1986 PLP 1493 (CLC)

‑‑S. 13‑‑Bona fide personal requirement‑‑Requisites for establishing claim for‑‑Landlord at time of ejectment proceedings was living in one room under sub‑human conditions‑‑Family of landlord having increased during decade of tenancy while house in his occupation being not suitable and insufficient to cater needs of his family‑‑Disputed house owned by landlord was sufficient and more suitable to his needs‑‑Claim for personal requirement, held, was fully established in circumstances. P L D 1983 Lah. 425 ref. (e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ‑‑S. 13‑‑Bona fide requirement of landlord‑‑Plea of enhancement of rent‑‑Effect‑‑Tenant having been inducted a decade back at specified rent which had not been enhanced since then, held, would not give rise to question of mala fide on part of landlord in circumstances. (f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ‑‑S. 15(2)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30‑‑Transfer of ownership‑‑Failure to give notice effect‑‑No objection of failure to give notice on part of landlord having peen taken in written statement and tenant not being in possession at time of such transfer of ownership, held, was not entitled to raise such plea in second appeal. H.K. Rana for Appellant. Umar Yousuf Dada for Respondent. Date of hearing: 24th October, 1985. The appellant obtained the disputed premises from the Settlement department in the year 1959. He filed ejectment case against the respondent on 21‑1‑1970 on the ground that he requires the premises 'or his bona fide use and occupation. He pleaded that besides himself and his wife he has four sons two daughters; five of whom are studying in school. It was also pleaded that he resides with his family in one room measuring 12 x 10 feet which is without laterine, bath and kitchen. Due to shortage of accommodation they are living in sub‑human condition. He further stated that he does not occupy any other house owned by him. The respondent denied the allegations of bona fide requirement and pleaded that he was inducted as a tenant on 1‑6‑1961 as previously at the time of transfer of the premises to the appellant one Ibrahim Haji Mamooji was the tenant. It was also pleaded that rent of Rs.10 was charged from Ibrahim Haji Mamooji but it was increased to Rs.25 p.m. It may be mentioned that the respondent did not specifically plead in the written statement that he had paid Pugree before being inducted as a tenant. He, however, pleaded that the appellant wants to get the premises with the intention to let it out to somebody else on Pugree is bona fide and in good faith required by the appellant but the first appellate Court disagreed and dismissed the ejectment application mainly on the ground that the claim by the appellant lacks bona fides and is not in good faith. Mr. Sohail H . K . Rana the learned counsel for the appellant has assailed the finding of the learned first appellate Court on the ground that it has completely overlooked the evidence on record and based its finding merely on surmises conjuncture and presumption. In support of this contention the learned counsel has taken me through the entire evidence of both the parties. From the record it is established that on the date of evidence i.e. 10‑11‑1971 the appellant had seven children, the eldest being the daughter aged 16 years and another son whose age was 14 years third one is a son of 11 years and rest were of smaller ages. From this fact it can be concluded that the date when this application was filed the appellant beside himself and his wife had at least three children ranging between 4 and 7 years. So far the accommodation available to the appellant is concerned, it is fully established that he is residing in one room. The respondent has disputed this fact and pleaded that besides a room there is big Veranda, latrine, bath room and kitchen. The appellant has examined himself, his neighbour and the Rent Controller of his landlord who have stated that the premises occupied by the appellant is one room and the latrine and kitchen have been constructed by the appellant on K.M.C. land adjacent to his room. It, therefore, seems clear that the appellant has one room in his occupation and other attachments are built on K.M.C. land. In this established position it is now to be considered whether the appellant requires the premises for his use bona fide and in good faith. The learned counsel for the respondent has contended, which had impressed the first appellate Court, that the appellant's claim lacks bona fide. In support of this contention the learned counsel for the respondent has relied on the following facts: (1) That the appellant has omitted to disclose that the respondent was inducted as a tenant from 1‑6‑1961 whereas he has stated that he is a tenant from the date of transfer of property to him. (2) That he has omitted to state this fact merely to avoid the facts that Pugree was paid to him and that enhanced rent was accepted by him. In the ejectment application the appellant has not stated the date of commencement of the tenancy of the respondent. This was for the first time alleged by the respondent in his written statement and in support of this contention he has relied upon the evidence of a broker namely Adam who is stated to have arranged the premises for him and also on his own statement where he has produced the extract of the property register from the Settlement Department to show that the disputed premises was occupied, at the time of transfer, by one Ibrahim Haji Mamooji and rent was Rs.10 p.m. The other document is a copy of letter, dated 3‑6‑1961 sent to Karachi Electricity Corporation for change of meter in the name of respondent and reply by Electricity Corporation, to the respondent. He has also produced a receipt executed by the appellant on 5‑6‑1961 acknowledging receipt of rent Adam is concerned he seems to have given his evidence on the basis of his memory. He claims to be an estate broker but has not produced any document to show that he had arranged this deal between the appellant and respondent. Moreover, according to him Rs.5,000 was paid in the year 1961 but in cross‑examination he states that after 31‑5‑1961 he had no connection with the appellant. This shows contradiction in the statement and is sufficient to discredit his evidence. Moreover, the fact that the respondent has obtained the premises of payment of Rs.5,000 was not pleaded in the written statement. The copy of letter of Ibrahim Haji Mamooji has been produced but Ibrahim Haji Mamooji has not been examined to prove this letter. On the left corner side of this letter (Exh.0/2) there is an endorsement in Urdu that from this date i.e. 3‑6‑1961 lie would have no right on the meter and accounts have been settled with Abdul Ghani Raja. It has been signed by Abdul Ghani in Urdu on 28‑6‑1961. I am unable to understand whether this endorsement was made by Ibrahim Haji Mamooji or by the respondent himself. The signature purports to be of the respondent but it is not possible because he has signed all the documents on record in Gujrati and not in Urdu. This endorsement does not seem to be written by him. Moreover, if the meter is to be transferred from the name of one tenant to another then the consent of the landlord or the owner is necessary. This letter does not indicate that such permission was obtained by the appellant. Be that as it may, even if for argument sake it is accepted that the respondent was inducted as tenant on 1‑6‑1961 on payment of Pugree of Rs.5,000 and rent of Rs.25 p.m. it has to be seen whether these facts militate against the bona fides of the appellant. So far the payment of Pugree is concerned Mr. Yousufl Dada contends that there is a practice in the area that nobody can be inducted as a tenant without payment of Pugree., Such a practice may be prevalent but .if one has to take this practice into consideration it cannot be denied that it is also a practice that if premises is occupied by a tenant and another tenant is to be inducted then the major portion of the Pugree is paid to the tenant for vacating the premises and the minor part is given to the landlord for accepting him as a tenant. But such practices should be proved and judicial notice of these practices cannot be taken. According to the learned counsel for the respondent, the respondent was inducted after Ibrahim Haji Mamooji had vacated and Pugree was paid. The learned counsel wants to attack the bona fide of the respondent as he has not stated or admitted in his evidence, the receipt of Pugree. According to the respondent he is a tenant from the year 1961. If immediately after enhancing the rent and accepting 'the Pugree the appellant would have filed case for ejectment on the ground of bona fide requirement, the respondent could have attacked his bona fide. The appellant has filed the ejectment case after about 9 years. This period is sufficient long in majority cases to change the needs, requirements, and living conditions of every family. In the present case also it is clear that the appellant's family has increased and many children were born during this period. Other children who were smaller in age have grown up. Their needs have also increased. They have now reached school‑going age and each one of them requires proper accommodation for his living, education and comfort. The learned counsel has referred to P L D 1964 Pesh.

278. The facts of that case are completely different from the present case. There the landlord had claimed that the premises was purchased for his son in April, 1961. Thereafter the dispute between the parties was referred to arbitration and the landlord accepted the enhanced rent. Immediately thereafter on 14‑9‑1961 he served a notice that premises is required for his sons and filed the ejectment application on 6‑10‑1961. It was held that the claim lacked bona fides and ejectment was refused. In the present case the respondent was inducted as tenant in 1961 and the appellant made his claim in the year 1970 when his family hasl increased, children have grown up and he requires more accommodation. In the background of these facts the omission of the respondent not to disclose and hesitancy in stating that he had accepted Pugree or higher rent in 1961, in my view, does not militate against the bona fide and good faith of the appellant. Nine years is a long period of almost a decade. If rent had been enhanced nine years earlier, it does not mean that he is now claiming the premises out of greed or with bad faith. There are string of authorities that mere enhancement of rent cannot be a ground for attacking the bona fide of the landlord. Reference can be made to 1985 S C M R 1986. If the landlord unreasonably demands enhancement rent and it is not accepted by the tenant and thereafter out of spite and forcing him to enhance the rent an ejectment application is filed, then it will be a clear case of lack of bona fide and good fatih., Mr. Yousuf Dada the learned counsel then contended that the appellant should have proved that the premises in dispute is more suitable for him than the premises which is in his occupation. Reference has been made to 1980 C L C 604 where it was held that the landlord has to establish that the house in,his occupation is not suitable and is insufficient to cater the need of his family. The appellant has established his claim for personal requirement. It is fully established that he is living in one room at the mercy of his friend. The disputed house is I owned by him and is more spacious that the house in his occupation. Mr. Dada also referred to P L D 1983 Lah. 425 in which it was held that supression of fact proves lack of bona fides. Such observation depends upon facts and circumstances of each case. In that case the landlord was occupying another shop which was suitable for his need but this fact was not disclosed by him and, therefore, it was held that this suppression of material fact proved lack of bona fide of the landlord. In the present case the suppression, if at all, is in respect of date of induction of respondent as tenant, acceptance of Pugree and alleged enhancement of rate from Rs.10 to Rs.25. This alleged enhancement in rent is alleged on the basis of the record of the Custodian in which Ibrahim Haji Mamooji was a recorded tenant at the rate of Rs.10 p.m. The respondent was inducted as tenant in 1961 at the rate of Rs.25~ p.m. and in fact no rent has been enhanced so far, therefore, in the circumstances of the case the question of mala fide does not arise. Mr. Yousuf Dada then contended that admittedly notice under1 section 30 of the Displaced Persons (Compensation and Rehabilitation )I Act, 1958 has not been issued to the respondent and, therefore, relationship of landlord and tenant does not exist and the Controller had no jurisdiction to entertain the case. Firstly no such objection was raised by the respondent in his written statement and secondly as the respondent was not in possession at the time of transfer and was inducted as a tenant in 1961, he cannot raise such a plea in second appeal. The impugned order of the first appellate Court is set aside and the order of Controller is maintained. The respondent is allowed four months time to vacate the premises and hand over vacant possession to the appellant. The appeal is allowed. A . A Appeal allowed