1990 PLP 846 (MLD)

The appellant has reiterated the above facts in his affidavit evidence. He has further stated that it is absolutely false, as alleged by the respondent, that the present rented flat is suitable for his accommodation and that his need in respect of the demised premises is not bona fide. The present accommodation is not at all suitable for his requirement, looking to his status as a businessman and that his family including his son. The present accommodation is insufficient having three bedrooms. Out of the three bedrooms, two of the rooms have attached bath rooms and there is no garage and servant quarter, whereas there is garage and servant quarter and courtyard and lawn in the demised house. In the present accommodation there is no privacy. He was an ailing person and is living on 1st Floor. There is heavy traffic, noise and unhygienic conditions which is adversely affecting his health. His two grown‑up children had to sleep in one room. His son cannot be accommodated and married due to acute shortage of accommodation. There is acute shortage of water and the facility of tanker cannot be availed of as the flat is on the 1st Floor and the whole building consists of ten tenements having a common underground water tank. In cross‑examination he has deposed that the assurance given by the opponent was oral. Apart from the Tenancy Agreement Ex.0/1, no other Agreement was executed by the opponent after eleven months, nor the original was renewed. He never refused to accept rent nor he asked the opponent to increase the rate of rent. Increase in the rent from Rs.550 to Rs.700 was made by the opponent since January, 1982 voluntarily without any demand from him. He has admitted that till June, 1982 Rs.700 was being accepted by him as rent. He has denied that since July, 1982, he wanted to get the monthly rent increased. The opponent had sent rent of July and August, 1982 through money order which he refused to accept thereafter she has been depositing it in Court. He has filed the present case about one year after his refusal to accept the rent. He had sent two legal notices to opponent through registered A/D, which she refused to acknowledge and were returned to him. He is presently residing in Victoria Chambers in rented premises at the rate of Rs. 150 per month. The premises where he is residing with his family consists of three big bedrooms, one drawing, one dining, a small store, two bath rooms and one kitchen. The area where he is presently residing is suitable for commercial purposes only and not for residential purposes. He is residing there since 1965. That the people living in the building are most middle class doing business. He has been residing in Saddar Area since his childhood. The Victoria Chambers belonged to one Nizam of Hyderabad. He has denied a suggestion that he had admitted payment of Rs. 50,000 as Pagri while obtaining the premises on rent. His landlord has not filed any case against him nor any notice has been given to him for vacating the premises. That his house is near the Governor House and Sindh High Court Building. He could not say that best Schools and Colleges are situated in the locality where he is presently residing. That the best shopping centres of Karachi are situated in the locality where he resides. He has denied that most of the Parsi Colonies are near his residence. There is no Parsi Colony in Saddar area. That his father expired three years back. On his death the property left by him was inherited by him and his brother jointly. He and his brother jointly owned two commercial plots in Lee Market and Impress Market. The plot of Lee Market consists of only commercial shops on its ground floor and no flats. They had no intention to start constructing multistoreyed buildings on these plots. That his wife had two‑storeyed structure in Soldier Bazar, admeasuring 180 sqr. yds., which she has sold recently. It was occupied by tenants. He has admitted that notice was given by purchaser's Advocate. There is no other property in the name of his wife. The property of Lee Market left by his father is on rent with one Jumma against whom litigation is pending. He has one wife and three major children. His one son is out of Pakistan since last six years in connection with his study. His son Shahveer is not engaged. He has chosen a girl who is approved by them. The affair of his son with the girl is of four years old and his son visits Bombay to see her every year. They have approved the girl in the month of March, 1986, when they went to Bombay to see her. His daughter is neither engaged nor she is likely to be engaged. He has denied that the disputed premises is near Slum area of Mehmoodabad. He would not like to hand over his present residence to the opponent if she vacates the disputed premises. He has denied a suggestion that his present residence is better than the disputed premises. He has denied that there is acute shortage of water in disputed premises. There is an open garage in the disputed premises. He does not know as to whether the children of the opponent are studying. Shahveer son of the applicant/appellant has stated in his affidavit in evidence that at the time of letting out the demised premises it was expressly agreed between the parties that whenever the demised bungalow is required for personal bona fide use of his father, his family including him, she will vacate the same. That they have been asking the opponent to vacate the bungalow but she has refused to do so. That he is of marriageable age and because of insufficiency of accommodation he and his sister had to sleep in one room. On account of heavy traffic noise, insufficieny of water drawn from common underground tank sharing ten tenements, with no garage and servant quarters facility, the present rented flat is not suitable to their status of businessmen. They required the disputed bungalow for their own occupation bona fide. Besides the unhygienic conditions his father who is having ill health is having adverse effect, on his health. In cross‑examination he has deposed that he was not present at the time of signing of the Rent Agreement by both the parties. At the time of renting out the demised premises the applicant had five family members. One of his brothers is in London since last 8/9 years and is studying there. He visits the parents regularly every year. He has denied that his said brother has obtained British nationality and is settled in London. He has admitted that he and his sister had studied in Grammar School which is situated in Saddar, and his sister i' still studying there. He has admitted that at present he is not engaged but his parents have approved a girl for him in March, 1986. When this case was filed his marriage was not withheld. His grandfather was settled in Bombay and has expired about a month or two back. No ceremony of approval of girl took place before him nor there is any writing about the approval. He needs only one room for his sleep after his marriage. He has admitted that presently he and his sister are sleeping in one room while appellant sleeps in another room without attached bath room. He has denied that one room is lying vacant in their present residence. He has no idea about the accommodation in the disputed premises. He had seen disputed premises at the time of its construction. He could not say whether the premises occupied by the opponent is better or worse than the premises occupied by the applicant. He did not think that the opponent was facing acute shortage of water but he has head from other people that she is being supplied plenty of water. He has denied that he is giving false evidence about his engagement and insufficiency of accommodation. Respondent Mrs. Meher has filed her own affidavit reiterating the facts stated by her in her written statement. She has expressly denied that she had given any undertaking to the applicant/appellant that she will vacate the demised premises whenever the same are required by him. The applicant is residing in Saddar area which is considered to be the best area for all purposes. The Victoria Road where the applicant resides is near to Governor House, High Court, and the area is very neat and clean, and there is no scarcity of water and electricity. That the demised premises are not required by the applicant for his persona bona fide need or for the need of his son. In cross‑examination she has stated that she does not know that the applicant is residing in a rented house nor can she say that the same is owned by the applicant or not. She does not know whether the applicant owns any other residential property in the Cantonment area or in the vicinity thereof. The agreement Ex.0/0‑1 was executed by her after going through its each and every clause. She has seen Shahveer son of the applicant. She cannot say if he is of marriageable age. He is over 18 years. The applicant, his son, his wife and his daughter are residing in a flat at Victoria Road, Karachi. The flat is on the 1st floor. The applicant owns a car. She knows that there is no car garage with the applicant. She has seen the building in which the flat of the applicant is situated. The ground floor of the building in which the flat of the applicant is situated comprises of commercial establishment but she does not know that 1st floor also comprises of commercial establishment. She could not say that area in which the applicant resides is in the grip of tremendous noise of traffic nowa days. She has been visiting the area where applicant resides. She could not say that in that area it is not possible to park the vehicle during day time. She could not say that the area where the applicant resides has become noisy. She could not say that the whole area where the applicant resides is surrounded by huge commercial buildings. The applicant resides opposite Jabees Hotel. It is correct that in the area where the applicant resides there has been replacement of the old buildings into multi‑storeyed commercial buildings recently. The disputed premises is an independent bungalow built on 713 Sq. yards with boundary wall and fruit bearing trees planted by her. The disputed premises have three independent bedrooms with attached bath rooms but does not have the idea of the size of the bedrooms. There is a car porch in the disputed premises but no servant quarters. There is also a combined drawing/dining hall, but she could not give its measurements. The disputed premises is situated in Zoroastrian Society managed by a committee. No known Parsi family is residing in the area of the disputed premises. The applicant belongs to Parsi religion. Her husband is working abroad since last 2‑1/2 years and is expected to come back shortly. Her son has gone to America on two years scholarship while her other son is studying in M.B.,B.S. At present only her son is residing with her. She has no documentary evidence to show that the applicant had asked to enhance the monthly rent. The applicant's need of the disputed premises was mala fide and malicious because he is occupying a spacious flat with all amenities. She has admitted that applicant's flat has two bedrooms only. There is no mention of her name and address on the documents annexed with her affidavit. She does not know that for the purpose of repairs it was necessary to have permission from the applicant or from the Court. She is ready to vacate the disputed premises if applicant is willing to hand over his flat to her. She had admitted that the applicant is having bad health. I have considered the contentions of the learned counsel. From the evidence produced by the parties, it is clear that the appellant is residing in a rented flat having 3 bedrooms with 2 bath rooms and a drawing/dining hall. It is also an admitted position that there is no garage for car parking. That the family of the applicant consists of his wife, two sons and one daughter, out of which his one son is studying abroad. That his son and daughter are major. That one room with attached bath is occupied by the appellant and his wife, while the 2nd room with attached bath is being shared by his son and daughter. There is no evid6nce that the appellant owns/possesses any other residential premises in the Cantonment area or in any other vicinity of Karachi except the demised premises. The respondent has admitted that the appellant is an ailing person and has no garage for car parking. Whereas there is a garage for car parking in the demised bungalow, a lawn, and 3 bedrooms with attached bath rooms. She has further admitted that flat where appellant is residing is surrounded by commercial buildings. She has shown ignorance that there is a lot of traffic and thus lot of noise around the building where appellant is residing but it is well‑known fact that there is lot of traffic in the Saddar area and thus lot of noise. One of the objections raised by the respondent in her written statement was that since the applicant/appellant was occupying a residential house in Saddar area, the present application was not maintainable under section 17 (4) (a) (ii) of Cantonments Rent Restriction Act 1963. Section 17(4) (a) (ii) reads as follows: "He or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time in the Cantonment area concerned or in any local area in the vicinity thereof. The bare reading of the above provision will show that the applicant/landlord has to show that he is not occupying any other residential building suitable for his needs at the time in the Cantonment area concerned or to any local area in the vicinity thereof. From the above provision it is clear that the landlord can maintain ejectment application even if he is in possession of residential premises provided he can show that the same is not suitable for his needs. The learned counsel appearing for the appellant has relied upon the following cases:

1. Firdous Begum v. M/s. M. Siraj and Brothers 1988 C L C 802, wherein it was observed that; "In ordinary circumstances when the owner says that he requires his premises for his own use and occupation the Controller must start with the presumption that the claim of the landlord for his personal use and occupation is true and the mere statement of the tenant that the case of the landlord is false, is not sufficient:"

2. In the case of Mrs. Abdul Hamid Khan v. Shamsul Hassan 1988 C L C 2294, wherein the landlord had filed ejectment application on the ground of personal bona fide use on account of both his need for accommodation as well as financial expediency, and additionally it was more convenient for the applicant and his family to reside therein, it was observed that; "It was the landlord to decide as to which of the premises in the building he would like to live in looking to his own circumstances and convenience. If he has chosen to live in the premises occupied by the appellant/tenant particularly in the above‑noted circumstances he could not be compelled to live in the other premises on the ground floor. It is prerogative or choice of the landlord that matters; and it is what the Honourable Supreme Ceurt has held in the case of Sabumal v. Kika Ram alias Hemandas 1973 S C M R 185.

3. Messrs Sel Best Advertisers Ltd. v. Mst. Amtul Hafiza Karim Nawaz 1989 C L C 46, wherein the landlady had filed ejectment application on the ground that she required the demised premises for the personal bona fide use of her son and the defence taken by the tenant was that the ejectment application was filed for monetary consideration, it was held that: "It was proved from the evidence of son of the applicant that he required the premises for his personal bona fide need. The mere allegation of the tenant that the ejectment was filed for monetary gains could not be accepted, specially when there was no allegation of demand of increased rent." In the present case there is an allegation that the landlord/appellant had demanded enhanced rent but the allegation has not been proved and the evidence of the respondent on this point is shaky and unreliable. 4. 1973 S C M R 185 and 1980 S C M R 772, it was observed by their Lordships in the above cases that if a landlord possess more than one house in the same urban area the choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion, and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should presently reside. The above decisions fully support the contentions of the learned counsel appearing for the appellant. Mr. Zia Oureshi learned counsel appearing for the respondent has relied upon the following cases:

1. Muhammad Siddiq v. Abdul Hameed P L D 1976 Karachi 696, wherein the landlord was already in possession of similar accommodation as that of the demised premises, it was observed by their Lordships, while accepting the appeal of the tenant that the burden was on the landlord to show that the premises already occupied by him were not suitable to his requirements. The premises in dispute having similar accommodation and no better than house already possessed by landlord, the appeal was allowed and the ejectment order of Rent Controller was set aside and the ejectment application was dismissed.

2. Mst. Hajra Bai Sulaiman v. Mst. Aisha Bai 1982 C L C 1444, wherein the landlord had filed ejectment application on the 'ground that he is residing in a rented premises and wants to reside in the demised premises, and that he had no other house of his own in the same urban area. It was observed that: "If this proposition is accepted then in all cases in which a .landlord is (Allan Dino Memon, J) residing in a rented house files an ejectment application on the ground of his bona fide need and requirement then it should be 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."

3. M/s. Eastern Express Co. Ltd. Karachi v. Tariq Hameed P L D 1986 Karachi 84, wherein the ejectment application was filed on the ground that the appellants required the demised premises genuinely bona fide for the occupation of their senior officers and directors. The ejectment application was dismissed by the Rent Controller and the matter came up before High Court, and it was observed that "That statute has been designed to protect tenants from unreasonable eviction and has taken care to put restriction on mala fide ejectment. A mere ipse. dixit of the appellant that it required the flat in question for accommodating senior staff is not enough. It must be supported by valid reasons as to how its requirement is genuine and that is lacking in the present case, and the appeal of the landlord was dismissed:" 4.P L D 1985 Karachi 64, this case involves a different point and has no applicability to the facts of the present case inasmuch as in the above‑reported case execution application was dismissed and the application for restoration was time‑barred and therefore, the point involve was of limitation.

5. Noor Mohammad v. Iqbal Ahmad 1985 C L C 1007, wherein the appellant was occupying the demised shop as tenant and the ejectment application was filed by respondent/landlord on the ground of personal bona fide need and default, it was observed by this Court that: The expression "requires the premises in good faith" is not without significance and it indicates that the landlord has to establish his "good faith". In other words, he has to establish his requirement by tangible evidence and not by only making simple statement that he needs the premises for his own use. Should mere statement of a landlord that he needs the rented premises for his own use be sufficient for obtaining eviction of a tenant, the expression "in good faith" would be redundant. Moreover, if that view were to prevail, hardly a tenant can escape eviction on such ground. In the instant case, the respondent did not disclose the circumstances which had prompted him to do any business there:' There is no cavil with the proposition laid down in the above‑reported cases relied upon by the learned counsel appearing for the respondent. However, in the present case it has been proved by the appellant that he is residing with his family in a rented flat where there is no garage for car parking. That only two rooms have attached bath and one room is occupied by him and his wife while the 2nd room is being shared by his son and daughter who are adults. That they have selected a girl for his son but he could not be married for 'want of accommodation. The area where the flat is situated is a commercial area and there is lot of traffic and consequent noise. He is an ailing person and there is also acute shortage of water. It has also been proved from the evidence of the appellant and his son and even admitted by the respondent that the demised bungalow is situated in a locality where only their community people reside. There are three bedrooms with attached bath rooms and a drawing/dining room. There is also a garage and a lawn, therefore, the claim of the appellant that the demised bungalow is more suitable for their needs appears to be genuine. Specially when the demised house consists of three bedrooms with attached bath rooms, and the son and the daughter of the applicant are major. The son after being married would definitely like to live in a separate room and would not share it with his sister. Merely because the flat occupied by the appellant at present is situated in the heart of the town surrounded by commercial buildings and is nearer to Governor House, High Court and Educational Institutions it cannot be said that it is more suitable to the appellant than the demised bungalow. There is much difference between facilities available in a Flat and a Bungalow. More so, when the Bungalow is situated in the area where only Parsi Community reside. The observation of the learned Rent Controller that after marriage of the son of the applicant he may face conjestion in the space but at this stage when the marriage of his son is not scheduled to take place nothing can be asserted. Prima facie this is the future requirement of the applicant, whereas under the law only that requirement can be called bona fide which is after having proved through cogent evidence felt presently, appears to be untenable and impracticable. It will be unnatural rather absurd to expect that the applicant could ask for ejectment only after his son was married and thereafter he could prove his bona fide need. It has been proved through the applicant and his son that they have already selected a girl for the son Shahveer. Even otherwise comparing the two houses and the facilities available in each house and the fact that the appellant is an ailing person and even there is no garage available in the building where appellant is presently residing, I have no hesitation to say that the present 1 house occupied by the appellant is not suitable for his needs. In view of the above discussion, the appeal is allowed, the impugned order passed by the Rent Controller is set aside and the ejectment application is allowed. However, I allow four months' time to the respondent to hand over vacant possession to the appellant subject to the condition that she continues to pay future monthly rent regularly. In case the possession is not handed over as directed the Rent Controller shall issue writ of ejectment without issuing prior notice to the respondent if execution application is filed. H.B.T./C‑137/K Appeal allowed.