1986 PLP 696 (MLD)

Respondent, Muhammad Fazal in his evidence stated that he is tenant since 1968 and the first floor of the disputed premises is quite independent and appellant does not require the premises in good faith for her personal use and for the use of her children. He has stated that eldest son of appellant Asad Haider Naqvi is married and living at Karachi and may live with her brother provided application is bona fide. Further he has deposed that one unmarried daughter of the appellant is living at Quetta with her. He does not know if appellant has any house at Karachi. He has further admitted that eldest son of the appellant who is living in Karachi is married and got children and appellant has two daughters. Notice about termination of tenancy has not been denied. Respondent Arshad Umer in Rent Case No. 3442/79 in his affidavit‑in‑evidence has stated that he is tenant of ground floor of the above premises since 1968, and the appellant is not in need of the premises in good faith for her personal use. The ground floor is quite independent as both the floors have separate exits and amenities of life. He further states that ejectment application of the appellant on the same ground is pending against another tenant of First Floor. Muhammad Fazal, therefore, appellant is not entitled to apply for both the portions at a time. He has stated that only one unmarried daughter of the appellant is residing with her at Quetta and that she is the only member to live with her mother at Karachi. He had admitted that Mr. Asad Haider Naqvi, the eldest son of the appellant is married and he may also live with her mother at Karachi, provided bona fide requirement is proved. He has no knowledge if appellant has any house at Karachi. In his cross‑examination he has admitted that her one son is married and is living at Karachi. He admits that he received notice from the landlady about the termination of tenancy. He has stated that appellant is widow. Both the respondents have not examined any other witness in support of their case. The Rent Application has been dismissed on the ground that appellant landlady and her son were not examined before the Rent Controller. The Rent Controller has stated in his order that appellant has failed to show as to which tenement is required by her and which by her married son. I, with, great regret, observe that the order has been passed by the Rent Controller without applying his mind properly. On this point attorney of appellant was fully cross‑examined in Rent Case No. 3441/1979, he, in his cross‑examination, stated as under:‑

"the married son of the applicant will reside on the upper portion and the appellant alongwith her daughters will reside on the ground floor. The son of appellant with his family is living with me. " These replies were given by the attorney of the appellant on the question put to him from the respondent's side. Mr. Nasrullah Awan, Advocate for the appellant argued that personal bona fide requirement has been proved. The appellant has no other house in Karachi and her son Asad Haider Naqvi is living with his brother‑in‑law. He has further contended that Rent Controller has failed to appreciate the evidence. He has submitted that the appellant requires the ground floor and first floor for her family requirements, therefore, there is no illegality in filing two applications against separate tenants. In support of his contentions Mr. Nasrullah Awan, Advocate fox the appellant has relied upon the cases 1982 C L C 2595; P L D 1982 Kar. 182; P L D 979 Lah. 382, 1982 C L C 2164. On the other hand Mr. Abdul Wahab, learned counsel for both the respondents has argued that appellant and her son were not examined before the Rent Controller, therefore, personal bona fide requirement has not been proved. He has also contended that two applications for eviction at a time are not competent, and that order of Rent Controller dismissing the applications is proper one. In support of arguments he has cited P L D 1976 Kar. 1231, 1981 C L C 327; 1979 C L C 367; 1982 C L C 2595, P L D 1978 Kar. 188 and P L D 1978 Kar.

581. In order to appreciate their contentions it is necessary to refer to the cases cited by the learned counsel for the parties. With reference to 1979 C L C 367, it may be stated that the facts of the above case are that the landlord intended to come back to Pakistan from England and settle in Pakistan with his wife and therefore, he needed the house. The eviction order was challenged on the ground that non‑appearance of landlady in witness‑box was fatal. It was held that where wife appearing in witness‑box had supported the contention of the appellant about the requirement of husband appearance of the landlady was not fatal. Regarding P L D 1979 Lah. 382 in that case a son of landlord for whom the premises were required could not appear as witness. It was held that failure of landlord's son to appear as a witness was of little consequence in circumstances of the case. The other authorities cited by Mr. Nasrullah Awan are on the personal bona fide requirement where it has been held that it is desire of landlord to live in his house and landlord has prerogative discretion to select residence of his own choice. Now I discuss the case law cited by Mr. Abdul Wahab, Advocate appearing for the Respondents. With reference in P L D 1976 Kar. 1231, it may be stated that in that case landlord wanted extra accommodation to accommodate his three children (two daughters and one son) all Doctors‑Omission to examine two daughters holding independent employment was held fatal to the landlord's case. In this case there were other circumstances under which accommodation was being sought and in my opinion the above case is distinguishable from the facts of the present cape. Regarding 1979 C L C 367 it may be stated that in this case landlady herself did not appear in witness‑box and there was no explanation for not appearing. However, this case was not decided ors the sole ground of non‑appearance of the landlady but there were other surrounding circumstances due to which the appeal of the landlord was dismissed. As regards 1972 S C M R 437 it is case of II Appeal where it was held that provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 do not relieve landlord of basic onus on him to prove affirmatively that he does not bona fide premises for himself or his male child. Similarly in the case reported in P L D 1978 Kar. 188 and 485 are about the discretion to be exercised by the Rent Controller about bona fide personal requirement and other authorities cited by Mr. Abdul Wahab Advocate, are on the point of proof of the personal requirement. Now, I propose, to deal with first contention raised by the Advocate for the respondent whether non‑examination of landlady is fatal to her case. On this point, I refer, a case Rana Abu Bakar v. Mst. Sadaqat Begum and 2 others reported in P L D 1983 Lah. 320, where it has been observed that no exception can be taken to the non‑appearance of the landlady in evidence in her case and does not militate against her bona fide in filing the ejectment application on the ground of personal requirement, it cannot, therefore, be said that respondent landlady has not proved the issue in respect of bona fide need merely because she did not appear as a witness in her case. 'In another case of Muhammad Umer and others v. Amina Ashraf 1982 C L C 410 wherein it has been held that even otherwise husband is a competent witness on behalf of his wife, even when a landlady filed an application for ejectment on personal requirement, keeping in view of the above fact that among Muslims in Indo‑Pak women folk normally do not appear in person in Court but get represented by male members the family, I also refer cases of Muhammad Ali v. Hamida Begum reported in 1983 C L C 3237 and Malik Noor Muhammad v. Mst. Tasneem reported in P L. D 1984 Kar.

124. In the present case Attorney of the appellant who is her son‑in‑law and member of the family has been examined and his evidence has not been challenged and no question has been put to him as to under what circumstances the appellant could not be examined. I am of the view that non‑appearance of landlady has not cause any prejudice to the tenant as `attorney is a competent witness and his evidence could be relied upon. The learned Rent Controller has erred in discarding the evidence of Attorney of the appellant. Furthermore on the point of personal requirement, I refer 1978 S C M R 89, wherein it, has been observed that as the tenant had proved that two houses ere required for his own occupation and that of his children immaterial as to which member of the respondent's family will shift in the house; in dispute. In a case of Muhammad Hanif v. Mst. Sara reported in P L D 1982 Kar. 182, wherein it has been held that landlord's desire to live in his or her house is natural, more so when he or she as in this case will monetarily be benefited therefrom reference could be made to a case Rajab Ali v. Darius B. Kandawalla reported in P L D 1984 Kar. p. 14, in that case it has been held that landlord's desire to live in his own house is quite natural and tenant cannot be permitted to assail desire of landlord to live in his own house as being mala fide or having been expressed in bad faith. Once a landlord has elected to live in his own house his demand for eviction of his tenant would be presumed to be bona fide. It has further been held that suitability or sufficiency of accommodation for landlord cannot be determined by tenant and personal requirement has been held bona fide even when landlady desire to live separately on ground floor. Lastly, in a case reported in Malik Noor Muhammad v. Mst. Tasneem P L D 1984 Kar. 124, wherein it has been decided that bona fide genuine requirement of the landlady for setting up her child in business in shop in question ejectment order was upheld. In that case son of landlady for whom premises were required appeared in witness‑box and was cross‑examined by the tenant. The failure of landlady to appear in witness‑box was held not fatal to the case of landlady. It has also been proved that she has no other house at Karachi. Therefore, she has a right to live in her own house. It is also on the record that her own son is living with attorney who is his brother‑in‑law. The up‑shot of the above discussion is that appellant has proved the case of bona fide personal requirement for herself and her children. I, therefore, set aside the orders dated 25‑7‑1981 and 27‑7‑1981 of the XIth Senior Civil Judge and Rent Controller, Karachi whereby he has dismissed the applications. Consequently the appeals are allowed. The respondent Muhammad Fazal and Arshad Umer to hand over the vacant possession of the premises to the appellant within four months from the date of this order. The learned Rent Controller shall issue writ of ejectment without further notice to the respondent in case they fail to hand over the possession after four months. H. B. T. Appeals allowed.