1986 PLP 1951 (CLC)

"That the Board has called upon to vacate the premises in occupation of applicant's husband and last notice was served on 15th November, 1981. There is every apprehension that force will be used for eviction; as at site this only premises is presently standing." "That the applicant's husband financially not in a position to pay the price of the land allotted in lieu of the plot; which was in their possession and to raise construction simultaneously for their personal use and occupation as the applicant herself has no resources to raise funds." "That the applicant requires the premises in occupation of the opponent for her personal bona fide use and for the use of her family as the applicant does not own any other property for her personal use and for the use and occupation of her family except the house in occupation of the opponents. " The respondents filed written statement and denied the contents of paras. 5, 6 and

8. It is averred "that the applicant does not require the rented premises in question for her own use and occupation or of her dependents. The applicant owns another property and has come forward with this mala fide ground merely to cause eviction of the opponent taking mis advantage of the circumstances as stated by her in paras 4 and 5 of the application although the circumstances have no actual and factual hearing on this ejectment application which is nothing sort of device resorted to by the applicant to cause eviction of the opponent." The appellant filed affidavit‑in‑evidence and reiterated the same facts. She averred that the Board called upon to vacate the premises in her husband's occupation and a notice was served on 15‑11‑1981. She further stated "that there is every apprehension that force will be used for eviction; as at site this only premises is presently standing." The appellant in her cross‑examination stated that after institution of eviction proceedings she started living in a rented Flat No.R‑2‑1 Jacob Lines Complex. She also deposed that she was living in Ahmed Store Building and the same has been demolished and a plot in lieu thereof has been allotted by the Board and that her husband was not in a position to raise construction on the said plot therefore, she started living in Flat No. R‑2‑1, Jacob Lines Complex. The appellant denied the suggestion that she sold the premises in question for rupees ten lacs through Estate Agent. She also denied the suggestion that "I do not require the premises." In rebuttal respondent No.3 filed affidavit‑in‑evidence on behalf of the respondents and stated therein that "the premises in question was originally rented on a monthly rental of Rs.350 and the rate of rent was increased on her demand and since April, 1980 the monthly rent was enhanced to Rs.2,

000. In July, 1981 the appellant demanded a further increase of Rs.1,000 in monthly rent which was not acceptable to the respondents which also annoyed her. The respondent No.3 also stated in his affidavit that "the applicant is presently residing in Flat No.R‑2‑1, Jacob Lines Complex which accommodation is more than sufficient for the requirements of the applicant and her family which consists of only three persons i.e. applicant, her husband and her one minor son. After development of Jacob Lines area, plot of land in the said Lines area bearing No.2‑C‑3 admeasuring about 200 square yards has been given to the applicant's husband and he has also constructed one shop and two rooms on the said plot. This accommodation is in addition to the accommodation the applicant is already occupying. The applicant and/or her husband are planning to put one more construction on the said plot and for that purpose the applicant's husband also sent a site plan to the deponent. It is further submitted that husband of the applicant has his Ration shop in the aforesaid newly constructed shop. It is submitted that the accommodation in possession of the opponent is not at all suitable to the requirements of the applicant and as a matter of fact the applicant is interested to dispose of the premises in question." On the basis of the above evidence, the learned Rent Controller in his order, observed that originally the rate of rent was Rs.350 and the same was enhanced to Rs.2,

000. The material brought on record by the appellant herself and the respondents further proved sufficiently that the appellant is in the habit of enhancing and realising the enhanced rent very frequently. The learned Rent Controller observed that the respondents' suggestion appear to be quite proper based on facts that the appellant demanded Rs.3,000 per month from the respondents. It is pertinent to note that the respondents in para. 2 of the written statement that in the month of July, 1981 as per usual practice a written request was made to the appellant for renewal of the tenancy agreements. The appellant demanded enhancement of rent from Rs.2,000 to Rs. 3,

000. The appellant in her affidavit‑in‑evidence stated that initially the premises was let out at Rs.350 but afterwards rent was increased by the respondents themselves because additional accommodation was constructed and rented out alongwith the premises in the possession of the respondents at that time. The appellant denied the rest of the contents of para 2 of the written statement. The appellant to a suggestion in cross‑examination replied that "there were two rooms with accessories in the premises in question when it was rented out to the respondents at Rs.350 per month initially. She added one bedroom, one dining and drawing room and one T.V. lounge and staircase and bath to it in about 3‑4 years back and gave in possession to the respondents who promised to pay Rs.2,000 per month as rent on completion. The rate of rent was Rs.400 per month from 1974. It is not a fact that the rent of the premises in question in 1974 was Rs.800 per month. It is not a fact that its rent in 1975 was Rs.l, 200 per month. It is not a fact that after completion of the said additions to the original tenement was Rs.1,600 per month. It is not a fact that on my demand one month after the death of the respondent No. l's husband the rent that I demanded Rs.3,000 per month from January, 1981. It is not a fact that respondents allegedly refused to accept it." As regards the observation of the learned Rent Controller that:‑ "The material brought by the applicant herself and the opponents have further proved sufficiently that the applicant is in habit of enhancing and realising the enhanced rent very frequently. In these circumstances the opponent's suggestion appears to be quite proper based on facts that the applicant demanded Rs.3,000 per month from the opponent." It pointed out that the learned Rent Controller has misread thel evidence. The appellant has given sufficient reason for the enhancement of rent, that is, additions in the premises in dispute. The increase in the rent from Rs.350 per month to Rs.2,000 stretching over a period of eight years which is not competable with the marked fall in the money value, undergone during that period, in the circumstances of the case, can hardly be considered a ground weighing enough to warrant an inference that in the instant case ejectment proceedings are intended to be used as a lever for increase the rent. In the case of Badruddin Hasan Farooqui v. Manghi Industrial Home PLD 1976 Kar. 620, M. A Rashid, J. held:‑ "But in any case a demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirements is independently proved." The above dictum was approved by the Hon'ble Supreme Court in the case of Peerzada Rafiq Ahmed v. Chaudhry Abdul Rehman 1980 SCMR

772. The other observation of the learned Rent, Controller is that respondent No.3 stated in his affidavit‑in‑evidence that the appellant is occupying the Flat No.R‑2‑1, Jacob Lines Complex which is more than sufficient for her requirement as her family consists of three persons only namely her husband, herself and her one minor son. The above piece of evidence of the respondent has not been challenged in his cross‑examination. The observation of the Rent Controller is based on a misconceived notion of law. I find that there was misreading of evidence in this behalf. The admitted fact that appellant was forced to vacate the premises owned by her. The appellant shifted in a rented flat cannot by itself be considered as showing lack of bona fide and she had sufficient accommodation. The evidence of the appellant has not been disbelieved. The learned Rent Controller used this evidence against the appellant and held that the appellant being already in occupation of rented premises was not entitled to get the respondents ejected without showing that the one in her occupation was not sufficient for her need. A question arises whether a landlady cannot get her own house vacated if she is already in occupation of another rented premises unless she successfully proves that it is not suitable for her. Section 15 (2) of the Sind Rented Premises Ordinance, 1979 provides that the Controller shall make an order directing the tenant to put the landlady in possession of the premises within such period as may be specified in the order, if he is satisfied that the landlady requires the premises in good faith for her own occupation or use or for the occupation or use of her spouse or any of her children. The suitability may be expressed by lords or may be inferred from the circumstances existing on record. It has been proved by the appellant that the premises in which the appellant was residing with her family at Ahmed Store Building was demolished during the pendency of the case. She started living in a rented flat. It is already observed that the evidence produced by the appellant has not been disbelieved. It is, therefore, proved that the landlady is bona fide anxious to occupy her own house and till the date of occupation or during such a period, she shifted in a rented flat would not negate the assertion of bona fide on her part. In this case the Rent Controller, it seems, misinterpreted the law, when raising a presumption in this behalf, against the landlady. The learned counsel for the appellant has cited case of`Abdul Salam Akhtar v. Dr. Najam Parvez 1976 S C M R 52 in support of his contention that the appellant in possession of rented premises she could get the house in question vacated for her own occupation. Their Lordships of the Supreme Court in the case clearly observed that the requirement of law that the landlord /landlady should not be in occupation of another residential building suitable for his/her need at the time does not cover rented premises. It was further observed by their Lordships that in case 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 street and has no place to live at all. These observations were given in almost similar circumstances of the personal requirement and as such are reproduced below: ‑‑ "The next contention advanced on behalf of the petitioner is that since the landlord was living in rented premises, he was in occupation of another residential building suitable for his needs in the same urban area and, therefore, he was not entitled to evict the petitioner. The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view, 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 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." This judgment was approved by the Hon'ble Supreme Court in the case of Abdul Aziz P L D 1977 S C 442 wherein the term 'Building' as used in section 13 (3) (a) (ii) (b) was interpreted by their Lordships to mean a building owned by the landlord and it was held that the same would not extend to cover rented premises. This Judgment was followed in Muhammad Jameel v. Zahoor Ahmed N L R 1979 S C

367. The learned counsel for the respondents, on the other hand, relied on Syed Israr Alam v. S.M. Hussain 1983 C L C

468. In this case my learned brother Mr. Abdul Hayee Kureshi, C.J. held as follows:‑ "I am not able to agree with that view, because the mere use of the word 'need' would envelop the concept of bona fides. After all, it has to be established that a person needs the premises, and, in such enquiry, it can never be said that the word has to be interpreted as if it were divorced from the concept of bona fides, or, mala fides. Taking that view would mean that even unreasonable and fanciful need will have to be met only if the landlord were to come and say that he needs the premises. Such an intention could never be attributed to the Legislature, because the Sind Rented Premises Ordinance is enactment of a nature that is designed to protect the right of occupation of a tenant." The other case relied on by the learned counsel for the respondents is Mst. Hajra Bai Sulaiman v. Mst. Aisha Bai 1982 C L C 1444 in which it was observed: "The learned counsel for the appellant has contended that as the appellant is residing in a rented premises and wants to reside in it and is not in occupation of any other house in the same urban area the ejectment application be granted. If this proposition is accepted then in all cases in which a landlord residing in a rented house files an ejectment application on the ground of his bona fide need and requirement then it should 'tie granted automatically without any investigation relating to the bona fide requirement because the landlord wishes to occupy his house. This is not permissible in law. The learned counsel for the appellant emphasised that as the appellant is residing in a rented premises she is entitled to get the disputed premises for her own use. It is not appellant's case that her landlord has asked her to vacate the premises. In fact she is pressing the application on a specific ground that the rented accommodation is insufficient for her need. In the circumstances unless bona fide requirement is proved she cannot succeed. As landlord has to prove his requirement by convincing and satisfactory evidence Mere desire of the landlord to occupy his house or his feeling however strong it may be that he bona fide requires the premise is not sufficient to prove personal requirement." The last case relied on is Mst. Begum Jan v . Abdul Rasul 1984 CLC 755 in which my brother Ajmal Mian, J. observed:‑ "In my view a party who approaches the Court should come with clean hands. It is true that a single incorrect averment or suppression of a material fact in a rent application filed on the ground of personal requirement may not be fatal to the application. But when a landlord seeks ejectment on the ground of his personal requirement, the law enjoins him to prove his bona fide. Any fact which may adversely reflect or casts doubt on his bona fide will put the Court on guard and Court may in such a case may appraise the evidence of the applicant with more cautiously or with suspicion that the party is capable of misleading the court. In my view, when a married landlady though not a widow, makes an averment in the rent application for ejectment on the ground of personal requirement that she is a widow, she in fact attempts to gain sympathy of Court by making misrepresentation. This will be a fact, which will adversely reflect on her bona fide." These judgments have no relevancy to the facts of this case as' the premises in occupation of the appellant at the time of filing of eviction application were demolished. The place was demolished and had no place to live at all and under these circumstances she has been evicted there from and was putting up in a rented flat. It cannot be said that the rented flat is sufficient for her need. Respectfully following the dictum of their Lordships, this appeal is accepted. So far as the bona fide requirement of the appellant is concerned, there is categorical statement of the appellant on this point that she wanted that premises in dispute for her bona fide requirement. It is now established law that on the question of bona fide requirement of a landlady her statement should be taken to be sufficient proof of the fact if it is consistent with her averments in the application. Reliance in this connection may be placed on the case of Hassan Khan v . Mrs. Munawar Begam P L D 1976 Kar.

832. The dictum laid down was approved by the Hon'ble Supreme Court in the case of Mst. Tauheed Khanum 1980 S C M R

593. The appellant has proved her suitability and is thus entitled to get the house in question for her personal need. With regard to the allegation that the appellant wanted to sell the house in dispute to the respondents or, that she sold out the house in dispute for rupees ten lacs through one estate broker, the appellant had denied the same in her deposition. Moreover the safeguard against the letting out the premises or parting with the premises to some one after getting the tenant evicted was provided in section 15‑A of the Sind Rented Premises Ordinance, 1979 that the tenant could but put back in possession if the landlady does not occupy the premises herself after getting them evicted on the ground of personal occupation and use. The view adopted by the learned Rent Controller is against the evidence on record and against the law is, therefore, set aside. In view of the above circumstances stated and the reasons given above, the appeal is accepted. The order of the learned Rent Controller is set aside and the eviction application is allowed. The respondents are, therefore, directed to put the appellant/landlady in vacant possession of the premises in dispute by 31s;~ January, 1986. The parties will bear their own costs. A.A. Appeal accepted.