1989 PLP 4343 (MLD)

Since both the above appeals have arisen out of the same order, they are being disposed of by this consolidated judgment. On 16-1-1986, Mst. Razia Sultana filed an application of ejectment against her tenant Syed Nisar Hyder in respect of first floor of the building bearing No.

111. D-26/13, Nazimabad. Karachi, in the Court of VIth Senior Civil Judge and Rent Controller (West) Karachi, on the grounds of default in payment of rent from January 1985 till the filing of the application and requirement of the premises for the occupation of her married daughter Mst. Shakila Sultana.

3. Syed Nisar Hyder, the tenant of the said premises resisted the ejectment application by filing-the written statement on 17-2-N86, in which he denied both the said grounds i.e. of non-payment of rent and of personal bona fide need of the landlady for the occupation of her married daughter Mst. Shakeela Sultana.

4. The learned Rent Controller formulated the following points for determination:-- (1) Whether ejectment application is not maintainable ? (2) Whether applicant requires demised premises for her own use and use of her daughter ? (3) What should the order be ?

5. The case proceeded and the Landlady examined herself (P.W.-1) and her daughter Mst. Shakeela Sultana (P.W.-2) while the tenant examined himself (D.W.-1).

6. On the basis of evidence both oral as well as documentary, the learned Rent Controller decided both the issues against the tenant vide order dated 20-5-1987, and directed his ejectment from the demised premises within a period of 30 days. The tenant filed F.R.A. No.617/1987 against this order. Since no finding was given by the learned Rent Controller on the ground of default in payment of rent, the landlady also challenged the said order in F.R.A. No. 750/1987.

7. The tenancy is admitted by the tenant. Paras Nos. 5 and 6 of the application for ejectment relate to the need of the premises in dispute by the landlady on the ground of personal requirement. I can do no better than to reproduce the same in extenso:-- "(5) That the applicant requires the premises in Ilaqa P.S. Nazimabad in good faith for her own occupation as well as for the occupation of her children. The applicant's youngest daughter Sakeela Sultana was married on 3rd January, 1985 and for want of her own or her husband's accommodation in Karachi, she is to live with her husband on the first floor of the said house. (6) That the applicant being an old lady bona fide needs the first floor of her house to make adequate provisions for her said daughter to live with her husband independently on the first floor and be of constant help as well as to look after the applicant in her old age and infirm health."

8. Mst. Razia Sultana, when examined as her own witness (P.W.1), has testified the same facts. She has been supported fully by her married daughter Mst. Shakeela Sultana (P.W. 2), who is presently residing with her mother on ground floor of the said building. In cross-examination nothing has been elicited to destract the value of their testimony.

9. The tenant contested the requirement of the disputed premises by the landlady for the use of her married daughter Mst. Shakeela Sultana on the ground that she was interested in getting the rent enhanced from Rs.850 p.m. to Rs.1.500 p.m. He has unfolded his defence in para. No. 14 of the written statement, which for the sake of convenience is reproduced below:-- "

14. That with regard to concocted, baseless and wholly false averments in paras. 5 and 6 it is vehemently denied that she needs bona fide any more accommodation than the whole of ground floor consisting of D & D plus three rooms for the single soul. Her sons are all green card holders American nationals who do not come to Pakistan for over decades. The daughters have been married and vacated accommodation permanently. That is why first floor of demised premises was always on rent. As regards the alleged programme to bring back her youngest daughter and her husband to live on the 1st floor demised premises, it is vehemently denied as the same is concocted, baseless and quite mala fide plan to oust the opponent. The applicant's youngest daughter and her husband are put to strict proof of the same to come into the witness box and prove their such alleged compelling and bona fide pressing need as compared to what son-in-law himself has and enjoys coupled with the anormous benefits that has accrued to him from his parents and employers like State Bank of Pakistan in various forms and manners. The applicant has nothing to do to have the 1st floor vacated and well -furnished for her daughter and son-in-law. This is contradictory to her own statement and opposed to Muslim customs in respect of a married daughter who leaves her parents for good. Thus, it is all mala fide plan only to eject the opponent."

10. The tenant has testified the same facts through his affidavit-in-evidence. In other words he has alleged mala fides against his landlady.

11. The record as it stands shows that the building where the parties are residing, is constructed on a plot measuring 139 sq. yards. There are three rooms on the ground floor where the landlady is residing with her married daughter Mst. Shakeela Sultana. Admittedly the tenant is also in occupation of the same type of accommodation. The demand of higher rent by the landlady is not borne out from the record. Even otherwise a demand of higher rent by itself does not cast any doubts about the personal bona fide requirement, if the same is independently proved. The landlady and her married daughter Mst. Shakeela Sultana have stated on oath that the disputed premises is required by them and 113 there was no reason for the learned Rent Controller to suspect their words. He was in fact guided by the principles of appreciating the evidence of the landlady/landlord, for the purpose of personal requirement, as laid down by the superior Courts. The landlady had justified her cause for bona fide requirement C with reference to the criteria laid down in Hassan Khan v. Mrs. Munawwar Begum reported in P L D 1976 Kar. 832, which is one of the leading cases on this point. The cases reported as Muhammad Hanif v. Mast Sara P L D 1982 Kar. 182; M/s. Tiger Wire Products Ltd. v. S. Abrar Hussain 1983 S C M R 402; Wali Muhammad v. Zainab Khatoon 1983 C L C 321; Abdul Rehman v. Nazeer Ahmad and 5 others 1984 C L C 3054 and Rajab Ali v. Darius B. Kandawalla and another P L D 1984 Kar. 14 further lend support to the plea advanced by the landlady.

12. It is again a matter of prerogative and discretion of the landlady to determine and decide as to how she should live in her own house. The contention of the tenant that accommodation on ground floor is sufficient for the landlady and her married daughter has got no force. Admittedly the landlady and her daughter are used to a better living and, therefore, they are entitled to have accommodation commensurate with their status. It is not for the tenant to determine suitability or sufficiency of accommodation for them. In somewhat similar circumstances the following observations were made in Rajab Ali v. Darius B. Kandawalla and another P L D 1984 Kar. 14, which are also relevant in this case:-- "Moreover, the need for accommodation varies from one landlord to another depending upon his or her social status. In one case certain accommodation may be suitable for the landlord's needs but the same accommodation in the other case may be considered as unnecessary extravagance. In the instant case the respondent comes from rich family of Paris. In view of her social status, her demand for vacation of the whole house is by no means unreasonable. Even the present house with admittedly 29 rooms which the respondent No. 2 is sharing with her son may be too big for two middle class families but it is not so in the instant case involving rich families of the respondents. Assuming for the sake of argument that by demanding the vacation of the whole building the respondent No. 2 has shown her extravagance, that is no reason to declare her demand having been made in bad faith. After all she is the master of the property. If she wants to retain whole of the property for her own use and occupation she could do so without any legal difficulty in her way. It is none of the business of the appellants to tell her to keep a particular portion for her use and let out the other one."

13. The learned counsel for the tenant has invited my attention to cases reported as Syed Anisur-Rehman v. Mst. Sara Bai P L D 1985 Kar. 714; M/s. John Traders and 3 others v. Ahmed Ali 1986 C L C 561; Samiullah v. Mst. Begum Jan 1986 C L C 2628 and Mst. Sadiqua Begum Wahidduddin v. Crescent Pak Industries Ltd. and another 1986 M L D 1788 in an attempt to show that good faith/bona fide requirement are to be proved by clear and definite evidence which could inspire confidence. There can be no dispute to this proposition. The facts of the above cases are, however, distinguishable.

14. Having heard the entire evidence minutely dissected by counsel on both sides it is perfectly clear to my mind that the landlady has made out a case for ejectment on the ground of personal need for the occupation of her married daughter. The finding of the learned Rent Controller on this issue is, therefore, confirmed. F.R.A. No. 617 of 1987, is, accordingly dismissed with no order as to costs.

15. I now take Appeal No. 750 of 1987, filed by the landlady. The plea of default of rent was raised by the landlady in specific terms in her application for ejectment. The allegation of default in payment of rent from January 1985 to October, 1985, was seriously contested by the tenant. Admittedly the tenancy between the parties is regulated through an agreement which is on record. The parties also adduced evidence in this behalf. The learned Rent Controller, however, refrained to give any finding on this plea raised by the landlady, why? nobody knows. Ordinarily, in such a situation the case ought to have been remitted to the Rent Controller for recording finding on this issue. The Appellate Court is, however, not bound to remand issue in every case in which the Rent Controller has failed to frame or decide any issue. The question is one for the exercise of discretion of the Court in each case. Thus where, in spite of there being no formal issue on a point, it has been tried by the Rent Controller after giving the parties full opportunity to produce their evidence and present their case on it, a remand is not necessary, especially where the parties have led evidence fully on the point. Such an exercise is again likely to entail delay.

16. The evidence which has come on record clearly makes out a case of default. The admission made by the tenant in affidavit (Exh. A) plays a decisive part in the decision of the issue of default. The default is even admitted to R.A. No. 3097 of 1985 (Exh. C/A). The tender of rent by money order or deposit in the office of Rent Controller after the prescribed period, cannot absolve the tenant from the liability. The issue of default is thus decided against the tenant. Appeal No. 750 of 1987, is allowed with no order as to costs. Syed Nisar Hyder, the tenant is allowed two months' time to vacate the demised premises. M.Y.H./R-95/K Rent appeal dismissed.