1989 PLP 962 (CLC)

S.M. Abbas for Respondent. Dates of hearing: 24th, 27th, and 31st October: 1988. This appeal at the instance of tenant of Flat No.2 on Plot No.SD‑13/A, North Nazimabad Karachi, seeks to call in question the order of the IIIrd Senior Civil Judge/ A.S.J./Rent Controller, Karachi (West), dated 3‑3‑1985 passed in Rent Case No.5056/1982, whereby he has allowed the ejectment application filed by the respondent on the ground of personal need and directed the appellant to vacate the disputed premises and hand over its possession to the respondent within 90 days from the date of order. On 23‑12‑1982 the respondent filed an application under section 15(2) of the Sind Rented Premises Ordinance, 1979 for eviction of the appellant on the sole ground of personal need, which was mentioned in paragraph 2 of the application as under:‑

"That the premises are required by the applicant for her personal bona fide use and for the use of her family." The respondent contested the said application by filing the written statement in denial of the applicant's claim. In reply to para. 2 of the application he made the following averments:‑

"(2) That the contents of para 2 of the application are denied. It is submitted that the applicant is in possession of two plots with double storeyed buildings thereon bearing Plot No.29‑B, Muhammad Ali Housing Society, Karachi, and 30, Muhammad Ali Housing Society, Karachi. It is further submitted that applicant has constructed three flats on the 3rd floor, which are lying vacant. Hence the requirement of the applicant is not bona fide but is based on mala fides. It is further submitted that applicant is chronic litigant. She has filed ejectment cases almost against all the tenants of the building on various grounds. Since the opponent has not contravened any of the provisions of the tenancy, the applicant finding no other ground filed this case on the ground of personal requirement." The respondent in support of her case examined her husband and attorney Agha Jaffar Kazmi, whereas appellant also examined himself only. The learned Rent Controller vide his impugned order dated 3‑3‑1986 allowed the application. Hence this appeal. I have heard Mr. Muhammad Sadiq, Advocate on behalf of the appellant and Mr. S.M. Abbas, Advocate, on behalf of the respondent. From a bare perusal of the contents of para 2 of the ejectment application it is evidently borne out that the respondent/landlady did not give any particulars about the size of her family and so also about the accommodation available in the premises presently occupied by her on the ground floor of this very building which is owned by her. The affidavit filed in support of the application also makes a mention of same facts about personal need as it is mentioned in para. 2 of the application, already reproduced above. It is the primary responsibility of the landlady /landlord to plead and prove the bona fide requirement of the demised premises for her/his personal requirement. The burden to prove that the application has not been made bona fide shifts on the tenant only the initial burden is discharged by the applicant‑landlord/landlady. In the instant case, I have already stated above there are no particulars available on record to show as to what is the accommodation presently in occupation of the respondent and so, also it has not been proved that the number of her family members is so large as to justify her claim for the demised premises. The learned counsel for the respondent attempted to place reliance on a decision of this Court in the case of Dr. Juza Ali v. Mani Mai PLD 1987 Kar. 462 wherein it has been held "that if landlord elects to live in his own house then his need is presumed to be bona fide unless mala fides are alleged by the tenant and proved." In the above reported case, the landlord was stated to have been living in the house of his mother on temporary basis. In the case in hand, however, admittedly the respondent is residing in her own house on ground floor of this very building, wherein the demised premises is situated on first floor. Moreover, the above case relied upon by the counsel for the respondent in fact goes against him inasmuch as, when it is held there as under:‑ "Now the question arises for consideration as how much evidence is to be produced by the landlord to prove his personal need. This question with regard to the quantum of evidence depends on the peculiar facts of each case. It depends how the need is described and what are the attending circumstances. If the landlord is living himself in borrowed accommodation or rented accommodation and he is owner of the only house which is in occupation of the tenant and he wants to acquire his own house then in that context his statement on oath, which is consistent with averments made in application would be sufficient if the creditability of such landlord is not shaken in the cross‑examination or there is no rebuttal to his claim on the record." Under the facts and circumstances of the case I am clearly of the opinion that the learned Rent Controller has committed an error in allowing the application. I allow the appeal and set aside the impugned order. There would, however, be no order as to costs. M.Y.H./A‑456/K???????????????????????????????????????????? Appeal allowed.