1986 PLP 238 (MLD)

‑‑‑S.15‑‑'Children'‑Married daughter whether included in 'children' for which landlord would require premises‑‑According to custom and conditions prevailing in Pakistan, married daughter is expected to reside with her husband separately‑‑When a married daughter required accommodation genuinely, in that event it would amount to requirement of children of landlord‑‑In such case landlord, held, should clearly and specially state material facts in application and also establish in evidence that landlord required premises for married daughter. (e) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S.15‑‑Personal requirement‑‑Before passing order of ejectment Court would ascertain question of exact need of landlord. Daldar Hussain v. Niaz and others 1985 S C M R1969 rel. (f) Sind Rented Premises Ordinance (XVII of 1979)‑ ‑‑‑S.15‑‑Personal requirement‑‑Principle that it was prorogative of landlord to choose any building he likes for his personal requirement, held, could apply in cases where landlord had several buildings and he had to choose one of them. 1973 S C M R

185. Mir Raza Hussain Haidry for Appellant. S. H . Rizvi for Respondent. The appellant filed an application for ejectment against the respondent on ground that the disputed house is required for her own bona fide use and occupation, the respondent has infringed the conditions on which the disputed premises was let out to him and that he has committed such acts which are likely to impair the material value and utility of the premises. The respondent filed his written statement denying all the allegations. It was denied that the premises is bona fide and in good faith required by the respondent. The learned Controller framed four issues and dismissed the ejectment application. The appellant has assailed the finding of the learned Controller only on one ground namely the bona fide personal requirement of the appellant and no other issue has been pressed in support of this appeal. Mr. Haidry, the learned counsel for the appellant has contended that from the evidence on record the appellant has fully established that the premises is bona fidely required by the appellant. The house in which the appellant is residing is owned by her husband. According to Iqbal Wazir the son of the appellant, this house consists of three big rooms and one study room while according to the evidence produced on behalf of the appellant the disputed house consists of three big rooms and two verandas. The members of the family for whom the appellant had applied for ejectment is described as herself, her husband, son Iqbal Wazir, and daughter Nighat Parween her husband and their three years old son. Although in the ejectment application the appellant has projected the need of all these persons it seems that in evidence there is some discrepancy which according to Mr. S.H. Rizvi, Advocate amounts to changing the plea. The appellant has stated in cross-examination that the premises is required for her daughter, her husband and their son while Iqbal Wazir has stated that it is required for persons mentioned in the application. He again stated that Nighat Parvin and her husband will reside there separately. From the pleading and the evidence it seems that ground has been shifted from time to time. The requirement of the appellant, her husband, her son, daughter and son‑in‑law and their minor child is not the same as stated by Iqbal Wazir. Mr. Haidri, the learned counsel for the appellant has stated that the statement of the appellant has not been shaken in evidence in cross‑examination and therefore, the requirement of the appellant has fully been established. Such contention find support from P L D 1976 Kar. 832 and 1981 C L C

327. It has never been the proposition of law that the statement of landlord regarding his bona fide requirement is to be accepted without evaluating and assessing its evidentiary value. If the statement of the landlord proves bona fides and it has not been shaken in cross‑examination it should be accepted. But where the statement does not establish bona fide requirement even if it has not been shaken in cross‑examination, such statement cannot prove the fact sought to be proved by it. In the present case the appellant's statement seems to have been varied in cross‑examination. From the need of six persons in his affidavit of evidence, in cross‑examination it has been reduced to about two persons and a minor child. It seems that the statement of the appellant and her witnesses has been varied from time to time. In these circumstances I am not inclined to accept the statement of these witnesses so far the need and requirement is concerned. The learned counsel for the appellant has contended that the premises is required for the son and daughter of the appellant. Mr. Haidri states that the son and daughter of the appellant will be accommodated in the disputed house. This demand now seems to be completely different from what has been stated in the application and appellant's affidavit of evidence. The appellant's son is a petty contractor and is earning Rs.600 p: m. According to Mr. Haideri the appellant is an old sick lady of 70 years of age. In these circumstances, I cannot understand how a son would leave his parents particularly an ailing mother and will stay separately, when he does not seem to have sufficient income. The appellant neither in the application nor in her affidavit stated that his son is to be married and that it is held up due for want of accommodation. But this fact has been stated by Iqbal Wazir the son of the appellant which in my opinion is an attempt to improve the case. Now taking up the requirement of the daughter of the appellant separately or alongwith her parents and brother it is to be considered whether this need is covered by the provision of law. Section 15(vii) or Sind Rented Premises Ordinance, 1979 provides that ejectment can be granted if the landlord requires the premises in good faith for his own occupation or for the use of his sons or for his children. The word children is of wide connotation and covers the sons and daughters. But the question will be whether a married daughter can also be covered by the words 'children'. According to the custom and condition prevailing in our country, the married daughter is expected to reside with her husband separately. But the circumstances may arise where even a married daughter may require accommodation genuinely and in that event it will amount to requirement of the children of the landlord. In such case the landlord should clearly and specifically state material facts in the application and also establish in evidence that the landlord requires the premises for her married daughter. The appellant all along has stated in the application that separate accommodation will not be provided to the daughter but she will live with the appellant jointly in the disputed house. Now a separate claim has been put up for the daughter which is not consistent with the averment made in. the application. Nighat Parveen the daughter of the appellant has filed he affidavit of evidence in which she has stated that her husband is an Engineer and is drawing salary of Rs.2,000 per month. It has been stated by her which nowhere finds place in the statement of her mother or her brother, that one of the conditions of her marriage was that her husband will reside with her parents. If this was the condition of marriage and is accepted to be true then there is no question for the daughter and her husband to reside separately. In these circumstances the claim of the appellant in her cross‑examination that the premises is required for separate residence of her daughter is completely blown out. Furthermore the husband of Nighat Parveen has not been examined. In the facts and circumstances of this case it was necessary to examine him, to show that he does not have sufficient means to live separately or that he has agreed to live alongwith the appellant, after his marriage. The fact that he has not been examined, in the circumstances of this particular case, his wife's claim cannot be accepted. Now taking up the case as pleaded in the application the present accommodation consist of three big rooms and one study room whereas there are three big rooms and two verandas in the disputed house. There is hardly any material difference in the accommodation provided in both the houses. If the entire family can live in the disputed house it can also conveniently continue to reside in the existing house. Mr. Haidri, the learned counsel for the appellant has relied on Adam Ali Hassan Ali v. Rubab Bai P L D 1965 Kar.

408. The appellant has not proved the factors which may justify the demand for the disputed house. The learned counsel referred to Daldar Hussain v. Niaz and others 1985 S C M R 1969 where it was held that the Court should, ascertain the exact need of the landlord and then decided upon the question for passing order of ejectment. There can be no cavil with this principle of law. The need of the landlord has been assessed keeping this principle in view. The learned counsel has referred to 1973 S C M R 185 where it was held that it is the progative of the landlord to choose any building he likes for his personal requirement. This rule can apply in cases where the landlord has several buildings and he has to choose one of them. From this discussion it is clear that the appellant has failed to establish bona fide requirement. The appeal is therefore, dismissed. M.Y.H???????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.