P L D 1985 Karachi 639 (PLP)

The appellant filed an ejectment application under section 15 (2) (ii), 15 (2) (iii) C, 15 (2) (iv) and 15 (2) (vii) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as said Ordinance) contending that respondents committed default, contravened the provisions of section 15 (2) (iii)C and (iv) of the said Ordinance and also that the appellant required the premises to dispute in good faith for her daughter who is residing with her. This application was resisted by the respondents. They contended that the daughter of appellant who is admittedly lady doctor and is already married for last 15 years and is residing on the ground floor of Bangalow No. 124, Jamsheed Road Karachi which is a double-storeyed building consists of 12 rooms. She is not depending on the appellant. According to them, the appellant or her daughter did not require the premises in dispute in good faith. They also denied the other grounds. Before the Rent Controller, the appellant examined her husband and attorney and also examined her daughter Dr. Najma Faiz. On the other hand, the respondents examined themselves, that is, respondents Nos. 1 and 2 and one Muhammad Rasheed in support of their case. The learned Rent Controller, on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for parties, decided issues Nos. 2 and 3 in the negative and dismissed the ejectment application on the ground of personal requirement. The appellant above named being aggrieved by order dated 29-3-1984 of the XIIth Senior Civil Judge and Rent Controller has preferred this first rent appeal on the grounds mentioned in the memo. of appeal. Mr. M. M. Baig, the learned counsel for the appellant, has raised the following contentions : (i) That the learned Rent Controller failed to consider the decision of the superior Court reported in P L D 1967 Kar. 437, that the requirement of the landlord includes the requirement of grown up children. (ii) That the finding of the Rent Controller on issue No. 2, the requirement of the appellant for her daughter, is not in accordance with law and is liable to be set aside. On the other hand Mr. Syed Ishtiaaue Ali, the learned counsel for the respondents, has contended that the words "his own occupation and use or for the occupation or use of his spouse or any of children" are restricted to the personal and individual requirement of the owner and his dependents to the exclusion of the requirement of married and independent children. He has also submitted that the order of the learned Rent Controller on issue No. 2 is in accordance with law and is in consonance with the evidence on record. Referring to the submission of Mr. M. M. Baig that the learned Rent Controller failed to consider the requirement of the landlady includes the requirement of grown up children. In the application as well as in the affidavit-in-evidence the appellant contended that she required the premises in dispute in good faith for her daughter who is admittedly married since last 15 or 16 years. Her daughter also filed affidavit-in-evidence wherein she contended that she is residing with her mother alongwith her husband Dr. Faiz and two minor children. It is admitted position that she is a practising doctor and is running a clinic. The learned Rent Controller while deciding this issue in negative held that the daughter of the appellant is also doctor by profession and therefore he was of the opinion that the appellant would not get the benefit for requiring the premises in dispute for the use of her independent daughter who is also married with Dr. Faiz Muhammad. The contention of the learned counsel has not found favour with the Rent Controller. It may be advantageous to reproduce clause (vii) of subsection (2) of section 15 of the Ordinance which reads as under : "15 (2) (vii) -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 language of the clause is very clear. The word used "children", If the concept of dependent "children" are imported into the clause. A married and independent child will fall outside the purview of the clause. If this concept is not imported, no harm is done for the clause itself provides a limitation by saying that the child must be dependent upon the owner. In my opinion this expression embraces not only the requirement of dependent children, but also the requirement of independent and marred children. I am fortified in my opinion with the decision in the cases of , Adam All Hassan Ali v. Rubabbin P L D 1967 Kar. 43, and Muhammad Zakir Khan v. Ch. Shah Muhammad (2). In my opinion, the learned Rent Controller has committed an error in recording the finding that the respondent would not get benefit for requiring the premises in dispute for the use of her independent daughter. I hold that the appellant can file application for eviction for the requirement of her independent daughter. Reverting to the second contention of the learned counsel for appellant that the finding of the Rent Controller on the issue No. 2, the requirement of the appellant for her daughter is not in accordance with law. Subsection P L D 1980 Lah, 225, of section 15 of the said Ordinance specifically enumerates the grounds which will entitle the landlord to evict their tenants. Clause (vii) of subsection thereof contains one of the grounds, namely, that if the landlady requires the premises in good faith for her occupation or for the use and occupation of children. Section 15-A of the said Ordinance provides that where the landlord, who has obtained the possession of the building under section 14 or premises under clause (vii) of section 1.5, relets the building or premises to any other person other than the previous tenant or puts it to a use other than personal use within one year of such possession : (i) he shall be punishable with fine which shall not exceed one year's rent of the building or the premises as the case may be, payable immediately before the possession was so obtained. (ii) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly. It is clear that these provisions have been enacted solely for the benefit of the tenants, who having regard to the lack adequate accommodation were left at the mercy of the landlords/landladies It is clear that these provisions have been enacted solely for the benefit of the tenants, who having regard to the lack of adequate accommodation were left at the mercy of the landlord/landladies. From the phraseology used in clause (vii) of the said Ordinance, it i further clear that the landlady has to prove that she requires the premise in good faith for her occupation or for the occupation or use of her spouse or any of her children. The expression "requires the premises in goo faith" has been considered by the superior Courts on several occasions. Broadly stated mere wish, convenience, whim or fancy of the landlord landlady would not be enough to show that landlord/landlady require the premises in good faith. The landlord/landlady must allege and prove his/her requirement. The law does not require a landlord/landlady to establish absolute requirement or absolute need, without which he/she shall have no shelter over his/her head. What is meant by "requires in good faith" is that the landlady requires the premises for her reasonable requirement or needs and that she is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realising some extraneous purpose. The requirement has to be reasonable and in good faith. The onus of proof of this is certainly on the landlord/landlady. Although the word 'reasonable' does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fide, or good faith of the landlord. Gross unreasonableness may in proper circumstances leads to the Controller to mach a conclusion that his/her requirement is no bona fides. Therefore, while deciding the question of bona fides, the reasonableness of need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely "requires in good faith". The words "good faith" means honestly and not acquainted by bad faith or oblique motive. Mere wish or intention of the landlord/landlady is not sufficient to give him/her a right to evict the tenant. As already observed with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlords/landladies will be entitled to get the possession of their premises on the grounds enumerated therein. One of such grounds is that a landlord/landlady is entitled to get order of eviction from the Controller to evict a tenant if he/ she requires the premises in good faith for his/her own occupation. Subsection (2) of section 15 of the said Ordinance further enjoins a duty upon the Contro1Jer to enquire into the requirement of the landlord/landlady and if on enquiry the Controller is satisfied that the requirement of the landlord/ landlady will be met by occupation of the premises, then he has to pass an order of eviction. Therefore, all the relevant factors will have to be objectively considered before such a question is decided by the Rent, Controller. In the light of the above, it is to be seen whether the appellant has made out a case for the requirement of her daughter. For this purpose, she must place before the Rent Controller all necessary details which are required for granting relief. A mere ipse dixit of the landlady that she requires the premises in good faith for the occupation of her daughter is not enough. In this case in paragraph 5 of the application she has stated that she required the premises in good faith for the occupation of her daughter who is residing with her. Her daughter is a lady doctor whose husband is also doctor, residing with her, with her husband and two minor children. Her daughter has no accommodation of her own at Karachi. Her husband and attorney filed affidavit-in-evidence. He reiterated the same facts and added one more sentence, that is, the accommodation in possession of the appellant is neither suitable nor sufficient to the requirement of appellant's daughter. Her daughter also filed affidavit-in-evidence. In paragraph 2 of the affidavit she has stated that the accommodation in her possession is neither sufficient nor suitable for her occupation and occupation of her husband and minor children. In paragraph 4 of her affidavit, she has stated that her child is now grown up and is about 15 years of age and she needed a separate room for him which is not available in the present house. It is an admitted position that the appellant resides in a double-storeyed house. According to respondents it consists of 12 rooms. The appellant's husband and attorney in his cross-examination has stated that the house is a double storeyed. His daughter is a practising doctor and has a clinic at ground floor. Her daughter in her cross-examination has stated that she is living with her mother in two rooms. In her eviction application the appellant required the premises in dispute for occupation of her daughter. Her daughter filed affidavit and has stated that she is in occupation of two rooms. She has further stated that her child is now grown up and is about 15 years of age and she needed a separate room which is not available in the present accommodation. In my opinion the appellant's requirement is not for her daughter but for her grand child. The term child means sons and daughters but does not mean the grand child. In my opinion the landlady/appellant has not given details in he application. She must give details as to number of rooms. She must give details as to number of family members. It appears from the evidence on record that she is already in occupation of a double-storeyed house. The respondents in their written statement have stated that the house consists of 12 rooms. The statement regarding 12 rooms is not denied in the affidavits filed by her husband and her daughter. Unless the landlady in this case gives such details, the respondents cannot be expected to meet the case of the appellant. The statement of the landlady as to his requirement of the premises in dispute must be supported by valid reasons as to how his requirement is bona fide or 'in good faith'. Reading these provisions as a whole, it is obvious that if the landlady requires the premises in good faith and she satisfies the Controller, she can obtain possession of the premises. If however, she does not occupy, , and puts it to any other use or lets out to another tenant, the former tenant can apply to be put back in possession. The landlady must satisfy the Rent Controller about her claim, before she satisfied about the genuinenes of the claim. To reach this conclusion obviously the Controller must b satisfied about the reality of the claim made by the landlady and this can only be established by looking all the circumstances, such as the number of rooms in possession of the appellant, number of members, the present accommodation is sufficient or insufficient or inadequate and so on. It is not enough that the appellant comes forward and says that she entertains a particular intention, however, strongly, .said to be entertained by her. The clause speaks not of bona fide of the landlady, but says, on the other hand, that the claim of the landlady that she requires the premises in good faith for her own occupation or for the occupation or use of spouse or any of her children, that is to say, honest in the circumstances. It is impossible therefore, to hold that the investigation by the Controller should be confine only to the existence of an intention in her mind to occupy. This intention must be honestly held in relation to the surrounding circumstances. The scope of term `requires' means that there must be an element of need before a landlady can be said to require premises for her own occupation. It is not enough that the landlady should merely desire to occupy, the premises. What is necessary is that she should need the premises for her own occupation. Thus, need or requirement must be reasonable and in good faith. The Rent Controller has not considered the material placed before him in this context. In my opinion the judgment or decision will mean the expression of opinion of a Court arrived at after due consideration of the evidence and of the argument, if any. In this context, therefore, it is the duty of the Controller to properly appreciate the evidence on record and then to write, an order indicating that the evidence has been fairly and properly dealt with. In my opinion the Controller has not considered the material placed before him in this context. The Controller has not applied his mind properly to the material on record. The evidence has to be appreciated on its own merits and the findings are recorded as a result of such appreciation by the Controller. For the above reasons, I find that there is no substance in this appeal, which is dismissed with no order as to costs. A. A.??? Appeal dismissed.