1994 PLP 582 (CLC)

Haroon Kassam v. Azam Suleman Madha PLD 1990 SC 394 and 1993 MLD 396 ref. Muhammad Akhtar for Appellant. Muhammad Jamil for Respondent. Date of hearing: 22nd April, 1993. The appellant's application seeking eviction of the respondent from the demised premises on the ground of personal use and default in payment of rent has been dismissed by the learned Second Senior Civil Judge and Rent Controller, Karachi vide her order dated 17‑12‑1991. Admittedly, no evidence was adduced in respect of the alleged default and therefore, the issue was decided against the appellant but in regard to the other issue the learned Rent Controller found that the appellant had failed to establish her bona fides as required by section 15 of the Sindh Rented Premises Ordinance.

2. The appellant had examined her son and attorney in support of her case before the learned Controller and admittedly out of four flats in the building in question only one flat is in possession of the respondent. When one Mirza Naseer Baig who was a tenant in the said building had left the premises in his occupation in 1978 three out of the four flats were occupied by the appellant's family which included her husband, son and her daughter‑in‑law. However, thereafter two Bungalows were constructed by the family in Gulshan‑e‑Iqbal in the name of the appellant's daughter‑in‑law out of which one was let out to a tenant when the other was occupied by the family. Admittedly wheA the application for eviction of the respondent was filed before the learned Controller, the family was still in occupation of the said Bungalow. It also transpired during the cross‑examination of the appellant's witnesses that two flats in the building were let out by the appellant during the pendency of the proceedings before the learned Controller. The learned Controller, consequently, on the basis of such evidence came to a conclusion that need of the appellant was not bona fide or in good faith. The learned Controller also was of the view that since; according to the case pleaded by the appellant, she required the premises for personal use of herself and her grand child and therefore, no ejectment application could be filed under section 15 on the ground of the use of a grand child.

3. Mr. Muhammad Akhtar, learned counsel for the appellant had firstly argued that choice of the premises was the prerogative of the landlord and the law does not give power either to the tenant or the Rent Controller to determine where the landlord should personally reside. Reliance in this regard has been placed upon the case of Haroon Kassam v. Azam Suleman Madha (PLD 1990 SC 394) where although the landlord had rented out 20 flats in a building yet the same was held not to be sufficient to defeat his case for personal requirement. Another case upon which reliance has been placed by Mr. Muhammad Akhtar is reported in 1993 MLD

396. In this case, the expression "personal use" occurring in section 2(g) of the Sindh Rented Premises Ordinance was interpreted as not acting as a bar against eviction of a tenant simply because the premises are required by the landlord and members of his family which are not referred to in the definition of the said expression. No doubt, the learned counsel is right and the grounds upon which the findings given by the learned Controller are based cannot be sustained but the main question that arises for consideration is whether, notwithstanding such findings, the appellant had otherwise succeeded in establishing her bona fides through the affidavit‑in‑evidence filed on her behalf by 4ter attorney. It has been simply stated that the premises are required for personal bona fide need of the appellant and her grand son, Dr. Abid Khursheed, who is a part of the appellant's family. However, apart from this bare statement, nothing further has been pleaded to establish good faith or bona fides. Admittedly, the appellant is living in a Bungalow alongwith her family members, therefore, the burden was clearly on her to establish the need for shifting to the premises in occupation of the respondent. No evidence in this regard has been given by her attorney. The evidence of her witness, Dr. Abid Khursheed also fails to indicate the reason as to why the premises in question are required by the appellant or himself for occupation when admittedly the entire family is living in the said Bungalow. No doubt, the appellant or her witness were not cross examined by the other side on this issue but notwithstanding the same the burden in the first instance is on the landlord to establish good faith or bona fides. The burden would shift to the tenant only when such burden has initially been discharged by the landlord. In the present case, as has been just pointed out, the evidence adduced by the appellant and her witness on the point is itself deficient as nothing can be spelt out therefrom to show that the need of the appellant is genuine. The provisions of section 15 of the Rent Ordinance cannot be used merely as an instrument for eviction of a tenant from the demised premises. At least one of the grounds on which eviction is sought must be clearly established from the evidence adduced by the parties. Since, as has been pointed out, no such evidence can be found in the present case, in my opinion, the learned Controller has rightly exercised her discretion in favour of the tenant.

5. For the aforesaid reasons, I do not find much force in this appeal and the same is, therefore, dismissed. The parties are left to bear their own costs. H.B.T./N‑494/K Appeal dismissed.