1989 PLP 1151 (MLD)

(1)Whether the opponent has committed default in payment of rent w.e.f. August, 1980? (2)What is the rate of rent (3)Whether the opponent has damaged the property materially and has impaired its value and utility? (4)Whether the premises in question is required by the applicant for use of his sons in good faith? (5)What should the order be? While taking into consideration, the evidence produced by the parties, the learned Controller, decided Issues Nos.1 to 3 against the landlord/respondent, while Issue No.4 was decided in affirmative, and consequently ejectmcnt application was allowed on the ground of personal bona fide requirement. I have heard Mr. Malik Muhammad Sadiq, learned counsel appearing for the appellant. Mr. Khalid Hamid, learned counsel appearing for the respondent, and have gone through the R&P of the case. It was contended by Mr. Malik Muhammad Sadiq, learned counsel appearing for the appellant that the respondent wanted to demolish and reconstruct the house in question for which he had no permission from the Building Control Authority and, therefore, the ejectment could not be allowed. That the ejectment application filed by respondent against tenant Muhammad Sharif was dismissed and, therefore, Rent Controller has erred in allowing the present application on the ground of personal bona fide use. That the house vacated by Muhammad Hussain was lying vacant and the same has not been occupied by the respondent. That the respondent has been falsely claiming enhancement of rent and, therefore, the application was mala tide. In support of his contentions, the learned counsel has relied upon P L D 1988 Kar. 8, 1984 SCMR710and1983CLC1592. Mr. Khalid Hamid, learned counsel appearing for the respondent has contended that the family of the respondent/landlord consists of seventeen (17) members which fact has been specifically mentioned in para. 5 of affidavit but the same was not challenged in cross‑examination and, therefore, it was proved that the respondent required the house in question for his personal bona fide use and for the use of his sons. It was further contended that it was not the case of respondent in the application as well as in the affidavit filed in Court that he: wanted to reconstruct the house in question. The learned counsel appearing for the appellant has misconstrued the reply of the respondent given in the question put in cross‑examination which was irrelevant and inadmissible. I have considered the contentions of the learned counsel. In para. 5 of the affidavit filed by respondent Muhammad Yaseen in evidence it is stated that the applicant requires the premises for his personal use and for his son Sabir who is married and is living with his wife and three children, Muhammad Ejaz and Harz Muhammad Javed, who are engaged but their marriages have been postponed due to shortage of accommodation. In support of his contentions, he has produced photocopy of Nikahnama, Identity Cards, K.M.C. Certificates as Annexures "A, "B", and "B‑1", "B‑2", "C'." and "C‑1". That the premises in his possession are not sufficient for his sixteen (1li) other family members. That he had requested the opponent to vacate the premises but he has refused. In cross?examination, he has stated that the entire building in which the premises in dispute are situated was rented out to seven tenants and his son‑in‑law. That one of the tenants namely Muhammad Hussain has vacated the house but it is a quarter. All the tenements arc in the shape of quarters consisting of one room only. The quarter vacated by Muhammad Hussain is lying vacant because it was not sufficient. He has not applied for permission in respect of removal of partition wall to convert all the one room quarters in single room but as and when the same are vacated he shall seek permission. He has denied a suggestion that he does no intent to convert the tenement into one room and that the premises are not required by him in good faith. He has also denied a suggestion that the marriage of his son has not been proposed. He has denied a suggestion that he wants to pressurise the opponent/tenant to enhance the rent. Muhammad Ejaz and Sabir sons of respondent have supported the respondent in their affidavits. Witness Muhammad Sabir has stated that he is residing with the applicant alongwith his wife and three children on the top floor of Khaimchand Ratanchand Kulidas Street, Pakistan Chowk, Karachi. His two brothers namely Muhammad Ejaz and Muhammad Javed have been engaged but their marriages have been postponed due to insufficient accommodation. That the premises in their possession consists of two small rooms in which seventeen (17) members are residing. He is married but could not have privacy due to number of persons residing in two rooms. That the premises are required for the personal bona fide use of his father and his family. In cross‑examination he has denied a suggestion that his father depends on rental income. He has also denied that 1st floor and 2nd floor of the premises situated in Pakistan Chowk are in possession of his father but according to him, a but on the top floor is in his possession. There was one room on the top floor which has been made into two to accommodate his after his marriage. His parents also reside with him at the top floor. He has denied that their uncle also resides with them as joint family but he has separate residence in the same building. He has also denied a suggestion that the house occupied by his father belongs to him but according to him, it was inherited. He has denied a suggestion that his father has also share in the house occupied by his uncle. Witness Muhammad Ejaz has fully supported the applicant and witness Sabir. In cross‑examination he has denied that his father depends on rents. He has again admitted that he satisfies his needs from the rents recovered from the tenants. He has denied a suggestion that his father has filed the present case to pressurize the opponent for enhancement of rent. He has also denied a suggestion that his father intends to re‑let the house in question after obtaining pagree. He has admitted that he has not yet married, but he has denied that his marriage has not yet been settled. He has further stated that he will be married A with daughter of his Khala, who resides in Muhajir Camp. His uncle resides in the same building in a house of his grand father. His grandfather: is dead. There is only one room in occupation of his uncle therefore, his father had not asked him to vacate. He has denied that his father has sufficient accommodation. He has also denied that his uncle is in possession of more than one room. He has also denied a suggestion that they do not intend to live jointly but they had filed the case to get enhanced rent. He has admitted that after the house was vacated by Muhammad Hussain, they have not effected any changes. According to him, after they get possession of all the tenements they intended to make alterations at the same time. Appellant Abdul Khalique has stated in his affidavit‑in‑evidence that application had been filed on the ground of default and causing damage to the property before the Rent Controller and these points were decided against the landlord in the previous ejectment application. That the premises in question are not required by the applicant for his personal use or for the use of his family or for his sons, and this ground has been created after the dismissal of the previous case. The applicant had filed two separate cases. One against Muhammad Sharif and other against Muhammad Hussain on the ground of personal use and the application in respect of Muhammad Hussain was allowed while the application against Muhammad Sharif was dismissed, which shows that the requirement for the personal use of the applicant was not accepted. That Ejaz Ahmad son of respondent has admitted that the applicant satisfies his needs from rent, which shows that the requirement for his family and sons was not bona fide. That no sanction or permission or approval has been obtained from the Building Control Authority for conversion of the tenements into‑ single unit, and therefore, the ground for personal requirement was false. That the applicant has got some property inherited by him which is being occupied by his brother and he has not asked his brother to vacate the premises to the extent of his share and, as such, the intention of the applicant is nothing but to induct the new tenant on higher pagree as well as rent. In cross‑examination he has deposed that he resides in the premises since 1969. The applicant is known to him, he has not seen his house. He has 4‑5 children. As far as he knows, he has 3 children. He has married 5‑6 years back. The evidence of the applicant and his sons Sabir and Muhammad Ejaz clearly shows that their family consists of seventeen (17) members out of which at (cast three sons arc major One son, namely, Sabir is married and he has three children. while the remaining two are to be married. It is also clear that the present accommodation in their possession consists of only two rooms. As far as the number of members of his family are concerned, the evidence of the respondent and his sons was not at all challenged in cross‑examination. However, the applicant has stated in cross‑examination that the respondent has 4‑5 children. Prom the replies given by him in cross‑examination it appears that he is not certain about the number of family members of the respondent and, therefore, I am of the considered view that the family of the respondent consists of seventeen (17) members. As far as the accommodation in his possession was concerned, it has been stated by them that they are in possession of only two rooms and the appellant, in fact, does not know in to what accommodation was actually in possession of the respondent and, there are, it is established that the respondent requires the premises in question for his personal use and that of his sons. Merely because the respondent hits allowed his brother to occupy one room, or his son‑in‑law is occupying one room in the building in which the demised house is situated cannot be made ground to refuse ejectment. It is the choice of " the landlord to have accommodation which he thinks more suitable for his residence. Adverting to the contentions of the learned counsel appearing for the appellant, that since the respondent wanted to demolish the building in question and reconstruct the same, and that he had not obtained any permission from Building Control Authority, ejectment could not be allowed, the contention is misconceived. It was neither stated in the application nor in the affidavits‑in?-evidence of respondent and his sons that they wanted to demolish the entire building and to reconstruct the same. It was only in cross‑examination that a reply had come that they wanted to make all tenements as single unit, which could only mean that they would renovate and suitably make sonic alterations in the building in order to make it single unit. In any case since it was neither a ground in the application nor in the affidavits‑in‑evidence, the reply given in cross‑examination could not be made a ground to refuse ejectmcnt. The learned counsel appearing for the appellant has relied upon the following cases. Mrs. Iqbal Baqi v. Salim Rashid P L D 1988 Kar. 8: wherein the tenant had made additions and alterations in the premises by dismantling walls, doors, windows and kitchen in excess of the additions and alterations allowed by tenancy agreement, the ejectment application was allowed on the ground that the same had impaired the value of the premises. The matter came up before the High Court and it was observed that:‑ "The alterations authorised under the agreement must not be in contravention of any law i.e. Building Rules and Regulations as an express right or liability does not restrict the implication of law. If certain alterations in the existing structure arc made which require permission under the law, the parties cannot contract out of the same, in disregard of that law or in violation of any condition prescribed by law." With utmost respect the facts of the above reported case are totally different and the decision is not applicable to the facts of the present case. As far as cases: Abdul Oayyum and another v. Mst. Khurshid Jehan and others 1984 S C M R 710 and Zebra Begum v. Pakistan Burmah Shell (1983 C k, C 1592): were concerned, there is no cavil with the principles laid down in the above two decisions but the facts are distinguishable inasmuch as it was not the case of the respondent that he wanted to demolish the building and reconstruct the same. Whereas in the case of Abdul Qayyum and another, the ejectment was sought on the ground of requiring. shops in good faith for reconstruction of the building, while in the case of Zehra Begum and others, the ejectment was sought on the ground of personal requirement and for reconstruction of building. In view of the above discussion, the respondent had proved that he required the premises in question for his personal bona fide use and that of his sons and, therefore, the learned Rent Controller had rightly allowed the ejectment application. The present appeal is therefore dismissed with costs. However, the appellant is allowed four months' time to hand over vacant possession of the premises in his occupation to the respondent subject to the condition that he continues to pay monthly rent regularly. In case the appellant failed to hand over vacant possession as directed, the learned Rent Controller shall issue writ if ejectment without issuing prior execution application is filed. I had decided the above appeal on 28-11-1988, by a short order and these are the reasons for the same. M.Y.H./A-536/KAppeal dismissed: