1991 PLP 2039 (CLC)

IV. The premises in question consists of a double storey building constructed on 2,000 sq. yds. with 10 bedrooms and 4 servant quarters whereas the family of the son of the appellant consists of only three persons. The alleged requirement of such big house for a family of three members cannot be construed to be bona fide. V. The respondent has spent about Rs.10,00,000 on the improvement of the disputed premises. VI. The premises has been let out to the respondent for the purpose of running school and his eviction will cause great hardships to the respondent. The learned counsel in support of his above submissions has relied on the following authorities:‑

1. PLD 1985 Kar. 7 (Amanullah Khan v. Abdul Ghaffar). 2. 1985 C L C 1053 (National Bank of Pakistan v. Wadho Mal and others).

3. PLD 1985 Kar. 624 (Sultan Press Ltd. v. Muhammad Hassan) 4. 1985 C L C 2419 (Associated Sales Agencies v. The Standard Insurance Company Ltd.). 5. 1985 C L C 2455 (Shrinbai and another v. Habib Bank Ltd.).

4. The learned counsel of the respondent emphasised that the son of the appellant was admittedly cramped for accommodation in the year 1981 when the Appellant had obtained the possession of the premises from the previous tenant, but instead of providing the same to his son, he let out the premises to the respondent. There has been no increase since then in the number of the family members and nothing has been shown to establish that there was any change in the family structure of the appellant's son. It is an admitted position that the premises in dispute was in possession of a previous tenant, although it has been wrongly alleged that the previous tenant was ejected from the premises. All that had happened. was that the appellant had asked the previous tenant to vacate the premises as it was required for the use of the appellant and the tenant vacated the same. After obtaining the possession from the previous tenant, the premises was let out to the respondent. The mere fact that the premises was let out at that time to the respondent in my view does not mitigate the bona fides of the requirement of the premises in question for the use of the family of appellant's son in view of the explanation given in the evidence by the Appellant's son. According to him at that time his son had not started going to school and, therefore, the premises was let out to the respondent for specific period of three years, as by that time his son was to attain school going age. The Appellant's son is an educated person. He belongs to well‑placed family. when his son was to start going to school, be would desire to provide a separate room for the son and so also a separate room for studies where his tutor also could attend to the young boy without any disturbance whatsoever. Under these circumstances the two rooms in his occupation in the house of his in‑laws would not be sufficient for him. The agreement of tenancy has been placed on record. It specifically provided to remain operative for a period of three years and on expiry of agreed period the respondent would hand over the vacant and peaceful possession to the premises in question to the appellant. In the agreement there is no covenant with regard to extension of the tenancy period beyond three years. This document fully corroborate the contention of the appellant that after expiry of three years the premises was to be occupied by his son. In view of this explanation, I do not find any substance in the contention of the learned counsel of the respondent that the appellant does not require the premises for the bona fide use and occupation by his son's family. The case of National Bank of Pakistan v. Wadho Mal and others relied upon by the learned counsel of the respondent does not advance his contention in any manner. It was a case where it was found that the landlords owned several other properties and were in occupation of those properties and were not in need of the premises in dispute. It was further observed the landlords had filed the case on a vague ground that they were big Zamindar, and needed the tenement for their "personal business purpose". But in evidence it was stated that the landlords needed the tenement for their personal use in good faith, and nothing more. In cross‑examination it was stated by the witness of the landlords that the tenement was required by them for residential purpose. It was also admitted by the landlord that they had got vacated a building owned by them through Court and the said building was lying vacant. It was under above circumstances that the landlords were non‑suited by this Court in the appeal filed by the tenant.

5. The contention raised with regard to variance in pleadings and 'evidence is without any substance. The appellant has his permanent residence as stated by the respondent at Lahore and Sahiwal. This fact is not disputed by the appellant. In the rent application the personal need of appellant was also projected. Although his son, in the affidavit in evidence pleaded his need and that of his family and did not say that it was required for his father also. It cannot be disputed that in case the son of the appellant occupies the premises in question, it will always be available for use to the appellant also, whenever he happens to come to Karachi. The learned counsel in this regard made a reference to the case of National Bank of Pakistan v. Wadho Mal (Supra) and it has been already pointed out that in that case the ground was taken that the premises was required for business purposes and in evidence the requirement was projected for residential purpose. The evidence was obviously poles apart from the pleadings. In the case of Associated Sales Agencies (Supra) it was, pleaded that the premises was required for business as it was ideally located for the said purpose but in evidence the issue of location of building was dropped and it was stated that the premises was required for expansion of business which allegation was found inconsistent with pleadings and it was further observed that no particulars of expansion of business were given by the landlords. The said contention, therefore, has no hearing on the facts of this case.

6. It was contended by the learned counsel of the respondent that the mere fact that the son of the appellant was not occupying his own premises and was living in the house of his in‑laws is not sufficient to hold that the appellant required the premises bona fide for the use of his son. The learned counsel in this regard has placed reliance on the case of Associate Sales Agencies v. Standard Insurance Company Ltd. 1985 C L C 2419 (Supra). No doubt in the aforesaid authority it has been laid down that the mere ipsi dixit of the landlord that he required the premises for his bona fide use on the ground that he is not occupying his own premises, cannot be accepted unless the landlord proves his bona fide independently of the fact that he is not occupying the premises owned by him. The appellant's son is living in two rooms in the house of his in‑laws. The said building is stated to be a century‑old. That is to say that it is an old and worn out building. This evidence has not been challenged by the respondent in cross-examination. Looking at the two room meagre accommodation available, the bona fide requirement of the scan of the appellant cannot be doubted, The learned counsel ford the respondent relying J on the case of Associated Sales Agencies, Karachi (Supra) has contended that merely because a landlord is in occupation of rented premises, he cannot ipso facto obtain ejectment of a tenant of his own premises unless, he proves his bona fide requirement. In this regard he also referred to the case of Shirin Bai and another v. Habib Bank Ltd. reported in 1985 CLC 2455. It may be noted that in the aforecited case the learned Single Judge of this Court has observed that the landlords in the eviction 'application pleaded that they required the disputed premises as it was ideally located for their business, purpose but at the stage of evidence they improved their case by saying that the space in their occupation was not enough for expansion of business but the particulars of the alleged expansion were not given by the landlords. It was further observed by the learned Judge that it was not the case of the landlords that they wanted to vacate the premises in their occupation where they were running their business quite satisfactorily. The learned Judge was impressed by the fact that the circumstances of the case were against the appellants. It was under these peculiar circumstances of that case that the landlords were not given the relief sought by them. Similarly in the case of Associated Sales Agencies, particulars whereof have been noted in the earlier part of the judgment, the landlord had changed their case altogether while projecting the so‑called requirements of the premises. Therefore, the said authority also does not advance the case of the respondent. On the other hand, the learned counsel for the appellant has referred to 1953 CLC 1730 (Samiuddin Khan v. Mst. Jamila) wherein Saeeduzzaman Siddiqui, J. (now the Chief Justice of this Court) while dealing with the facts of the case that are akin to the present case, observed as under:‑

"Respondent in her evidence before the Court in clear terms stated that she was residing in a house with one of her relations and this fact has not been controverted. The respondent does not own any other premises in the locality and there is nothing on the record to show that she is in occupation of any other premises owned or possessed by her. In these circumstances the order of ejectment passed by the Rent Controller directing the opponent to vacate the premises on the ground of personal and bona fide requirement of the respondent was fully justified:" In the case‑law relied upon by the learned counsel of the respondent, the landlords were found disentitled to seek eviction on the ground of personal requirement, in the given circumstances of the said cases. In these cases the landlords had failed to show bona fide of their requirement. Their case was not based on the plea that they were at disadvantage by virtue of the fact that they were occupying the rented premises and for that reason they wanted to occupy the premises owned by them. Looking at the legal proposition to the effect that a landlord in occupation of the premises not owned by him, requires the tenant to vacate the premises for his own use, it is to be treated bona fide unless their be circumstances that mitigate or reflect adversely on the bona fides. This also is to be seen in the juxtaposition of the requirement as projected by the landlord. Distinction is to be made in cases where a landlord who is occupying the premises not owned by him, wants to shift to the premises owned by him, and those where the landlord is occupying the premises not owned by him without any intention to vacate the premises not owned by him. In the later case the landlord is to specifically prove that the accommodation in his possession is not sufficient and, therefore, he requires his own property also in addition to the premises already in his possession as a tenant. Under such circumstances he has to thus establish the bona fide requirement of the additional accommodation in respect of the premises owned by him. In this regard no two cases can be alike. In the ever-changing complex society which is influenced by several factors from day to day requirements of the members of such society keep on varying with the passage of time. The requirement of each individual is to be seen in the social milieu, with the distinct attending circumstances and the concomitant socio‑economic pattern of the society to which he belongs. Such aspect of an individual is to be looked in the context of requirement of the accommodation as has been dexterously depicted in the passage reproduced above from the report of Suleman Ghazi's case and following observations in the case of Adamali Hassanali v. Mst. Rubab Bai (PLD 1965 Kar. 408). "The words `for his own occupation" which occur in the paragraph (a) should be taken to include all genuine requirements of the landlord and not to be restricted to the requirement of a shelter for his own body and the bodies of his children. This is indicated by the words `suitable for his needs which occur in paragraph (b). The needs of the landlord cannot be discriminated so as to separate the inner needs and outer needs of his body because both of them are projected on his environments. His hunger may be projected in the form of a need for a kitchen and his need for physical comfort may be projected in a form of a need for servants, nor can `his needs' be restricted to physical needs in contradistinction to social, economic, intellectual, emotional and spiritual needs, which may be projected in the form of need for a sitting room, for an office, for a wife, for children, for a room reserved for prayers or for a room reserved for maintaining a library. The needs would differ from landlord to landlord and some of those which may be genuine in one case may not be so in another case; nor is it open to the landlord to declare his needs as his own subjective decisions, firstly because his needs reflect the ideas of the society and secondly, because his rights are controlled by the society. The character of the social order to which he belongs places the general limits on his needs and his own characteristics place special limits on them". The provisions of Section 13 (3) (a) (i) (ii) of the West Pakistan Urban Rent Restriction Ordinance pertaining to bona fide requirement of the residential and non‑residential premises were analysed and so also the provisions, of clause respective para `C' occurring in sub‑clauses (i) and (ii) of clause (a) of subsection (3) of the Ordinance. There has been a view that in case the landlord is in occupation of the premises not owned by him and is occupying the premises as tenant or a licensee, he would be entitled to seek the eviction of the tenant even if such premises in his occupation is suitable to his needs or if he has vacated such premises. The cases on the above proposition are numerous, however, reference may be made to the following:-- (1) PLD 1977 SC 442 (Aziz and another v. Mohammad Ibrahim). (2) 1981 S C M R 197 (Nazir Ahmed and another v. Ghulam Nabi). (3) N L R 1981 SCJ 490 (Mohammad Anwar and Mohammad Ayub v. Mohammad Sayeed and others). (4) PLD 1981 Kar. 26 (Jamil‑ur‑Rehman Khan v. Saira Begum). (5) PLD 1980, Kar. 409 (Mohammad Bashir v. Vensi Mal and four others). (6) N L R 1980 U.C. 121 (Supreme Court) (Abdul Jabbar v. Mohammad Aslam). (7) 1980 C L C 809 (Naaimul Huda v. Shaikh Mohammad Scheele). (8) 1980 C L C 623 (Muhammad Habibuddin Fazal v. Muhammad Rafique). The above rule is equally applicable to a case of personal requirement under section 15 of the Sindh Rented Premises Ordinance, 1979. In 1976 S C M R 52 (Abdul Salam v. Najim Pervaiz) it has been observed that the requirement of law that the landlord should not be in occupation of another residential building suitable for his needs at the time does not 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 was further observed that 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. The above observation of the Supreme Court in fact has put an added emphasise on the proposition that the landlord is entitled to occupy his own premises, in case he is living in a rented premises and it cannot be insisted upon that the landlord should continue to remain in the premises not owned by him unless he can show that he is already shelterless or is facing the threat of eviction. This aspect of the personal requirement of the landlord is also to be seen in the background of the disadvantages that go alongwith and are inherent in the rented premises or the premises not owned by the landlord. They can be counted although one has to admit multifariousness of the disabilities attached with such property. For example the occupant of such premises cannot make the required changes in the premises for comfortable (sic) unless he seeks advance permission from the owner which would be rarely accorded, he has to be vigilant to pay rent as otherwise he may have to face the litigation, the landlord may at any time choose to file a case against tenant on the ground of personal requirement, so on and so forth. The advantages of living in one's own property are numerous. One cannot hesitate to make any amount of investment to give desired look to the property, to make changes according to one's own choice and requirement, to accommodate any relative or guests without encurring the risk of eviction and be safe and away from hazards of grumblings of the landlord and in short one's own house provides peace of mind coupled with the pride of living in one's own house, the psychic impace on the children and family members apart. In these circumstances the personal requirement of the landlord is to be treated bona fide if he is living in a rented house or is living as a licensee of some other person, unless there be strong circumstances that reflect upon the bona fides, of a nature as were noted in the two reported cases relied upon by the learned counsel of the respondent. Coming to the present case, the son of the appellant is living in two rooms of a house owned by his in‑laws as a licensee. The son of the appellant in his evidence has specifically spelt out the discomforts he is facing and his intention to shift to the house owned by his father. Under these circumstances it cannot be said that the appellant has failed to establish the bona fide requirement of the premises in question for occupation of his son.

7. It was also urged by the learned counsel of the respondent that looking at the size of the family of the appellant's son the accommodation of the premises in dispute which consist of 10 bedrooms and four servant quarters, is rather out of proportion as against the alleged requirement. It has been repeatedly laid down that it is the prerogative of the landlord to choose as to where he would like to reside. If the landlord has chosen to be extravagent, the tenant is nobody to object to the same. It was so held in the case of Tiger Wire Products Ltd. v. S. Abrar Hassan 1983 S C M R

402. The learned Counsel for the Appellant in this regard has also referred to the case of Sueman Ghazi v. Ghulam Hyder and another, reported in 1984 CLC 2213 in which a similar question was considered by a learned Judge of this Court and it was observed as under:-- "Stress has been placed on the number of bedrooms and other rooms with a view to show that the two respondents could not require so such accommodation. The standard of living and requirement of accommodation of different persons is totally different and since it is admitted position that the respondents belong to a rich family of traders and are themselves well off, it is not for the tenant to say what should be their requirement and the only point to be considered for the purpose of appeal is whether there is bona fide requirement on their part for that particular premises." The Appellant or his son do not own any other property in Karachi except the one in dispute. It will be an absurdity if the Appellant is to be told to wait for eviction of the tenant from ten‑room accommodation, till the time his family is big enough to occupy all the rooms.

8. The next contention raised by the learned Counsel of the respondent that in case the respondent is evicted, he would face great hardship is also devoid of any force. No doubt, the agreement specifically provided that the premises would be used by the respondent for the purpose of running the School and he was also permitted to carry out improvements in the property. At the same time the agreement provided that the tenancy would be for specific period without any reservation with regard to any extension of tenure. Respondent knowing it fully well that he had to vacate the premises on the expiry of tenancy period, spent the amount on the improvement of the property. In these circumstances Respondent cannot be allowed to say that he would be faced with hardships if he had to vacate the premises. Whatever investment has been made by the respondent in the property for the improvement, it was done by him for his own benefit, to make the maximum and the best use of the premises hired by him. The School was being run on commercial basis and it is presumed that the respondent must have calculated his profit that he was to make after investment. This case, therefore, cannot be called a case of hardship. In any eventuality the Court while deciding the case has not to look at the hardships that are to be caused to the tenant. The Court has to look at the bona fides of the requirement of the landlord. Once the bona fide requirement is established the consequences that are to follow, will trot in any manner come in the way of granting relief to the landlord. Hardship to the tenant is no defence therefore, the case of Amanullah Khan i (Supra) cited by the learned Counsel does not help him. I, therefore, set aside and reverse the Order passed by the Rent Controller. At the conclusion of the arguments, the learned Counsel of the respondent had requested that the respondent should be given six months' time for vacating the premises in case his eviction is ordered and the learned counsel of the Appellant had given his consent. I, therefore, allow six months' time to the respondent to vacate the premises from the date of this order and in case he fails to vacate the premises the Rent Controller on execution application, if filed by the Appellant would issue writ of possession without notice, together with police aid and order to break open the lock of the premises in question. H.B.T./M‑1452/K Appeal allowed.