement. The first objection raised as above, on behalf of the appellant is rejected as devoid of any force. (ii) As regards the accommodation in occupation of the respondent/ landlord in his application it was expressly pleaded that on the first floor in his occupation there are only two rooms and a Verandah which has been covered by cement sheets in order to have some additional accommodation. It was further pleaded that the said accommodation was insufficient for the use and occupation of the landlord, his two wives and five children some of whom are grownup and are studying in higher classes as well. In the written statement the appellant/ tenant alleged that the accommodation on the first floor consists of five sooms with other attachments. Evidence was led by the parties. In his affidavit of evidence the landlord fully corroborated the fact pleaded that he has only two rooms and a Verandah covered by cemented sheets in order to have some additional accommodation. He was cross-examined at length but the above statement of the landlord as to the accommodation available on the first floor was not challenged, though in reply to question put to him the landlord admitted that he is running his job (as a tailor) on the ground floor in a small place on the back side and also on the first floor. The learned counsel for the tenant during his arguments and rightly so in view of the statement of the tenant in the case, did not dispute the fact that the family of the landlord consisted of 5 children, two wives besides himself but argued that the allegation of the landlord that there was insufficiency of accommodation on the first floor was for the reason that some of the accommodation in his possession was being utilized for business purposes. According to the learned counsel there was no justification for the landlord to use the residential accommodation on the first floor for business purposes and seek ejectment of the tenant from the ground floor on the plea that there was shortage of accommodation on the first floor for purposes of residence of the members of his family. The learned counsel relied upon section it of the then West Pakistan Rent Restriction Ordinance of 1959 which provided that no persons shall convert a residential building in non-residential building except with the permission in writing of the Rent Controller. I have considered the above argument and find no force in the same, firstly for the reason that no such provision exists in Sind Rented Premises Ordinance of 1979 and secondly for the reason that use of any portion of the accommodation by the landlord for his business purposes did not in any manner offend the rule laid down in section 11 of the then West Pakistan Urban Rent Restriction Ordinance of 1959. In my opinion a mere use of a portion of the residential accommodation on the first floor by the landlord, does not amount to conversion the residential premises into a non-residential building within the meaning of section 11 referred by the learned counsel for the appellant. (iii) The last contention raised on behalf of the appellant to the effect that on the pleas raised in the application accusing the tenant that he is guilty of omitting nuisance and that he caused damage to the property Issues Nos.2 and 3 were framed but the same were dropped after the evidence had been recorded. According to the learned counsel this conduct on the part of the landlord goes to show that ejectment was sough by him on frivolous grounds and on pleas which could not be substantiated and that this the mala fide on the part of the landlord in moving the application for ejectment was obvious. This submission of the learned counsel, however, cannot succeed as there is no finding that the above pleas taken by the landlord, were false. It is open to a party to drop any of the issues at the time of the arguments, and that in the absence of any other circumstances, such a conduct could not lead to a conclusion that the plea of the landlord seeking ejectment on the ground of requirement of the disputed premises for his own use and occupation which was proved to the satisfaction of the Court could be described as mala fide. The perusal of evidence clearly proves that the respondent/landlord has two wives, one of them is a crippled lady who has difficulty in climbing upstairs, that he has got 5 children some of whom are school/college going and that this large family cannot be accommodated in the two rooms and the covered Verandah which exists on the first floor. Though from the evidence on record I am not convinced that the accommodation on the first floor consists of five rooms as alleged by the tenant /appellant, however, I am still of the view that even this accommodation as described by the tenant is not sufficient as according to the tenant's own case shortage of the accommodate has been caused, from the fact that a portion of it is being utilized by the landlord for his business purposes. Thus in any case there is a shortage of accommodation for residential purposes of the large family of the landlord. The requirement of the landlord of the tenement on the ground floor in possession of the appellant, in the circumstances, for the personal use and occupation of the landlord who has two wives and a large family is reasonable and bona fide. He is entitled to have privacy and to have reasonable accommodation for his children who have grown up since after the letting out of the premises to the appellant in 1969. I am also of the view that for the purposes of convenience of the tenant /appellant, the landlord is not expected to close down his business or any part of it and thus lose the source of his livelihood. The argument of the learned counsel for the appellant that the respondent /landlord has falsely pleaded that the appellant /tenant way demanding Rs.8,000 to Rs.10,000 as consideration for vacating the premises, in my opinion does not reflect upon the bona fides of the landlord in moving the application for ejectment, in the circumstances.

8. I may refer here to the case of Badruddin v. Manghi Industrial Home P L D 1976 Kar. 620 wherein a learned Judge of this Court held that it was not necessary for the landlord when he takes a 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 and that those ingredients are a matter of proof. It was further held that an absence, in the pleadings, of such averments does not reflect adversely on the bona fide, if otherwise proved, of the landlord's personal requirement. The principle laid down in the above case is a complete answer to the argument of the learned counsel that the illness of the second wife has not been specifically pleaded in the application. It is important to mention here that in the evidence and even during the arguments, the illness of the lady was not disputed. Reference may also be made to the cases reported as Mian Shamsuddin v. Mirza Muhammad Hussain P L D 1960 Lah. 199 and Khuda Bux v. Syed Muhammad Habib 1978 S C M R

372. In these cases the orders of ejectment passed against the tenant on the ground that the landlord had large family and existing accommodations was inadequate, were held to be unexceptionable.

9. For the reasons discussed above I find that the landlord/ respondent has proved that the premises in occupation of the respondent is reasonably and bona fide required by him for his own use and occupation of his family, which besides him consists of two wives (one of whom suffers from paralysis) and six children (some of whom are grown-up). It is settled law that an adequate safeguard is provided to the tenant in case the landlord does not occupy the premises himself after getting them vacated on the ground of personal need (Sabumal v. Kika Ram 1973 S C M R 185).

10. The upshot of the above discussion is that this appeal is dismissed. The appellant however is granted six months time to vacate the premises. It is clarified that if the appellant fails to vacate the premises in question within the period as directed above, writ of ejectment would be issued without any notice to him. M.Y.H. Appeal dismissed.