1981 PLP 1081 (SCMR)

In the ejectment petition filed by the appellant before the Rent Controller on the 6th of January, 1977, the appellant had stated that he needed the premises in dispute in good faith for his personal use and occupation; that the respondent had damaged the property, thus materially diminishing its value and utility; and that he had neither paid nor tendered the rent of the premises since January, 1975, up to the date of filing the application, in spite of repeated demands made on him in this behalf. At the trial, evidence was led by the appellant in support of these allegations, on that basis of which the learned Rent Controller came to the conclusion that the appellant had succeeded in proving default by the tenant in the matter of payment of rent; and that the disputed premises were required in good faith by the appellant for the use of his son, who was going to be married. However, the learned Rent Controller decided the issue of damage to the property against the appellant for want of requisite evidence. By the appellate order made 'by the learned Additional District Judge on the 3rd of February, 1979, the findings of the Rent Controller on both the material issues were reversed. It was observed that in the light of the attendant circumstances of the case there was doubt as to whether the rent for the disputed period had, in fact, been paid or not, and this doubt had to be resolved in favour of the tenant; and that the demand for the requirement of the son was premature as there was no firm evidence on the record to show that the landlord was going to marry his son in the near future. In coming to this last finding, the learned Additional District Judge also took note of the fact that in the ejectment application the appellant had merely stated that he needed the premises in dispute for his personal use, ands did not at all mention the requirement of his son in view of his impending marriage. In the High Court, while dismissing the appellant's second appeal, the learned Judge has observed that the finding recorded by the lower appellate Court on the question of default in the payment of rent was neither perverse nor unreasonable, and there was, accordingly, no justifica tion to differ from the same. As to personal requirement, the learned Judge has stated that the appellant bad not explained, in the ejectment application, his personal requirement in the manner in which he - sought to support it by evidence at the trial, namely, that it was not his own personal need but that of his son, who had reached the marriageable age; and that he had not led any evidence to show that the present accommoda tion in which the son was residing with the father was not sufficient to accommodate another member of his family. Having made these observations in support of the finding recorded in this behalf by the learned Additional District Judge in the first appeal, the learned Judge in the High Court has proceeded to observe that "Thus for lack of proper evidence the ground for personal use appears to have failed. In view of these circumstances it would be hard for the landlord if the property owned by him is not made available to him for the use of his son in case the son needs an independent accommodation or the son cannot be accommodated after marriage in the present building in possession of the landlord. 1, therefore, dismiss this appeal with the observation that in case the appellant so chooses, he might file a fresh application on ground of personal use for his son before the Rent Controller, who shall decide the application on its own merits." Mr. Jehangir A. Jhoja, learned Advocate appearing for the appellant, contends that both the Courts have not examined in proper perspective the evidence led by the appell4nt to prove default in the payment of rent by respondent, and, accordingly, their findings stand vitiated on this account by reason of ignoring of material evidence, and misreading a part thereof. On the question of personal requirement of the landlord, the learned counsel submits that it was not all necessary under the law for the appellant to explain in detail in the ejectment application that the impending marriage of his son, and it was sufficient to state that he needed it for personal use and occupation, as the use of the son would also be embraced by this statement. He next contends that the learned Judge in the High Court, as well as the learned Additional District Judge, were both in error in observing that the landlord had not led any evidence as to the requirement arising owing to the impending marriage of his son, as, in fact, such evidence was led, which had rightly been taken note of by the learned Rent Controller. He submits that the learned Judge in the High Court has made contradictory observations first by stating that the landlord had not shown as to how he needed extra accommodation, and why he could not accommodate another member of the family in existing accommodation, and yet in the concluding portion of his judgment the learned Judge has conceded that the marriage of the appellant's son would necessitate extra accommoda tion for which the appellant may file a fresh application and lead the necessary evidence. It seems to the learned counsel for the appellant that it is implicit in the observations made by the High Court that the impending marriage of his grown-up son would justify the demand for personal use and occupation, and yet this demand was not being conceded to the appellant. On behalf of the respondent, Mr. M. Z. Khalil has supported the findings of the two appellate Courts on the question of default in the payment of rent; and has further contended that the landlord had failed to prove that he needed the premises in good faith for his personal use, as the case set up at the trial was completely different from the one stated in the ejectment application, in which the requirement for the son was not mentioned at all; nor was there any averment that the premises were needed in good faith; and the son whose marriage had necessitated the ejectment application was not examined as a witness, thus leaving an important gap in the evidence led to prove this requirement. The learned counsel submits that, in fact, the landlord had been motivated by his desire for enhancement of rent from time to time, and there was no bona fide personal need at all. The learned counsel for the respondent stated at the bar that since the filing of the present application against the respondent, the landlord had got two adjoining residential portions of his house vacated from his tenants, and, accordingly, the additional requirement of the landlord could easily be met from those vacated portions, but neither the landlord nor the son had occupied any of those portions, thus showing that there was no bona fide need for extra accommodation. After hearing the learned counsel for both sides, we are of the view that it is not necessary, for the disposal of this appeal, to examine the question of default in the payment of rent, as the matter can easily be decided on the other ground, namely, the personal need-of the appellant. It is true that in the ejectment application the landlord had not mentioned that he needed the disputed portion of the house for the residence of his son, who was to be married soon, but this omission by itself would not be fatal to his case. Clause i(a) of subsection 3(a) of section 13 of the Rent Restriction Ordinance permits a landlord to apply for the B ejectment of his tenant if he requires the residential building in good faith for his own occupation or for the occupation of any of his children. It would be seen that the requirement of his children is really in the nature of extension of the personal requirement of the landlord himself, as the property does not belong to his children, and yet the law permits him to ask for its vacation if it is needed for their occupation in good faith. It follows, therefore, that even if in the ejectment application it is not specifically stated that the requirement is for the occupation of any of his children, a landlord would still be entitled to spell out this need in evidence. A similar view was taken in Malik Nisar Muhammad and another v. Abdul Rauf (1972 SCMR 561) ,and Abdul Salam Akhtar v. Dr. Najam Parvez (1976 SCMR 52), as well as in Dilshad Muhammad v. Mst. Zubalda Begum (1981 SCMR 895). As to the objection raised on behalf of the respondent that the son for whose marriage the extra accommodation was needed, was not examined as a witness, suffice it to say that there is no such requirement in law, and the effect of the omission will have to be determined in the facts and circumstances of each case. The burden on the landlord is to prove hi bona fide requirement, and this burden he can discharge by leading evidence, which need not necessarily include the son concerned as a witness. In Dilshad Muhammad's case, it was observed that the non appearance of the son of the landlady was not fatal to the claim of the respondent, and that the landlady had, in the circumstances, amply established that she required the shop in good faith for the use and accomondation of her son. A more or less similar situation arose in another recent case reported as Habib Bank Limited v. Mehr Muhammad Shahid and another (3), in which although the son had appeared as a witness, yet he omitted to say anything about his getting married for which purpose the additional accommodation was required by the landlord. The Judges thought that in view of the prevailing social custom it was enough that the father had made the necessary statement at the trial. Again in Ghulam Qadir v. Rehmatullah (5), the view was expressed that the failure of the landlord's son to appear as a witness was of little consequence in the circumstances of the case. The learned counsel for the respondent, however, drew our attention to Ghulam Mohyuddin v. Suba Khan (P L D 1977 Lab. 1094 ), in which it was observed by a learned Judge of the High Court that: "It is always the statement of the landlord as well as of the person for whose benefit premises are sought to be vacated, which is most relevant to determine the point in issue." He proceeded to observe that in the case before him the statement of the landlord as well as his son had fully made out a case for bona fide personal need of the landlord to occupy the shop in question. It will be seen that these observations of the learned Judge cannot be construed as meaning that he was laying down any proposition of law to the effect that the son in question must be examined as a witness. Mr. M. Z. Khalil also referred us to Sooff Muhammad Yasin and Brother v. Dr. Major Abdul Ahad Khan (P L D 1976 Kar. 1231), in which the landlord's omission to examine two of his children, for whom he needed extra accommodation, was held to be fatal to the landlord's case. A perusal of the judgment shows that this was not the only factor which influenced the mind of the learned Judge, and, in fact this was one of the circumstances, which were taken into consideration in' reaching the conclusion that the landlord had not succeeded in establishing his bona fide personal requirement. We are of the view that this judgment again is no authority for the proposition that the omission to examine the son must necessarily negative the bona fide requirement of the landlord in this behalf. As stated earlier, the effect of any such omission has to be examined in the context of all the relevant facts and circumstances of each case. Now, in the- present case, evidence was led to prove that one of the sons of the landlord was about D j to get married, and additional accommodation would be required for this purpose. In, the circumstances, mere omission to examine the son concerned as a witness could not affect the fate of the case. Having disposed of these preliminary matters, we now turn to the evidence led at the trial. We find that, besides the landlord himself, there was the evidence of his witnesses Muhammad Bashir and Mushtaq Abmad to the effect that the appellant's son Arshad Mahmood was grown up and was to be. married. The landlord had asserted at the trial that he needed extra accommodation in that event. The observations of the lea reed Judge in, the High Court that it was not shown by the landlord as to how an extra member of the family could not be accommodated in the existing premises clearly proceed in disregard of the accepted fact, rot which judicial notice should have been taken, that a married son would need accommodation and privacy than an unmarried child living with his parents. None of the witnesses produced by the tenant had rebutted the fact that the landlord's son was of marriageable age, nor did they assert that the boy was not to be married in the near future. They simply expressed heir ignorance on this point. In these circumstances the finding of fact recorded by the learned Rent Controller in this behalf could not have been reversed on the ground that there was not sufficient evidence in support thereof We, consider, therefore, that this was, indeed, a case in which the landlord had fully succeeded in establishing his bona fide personal requirement for the purpose of accommodating his son and his future daughter-in-law. One last observation may also be made about the contention that the words "good faith" had not been used by the landlord in his application or I n his evidence. The learned counsel for the respondent reffered us to Mst. Almas Begun and others v. Haji Pir Bakhsh .( P L D 1964 Pesh.278). Muhammad Siddique v. Mistri Muhammad Aslam (P L D 1975 Lab. 308), Hakim Azlz Ahmad .v. Ijazul Mulk (P L D 1971 Lab. 305), Sonfi Muhammad Yasin and Brothers v. Dr. Major Abdul, Ahad Khan and Mst. Akhtar Sultana v. Dr. Abdul Rauf Nagi (P L D 1978 Lab. 347), in support of the landlord had failed to prove his bona fide personal need as there was no clear statement made by him in this behalf. A perusal of the judgments relied upon by the learned counsel for tile respondent shows that none of them lays down any proposition to the effect that the landlord must inevitably use the expression `bona fide' or `good faith' in his application or in his statement at the trial On the contrary what these authorities purport to lay down is that a bona fide personal and reasonable requirement of the landlord must be established by evidence before he can ask for the eviction of the tenant. In every case it will be a question of fact whether the evidence led by the landlord has succeeded in establishing such a requirement. There is no support on the record for the assertion or allegation made, on behalf of the tenant that the landlord merely wanted to enhance the rent of the house. In any case, such an allegation must fail once it is found that the land has succeeded in establishing his bona fide personal need. The contention that the landlord had in the meantime got some other portions of the house also .vacated, has no relevance to the fate of the present case, because we are not aware of the reasons for which the landlord had asked for the eviction of those other tenants. He had already commenced the present proceedings for his, bona fide personal requirement, and his demand for the eviction of the tenant could be negatived only if it was shown that he was already in possession of sufficient accommodation, and not on the basis that he had subsequently got vacated some other portions of the house from other tenants, for reasons, which were not brought on the record, of this case. For the foregoing reasons, we would accept this appeal with costs, set aside the judgments of the High Court and of the District Judge, and restore that of the, learned Rent Controller. The tenant is allowed four months time to deliver vacant possession to the appellant. Appeal accepted.