1983 PLP 1343 (CLC)

This appeal by the tenant under section 21 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) is directed against the order of the Controller dated 30th October, 1979, whereby he has allowed the application of landlord/respondent on the ground of personal bona fide requirement of one room house for his son Sher Hassan Khan.

2. The brief facts relevant for disposal of this appeal are that on 18th July, 1978, the respondent filed an application for eviction of the appellant on the ground of personal requirement of the house for his son Sher Hassan Khan. The respondent in his application has stated that he is the owner of the Saudagar Compound.

3. The defence taken by the appellant in his written statement was that the respondent wanted him to raise the rent and on his refusal he had filed the application.

4. On the pleadings of the parties the Controller framed the follow ing issues and decided the same in favour of the respondent and ordered eviction of the appellant. "(1) Whether the applicant requires the disputed premises for his personal bona fide use ? (2) What should the order be?"

5. Before the Controller the landlord/respondent examined himself and his son Sher Hassan Khan while the appellant examined himself. I have heard Mr. Abdul Majeed Khan, Advocate for the appel lant and Mr. Raja Qureshi, Advocate for the respondent. They have also taken me through the depositions of the aforesaid three witnesses.

7. Mr. Abdul Majeed has contended that the respondent has failed to prove bona fide requirement of the house as he was already occupying a house and another house was lying vacant at his disposal and that his modus operandi was that he would get his house vacated and then sell the same.

8. In order to appreciate the contention I must refer to the evidence led in this case. The respondent deposed that he was residing in his two rooms house with his sons, daughters and grand children and the accommodation was insufficient and he required the disputed house for his eldest son Sher Hassan Khan who would live in the disputed house alongwith his family. He however, admitted that he had sold a house owned by him a year back. He also admitted that be sold the house in which Sher Hassan used to live previously. He also admitted that he bad sold one house to a Christian after filing the application. He further admitted that he was owning six houses including the disputed house.1 He also admitted that one house was lying vacant but explained that it was for his other son Yar Hassan Khan. He however, explained that his other houses were small and far away from his present house. He also admitted that one house was vacated by Anwar a tenant about 5 months before he deposed on 8th May, 1979, which be had rented out. He however, denied that be had demanded enhancement of rent by the appellant and on his refusal he had filed the present case.

9. His son Sher Hassan Khan deposed that for the last two years he with his three children was residing with his father in his house with about 15 persons of his father's family and that the accommodation was insufficient. He however, in cross-examination admitted that previously he used to reside in a separate house which was sold by his father. He further stated that his father had got 5/6 houses and he had previously sixteen houses and that his father had sold one house that year and explained that there was loan on them. He admitted that the house in occupation of the appellant consists of only one room. He denied the sug gestions that his father had asked for enhancement of rent.

10. The appellant in his deposition inter alia, stated that the res pondent has six other houses also and that his son Sher Hassan used to live in his own house. . He further deposed that he had sold the house, where his son was residing, to a Christian. He further stated that during the pendency of the case one house of the respondent was vacated which was rented out to other per-on and other houses were bigger than his house. He also denied that the disputed house is near the house of the respondent.

11. After having reviewed the evidence, I have come to the con clusion that the need of the house by the respondent is not bona fide for one house which he got vacated was lying vacant and he had nowhere stated in his application or in his deposition that his other son wanted to reside separately from him or that he had kept one house for him. Even otherwise, there was no explanation why the other son had not occupied the house and why the same was lying vacant. It is in evidence that the respondent has been getting his houses vacated by his tenants and selling the same and he has already sold at least nine houses, However, I was submitted by Mr. Raja Qureshi that the house which was lying vacant was far away and was a smaller house but it is admitted that this house is situated within the same compound in which the disputed house and all other houses adjacent to each other are situated. Therefore, it can not be said that the house which was lying vacant was at a considerable distance. As regards the submission that the house which was lying vacant was a small one, it is admitted that the house in which the appel lant is residing is one room house, therefore, it cannot be said that dis puted house is bigger than the house which was lying vacant.

12. It is further submitted by Mr. Raja Qureshi that the respondent had the option to choose any house for his need and accordingly he applied for eviction of the tenant and in support of this submission he relied on Sabu Mal v. Kika Ram alias Heman Das (1973 S C M R 185). In this case it was observed by the learned Judges of the Supreme Court as follows. "The contention that the finding on the question of the personal need of the landlord is not sustainable in law has no substance, as all the Courts below have come to the conclusion, after' examining the evidence brought on the record, that the landlord was living in a small rented accommodation situated in the premises of a temple, and he bona fide required the house in dispute for his personal residence. If a landlord possess more than one house in the same urban area the choice as to the house in which he would like to live himself is surely a matter within his ,prerogative and discre tion, 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." From the above observations it will be seen that the case is distin guishable on the facts. There is -no doubt that it is the choice of a land lord to choose any of the houses owned by him for himself but here before me the case is that the respondent wanted one house for his son Sher Khan and one house was lying vacant and there was no mention of the need of the other son Yar Hassan Khan nor was he examined. No evidence was led to the effect that the house which was lying vacant was not suitable for the need of Sher Khan. Mr. Raja Qureshi also relied on Raja Muhammad and others v. Muhammad Rafique and another (1980 S C M R 2). In this case it was submitted that the landlord had got few other shops also in the same locality and under these circumstances there was no justification for eviction of the tenant from the shop in dispute. It was held that the contention had no merit. It was observed that the shops to which reference was made were occupied by other tenants which showed that the landlords were justified for seeking evic tion from the disputed shop for their personal requirement. It was further contended in this case that the landlord had also got vacated another shop but it was held that since that shop was not of any substantial measurements therefore, the plea was of no consequences. This case is therefore, of no help to the learned counsel for the respondent.

13. The contention of Mr. Abdul Majeed Khan has, therefore, sub stance. I am accordingly satisfied that the requirement of the respon dent is not bona fide and 1, consequently allow the appeal and set aside the order of the Controller. Under the circumstances of the case, parties are left to bear their own costs. M. Y. M. Appeal allowed.