1989 PLP 725 (CLC)

4. On the assessment of the evidence both oral as well as documentary, the learned Rent Controller decided the application for ejectment against the appellant, giving rise to the present appeal.

5. Admittedly the respondent is living in United Kingdom since 1964. It is, however, his case that he had suffered heart attack and had to go for open heart surgery. It is also stated by the respondent that his wife is a patient of arthritis and so the climate of United Kingdom is not suitable for her. He, therefore, decided to come back to Pakistan and in this connection approached the appellant to vacate the disputed premises, who promised to do so. The circumstances leading to this litigation are narrated by the respondent in Para 5 of his affidavit‑in‑evidence in the following words:‑ "In this connection I wrote a letter to the opponent from England in which I explained my problems, to which the opponent by letter, dated July 12, 1980; assured me that he would vacate the premises in dispute very soon. I produce the, letter, dated July 12, 1980 written by the opponent which is enclosed herewith and marked 'C'. It is submitted that on the basis of his assurance I obtained a transfer of residence from Pakistan Embassy which I produce and marked 'C/1', but when I approached him for possession of my house, he refused to vacate. As such I approached the Overseas Pakistan Foundation to help me in getting the possession of the premises

6. There is satisfactory documentary evidence on record to prove illness of the respondent and his wife. Mrs. Sajida Shaikh (P.W.2) even lost her job because of illness. The evidence regarding the illness of the respondent and his wife was no questioned in cross examination by the appellant. In Qasim and others v. The State, PLD 1967 Kar. 233, it was observed that where the facts deposed to n examination‑in‑chief are not questioned in cross‑examination, then here will be a presumption that such evidence is deemed to have been accepted by the party against whom it was given.

7. Where the tenant in reply to the letter of his landlord (Exh.0/10) clearly stated that "he would soon get his house constructed and as soon as it is ready, he would vacate the house in his possession," the bona fides of the landlord could not be questioned by him later on. The observations of Mir Khuda Bux Marri, C.J. in case of Syed Munawwar Ali v. Mehta W.N. Kohli, 1980 CLC 1561 are relevant in this behalf.

8. Unlike section 13(3) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed) , clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, enjoins on the Rent Controller to pass an order of ejectment, if he is satisfied that the landlord requires the premises in good faith for his own occupation, or use. or for the occupation or use of his spouse or any of his children. The word "require" is distinct from "desire" and hence it connotes something more than a mere wish and involves an element of need to some extent least, although at the same time something much less than an absolute necessity will do. The expression "good faith" is an abstract term not capable of any rigid definition. The ordinary dictionary meaning of the expression "good faith" is 'honesty of intention anti, therefore what is required under clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, is that the landlord should have a genuine need of the premises.

9. A great deal in this case depends upon the evidence of respondent and I have, therefore, very carefully examined it in the light of the above requirements to satisfy myself whether the premises in dispute are really needed by him. I have also examined his evidence in juxtaposition to the version given by the appellant that the present litigation was motivated with a desire to get the rent enhanced. There are certain facts and circumstances which the respondent has successfully proved. They are:‑ (a) That the respondent and his family‑ members are residing in United Kingdom since 1964. , , . (b) That the respondent and his wife Mrs.. Saiida Shaikh are not keeping good health and they want to shift to Pakistan (c) That the appellant did not doubt the requirement of the respondent at the initial stage and promised to vacate the disputed house as soon as his own house was ready‑ for occupation. (d) That the respondent owns another house which is in occupation of tenants except the top‑floor which he is unable to use on account of bad health. (e) That the respondent, being professional Engineer, has got a social status and is accustomed to a better living.

10. In somewhat similar circumstances the requirement of the landlord to occupy his own premises in Pakistan was considered as genuine in the case of Muhammad Mushtaque Hussain v. Abdul Qadir Malbari 1985 CLC 2552. At page 2554, it was observed:‑ "The respondent is a Pakistani, who is the owner of the shop in dispute, wants to return back from a foreign country and carry on business over here and for that purpose he has been litigating at different forums from 1980. These facts taker together are sufficient to establish that he requires the premises for his bona fide use and occupation." 11: In the case of Mst. Ahmadun Nisa v. Mst. Parveen Siraj, 1985 SCMR 2012. the Supreme Court of Pakistan, held that the requirement for personal occupation by a landlady residing abroad permanent and visiting Pakistan casually would be regarded as bona fide, if she otherwise proves her case.

12. The mere desire of the respondent to sell a portion his other house should not be permitted to come in his way in getting his tenant ejected where he has succeeded in establishing hip case on the ground of personal requirement. Again as a rule where the landlord possesses more than one property, the question as to which property would be suitable for his requirement, is a matter of his discretion and the law does not give any power to the tenant to take a decision in this behalf. The respondent is used to a better standard of living and he 1s entitled to have accommodation commensurate with his status. In my view the respondent has successfully established his bona fide requirements.

13. The appeal has got no merits and is dismissed with costs. The appellant is, however, allowed three months time to vacate demised premises. H . B . T . /S‑328/ K , Appeal dismissed.