1986 PLP 1766 (CLC)

On behalf of the respondent, Mushtaq Ali, Habibur Rehman, attorney of respondent and Karimuddin husband of respondent were examined while on behalf of the appellant Nazir Ahmed and the appellant were examined. The Rent Controller came to the conclusion that no default in payment of rent had been committed by the appellant. He, however, granted the ejectment on the finding that the respondent was in possession of only third portion of the ground floor of the premises which consisted of only two rooms and that she was not in possession of any other premises in Karachi and since she has 5 members in their family, therefore, two rooms were insufficient for them and hence need for the further premises was genuine and reasonable. The Rent Controller also took note of the fact that on 26‑3‑1981 the respondent's husband had retired and he was bound to vacate the Government premises.

4. Mr. Mushir Alam, learned counsel for the appellant, has submitted that the application for ejectment was motivated by mala fide consideration. He relied upon the affidavit of the appellant where it had been alleged that he had filed three complaints against the husband of the respondent in 1975 for using coercive methods against him. It was also alleged that the respondent had allowed the previous owner to continue as tenant of two rooms on ground floor at Rs.100 per month which militated against the need for premises and that Rs.4,000 of the appellant lying with Syed Baqir Ali were not accounted for. It was further stated that Nazir Ahmed was inducted as tenant of the two rooms after Baqir Ali had vacated the same. It was also alleged that the previous owner Baqir Ali had filed a Rent Case No. 3061/75 against the appellant, which was, however, dismissed for non‑prosecution. And this showed that the respondent had instigated Baqir All to file unwarranted proceedings against the appellant. It was also alleged that the respondent had filed ejectment proceedings against another tenant of the first floor, namely, Malik Muhammad Sharif, for personal peed but the same was got dismissed on 18‑12‑1977 for non‑prosecution which against shows that the respondent was not in bona fide need of the premises.

5. Submission of appellant's counsel was that all these allegations made by the appellant in his affidavit had remained uncontroverted because there was no cross‑examination directed against the appellant in. respect of these allegations.

6. Mr. Abdul Majid Khan, learned counsel for the respondent, had, however, drawn my attention to the fact that Karimuddin, the husband of the respondent, had been examined on behalf of the respondent before the affidavit of the appellant but Karimuddin was never cross -examined on these aspect of the case as deposed by the appellant. He, therefore, stated that the respondent had been deprived of any opportunity of making explanation in respect of most of these allegations particularly in respect of the coercive methods alleged to be used by Karimuddin for securing ejectment or the matter of filing of application for ejectment by Baqar Ali and the dismissal for non‑prosecution of the ejectment case against Malik Muhammad Sharif. Mr. Abdul Majid had also made a statement that fresh case for ejectment has been filed against Malik Muhammad Sharif but he has not filed any copy of the said. He, however, submitted that it was for the landlord to choose whatever premises he wanted to get for his accommodation.

7. I am in agreement with the respondent's counsel that If any mala fides were being alleged against the respondent then the same could have been put to applicant's attorney or her husband and unless and until that was done the appellant could not merely rely upon his own affidavit which had been filed after the respondent's witnesses had been cross‑examined and thus the respondent had lost the opportunity of furnishing any explanation in respect of the same. It is an admitted position that ordinarily the application of the landlord for securing accommodation for herself has to be treated as bona fide unless facts were established which could point to the mala fide nature of the application. In the present case before me it is pointed out that the respondent has a family consisting of 5 members including herself, her husband, daughter and two sons. Her husband had also retired from the Police in 1981 during the pendency of these proceedings and, therefore, the I Government accommodation which he was in occupation, had to be vacated. It has also come on record from the statement of Habibur Rehman and Karimuddin that the house in Malir Extension Colony was gifted by him to his daughter. Nobody had alleged that the said house was in occupation of the respondent. It is correct that it has been proved on record that two rooms on the ground floor have been in possession of the respondent intermittently after they were vacated by the previous landlord Syed Baqar Ali. At one time they were in occupation of Rais Ahmed and his wife. Rais Ahmed is the son of respondent who is in Jeddah. At one time one Nazir Ahmed was inducted as a tenant in the said two rooms. But the question is whether these two rooms were sufficient for the family of the respondent. She would be guilty of mala fide only if these two rooms were sufficient for her needs and yet she did not occupy the same but evidently these two rooms which included the necessary attachments of bath rooms and kitchen were hardly sufficient for the family of respondent, which consisted of one couple plus one daughter and two sons. The couple had to have one room for themselves and the two sons had to have one room while one daughter, had to have another room. Moreover, the facility of a drawing room was also a must considering the status of the respondent and, therefore, two rooms on the ground floor could not be regarded such an accommodation which could have satisfied the needs of the respondent. Therefore, failure to occupy the same was not a factor, which could point to a mala fide omission to occupy the same.

8. The point that it had not been mentioned in the rent application that the respondent had two rooms with her is a suppression of fact is again not justified because the appellant has himself admitted that one Nazir Ahmed had been inducted as a tenant of the said two rooms when the application for ejectment was filed.

9. The respondent has of course kept quiet for three years between 1973 and 1976 before informing the appellant that she has acquired the property but the same has not in any way prejudiced the appellant and hence this delay was of no consequence.

10. The fact that the previous landlord had filed ejectment case against the appellant is again not of much significance as the proceedings ended in nothing.

11. Karimuddin and Habibur Rehman were not asked any question as to why they had allowed the application against Malik Mohammad Sharif being dismissed for non‑prosecution. Therefore, on that basis I cannot hold that the application was riot bona fide. Moreover since 2 rooms of ground floor are with respondent therefore she would naturally prefer the rest of the ground floor to other premises. Counsel for the appellant had contended that of course it was the landlord's wish to choose any premises he chooses but once he exercised the discretion of filing ejectment proceedings against two tenants then he cannot compromise with one tenant and allow him to occupy the premises and proceed with the ejectment of the other tenant. He relied upon a Lahore case to that effect. But in that Lahore case it had come on record that the landlord had extracted more rent from the tenant who had been allowed to continue as tenant. But in the present case no such allegation has even been made by the appellant. Furthermore, no cross‑examination has been directed against Karimuddin in that respect and therefore, the bona fides of respondent could not be attacked on that basis.

12. Fact of the matter is that the appellant's counsel has not been able to seriously contend that the premises in question was not really needed by 'the respondent. Once the need was fully established then. the mere fact that the husband of' the respondent had tried to coerce the tenant to vacate the premises will not in any case deviate from bona fide requirement rather it would point to the necessity or graver necessity of acquiring accommodation. The accentuity of need had, increased after 1981 when respondent's husband had retired. It is proved on record that the respondent is not owner of any other premises in Karachi and, therefore, the ejectment of the appellant was eventually justified. I would. therefore, dismiss this appeal but I would allow six months time to the appellant to make alternate arrangements subject to the condition that she controller to deposit the rent. Direct writ of attachment will be issued in ease of non‑deposit of rent with the Rent Controller and otherwise after six months from today.

13. The appellant is, however, entitled to get back from the respondent Rs. 4000 wnich were in deposit with previous landlord, Baqar. The respondent has acquired that liability and he cannot escape from it. Consequently the respondent shall have to deposit Rs.4,000 with the Rent Controller before applying for execution of ejectment which amount can be withdrawn by the appellant after handing over vacant possession of the premises inhabitable condition. H. B. T. Appeal dismissed.