1991 PLP 1297 (MLD)

4. The parties went to trial on the following issues: - (i) Whether the applicant requires the demised premises for his personal bona fide use? (ii) What should the order be?

5. The appellant examined himself (P.W.1), Naeem-ul-Hassan Khan (P.W.2) and Haji Jamil Khan (P.W.3), while the respondent examined himself (D.W 1), and then closed the side

6. On the assessment of evidence available on record the learned Rent Controller decided both issues against the appellant, giving rise to this appeal.

7. I have heard Mr. K.B.Bhutto, learned counsel for the appellant and Mr. S.M.A. Mahmood learned counsel for the respondent. I have also gone through the record of this case carefully.

8. The perusal of the record shows that the appellant is presently residing in premises bearing No. 95 situated in P.I.B. Colony, Karachi, which originally belonged to his father and after his death devolved upon him, his mother, brothers and sisters. The appellant as his own witness (P.W.1), has testified that the premises presently in his occupation does not cater his needs and the needs of other family members who are also residing there. It is also deposed by him that his marriage was held up for paucity of accommodation. His unmarried status and his planned marriage have not only been corroborated by natural and independent witnesses, namely, Naeem-ul-Hasan Khan (P.W. 2), and Haji Jamil Khan (P.W. 3), but the same are not challenged by the respondent in his evidence (D.W. 1). The fact that the appellant entered into marriage bond on 28-7-1988 during the pendency of ejectment application further lends support to the bona fide requirement of the appellant who wants to occupy his own premises for a better living with his wife, As observed by the Supreme Court in the case of Mst. Amina Begum and others v. Mehar Ghulam Dastgir, reported in P L D 1978 S C 220, a discretion is vested in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief to the altered circumstances in the larger interest of justice. The learned Rent Controller has, therefore, erred in: not taking into consideration the factum of marriage which supported the consistent stand taken by the appellant on the ground of personal requirement.

9. Mr. S. M. A. Mahmood, learned counsel for the respondent has invited my attention to paragraph 3 of the application for ejectment and has endeavoured to show that clause (vii). of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, does not cover the need of' mother, brothers and sister; and consequently the appellant had no case for ejectment for personal requirement. The record, however shows that the appellant needs the disputed premises for his own occupation for a better living. The words "own occupation" and "for himself" were examined by me in the case of Muhammad Ismail v. Muhammad Riazul Haque, reported in 1959 C L C 541, where: in it was observed:- "'The respondent has invoked the provisions of clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979. for seeking ejectment of appellant. This clause empowers the Rent Controller to put the landlord in possession of the premises, if he requires the same in good faith for his own occupation or use or for tile Occupation or use of his spouse or any of his children. It is the case of the respondent that he requires the disputed premises for his own occupation and the occupation of his wife, four children, one nephew, who is like his son and father-in-law, who has since retired and there is nobody to look after him. The words "own occupation', or "for himself' cover a case of landlord wanting the house as family home, whether he lives in it himself or not because a family is the unit of our civilization and to keep the family together is of high public importance. The said words should be given a fair and liberal construction and they must be interpreted to include his family, dependents and such persons, who may be essential for the purpose of such occupation. The said words mean an occupation for himself and of all persons, who are dependent upon him. It is not the intention of the Rent Restriction laws to disrupt a family and to drive members of the family out because they start earning and are not dependent upon a member in whose name the premises stand. In order to determine what is the family or a dependent or a person essential or necessary for occupation in each case, it is proper and desirable for the Court to bear in mind the context of social order, habits and ideas of living and the socio-religious customs of the community to which the landlord belongs. If members of a family live together, mess together and look upon themselves as a unit, the Court is entitled to consider their requirement as that of the landlord, who is seeking to eject the tenant. In considering a landlord's requirement the Court ought to take into consideration (lie fact that there arc other persons residing with him in his present premises and whom he does not wish to turn out into the street. (See the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 by J.H. Dalal). This view gets support from the case of Abdul Salam Akhtar v. Dr. Najam Pervaiz, reported in 1976 S C M R 52, in which the following observations were made by the Supreme Court:-- "We are unable to agree for the personal need of the landlord would include the need of those dependent upon him. In the present case even the personal need of the landlord is there in addition to the need of the brother. Hence it cannot be said that the eviction is required only for the need of the brother, who is not covered by the definition of "own occupation" or who did not come within the category of dependents." In my humble view clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, is illustrative and not exhaustive. As observed in Adam Ali Hassan Ali v. Mst. Rubab Bai, reported in P L D 1965 Kar. 408, the expression "for his own occupation" is to be construed liberally and must be interpreted to include not only need of family, dependents and persons, essential for such occupation but also all other genuine requirements of landlord."

10. The respondent has taken inconsistent stand in his written-statement while disputing the needs of the appellant to occupy his own premises. In paragraph 2 he stated as follows:-- "The requirement of the applicant is not genuine and in good faith, as he is negotiating from the Estate brokers to let out the premises on PAGREE and intends to convert the same into commercial as the premises is situated on the main road of P.I.B. Colony, Karachi." While dealing with the adjustment of advance rent, the respondent took another stand in paragraph 4 of his written statement in the following words:-- "The applicant was negotiating for the sale of the premises in the year 1984, as such, he allowed the opponent to adjust six months advance rent, but the deal could not take place:" In paragraph 12 of his affidavit-in-evidence the respondent resisted his eviction on the following ground:-- "That I say that I have five schoolgoing children who are admitted to schools in P.I.B. and in case of order of ejectment their education is likely to be adversely affected. Besides getting them admitted to another school is also difficult."

11. There is, however, no evidence on record to prove that the appellant intends to convert this premises into commercial one and then to re-let the same alter accepting PAGREE. There is also no indication that the appellant is interested to dispose of the premises. The provisions of section 15-A of the Sindh Rented Premises Ordinance, 1979, provide safeguard to tile tenant in such a situation. The observations made by the Supreme Court in the case of Mst. Toheed Khanam v. Muhammad Shamshad reported in 1980 S C M R 593, are relevant in this case.

12. The bona fide need of the landlord cannot be mixed up with the comparative hardship of the tenant. The word `hardship' is alien to clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, and if the landlord is able to prove that he needs the premises in occupation of his tenant, the Rent Controller has got no other option but to direct the eviction of the tenant. The observations made by me in the case of Shahzada Sultan Humayun v. Mst. Zainab Bai reported in 1989 C L C 1338, are also attracted to the facts of the present case.

13. The choice as to the premises in which the landlord would like to live is surely a matter within his prerogative and the law does nut give either to the tenant or the Rent Controller the power to determine where the landlord should reside. This view gets support from the cases of Muhammad Latif v. Hakim Nisar Ahmad and others, reported in 1986 S C M R 650, Haroon Kassam and another v. Azam Suleman Madha reported in P L D 1990 S C 394 and Habib Bank Ltd. v. Dr. Munawar Ali Siddiqui reported in 1990 M L D

792. The learned Rent Controller, therefore, erred in advising the appellant to continue living in the house jointly owned by him, his mother, brothers and sister, and if need be ask his brothers and sister to vacate the said premises for his comfortable living. In somewhat similar circumstances I had made the following observations in the case of Mst. Dilshad v. Abul Kalam reported in 1989 C L C 975. "In my opinion, the learned Rent Controller viewed this question in a wrong perspective. He has clearly erred in advising the appellant to reside with her mother. No body can be compelled or forced to do so only to accommodate her tenant. The law does not require the landlady to have a large number of family members in order to seek ejectment on ground of personal requirement."

14. Mr. S. M. A. Mahmood, learned counsel for the respondent who has argued with ability has contended with force that the application for ejectment, out of which this appeal has arisen, is the result of applications for repairs and restoration of amenities, R.C. No.632 of 1986 and R.C. No.703 of 1986, filed by the respondent against the appellant earlier in time, which militated against his bona fides. The expression `good faith' employed in clause (vii) means an honest act and if the requirements of landlord are found to be genuine then the Rent Controller is bound to order the eviction of a tenant, irrespective of the fact that the tenant had earlier filed miscellaneous applications to the annoyance of his landlord. The following cases which are cited on behalf of the respondent are distinguishable. Sultan Press Ltd. v. Muhammad Hasan PLD 1985 Kar. 624, Messrs John Traders and 3 others v. Ahmed Ali 1986 C.L.C. 561, Hussain Ali v. Messrs Noor Ali and others 1986 M L D 714 and Yaqoob Ali v. Ismail 1987 C L C 526.

15. In the light of the above discussion the appeal is allowed with no order as to costs and the impugned order is set aside. The respondent is, however, allowed two months' time to vacate the demised premises. As a result of this finding C.M.A. No.389 of 1990 stands dismissed. H.B.T./A-1031/K Appeal allowed.