P L D 1986 Karachi 637 (PLP)

I have heard the learned counsel for the parties and have also perused the record and proceedings of the lower Court. The respondents Nos. 1 and 2 have examined themselves in support of the contention that the appellants have failed to pay rent for November, 1980 and that the house is required in good faith for the personal bona fide use of respondent No.

1. In rebuttal deceased tenant Manzoor Ahmed had filed his own affidavit and that of one Abdul Majid. However. Manzoor Ahmed died before he could be cross‑examined by the respondents and was succeeded by his widow and 7 minor children who are the present appel lants. Abdul Majid also left Pakistan before he could be cross‑examined and as such the affidavits‑in‑evidence of both these persons were not considered by the learned Rent Controller while deciding the rent case. The appellants in support of their case filed the affidavits of one Noor Muhammad and Muhammad Arif attorney for the appellants. There is no written tenancy agreement between the parties as to the rate of rent. The appellants had produced before the learned Rent Controller six receipts issued by the previous owner which show that he used to pay rent at the rate of Rs. 65 per month. The respondents admit to have received Rs. 200 as rent for the month of October, 1980 but according to the witnesses of the appellants deceased Manzoor Ahmed bad paid Rs. 195 as rent for three months viz October to December, 1980. This stand was taken by the deceased tenant in written statement as well as in the reply to the notice received from the respondents. The copy of reply) was produced in the lower Court. In view of the documentary evidence. that the rent paid by the appellants to the previous owner was Rs. 65 there appears to be no evidence on the record to suggest that the appellants had increased the rent and paid Rs. 200 to the respondents. As such it can safely be presumed that the rent of the premises was Rs. 65 per month. Even the Rent Controller has held that no rent has been tendered only from January, 1981. It is admitted by the appellants that the rent was received by the respondents only upto December, 1980. However, it is contended that the rent was sent every month by money orders which were returned refused. Eight money order coupons have been produced by the appellants before the Rent Controller which show that rent was being sent every month to the respondent No.

1. The respondent No. 1 in his cross‑examination has admitted that he bad been receiving the money orders which he refused because they were in the name of Gul Muhammad. This admission of the respondent No. 1 clearly shows that he had been receiving money orders but he has been refusing on the ground that they were sent in the name of Gul Muhammad. He is belied by five money orders receipts produced by the appellants before the Rent Controller which show that the money orders for the month of June, July, August, September and October, 1981 were sent in the name of Karim Bux viz. respondent No.

1. The production of these money order receipts is a proof of payment of rent as provided under subsection (4) of section 10 of the Sind Rented Premises Ordinance, 1979. Out of eight money order coupons produced by the appellants, five money order counterfoils show the name of the payee as Karim Bux whereas first three money orders sent in March. April and May: do not show the name of the payee but in the column which provides for writing of the communi cation by the remitter the writing is addressed to Karim Bux. The learned Rent Controller has held that these three money order coupons are forged and manipulated on the following grounds. (1) They are not mentioned in the written statement and reply to the notice. (2) The money order receipts of these money orders have not been produced. A perusal of the record of the lower Court shows that all these money order coupons have been produced alongwith the written statement by deceased Manzoor Ahmed and they are mentioned at serial No. 2 under the heading "Documents Filed" with all the particulars and dates clearly men tioned therein. Furthermore, in para. 6 of the written statement the deceas ed tenant has clearly mentioned to have paid Rs. 195 to the applicants viz. respondents being the arrears of rent from October, 1930 to December, 1980 at the rate of Rs. 65 per month which was accepted by the applicant No. 1 (respondent No. 1) whereafter he was demanding the rent at exorbitant rate of Rs. 200 per month for January. 1981 which was neither, legal nor proper. Since then the appellants/tenant has been regularly paying rent to the applicant No. 1 through money orders at the rate of Rs. 65 per month but to applicant No. 1 with mala fide intention has been refusing to accept the same." Similarly in the reply of the notice in para. 3 the counsel for deceased tenant had stated as under :‑‑ "In this respect it is clarified that as your client was demanding the rent at exorbitant rate of Rs. 200 per month from January, 1981. which is neither legal nor proper, therefore, my client has regularly been remitting the rent at the rate of Rs. 65 per month, but your client with ulterior motive and mala fide intention has not been receiving the same." It will be seen that throughout the proceedings i. e. during the course of rent proceedings or before that the deceased tenant Manzoor Ahmed had consistently been taking the stand that he had been remitting the rent regularly through monthly orders at the rate of Rs. 65 per month which was being refused by the respondents. As for non‑production of these three money order receipts before the Rent Controller, it is contended by the counsel for appellants that during the course of proceedings Manzoor Ahmed died and three money order receipts appear to have been misplaced after his death. It will be pertinent to note that though these money order coupons were produced alongwith the written statement but none of the respondents in their statements to the Court have stated that these three money order coupons were forged or that these money orders were not received by them. As already pointed out respondent No. 1 had admitted the receipt of money orders which he refused on the ground that they were in the name of Gul Muhammad. It is already pointed that this ground of refusal is belied by at least 5 money order coupons and five money order receipts. Considering the evidence produced by two sides in juxtaposition the evidence produced by the appellants appears to be more reliable and plausibly. The evidence of respondent No. 1 is not only proved to be incorrect by documentary evidence but also his statement that be has been receiving money orders is unqualified as to the number of money orders that he received. The learned Rent Controller has held that the appellants were in default of payment of rent from January, 1981. In absence of any written agree ment of tenancy the tenant would be deemed to have committed default if he has fails to tender the rent within sixty days after it became due. The rent for the month of January, became due on 1st February, and therefore, to escape the liability of default the tenant had to tender rent before 1st t April. In the instant case we find that first money order in the sum of Rs. 130 being the rent for month of January, and February, 1981 was tendered on 7th March, 1981 tie. before 1st April. 1981. Thereafter the money order coupons show that rent was being tendered every month. As such the appellants cannot be deemed to have committed default in payment of rent. Next we have to consider as to whether the respondents require the demised premises in good faith for the bona fide use of respondent No.

1. In the application for eviction in para. 7 it is averred as under :‑ "

7. That the applicants are living in the house situated at Moosa Ghittee, Shikarput Road, Sukkur which is insufficient for accommo dating big family of the applicants. The applicants have, therefore, purchased the aforesaid premises for accommodating their family. .Hence the applicants require the premises in occupation of the opponents in good faith for their own occupation." It may be noted that in this application no details as to the number of family members of the respondents is shown nor it is shown what is the accommodation in the house in their possession. However, in para. 8 of the affidavit‑in‑evidence filed by respondent No. 1 certain more particulars as to requirement are given. This para. reads as under :‑ "

8. That we all are living in the house in Moosa Ghittee which is insufficient for accommodation of our family. I have seven members of family while my brother Nabi Bux has five members of family. My another brother Punhal has six members of the family. The present accommodation is insufficient for our family. Moreover, the children of our brothers are fighting with each other and there remains always quarrels between ourselves. Hence I want to live separate from my brother with my family. Hence I require the portion of first floor in occupation of the opponent in good faith for my own use for accommodation of my family." Respondent No. 2 has also stated in para. 4 of his affidavit‑in‑evidence as under :‑ `

4. That we all brothers are living in the house in Moosa Ohittee which is not sufficient to accommodate the family of all three brothers. I have five members of family, while my brother Karim Bux has seven members. My another brother Punhal has six members of the family. The present accommodation is not sufficient for our family. Moreover, the children of our brothers are fighting with each other and there retrains always quarrels between them as we all go on works during day time. Hence my brother Karim Bux wants to live separate with his family. Hence he requires the premises in occupation of the opponent in good faith for his own use and that of his children. The house in between the house of opponent and one Akbar Ali is small one and it would not be sufficient for him unless the premises in occupation of the opponent is amalgamated with the same." It will be seen from the pleadings and evidence of the respondents reproduced above that the demised premises is required for occupation of respondent No. 1 whose family consists of 7 members. The demised premises are a portion of a building which has been purchased ay the respondents. According to the appellants this building consists of 8 shops on the ground floor and four residential houses. According to the respondent No. 1 this building consists of 8 shops on the ground floor and three residential' houses on the upper floor. It is contended by the witnesses of the appellants that two of these houses are in possession of the respondents. Respondent No. 1 has admitted in the cross‑examination that only one house in the disputed building is in hi possession which is lying vacant. He has not shown any reason as to why that house has been lying vacant. However, respondent No. 2 in his cross‑examination has admitted that there are two houses in their posses sion ; one of which is lying vacant in dangerous condition. He has further stated in the cross‑examination that the house lying vacant since last 3 or 4 months and they will reconstruct the damaged house after funds ate in hand. This statement was recorded on 17th March, 1982 viz. about four year back. It is also admitted position that during the pendency of these proceedings before the learned Rent Controller another house in the same building was got vacated by the respondents on the ground of their personal bona fide use. Thus, it can safely be assumed that there are three or a least two houses in possession of the respondents in the building in which the demised premises are situate. It also appears from the admission of the respondents that these houses consist of two rooms each. There is no explanation or reasoning as to by these two houses are not sufficient‑ for the requirement of respondent No.

1. The statement of respondent No. 2 that one house is in dangerous condition also does not find support from the statement of respondent No.

1. Learned counsel for the appellants has relied on the case of Mirza Farooq Beg v. Muhammad Arif (P L D 1981 Kar. 67). In that case the learned Judge did not agree with the contention of the appellant that the application for ejectment on personal ground becomes infructuous and not maintainable if during the pendency of proceedings, the landlord got vacated another premises on the same ground but it was observed that in such case the respondent (landlord) was not relieved of burden of proving hi, bona fide requirement in the case and satisfying the Rent Controller that the premises so got vacated by him were not suitable for his needs. The learned counsel for the appellant has also relied on the case of Jamil Ahmed v. Abdul Karim (1984 C L C 1815) where the Singly Judge of this Court has observed :‑ "The appellant has also been ejected on the ground that the shops are required by the respondent for his personal use and for the use and occupation of his son. The respondent owns three shops in the same building. He has applied for ejectment of all the three tenants. During the pendency of the case Abdul Chani tenant in respect of Shop No. 3 was ejected and possession was delivered to the respondent, on 11‑11‑1979. In these circumstances the burden was entirely on the respondent to establish that shops under these appeals were also required by the applicant in good faith." It is settled law that appellate Court can take note of subsequent events that might happen during the pendency of the matter provided no prejudice is caused to the other side. Reference can be made to case of Mst. Amina Begum and others v. Mehar Ghulam Dastagir (P L D 1978 S C 220) and The Province of East Pakistan v. Muhammad Hossain Mia (P L D 1965 S C l). In the instant case the subsequent event viz. the vacation of one of the premises in the building on the ground of personal requirement of the respondents took place when the matter was still pending before the learned Rent Controller. As a matter of fact the appellants had moved an application before the Rent Controller for permission to amend the written statement by adding the following para :‑ "That the eastern corner house on the first floor of the disputed property is in possession of another tenant namely Muhammad Akbar Moghal, against whom ejectment order was passed by this Honour able Court which has been maintained on 11‑3‑1984 by the Honour able High Court of Sind, Bench Sukkur, in F. R. A. No. 94 of 1983 (Muhammad Akbar Moghal v. Karim Bux and others) on the ground of personal use of the applicants. Hence the house in possession of the opponents is not required by the applicant No. I for personal use. This application was resisted by the respondents and was sub sequently rejected by the learned Rent Controller. The appellants also moved an application under section 151, C. P. C. praying that the case b: dismissed on the ground that applicants (respondents) have recently taken over vacant possession of eastern corner of the house on the first floor of the disputed property which was in possession of another tenant, namely, Muhammad Akbar Moghul on the ground of personal use. I his application was left undecided by the learned Rent Controller. It leaves us in no doubt that the respondents did receive the possession of another premises from another tenant in the same building during the pendency of the proceedings before Rent Controller, but they did not produce any evi dence before the Rent Controller to show that in spite of getting possession of the other house the respondents s ii! require the demised premises for their personal use. Such an opportunity was afforded to the respondents by the appellants by applying. for amendment of the written statement but as already pointed out this application was resisted by the respondents and was consequently dismissed :- It is argued by the learned counsel for the respondents that proviso to section 13(3) (ii) of the West Pakistan Urban Rest Restriction Ordinance is omitted from the Sind Rented Premises Ordinance, 1979, therefore, there is no bar on the respondents to seek ejectment of the tenant for their personal bona fide use even when they had obtained possession of another premises of same class in the same area. It may be pertinent to reproduce the relevant proviso to section 13(3)(ii) ibid which reads as under :‑ "Provided further that where the landlord had obtained possession of a residential, scheduled or non‑residential building or rented land under the provisions of sub‑paragraph (i) or sub‑paragraph (ii) he shall not be entitled to apply again under the said sub‑paragraphs for the possession of any other building of the same class or rented land unless such residential, scheduled or non‑residential building or land is no longer suitable for his needs at the time." The relevant provision of the Sind Rented Premises Ordinance is section 15 (2) (vii) reads as under :‑ (2) The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may specified in the order, if he is satisfied that‑ (vii) the landlord requires the premises in good faith for his own occupation or use for the occupation or use of his spouse or any of his children. In this section the stress is upon the words "requirement in good) faith". The burden primarily is upon landlord to show that he required the premises in good faith. Hic good faith can be ascertained from the) circumstances of the case. Learned counsel for appellants has relied on the case of Anirur Rehman v, Mst. Sharifa Khatoon and another (1986CLC448) wherein a learned Single Judge of this Court has considered the expression "Requires in good faith" and has observed as under :‑ "The expression 'requires in good faith' has been considered by superior Courts on several occasions. Broadly stated mere wish, convenience, whim or fancy of the landlord/landlady would not be enough to show that the landlord/landlady 'requires the premises in good faith'. The landlord/landlady must allege and prove certain circumstances of facts which go to prove his/her requirement. The law does not require a landlord/landlady to establish need or absolute requirement without which he shall have no shelter over his head. What is meant by 'requires in good faith' is that the landlord /landlady requires the premises for his/her reasonable needs and that he/she is not seeking eviction on pretext of requiring additional accommodation with an oblique motive of realising some extraneous purpose. The term `requires' means that there must be an element of need before a landlord/landlady can be said to require premises for his/her own use and occupy the premises. What is necessary is that he/she should need them for his/her own use and occupation. The need has to be reasonable and bona fide. The onus of proof of ,this is certainly on the landlord/landlady. Although the word 'reasonable' does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fides of the landlord/landlady. Gross unreasonableness may in proper circumstances lead the Controller to reach a conclusion that the landlord's/landlady's requirement is not in good faith. Therefore, while deciding the question of good faith, the reasonableness of the need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely 'requires in good faith'. The words 'good faith' mean honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord/landlady is not sufficient to give him/her a right to evict the tenant." In the instant case admittedly all the three respondents were residing in single house consisting of three rooms only. As per statement of respondent No. 1 contained in para. 8 of his affidavit it appears that in all there were 18 members of the three respondents living in three rooms but only one of them viz. respondent No. 1 wanted the house for his own residence as he wanted to live separately. As already pointed out at least two premises in the same building are admittedly in possession of respon dents comprising of four rooms. There is no evidence on record to show as to why those four rooms are not sufficient for the requirement of respondent No.

1. We have already pointed that in the application for eviction the respondents have not given any details or grounds of their requirement which grounds were subsequently developed in the statements of the two respondents. This statement also does not prove the requirement of respondent No. 1 for the additional premises occupied by the present petitioners. The learned counsel for the appellants has relied on 1983 S C M R 402 where it is held that the landlord was not prohibited to accommodate a relative or otherwise after premises got vacated by him on the ground of personal requirement and the tenant cannot object if landlord is showing extravagance in occupying a big house owned by him. This authority is not applicable to the present case as neither the respondents allege to be accommodating any of their relative nor is there evidence on record to indicate extravagance of the respondents or their desire to occupy six rooms of three houses in the building. Considering all the facts and law discussed above in ray opinion the respondents have failed to prove that even after getting possession of two similar tenements in the same building they still require the demised premises in good faith. As such the order of f he learned Rent Controller is set aside the appeal allowed with no order as to costs. The appeal was allowed by a short order dated . 11‑3‑1986. Above are the reasons in support of the said order. A. A. Appeal allowed.