1986 PLP 1727 (CLC)

The appellant has challenged the order of Rent Controller, dated 11‑3‑1982, in this appeal, whereby his application for eviction of respondent on the ground of personal and bona fide requirement was rejected. The appellant in his application for eviction averred that the premises occupied by the respondent was required for her personal bona fide requirement. The respondent denied the claim of appellant. In support of her case the appellant examined her husband Aijaz Hussain, and father Kazim Ali Shah while respondent examined himself. The Rent Controller after hearing the parties came to the conclusion that the appellant has failed to .establish personal bona fide requirement as she firstly did not examine herself in the case and secondly she is living in the official accommodation allotted to her husband by the employers in a comfortable way. The case of the appellant before the Rent Controller was that no doubt she was living with her husband in the accommodation allotted to the latter by the Zeal Pak Cement Factory but the accommodation with the appellant is not suitable as her two children who are school‑going have to travel. Long way every day from Zeal Pak Cement Factory Colony to Hyderabad where their school is situated and as such she wants to occupy the flat in possession of opponent which is situated in Hyderabad City. The learned counsel for the appellant urged that it was not necessary in the circumstances of the case to examine the appellant personally as the evidence of appellant's husband and her father examined on behalf of appellant fully established the case of appellant. It is further urged that the evidence on record established a genuine case of personal and bona fide requirement of the premises by the appellant. The arguments advanced by the learned counsel for the appellant are not without force. The appellant's husband in his evidence which was recorded after about a year of the filing of the case categorically stated that the premises were required by the appellant for her personal and bona fide requirements, as the two children of the appellant who are schooling at Hyderabad, has to face great inconvenience every day as they have to travel a long distance from Zeal Pak Cement Colony where they are living, to Hyderabad, where the children are studying. He also stated in the evidence that his son was admitted in the school about 3 years back while her daughter was admitted in the school about a year back. He further stated that he is paying a sum of Rs.1,000 for the accommodation which has been allotted to him by his employers. The father of the appellant also stated the same facts. From the evidence on the record it is quite clear that the present accommodation with the appellant is far away from the City of Hyderabad, and that the 2 children of the appellant who are studying in school at Hyderabad have to cover this distance every day to reach their school. The above facts are not at all controverted either in cross‑examination or in the evidence of respondent. The plea of respondent before the Rent Controller was that the real intention of the appellant was to enhance the rent. He, however, admitted in cross‑examination that after 1978, the appellant or her father, who used to collect rent on her behalf, never demanded any enhanced rent. It is also admitted that in spite of filing of the rent case, the landlady continued to receive the rent from respondent. In these circumstances, the plea taken by the respondent remained unsubstantiated. The evidence produced by the appellant reasonably established the one of bona fide requirement. In the case of Arshad Umer v. Begum Nazarul Askari P L D 1985 S C 138 the Supreme Court of Pakistan examined the effect of non‑examination of landlady in a Rent Case relating to bona fide requirement and observed as follows:‑ "Mr. Abdul Wahab, learned counsel for the petitioners, presented a vigorous argument in support of the above plea, but despite his enthusiasm for it, we are not persuaded to agree with him. We note that subsection (2) of section 15 of the Sind Rented Ordinance, 1979, provides that the Rent Controller can direct the tenant to put the landlord in possession of the premises if he is satisfied inter alia that the landlord requires the premises in good faith for his own occupation or for the occupation of any of his children. No limitations are prescribed in the law to fetter the discretion of the Rent Controller in this connection nor is there any prescription with regard to the nature of the evidence which must be produced before him to satisfy him on this point. His satisfaction is to rest on the material placed before him by the parties and no conditions are laid down as to the exact nature of the evidence which must be produced before him so that he can be satisfied. In this case, the son‑in‑law of the landlady had appeared before the Rent Controller. He is a retired Major in the Army and the eldest son‑in‑law of the landlady. As he was living in Karachi, it was convenient for him to appear before the Rent Controller, rather than the landlady who was residing at Quetta. As for the son, though living at Karachi, he is working in the National Construction Company, while the son‑in‑law of the landlady being a retired person had more time at his disposal. Even otherwise he too is a member of the family having knowledge of all the relevant facts. Moreover, the facts deposed by him namely, that the landlady was the owner of the premises; that she was presently living at Quetta; and that she now wanted to shift to Karachi where her other members of her family were residing; that her son was employed at Karachi and had no separate accommodation but was living in his house; that the landlady too had no other house in Karachi, were not seriously contested. In these circumstances, we cannot appreciate why the Rent Controller was not satisfied about the bona fide need of the landlady to get possession of her house and the learned Judge in the High Court was, therefore, fully justified in setting aside the erroneous view taken on this point by the Rent Controller. In fact, this Court has in several cases held that the order of eviction of a tenant cannot be challenged on the ground of failure of the child to appear in Court for whose benefit the landlord is seeking eviction of the tenant and his omission to appear before the Rent Controller to depose about the said need is not fatal. See, for instance, M. Muhammad Sharif v. M.S. Sultan 1981 S C M R 844 and Dilshad Muhammad v. Mst. Zubaida Begum 1981 S C M R 895." In view of the above discussion, I am of the view that the appellant had succeeded in establishing the case for her personal bona fide need of the premises. I accordingly accept this appeal, set aside the order of the Rent Controller and grant the ejectment application of appellant. The respondent is allowed 6 months time to vacate the premises, subject to the condition that he shall continue to deposit the rent for this period with the Rent Controller during this period. There will, however, be no order as to costs. H. B. T. Appeal accepted.