2008 PLP 869 (CLC)

DR. RANA MUHAMMAD SHAMIM, J.

Through this petition the petitioners have assailed the impugned judgment, dated 24-7-2002 passed by learned IIIrd Additional District Judge, Karachi South in F.R.A. No.639 of 2001 (Old No.545 of 1995) whereby the F.R.A. was allowed, set aside the impugned judgment dated 31-10-1995 passed by the IIIrd Senior Civil Judge and Rent Controller, Karachi South in Rent Case No.724 of 1989 and dismissed the ejectment application. Hence this petition. Brief facts of the case are that the petitioners being the owner/landlords of the Building bearing Survey No.11, Sheet No.LR-4, situated at Lawrence Quarters, Karachi, filed the ejectment application against the respondent No.1, who is their tenant with the current rate of rent at Rs.50 per month on the sole ground of personal bona fide need and the ground of default: The petitioners have premised the ground of personal bona fide need by pleading that they along with their families at present are residing with their parents and now they have to reside separately from their parents and shall reside in IInd Floor, for which they want first and second floor as each flat is comprising of one and half room and the flat in question is required in good faith for the use and occupation of the petitioners for the personal bona fide use as the petitioners need bedroom for them, their children, sitting room, guest room and drawing room etc. consequently eviction application was filed. As regards the default in payment of monthly rent, the petitioners, alleged that the respondent No.1 failed to pay the monthly rent of Rs.50 per month for the last 22 months from July, 1987 to April, 1989. Learned counsel for the petitioner contended that the learned Appellate Court has passed the impugned judgment without considering the evidence available on record. Learned counsel for the petitioners submitted that the judgment passed by the respondent No.2 is bad in law and on facts and have acted illegally and derogatory to the spirit of law; that the impugned judgment is result of misreading and non-reading of evidence available on record as adduced by the parties; that there are material contradictions in the impugned judgment with regard to the confirmation of the postal authorities; that while passing the impugned judgment, learned Appellate Court was very much stressed on the point of default and a very little findings had been given on the issue of personal need which was the most important ground but it was not touched properly, which resulted in the miscarriage of justice. According to learned counsel for the petitioners, the ground of personal need was the most important issued raised by the petitioners but the learned Appellate Court did not consider this fact when several authorities of the Superior Courts opined that the plea of enhancement of rent and non-choice of premises cannot negotiate the plea of personal need; that the learned Appellate Court erred in law by overlooking the evidence of the respondent No.1 in respect of admission of personal need in good faith of the petitioners. She made reliance on the cases of Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185, a case of Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178, a case of Bhaledino v. Din Muhammad 1986 CLC 395, and a case of Muhammad Shafi v. Mst. Samina Kausar 1999 MLD 2098. On the other hand, learned counsel for the respondent No.1 refuted the allegations of the petitioners by stating that the respondent No.1 has never ever committed any default in payment of rent as alleged. In fact the respondent No.1 has always paid the rent to the petitioners regularly. The petitioners in the month of July, 1987 asked the respondent No.1 to increase the rent but the respondent No.1 refused to comply with the illegal demands of the petitioners for increase of rent without any justification. According to the learned counsel for the respondent No.1, when the petitioners refused to accept the rent for the month of July, 1987 the respondent No.1 was compelled to send the rent for the month of July, 1987 through Money Order bearing No.06282 but the same was also refused. Learned counsel further stated that thereafter the respondent No.1 also sent the rent for the month of July and August, 1987 on 20-8-1987 through money order No.06979, which was also refused by the petitioners. Again the respondent No.1 sent the rent for the months of July, August and September, 1987 on 1-9-1987 through Money Order No.07476, which was also refused by the petitioners. Finally, the respondent No.1 was compelled to deposit the rent in the Court in Miscellaneous Case No.1358 of 1987 and is continuously depositing the rent in Court. Learned counsel for the respondent No.1 argued that the petitioners filed the case on the point of personal bona fide need with the intention to force and compel the respondent No.1 to enhance the rent and that the mala fide intentions of the petitioners are very much clear on the fact that they filed ejectment cases against most of the tenants of the building. In fact the petitioners have sufficient accommodation in their possession to meet their requirements. He made reliance on a case of Chaudhry Nazir Ahmed v. Mrs. Mariam Salahuddin Khawaja PLD 1994 Lah. 252, and a case of Dr. Abdul Hafeez v. Province of Punjab and others PLD 1991 SC 165, a case of Nazar Hussain v. Ali Akbar 1995 CLC 452 and a case of Abdul Sattar v. Allah Diya 1996 CLC 1016. The learned counsel for the respondent No.1 submitted that the petitioners could not prove the issue of default and their bona fide personal requirement in good faith of the premises in question. I have heard both the learned counsel and perused the material available on record. Since both the Advocates have advanced their detailed arguments, I propose to decide this petition at Katcha Peshi stage. From the material available on record it is manifestly clear that the petitioners has failed to prove the plea of default in payment of monthly rent as after refusal to accept the monthly rent by the petitioners, the respondent No.1 was compelled to send the rent for the month of July, 1987 through Money Order bearing No.06282 but the same was also refused. Thereafter the respondent No.1 also sent the rent for the month of July and August, 1987 on 20-8-1987 through money order No.06979 which was also refused by the petitioners. Again the respondent No.1 sent the rent for the months of July, August and September, 1987 on 1-9-1987 through money order No.07476, which was also refused by the petitioners. Finally the respondent No.1 was compelled to deposit the rent in the Court in Miscellaneous Rent Case No.1358 of 1987 and is continuously depositing the rent in Court. It is settled principle of law that in case the landlord refuses or avoids the receipt the monthly rent, the tenant has to tender the monthly rent through money order. In this case the respondent No.1 has very much done so. I am guided by the judgment in cases of Jahangir Rustam Kakalia v. Messrs Hashwani Sales and Service (Pvt.) Ltd. 2002 SCMR 241, Mehdi Nisar Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 13, Muhammad Bashir v. Sakhawat Hussain 1991 SCMR

846. In case of Muhammad Bashir (supra) the apex Court has held that if the landlord did not contravene the provisions of law, which allows him relief, then it was not open to the tenant, or even for the matter to the Court, to make comments as to what landlord should do or should not do. In a case of Jahangir Rustam Kakalia (supra) unreasonable restrictions on use of his property can be placed on exercise of right by landlord which would offend the fundamental rights guaranteed under Article 23 of the Constitution. In case of Mehdi Nazir Rizvi (supra) when no circumstance was available on record to show to desire of landlord to use his own property was fainted with malice or any evil design and landlord statement on oath had not been seriously challenged same being consistent with the case pleaded by him must have been accepted on its face value and be given due weight. It is further held by the apex Court that the landlord had the absolute right to acquire and dear with his property in the manner best suited to him and the tenant had no right to disentitle the landlord of his valuable right to acquire, deal and possess his property which right has protected by the Constitution. In the case of Sabu Mal v. Kika Ram alias Heman Das (supra) the apex Court has held that if a landlord possesses more than one 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 or to the Rent Controller the power to determine where the landlord should personally reside. The law, however, provides an adequate safeguard by stipulating in subsection (4) of section 13 of the Ordinance, that the tenant may be put back in possession if the landlord does not occupy the premises himself after getting them vacated on the ground of personal need. In the case of Messrs F.K. Irani & Co. v. Begum Feroze (supra) the apex Court has observed that "....merely the fact that respondent's husband had 62 shops in Defence Society and 21 shops in Gulshan-e-Iqbal, would not disentitle the respondent to apply for ejectment on the ground of personal requirement of her son as it is for a landlord to select which of the buildings he wishes to use personally or to provide the same to his children". In the case of Muhammad Shafi v. Mst. Samina Kausar (supra) it has been held that "... Besides the respondent being landlady of the disputed premises has prerogative right in respect of her own house to live in it was not necessary for the respondent/landlady to show that demand was made by her brother to vacate the said house or any pressure was placed upon her to vacate the said house of her brother. Every landlord/owner has a right to live in his/her house and he/she could not be deprived only because once it was rented out. The respondent has proved her requirement in good faith and no exception could be taken to the finding of learned Rent Controller". In view of the above facts on record and case-law as discussed above, I am not impressed with the arguments of the learned counsel for the respondent No.1, allow this petition only to the extent that the petitioners have very much succeeded to prove their case in respect of personal bona fide need. Insofar as the default in payment of monthly rent is concerned, the petitioners have failed to prove it in the light of above discussion, set aside impugned judgment, dated 24-7-2002 passed by learned IIIrd Additional District Judge, Karachi South in F.R.A. No.639 of 200] (old No.545 of 1995), maintained judgment, dated 31-10-1995 passed by the IIIrd Senior Civil Judge and rent Controller, Karachi South in Rent Case No.724 of 1989 on the ground of personal bona fide need. In view of the old tenancy, the respondent No.1 is allowed 60 days to hand over vacant and physical possession of the demised premises to the landlords subject to payment of usual monthly rent, utility bills etc. failing which writ of ejectment be issued without any prior notice. The petition is partly allowed. M.H./R-13/K Petition allowed.