1983 PLP 2300 (CLC)

The learned Rent Controller after hearing the parties answered both the issues in favour of the appellant tenant and accordingly by order passed on 14th July, 1 977, he dismissed the application.

4. Against the above‑mentioned order of the Rent Controller, Rent Appeal No. 235177 was filed which was heard by the 1st Additional District Judge, Hyderabad who by his judgment passed on 6th May, 1980 agreed with the findings of the learned Rent Controller under Issue No. 1 and held that the tenant bad not committed default in payment of rent. However under issue No. 2 the learned lower appellate Court reversed the findings of the. Rent Controller and held that the premises are required bona fide by the respondent who .has a large family and her two sons reached marriageable and that since the filing of the case their marriages were solemnized in October 1975. It was also observed that the requirement of the premises being bona fade, the respondent has the choice where to reside out of any of the houses owned by her. The appellant/tenant was accordingly directed to vacate the premises by judg ment passed on 6th May, 1980, .

5. Aggrieved by the above judgment passed by the learned lower appellate Court, the present appeal has been filed under section 15 (3) of the then West Pakistan Urban Rent Restriction Ordinance, 1959.

6. At the time of hearing of this appeal the learned counsel for the appellant restricted his arguments to the issue No. 2 which was decided by the learned lower appellate Court in favour of the respondent. With the assistance of the learned Advocates for the parties I have gone through the record. A perusal of the evidence led by the applicant/ respondent which consist of her son Abdul Hakim Exh. 22 and Ali Haider Exh. 26, the, facts which emerge as established are that the family of the respondent consists of in all 14.members out of whom her three sons are married and that one was going to be married. As regards the present accommodation, in which the respondent is . residing with her above family, the same consists of only four rooms on the first floor. In the same building in the ground floor tenement, the appellant is the tenant. According to the statement of the applicant's witness/son Abdul Hafeez this accommodation is insufficient for such a big family. He deposed that the respondent requires the premises for her personal bona fide use and use of her children. The evidence of Abdul Hafeez, son and attorney of the 'respondent, is fully corroborated by the statement of Ali Hyder 'a neighbour who was examined on behalf of the respondent landlady. It is significant to note that the statement of the two witnesses examined on behalf of the applicant landlady, that her family consists of 14 members has not been challenged. This fact therefore remains unrebutted. The learned lower appellate Court on the evidence on record disbe lieved the story set up on behalf of the appellant and his witnesses that the house presently occupied by the respondent consists of seven rooms. It may here be mentioned that in his order, the Rent Controller under Issue No. 2 did not discuss the accommodation presently in occupation of the respondent and also made no reference to the number of the members of the family of the respondent residing therein. It is hardly necessary to point out that these facts were material to reach a just decision.

7. Perusal of the order of Rent Controller further shows that he proceeded to decide the Issue No. 2 in the negative in favour of the appellant on the ground that the respondent in her application for eject ment had stated that she required the disputed premises for the use of her two sons who are of marriageable age and that their marriage could not be solemnized if the house to dispute was not vacated by the appellant but her witness Abdul Hafeez allegedly contradicted the contents of the application by stating that two of her sons are married. The Rent Con troller on the assumption that there was thus contradiction held that the respondent had not proved that she required premises for her bona fide use. I am afraid the learned Rent Controller had proceeded to decide issue No. 2 erroneously and that no cogent reasons have been given to come to the conclusion. reached by him. He omitted to take into consi deration the fact that the respondent has a big family. He also ignored the evidence that the accommodation presently in occupation of the respondent consists of only four rooms. On the other hand the learned lower appellate Court after discus sing evidence on record came to the conclusion that the four rooms accommodation available presently with the respondent is quite in adequate for a big family consisting of 14 members among Whom are three young married couples who are also residing in the said house. The learned appellate Court also took notice of the finding of the learned Rent Controller based upon the plea raised that in the application for ejectment in para. 10 she had stated that she required the premises in dispute as her two sons were going to be married, and their marriages were held up for want of accommodation and the alleged contradiction made by P. W. Abdul Hafeez, noted above. The learned appellate Court rightly pointed out that the application for ejectment was filed on 9th April, 1975 whereas the evidence of Abdul Hafeez was recorded thereafter in February, 1976 and during this period the marriage of the respondent's two sons was solemnized in October, 1975. Accordingly the learned Court rightly observed that obviously the respondent/landlady could not postpone the marriage of her two sons for indefinite period as the eject ment proceedings were continuing and there was uncertainty about the same. There was thus in fact no contradiction as assumed by the learned Rent Controller.

8. In the light of the above discussions I find that the judgment of the learned lower appellate Court is based upon material on record and is supported by cogent reasons. The learned Rent Controller however has given no reasons. There is neither any discussion nor even any refer ence in his order to the evidence led by the parties. . I may here observe that the findings of the learned lower appellate Court that the requirement of the landlord is bona fide and reasonable she having a large family and the existing accommodation having been proved inadequate for her requirement, and thus she is entitled to possession of the disputed house supported by the principle laid down in the case of Shamsuddin v. Mirza Muhammad Hussain (1978 S C M R 89). In that case having found that the family of the landlord consisted of large number of members and that the accommodation in possession of the landlord was very small, consisting of small rooms the. learned High Court held that the requirement of the landlord was bona fide and genuine and that the landlord was entitled to possession and that the desire of the landlord to have better accommodation should not be ignored and he could not be precluded from availing better accommodation by utilising his own property. Reference may here be also made to the authoritative pronouncement of the Honourable Supreme Court of Pakistan in the case of Khuda Bakhsh v, Muhammad Habib Shah Hashmi (P L D 1968 Lah. 199) where the judgment of the High Court granting eviction of the tenant on the ground that the landlord having 8 children and six of them being adult and the house in occupation of landlord consisted of only four rooms, refused to interfere and held that no exception could be taken to. the judgment under appeal. The Honourable Supreme Court dismissed the petition with the observation That in the circumstances it could not be reasonably contended that the respondent has not proved his requirement of the house in dispute.

9. In view of the above discussion I do not find‑ any merit in this appeal. The appeal was dismissed by short order passed on 5th May, 1982 which reads as follows.:‑ "For the reasons to be recorded separately the appeal is dismissed with no order as to costs. The appellant however is granted six months time to vacate the premises 'provided he deposits rent for each month during the above‑‑mentioned period. In case of default in deposit of rent for any moth as directed above or failure to vacate the premises on the expiry of the above period, which ever event happens earlier writ of ejectment will be issued without notice to him." The above are the reasons for the aforementioned short order. M.Y.M. Appeal dismisses'