1984 PLP 976 (MLD)

4. The respondent filed his affidavit in evidence, dated 6-3-1980, in which he had stated that since about 1973-74, the appellant had been unnecessarily and mala fidely harassing the respondent to increase the rent or else to vacate the premises but the respondent did not agree to either of these demands of the appellant. He then referred to the first notice of 30-1-1975 and then about the application made by the appellant in January, 1976, for requisitioning the house and that this application was rejected by the Additional Commissioner, Karachi on 23-2-1976. He stated in para. 6 of the affidavit in evidence that the appellant did not require in good faith or otherwise the premises in question for his own use or occupation and that he understood that the appellant was proceeding with his wife to Canada for settling down there. In his cross-examination he stated that he came to know through a person that the appellant was about to go abroad but he did not give the name of that informer. He admitted that in the beginning of the tenancy the rate of rent was Rs.700 per month but at his request the rent was reduced to Rs.600 per month and there has been no enhancement in the rate of rent. He further deposed that he was approached by the appellant for enhancement of rent but no demand was made in writing about the increase in rent.

5. On the basis of the evidence on record, according to the learned counsel for the appellant, the circumstances in which the first notice was given and then the request for requisitioning the house was made and then the second notice was given, have been explained by the appellant in his evidence. It was further contended that the Rent Control?ler apparently was labouring under a misunderstanding that after the 1977 notice, the appellant had applied to the Government for requisition?ing the property, whereas it is an admitted position, on the face of the evidence on record adduced by the parties, that first notice was given in January, 1975 and the second notice was given in July, 1977, whereas the request for requisitioning the property to the Government was made about 11 years prior to the second notice given in July, 1977. According to the learned counsel for the appellant, a case for ejectment had been made out. Reliance was placed on two judgments by Mr. Mohsin Tayabaly, learned counsel for the appellant. The first judgment is in the case of Hasan Khan v. Munawar Begum PLD 1976 Kar.

832. Para. 8 of the judgment has been relied upon and the same has been reproduced hereinabove: "

8. In Muhammad Siddiqui v. Mistri Muhammad Aslam. It was observed that the assertion of the landlord that he required the premises for his personal use should be determined in 'the context of the provision contained in subsection (4) of section 13 of the Ordinance, which enables a tenant to regain possession from his landlord who had obtained it on a false plea of bona fide personal need, but he had failed to occupy the premises within one month of the date of obtaining possession or who relet it within two months of the said date to any person other than the tenant. This is said to be a safeguard for the tenant against being ejected on a false plea of bona fide requirement by the landlord. The effect is that the assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in his application and is not shaken in cross-?examination or disproved in rebuttal. The evidence in this case fully justified the claim by the landlord that he required the premises bona fide for his own use as he had no other accommo?dation of his own. To have dismissed this plea as not proved, merely because he had failed to prove his illness as a heart patient by medical evidence, was arbitrary and contrary to law. I am, therefore, of the opinion that the finding on this issue by both the lower Courts is against the law." The other judgment relied upon by the learned counsel for the appellant is in the case of Toheed Khanum v. Muhammad Shamshad 1980 S C M R

593. In this judgment the Supreme Court approved the judgment reported in P L D 1976 Kar. 832, whereby the mode of assessing the bona fide requirement of landlord was laid down.

6. Mr. H.A. Rehmani, learned counsel for the respondent has opposed this appeal. According to him, good faith is necessary for establishing the case for ejectment on the ground of personal bona fide use and if the acts of landlord were not fair or upright, his ejection application was liable to be dismissed. According to the respondent, the conduct, of the appellant/landlord in the present case was neither fair nor upright prior to the filing of ejectment case and also during the pendency of the ejectment application before the Rent Controller. It was argued that element of good faith was wanting in the case of the appellant. On the question of good faith learned counsel has referred to the following judgment: (i) Mushtaq Ahmed v. Mumtaz Zohra Rizvi P L D 1978 Kar. 188. (ii) Fakhruddin v. Asadullah Shah P L D 1982 Kar. 790. (iii) Abdul Ghaffar v. Nazar Ali P L D 1979 Lah. 317. (iv) Muhammad Younus v. Muzamil Ali 1981 C L C 327. (v) Abdul Majid v. Anwar Ali 1983 C L C 2511.

7. The appellant had filed the ejectment application under the provisions of the 1959 Rent Ordinance and, therefore, Mr. H.A. Rehmani is correct when he argued that if the evidence on record established lack of bona fides or good faith on the part of the appellant /landlord, the ejectment application was liable to be dismissed. The above authorities cited by the learned counsel for the respondent support the contention of the learned counsel that the landlord's application under 1959 Rent Restrictions Ordinance for ejectment of the tenant on the ground of personal bona fide use was liable to be rejected if the evidence established lack of bona fides or good faith on the part of the landlord.

8. According; to the learned counsel fur the respondent after the first of January, 1975, the appellant did not file any ejectment application but with mala fide intention approached the Government to requisition the property, the ulterior object being to get the respondent ejected from the premises in question but when the requisition proceeding did not prove fruitful and the house was not requisitioned, the appellant gave the second notice and filed the ejectment application in 1977. According to the learned counsel these actions of the appellant clearly show his mala fides. Learned counsel further relied very heavily upon the following statement of the appellant in his cross-examination where he stated: "It is not correct that when I proposed the house to the Govern?ment I suspended the idea of personal occupation of the premises."

9. According to the learned counsel for the respondent this statement by the appellant shows that the demand made by him in the 1975 notice was continued and was not suspended or withdrawn and while such requirement of the appellant was in existence, lie approached the Government for requisition of the property which clearly indicates his mala fide intention.

10. The contention of the learned counsellor the appellant is correct that the learned Rent Controller proceeded on the assumption that after the notice of 1977 the appellant had approached the Government for requisition of the property. The learned Rent Controller has referred to some portions of the cross-examination. However, after reading the entire evidence of the appellant and Exhs. 3 and 4, it is absolutely clear that after the 1977 notice, no application for requisition of the property was made by the appellant. It is an admitted position that the first notice was given in January, 1975, request for requisition of the property by the appellant was made some time early in 1976 and the second notice was sent by the appellant to the respondent in July, 1977 and the ejectment application was filed in October, 1977.

11. As regards the contention of the learned counsel for the respondent, that in his cross-examination the appellant had stated that he had not suspended the idea of personal occupation of the premises in question and, therefore, the 1977 notice was given in continuation of 1975 notice, it may be served that the entire evidence of the appellant has to be read. In his examination-in-chief, as observed earlier in the earlier part of this judgment, the appellant had stated that when he had given the notice of 1975, the retirement age of Government servant was 55 years and then the age was relaxed to 60 years and, therefore, he dropped the pursuit of getting the house at that time, and he had offered Sind Government to take this house, in 1976. It is in this context that the line in the cross-examination of the appellant relied upon by the learned counsel for the respondent is to be seen. According to the appellant, when he gave the first notice the age of retirement was 55 years but then the age was relaxed to 60 years and, therefore, he dropped at that time the idea of pursuing the matter for ejectment of the respondent. When he says in the cross-examination that when he had proposed the house to the Government he had not suspended the idea of personal occupation of the premises, it does not mean that he never wanted to occupy the house in future. From the evidence the impression that has been given is that when the age of retirement was relaxed from 55 years to 60 years, the appellant decided not to pursue the case against the respondent but this did not mean that at a late stage he would not proceed against the respondent for his ejectment.

12. Learned counsel for the respondent has placed great reliance on the request made in 1976 by the appellant to the Government to requisition the entire house including the ground floor in occupation of the respondent. According to the learned counsel this clearly indicated the mala fides of the appellant. In the facts of this case and in view of the evidence on record I am not inclined to agree with the learned counsel for the respondent. The appellant has given a reasonable explanation in his examination-in-chief about the first notice of January, 1975, his not pursuing the first notice on account of relaxation of the age of retirement from 55 years to 60 years, why he requested the Government for requisition of the property and why he gave the second notice in July, 1977, asking the respondent to vacate the premises. It may be pointed out that in early 1976 the appellant had requested the Government for requisition of the whole house but this does not deprive the appellant for all times to come from filing an ejectment application for the ejectment of the respondent on the ground of personal bona fide use.

13. In my view, mala fides of the appellant have not been established. The evidence on record shows that the appellant was going to retire in January, 1979, which evidence is confirmed by Exh. 2, a certificate, dated 24-6-1978. The evidence given by the appellant that he does not own any other house in Pakistan except the house in question and that he was residing with his brother has not been questioned. It has also come on record that the rent originally was Rs.700 per month but at the request of the respondent it was reduced to Rs.600 per month by the appellant. There is no evidence on record to indicate that the appellant was trying to sell the house or let out it to other party. The suggestion that the appellant had been demanding higher rent has been denied, by the appellant. On the face of this evidence on record, a case of ejectment has been made out on the ground of bona .fid personal use of the appellant.

14. First Rent Appeal No.435/81 is allowed, the order, dated 20-7-1981 of the Rent Controller is set aside and the application for ejectment of the respondent from the premises in question is hereby allowed. The respondent is, however, granted time till 28-2-1985 to vacate the premises. There will be no order as to costs. M.Y.H.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.