1984 PLP 104 (MLD)

The respondent /landlord examined himself in support of his case and also produced Haji Noorul Hassan as witness on his behalf. The appellant /tenant examined himself in support of the defence taken by him. Some other formal witnesses were also examined in the case but their evidence is not necessary to be adverted to for the disposal of this appeal.

3. On the evidence recorded and after hearing the learned Advocates for the parties, the following two questions arose for determination before the learned Rent Controller:- (1) Whether the premises in dispute is required by the respondent /landlord for his personal use and occupation bona fide? (2) Whether the appellant /tenant committed default in payment of rent? The learned Rent Controller answered the point No.1 in the affirmative and having found that the respondent /landlord was residing in rented premises, placing reliance upon the case reported in 1976 SCMR 52, held that the premises is required by the respondent for his personal and bona fide use and occupation. The point No.2 was answered in the negative on the finding that rent for the month of October, 1975 was remitted to the applicant an 2nd October, 1975 but the same was refused, whereupon the tenant started depositing rent in the Court. In the circumstances it was held that no default was committed by the tenant in payment of the rent. Consequent to the finding given under point No.1 in the affirmative the tenant/appellant was directed to vacate the premises and hand over its peaceful possession to the respondent/landlord, by order passed on 6th January, 1980. Against the above order, passed by the learned Rent Controller, the present appeal has been filed under section 21 of the Sind Rented Premises Ordinance of 1979.

4. Mr. Mansoorul Arfin, the learned counsel for the appellant in support of the appeal contended that the accommodation, wherein the respondent /landlord is now residing, though is a rented premises but it consists of the same accommodation as is available in the premises owned by the respondent wherein the appellant is residing as a tenant. Accordingly it was argued that the respondent cannot seek ejectment of the premises on the ground that the disputed premises is required by him for his personal use and occupation in good faith. The learned counsel placed reliance on the case of Fahmeeda Jahan Begum v. Varinda mal 1980 C L C 604, Mst. Hajra Bai Sulaiman v. Mst. Aisha Bibi 1982 C L C 1444 and Muhammad Siddiq v. Abdul Hameed P L D 1976 Kar.

696. I have heard the learned counsel for the parties and find that the arguments advanced by the learned counsel for the appellant as above cannot be accepted, in view of the authoritative pronouncement of the Honourable Supreme Court of Pakistan in the case of Abdul Salam Akhtar v. Dr.Najam Parvez 1976 S C M R

52. In the said case while repelling the contentions raised on behalf of the tenant that the respon dent/landlord was living in rented premises, suitable for his needs in the same urban areas thus was not entitled to evict the petitioner/the tenant, the Honourable Supreme Court held as follows:

"The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view, extend to cover rented premises, for, otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation, which the landlord is occupying at the time, must be shown to be his own and not merely rented premises"

5. Reference may also be made to the recent judgment of the Hon'ble Supreme Court in the case of Muhammad Naseem v. Azmat Khan, 1982 S C M R 1132. The facts of the said case were that ejectment was sought by the landlord on the plea that the house in occupation of the tenant was required by him on the ground of personal need and that he was residing in the house of his mother. The Rent Controller accepted the said plea and ordered for eviction of the tenant. The learned Additional District Judge in appeal, however, reversed the said order and held that the landlord was putting up in his mother's house and that it was not shown that the said house was insufficient for his needs. Aggrieved by the said order, the landlord moved the Lahore High Court in its writ jurisdiction which was accepted. In the cited case the following observations appears:-- "Under section 13(3)(1)(a)of the Rent Restriction Ordinance, it is only when a landlord is found to be in possession of building suitable for his needs in the same urban area in which the demises property is situate, that the eviction of the tenant can be refused and secondly; even if the respondent was residing in the house of his mother he could still be entitled to obtain the ejectment of the petitioner because, as held .by this Court in Abdul Aziz and another v. Muhammad Ibrahim P L D 1977 SCAM, section 13(3)(a)(i) cannot be extended to cover a building occupied by the landlord but not owned by him. Since the petitioner was not owner of the house in which he was presently residing being an occupant in his mother's house this circumstance was not fatal to his case. Consequently the petition was allowed and the respondent ordered to hand over possession of the house to the petitioner within two months. This order was passed on 15-6-1981." The observations of the learned High Court were approved by the Honourable 'Supreme Court in the above case and accordingly the petition for leave to appeal filed against the above order was dismissed.

6. As regards the cases cited by the learned counsel for the appellant it may be mentioned that in the case of Mst. Fahmida Jahan Begum v. Varindamal 1980 C L C 604, the attention of the learned Single Judge, who decided the said case, was not drawn to the judgment given the Honourable Supreme Court in the case of Abdul Salam Akhtar v. Dr.Najam Pervez (supra). In the case of Mst. Hajra Bai Sulaiman v. Mst. Aisha Bai, the learned Single Judge came to the conclusion on the facts of the said case, that the plea of requirement of the disputed premises for personal use on which the landlord sought ejectment, was not proved. It was also found that both the Courts below had given concurrent findings against the landlord which were held to be based upon evidence on record. This case, therefore, has no application to the facts of the present case. As regards the case reported as Muhammad Sidiq v. Abdul Hameed I do not find that the principle laid down by the Hon'ble Supreme Court in the cases referred to above, was brought to the notice of the learned Single Judge, who decided the said case.

7. It would be relevant to mention here that evidence led by the parties before the Rent Controller fully supports the finding reached that the respondent /landlord who at present is residing in a rented house, requires the premises in dispute bona fide and reasonably for his personal use and occupation. The evidence of Sardar. Ahmed (landlord /respondent) shows that in order to shorten the litigation he even at one stage tried to construct a tenement for himself on the first floor of the disputed premises He in his evidence, in cross-examination to the question put to him stated as follows:

"It is incorrect to say that I want to eject the opponent because I want to sell this house also. It is correct to say that I have filed a Civil Suit which is pending in the Hon'ble High Court for the construction of the first floor of the premises in dispute. Originally I filed that case in Court No.XXII, Karachi in which the order was passed in my favour and the appeal to opponent against that order was dismissed by Sessions Court. It is correct to say that I stated in my that suit that 1 want to construct the suit floor because rent case was taking time in disposal. It is correct to say that if I get the first floor constructed I will not be in need of the premises in dispute." The appellant's witness Nasim Iqbal (who is the son of the appellant) admitted the pendency of litigation in respect of the construc tion which the respondent /landlord wanted to raise on the first floor of the disputed premises. It was however, further stated by him that the landlord does not require the premises in dispute for his own use and in good faith but he wants to sell away the same with vacant possession. No particulars of this alleged intention on the part of the respondent, has, however, been given. On the contrary I find that to the suggestion made during his cross-examination in reply, the respondent /landlord (Asrar Ahmed) expressly stated (as already noted above) that he does not want to eject the tenant because he wants to sell this house. Another factor being relevant of which the notice may be taken is that though for the premises in dispute which consists of a single storey on a plot of land measuring 600 sq. yards, the appellant/ tenant is paying Rs.550 per month, the respondent /landlord for the first floor tenement of a double storeyed building on a plot of 600 sq. yards in the same locality is paying Rs.720 per month as rent. The respondents family consists of 5 members which fact is not, disputed. According to the respondent, there are only the two rooms and one drawing room etc. in the rented house which according to him, is insufficient for his needs and requirement. The case of the appellant/tenant is that the accommodation in both the premises is the same. In these circumstances in my opinion the tenant cannot validly, contend that the landlord should continue to reside in a rented house on the first floor of a double storyed building and pay rent in excess of what he himself is receiving from the appellant for a single storeyed bungalow. There is no justification in the plea of the tenant so as to compel the landlord /respondent in the circumstances, to continue to reside in the rented house at a higher rate of rent and that also at the mercy of another' person. The respondent has a right to shift and live in his own house, he having made out a case that his requirement of the premises in dispute for his personal use and occupation is bona fide and reasonable.

8. The upshot of the above discussion is that the respondent hasp proved that he requires the premises in dispute reasonably and in goodfaith for his personal use and occupation and that he is entitled to get the said disputed premises vacated and to shift to the building owned by him. The learned counsel for the appellant could not show that the appellant/ tenant was able to rebut the evidence produced by the landlord in support of his above plea. The finding of the Rent Controller on the question discussed as above therefore, calls far no interference.

9. No other point was raised by any of the learned counsel for the parties. The finding on point No.2 was not challenged by learned counsel for the respondent in view of the finding given under point No. 1.

10. For the reasons stated above I find no merits in this appeal which is accordingly dismissed. The appellant is granted three months time to vacate the premises. M. Y . H . Appeal dismissed.