1989 PLP 3390 (MLD)

Muhammad Akmal Wasim for Respondent. Date of hearing: 13th November, 1988. This appeal under section 24 of the Cantonment Rent Restriction Act, 1963, is directed against the order dated 4-9-1986, passed by Mr. Badar Alam Bachani, Additional Controller of Rents, Clifton Cantonment, Karachi, whereby the application for ejectment filed by the appellant against the respondent was dismissed.

2. The appellant is the landlady of premises built on Plot No.177, Delhi Colony No.1, Clifton Cantonment, Karachi, and the respondent is her tenant in respect of first floor of the said premises at the rate of Rs.225 p.m., excluding electricity and gas charges. The appellant has been living on the ground floor of the said premises consisting of three rooms alongwith her husband, five sons aged from 10 to 29 years, one daughter-in-law and four grand-daughters, aged from one month to three years. With the passage of time the said accommodation fell short for the needs of the family of appellant. She, therefore, requires the premises in occupation of the respondent for the use of her son Shakeel Ahmad and his family consisting of six members. Accordingly the appellant approached the respondent asking him to vacate the premises in his occupation, but with no success. On 12-10-1985, the appellant filed an application for ejectment against the respondent in the Court of Additional Controller of Rents, Clifton Cantonment, Karachi.

3. The respondent filed his written statement denying the averments made by the appellant. According to him the requirement of the appellant is not bona fide, as her said son Shakeel Ahmed is also in occupation of premises bearing No.013, situated near Choti Masjid, Delhi Colony No.1, Karachi.

4. On the pleadings of the parties the learned Controller of Rents has framed the following issues:- (1)??????? Whether the applicant requires the disputed premises for her and her son's personal use? (2)??????? Relief?

5. The appellant has examined herself (P.W.-1) and her son Shakeel Ahmad (P.W.-2), while the respondent has examined himself (D.W.-1).

6. On the assessment of the evidence adduced by the parties, the learned Rent Controller decided issue No.1, against the appellant and consequently dismissed the application for ejectment, hence the present appeal.

7. Section 17(4)(a) of the Cantonment Rent Restriction Act, 1963, provides that a landlord/landlady may apply to the Controller for an order directing the tenant to put the landlord/landlady in possession of a residential building. if he/she requires it in good faith for his/her own occupation or for the occupation of any member of his/her family, and he/she or the member of his/her family, as the case may be, is not occupying any other residential building suitable for his/her needs at the time, in the Cantonment area concerned or in any local area in the vicinity thereof, and he/she or the said member has not vacated with sufficient cause after the commencement of this Act.

8. Admittedly the appellant and her son Shakeel Ahmed do not own any other property in Cantonment area or in vicinity thereof except the building where the disputed premises is situated. The fact that the husband of appellant owns a commercial plot in the same locality does not debar the appellant from seeking ejectment of her tenant from residential premises. The respondent has accepted this position in his cross-examination in the following words:- "I say that according to my knowledge applicant and her son Shakeel Ahmad do not own and possess any other accommodation in the locality, except applicant's husband who possesses one plot in the locality m which he is running KARKHANA and godown." The learned Rent Controller has thus failed to appreciate that the commercial premises occupied by the husband of Appellant, in no way affect the case of the appellant, who requires the disputed premises for her own use and the use and occupation of her son Shakeel Ahmad and his family.

10. Admittedly the respondent was inducted as tenant of the disputed premises in the year 1970. When all the children of the appellant were minors and three rooms, which are in possession of appellant were sufficient for their needs at that time. All of them have now grown up and out of them Shakeel Ahmed is married and has got four daughters from this wedlock. The photo-copies of Nikahnama of Shakeel Ahmad and birth certificates of his daughters are on record. The respondent has also not disputed this position. While determining the question of requirement, the Rent Controller should not overlook the new requirements of the landlady or her wish for better accommodation. The appellant as her own witness (P.W.-1) has testified the circumstances justifying her demand of vacant possession from the respondent. She has been supported fully by her son Shakeel Ahmed (P.W.2). As observed in Rajab Ali v. Darius Kandawalla and another, reported in P L D 1984 Kar. 14, the desire of the landlady to live in her own house is quite natural and once a landlady has elected to live in her own house her demand for eviction of her tenant would be presumed to be bona fide and based on good faith unless mala fide is alleged and proved by the tenant. The assertion of landlady on oath as to requirement of premises for her own is to be accepted as bonafide, if consistent with her averments in the application for ejectment and not shaken in cross-examination or disproved in rebuttal. Reference may be had to cases of Hassan Khan v. Mrs. Munawwar Begum, reported in P L D 1976 Kar. 832, Mst. Tauheed Khanum v. Muhammad Shamshad, reported in 1980 S C M R 593, and Everready Pictures Ltd. v. Chaman Begum, reported in P L D 1982 Kar. 770.

11. The respondent has questioned the bona fides of the appellant by stating that she has increased rent from Rs.100 p.m. to Rs.320 p.m., including electricity and gas charges during all this period, which circumstances militated against her bona fides. As observed in Abbas Raza v. Syed Abid Arabi, reported in 1984 C L C 2390, Khalil Ahmad v. Raisul Hasan Rizvi, reported in 1983 C L C 2781, and Qazi Mairajuddin v. Badruddin, reported in 1986 C L C 1129, increase of rent F does not militate against bona fide requirement, if the same is independently proved.

12. Subsection (6) of section 17 of the Cantonment Rent Restriction Act, 1963, again provides a protection to the tenant where the landlord or the member of his family for whom possession is obtained fails to occupy the premises within the prescribed time.

13. Having regard to the above factual and legal position, there was hardly any justification for the learned Rent Controller to have refused the eviction of respondent. His remark that the need of disputed premises reflected unnecessary greed of appellant was totally uncalled for. His observations about the regularisation of Delhi Colony by Clifton Cantonment Board were again irrelevant. A judgment should be based strictly on the evidence on record, and not on outside evidence, however, acquired. The Presiding Officer should not go out of record and base his finding on matters within his personal knowledge, or conjectures, which unfortunately was done in this case resulting into miscarriage of justice.

14. In the result the impugned order is set aside and the ejectment of? respondent from the disputed premises is ordered. Two months' time is, however, allowed to the respondent to vacate the demised premises. The appeal is allowed, but the parties are left to bear their own costs. M.Y.H./M-792/K Appeal allowed.