1994 PLP 240 (CLC)

Respondent Mst. Shahida Khatoon filed an eviction application against appellant Muhammad Yousuf, for his eviction from demised premises, being room No.4, on first floor of House NoA‑16/2 (Old No.III) Delhi Colony, on the grounds of personal bona fide use and impairing the value and utility of the said premises. It is said that said premises was leased out by the Cantonment Board, Karachi to her mother Mst. Zulekha, who expired on 14‑1‑1987. Thereafter, the letter of administration was granted to respondent by the High Court of Sindh on 20‑5‑1987 and as such for all practical purposes she is now the landlady of said premises. According to her, at present she is residing with her brother, in an accommodation, which is insufficient. A plea has also been taken that by presence of appellant on first floor of said premises the privacy will be disturbed. It is alleged that house in question is built in such a manner that only one family can reside in it. Also it is said that appellant has broken the main gate for entrance, damaged the water and sewerage lines, and has done other acts, which have impaired the value and utility of said premises. The appellant in written reply has resisted the claim of respondent and maintained that room in his occupation is very small of 7'x 9'with a kitchen of only 4'x 4'and roof of cement sheets. No separate toilet has been provided and she is using a toilet jointly alongwith tenant of room No

3. It is alleged that respondent once indicated for enhancement of monthly rent. Since he declined, therefore, this case was filed to harass him and for forcing him to accept the dictated terms. The appellant has also taken a plea that ground floor of the said house is lying vacant for the last 2‑/1/2 years and it contains spacious and independent accommodation, which is sufficient for respondent and her brother. He has specifically mentioned that in this very accommodation one Muhammad Umar Pathoria had lived for about 12 years with a large family consisting of as many as members. He has vehemently denied to have caused any damage to said property. From the pleadings of the parties, learned Controller had settled the following issues:‑‑ (1) Whether the demised premises in possession of the opponent is required by the applicant for her personal use in good faith? (2) Whether the opponent has impaired the value and utility of the demised premises and has damaged the demised premises? (4) What should the order be? In support of their respective case, the respondent fled affidavit‑in evidence of Muhammad Ahmad, who is her real brother and attorney and that of her another brother Aftab Ahmad while the appellant filed his own affidavit in‑evidence and of the witnesses namely Abdul Ghani, Muhammad Nawab, and Noor Hussain. On assessment of evidence brought on record learned Rent Controller decided both the issues in favour of respondent and consequently passed the order, which has been impugned in this appeal. It has been contended by learned counsel for the appellant that the finding of learned Rent Controller holding the requirement of respondent as genuine and bona fide, is incorrect and contrary to the facts brought on record. Elaborating it, learned counsel submitted that needs of her brother and his family cannot be taken into consideration for the reason that such needs do not come within the purview of term . `family' defined in section 2 (e) of the Cantonments Rent Restriction Act, 1963. He submitted that under the definition of `family' the needs of dependant brother can be taken into consideration but the brother of respondent is not dependent on her. He also argued that the respondent is an unmarried lady and can easily live independently at the ground floor of the said house, which is in her possession for the last over 2‑1/2 years and presently lying vacant. In support of above contentions learned counsel cited (1) PLD 1982 Kar. 552 Nazir Masih v. Mst. Hajra Shaheen and 2 others (2) 1986 CLC 495 M/s. Delite v. Ch. Fayyaz Akbar, (3) 1987 CLC 1599 Niaz Ali v. Muhammad Asghar, (4) 1988 CLC 811 Rana Shahbaz Khan v. Muhammad Fazal Kiyani. In Nazir Masih's case it was held that needs of sister‑in‑law and father‑in‑law could not be taken into consideration in view of definition of family given in the said Act. In M/s. Delite House case it was observed that mere desire could not be considered as a need. In Niaz Ali's case it was held that where landlord seeks eviction on the ground that it was required by any member of his family, he (landlord) would not be able to succeed if it was found that such member was occupying suitable house owned by him. In Raja Shahbaz Khan's case it was held by a learned Single Judge of Lahore High Court that mere statement, not supported by any other evidence, was insufficient for the purpose of bona fide requirement. Hon'ble Supreme Court in the case reported in 1989 SCMR 1366 Mst. Saira v. Anis‑ur‑Rahman while dealing with the issue of requirement of landlord on the ground of good faith observed "the only condition to be satisfied by a landlord is that he requires the premises in "good faith". "Good faith" has not been defined in the Ordinance, but has been defined in the General Clauses Act in section 2, sub‑section (27) as follows:‑ "A thing shall be deemed to be done in `good faith' where it is in fact done honestly, whether it is done negligently or not." Coming back to the facts of the instant case, and keeping in view the criterion laid down by the Hon'ble Supreme Court for the purposes of determination bona fide personal need, it is noted that the finding of learned Rent Controller on this point is correct, and no exception can be taken to it. Personal requirement of respondent is to be looked into in the context of the facts‑that she is an unmarried lady and cannot reside all alone separately. In presence of parents, brothers and other close relatives an unmarried girl in the present social set‑up normally lives with them or any one of them. She now is residing with her brother in a house where 16 members of three families also reside. Such accommodation is ex facie insufficient for them. Respondent's witness Muhammad Ali in his affidavit‑in‑evidence mentioned that respondent is unmarried and is his real younger sister, and that she is to live in the premises in question alongwith his family members, which consist of five persons. He also stated that presently she is residing in house No.309‑A/10 Cosmopolitan Society, Gurumandar, Karachi, and said house is in the names of her other three elder brothers who are residing there alongwith their family members. Almost on the same lines another brother Aftab Ahmad has filed his affidavit‑in‑evidence. These two witnesses were cross‑examined but their testimony on the point of personal need was not shaken. Major part of cross examination was on the points which are not relevant for the purposes of bona fide personal needs. The evidence of appellant's witness Abdul Ghani is on the point that appellant was living in the said premises as a tenant for 25 years, was maintaining it properly, and he had not made any additions or alterations in the said premises. Affidavit of appellant's witness Muhammad Nawaz is also on the same lines and so also of Noor Hussain. Appellant in his affidavit‑in evidence laid stress on the point that entire ground floor was lying vacant and the respondent could reside there comfortably. In fact, personal bona fide requirement of respondent was not directly seriously challenged. It is the choice of the landlord to reside in the portion of the house he liked. Tenant cannot impose his will upon the landlord. The appellant wants that the respondent should live in the vacant portion of the said premises in the way earlier tenant Muhammad Umar Pathoria lived. It is possible that said tenant having a continuous pinch of poverty and deprivation may have continued to live in unhygienic and inhuman conditions, but this does not mean that a person with better resources shall also opt for that way of living style. The fact that entire ground floor of the said premises is lying vacant for over 2‑1/2 years goes to establish that said portion by itself was insufficient for respondent and for the reason she insisted to have possession of the portion which is in possession of appellant. Had the ground floor portion been sufficient, she would have shifted therein. The room in possession of appellant admittedly has no toilet. Therefore, he must be moving frequently for using the toilet provided for the others, privacy, under these circumstances, is most likely to be disturbed. The case‑law cited by learned counsel for the appellant is not attracted to the facts of the instant case. Bona fide personal requirement of respondent is established without any doubt., Learned counsel for appellant also argued that the finding of learned Rent Controller that appellant due to negligence on his part impaired the value and utility of the premises, is not correct. This contention is sound and must prevail. Nothing solid has been brought on record to substantiate that appellant in any way damaged the said premises. The finding of Rent Controller on this point is incorrect and is reversed. Learned counsel for appellant also argued that eviction application in fact, was filed by respondent to pressurise appellant for enhancing the rent from Rs.50 to Rs.500. There is no substance in this contention. In view of the above discussion the appeal is dismissed with cost. However, three months time from now is given to appellant for handing over vacant possession of the premises in question to respondent. H.B.T./M‑1742/K Appeal dismissed.