1989 PLP 1360 (CLC)

Haji Ali Muhammad Panwala v. Haji Muhammad Hussain and others 1985 C L C 2801; Major (Retd.) Jamshed Kbudadad Irani v. Abdul Rehman 1987 C L C 1988; Sabu Mal v. Kika Ram alias Heman Das 1973 S C M R 185; Suleman Ghazi v. Ghulam Hyder and another 1984 CLC 2213 and Mst. Mariam v. Haji Ahmad 1984 C L C 2865 ref. M. Hussain Adil Khatri for Appellant. Niaz Hussain G. Khichi for Respondent. Date of hearing: 19th March, 1989. This appeal is directed against the Judgment of the Vth Senior Civil Judge Rent Controller, Karachi, East, whereby, she has allowed the ejectment proceedings filed by, the respondent/landlady and directed the ejectment of the present appellant. The facts leading to the case are that the respondent is the owner of the Bungalow constructed on Plot No.245/2‑F, Block‑6, PECHS Karachi, while the present appellant is the tenant in the front portion of the ground floor of the said Bungalow on monthly rent of Rs.2,300 through Tenancy Agreement dated 16‑8‑1983. The case of the respondent is that her son Dr. Zahid Hassan Ansari is to be married and she requires the demised premises for his use and further that his marriage is being delayed for want of accommodation. The appellant contested the matter and has claimed that the respondent owns another Bungalow No.12/G in Block‑B of PECHS Karachi in which the respondent is residing alongwith her family and which is quite sufficient for her requirements and that of her son who has already got married during the pendency of the rent proceedings. The respondent filed her affidavit‑in‑evidence but then moved an application to be cross‑examined on commission which application was rejected and thereafter she prayed that she should be permitted to be represented through her husband and attorney Zainul Abedin which prayer was granted and he filed his affidavit‑in‑evidence and was also cross‑examined. The respondent also filed the affidavit‑in‑evidence of her son Dr. Zahid Hassan Ansari who was also cross examined. The appellant filed his affidavit‑in‑evidence and was cross‑examined. The learned Rent Controller relying on the affidavits of the respondent, her husband and her son and also one admission given by the appellant that the respondent was living in her above said house with ten family members, was pleased to allow the ejectment application of respondent and passed the impugned order.

2. The very first point which arose, was whether the Rent Controller could have relied upon and taken into consideration the affidavit‑in‑evidence filed by the respondent as she had not been subjected to cross‑examination. Both the learned counsel for the parties conceded that in these circumstances, her affidavit‑in‑evidence could not have been taken into consideration by the Rent Controller. Mr. Niaz Hussain Khichi, learned counsel for the respondent has also referred to the case of Rehmatullah v. Tufail Hussain etc., 1987 C L C

792. I am, A therefore, inclined to hold that the Rent Controller should not have placed reliance on the affidavit‑in‑evidence of the respondent in these circumstances.

3. Mr. M. Hussain Adil Khatri, learned counsel for the appellant has assailed the impugned order on two other grounds also. Firstly he has contended that the respondent/ landlady had deliberately suppressed the fact that she owned another Bungalow also in the same urban area and that such suppression of facts would disentitle her from getting the relief sought by her and that her bona fides stand mitigated. In support of his contention, he has relied on the case of Shakir Hussain Chishty v. EA. Breganza (P L D 1984 Karachi 141) and the case of Abdul Majid v. Anwar Ali (1983 C L C 2511). In my view the above two cases will not be of any help as the facts in those cases are distinguishable. In the above said two cases the landlord has not only suppressed his ownership of other premises in the pleadings but also in evidence, whereas, in the present case, the respondent/landlady has of course not mentioned the facts of her owning other Bungalow in the body of the ejectment application but the title of the application shows her to be "landlady and resident of Bungalow No.12/G, Block‑6, PECHS, Karachi". ‑ Not only this but her attorney and husband in his affidavit‑in‑evidence very specifically mentioned in paragraph 6 that she owns the said other Bungalow also, wherein she is residing with her husband and entire family. Mr. Hussain Adil Khatri, has also referred to the case of Mrs. Dephne Decruze v. Malik Muhammad Yusuf 1984 M L D

19. I am afraid that in view of the above facts, this wilt also not be of any help to support the contention of the appellant. As against this, Mr. Niaz Hussain Khichi has argued that the fact that the landlady does not disclose material facts in the pleadings would not be fatal to her case if she otherwise makes out a case for ejectment. He has placed reliance on the cases of, namely, (1) Haji Noorul Hassan v. District Judge, Dcra Ismail Khan and 8 others (19$5 C L C 2620), (2) Sh. Muhammad Bashir and another v. Ahmad Ali Chughtai and others (1985 C L C 2704) and (3) Ashiq Hussain v. S. Abdullah Qureshi (1987 C L C 1146). The facts of the above three cases are quite different from those of the present case and are not applicable. However, to view of the fact that the respondent/landlady has disclosed m the title of the application that she owns another Bungalow in the same urban area, wherein she is residing and that this fact has also been confirmed by her attorney and husband in his affidavit‑in‑evidence, I am inclined to hold that the landlady cannot be said to have suppressed the above said fact from the Court and would not be liable for the same.

4. The second objection raised by the learned counsel for the appellant is that. under the provisions of section 15 subsection (2) (vii) the burden is on the respondent to prove that she required the premises in good faith for the use of her son as claimed in the present case and that the respondent has failed to prove the same. In support of his contention, the learned counsel for the appellant has referred to the affidavits,‑in‑evidence filed by the attorney and husband of the respondent and her son. He has contended that both of them have not said anything as to how the present accommodation in their possession is not sufficient for their use or that of the use of the respondent's son Dr. Zahid Hassan. It is an admitted fact that Dr. Zahid Hassan has already got married during the present proceedings and is living in the same house with his parents. Paragraph 7 of the affidavit‑in‑evidence of the respondent's attorney and husband shows that the Bungalow presently in their occupation comprises of ground and first floor having 5‑Bed rooms, Drawing room, Dining room, Guest room, Store, Kitchen and Servant room. Mr. Hussain Adil Khtri has then drawn my attention to the site plan and Form PT‑1 of Excise and Taxation Department which are filed in the present appeal with the respondent's objections. He has submitted that the said Form PT‑1 shows that ground floor has 4‑Bed rooms and the first floor has 3‑Bed rooms with servant quarters, Verandahs, Store and Drawing and Dining rooms, whereas the site plan shows that ground floor has 3‑Bed rooms, Kitchen and pantry and servant quarter, while the first floor has also a Drawing room, 2‑Bed rooms, Kitchen and a big room of 14 x 16 1/2 feet which although shown as store, cannot be said to be so on account of its largeness. Mr. M. Hussain Adil Khatri has further argued that the burden is on respondent to show as to how such huge accommodation could not be sufficient for their family and as to why their said son has to live separate after marriage, whereas, the evidence shows that their other married son is already living with them. He has then referred to the affidavit‑in‑evidence of the appellant to whom the respondent has suggested in his cross‑examination and he has affirmed that the landlady and her husband are living in the said other Bungalow and that they have three major and two minor sons of whom two sons are already married and one of them has a child also. According to his contention this makes 10 members of the family of whom three are married couples who would require only three Bed rooms, while the remaining Bed rooms as submitted above are more than enough for the requirement of their remaining three sons of whom two are minors. From this he has further contended that in these circumstances it is obvious that the alleged requirement of the respondent is not bona fide. In support of his contention he has placed reliance on the case of Haji Ali Muhammad Panwala v. Haji Muhammad Hussain and others (1985 C L C 2801), in which Saleem Akhtar, J., has held:‑ "The landlords do have a prerogative to use their premises in a manner they wish, but this right is not unfettered or unrestricted. It can be exercised only where it is genuine bona fide and in good faith. If a landlord's requirement can be met equally in the same proper manner as he desires, without disturbing the tenant then in such circumstances, the landlord will not be permitted to exercise his prerogative, to the detriment of the tenant's right." He has also relied on the case of Major (Retd). Jamshed Khudadad Irani v. Abdul Rehman (1987 C L C 1988), in which Haider Ali Pirzada, J., has held:‑‑ "As the preamble of the Ordinance shows, the very purpose of the Ordinance is to make effective provisions for regulation of relations between landlords and tenants and protect their interest in respect or rental. premises within urban areas. The Ordinance has imposed restrictions on the right of the landlord to evict and on the jurisdiction of the Controller to pass an eviction order against the tenant and that the onus of proving the conditions, on proof of which alone the tenant may be evicted, lies on the landlord and that the very purpose of the Ordinance would be defeated if the landlord was allowed to come forward and to get tenants turned out on the bare plea that they want more accommodation for their occupation. "There can be no manner of doubt that before ordering eviction on the ground of the landlord's requirement in good faith for his own occupation or his spouse or any of his children, whether for his residence or business or otherwise, and ordering eviction of tenants from the house occupied in part by the tenants and in part by the landlords as in this case, the Controller must be in a position to ascertain the extent of the portion in the occupation of the landlord and whether such accommodation is or is not sufficient for the requirement of the landlord and if not whether the portion occupied by the tenant is, therefore, required to be made available to the landlord."

5. Meeting with the above contention of the appellant's counsel, Mr. Niaz Hussain Khichi learned counsel for the respondent, has referred to the case of Sabu Mal v. Kika Ram alias Heman Das (1973 S C M R 185). The facts of the above said case are different from the present case. In this case, it was held that the choice to select the house where the landlord would desire to reside in case where he owns chore than one house, is a matter within the prerogative and discretion of the landlord. In the present case, the point which requires consideration is whether such requirement as claimed by the respondent is in good faith and whether the respondent has brought any proof in support of her said contention (?) I am, therefore, of the view that the facts of this case would not apply to the present case. Mr. Niaz Hussain Khichi, learned counsel for the respondent, has then referred to the case of Suleman Ghazi v. Ghulam Hyder and another (1984 C L C 2213) to support his contention that the fact that the landlord owned other property would not disentitle her from seeking ejectment for personal requirement and that it is not for the tenant to say what should be the requirement of the landlord and which accommodation is suitable for him. He has also relied on the case of Mst. Mariam v. Haji Ahmad (1984 C L C 2865). In view of my above observation these cases are also not applicable to the facts of the present case.

6. From the above discussion I am of the view that no. doubt that the choice to select house wherein the landlord wants to reside is within the prerogative and discretion of the landlord but this prerogative or discretion is not unfettered or unrestricted as required under the provisions of Section 15 (2) (vii) of the Sind Rented Premises Ordinance, 1979. The onus is on the landlord to prove that such requirement is in good faith. In the instant case the Rent Controller should have first determined the facts as to the extent of the accommodation in occupation of the respondent, its sufficiency and also the extent of her requirement for the use of her said son. As I have already held above that the respondent/landlady has failed to prove her good faith inasmuch as she has not brought any evidence on the record to show as to how the present accommodation was not sufficient for her use, I am inclined to set aside the finding of the Rent Controller on this issue, In view of the above discussion, I allow the present appeal and set aside the orders passed by the Rent Controller and dismiss the application for ejectment filed by the respondent. However, there will be no order as to costs. H.B.T.//M‑737/K Appeal allowed.