1980 PLP 623 (CLC)

M. A. Kazi for Appellant. S. Nasiruddin for Respondent. Date of hearing : 29th August 1979. This Second Appeal is filed under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance 1959 (hereinafter referred as the Ordi nance) against the judgment dated 23-1-1978 of the learned Additional District Judge, Karachi whereby judgment of IInd Rent Controller dismissing jectment application was reversed and consequently ejectment was ordered. Brief facts of the case are that appellant is a tenant of Bungalow No. K-1 in Modern Colony, Karachi since 1958, having acquired possession thereof from landlady Mst. Khalida Begum for residential purposes as well as to run a school. With the consent of the landlady some temporary sheds were constructed and the rent was increased from time to time, which was finally settled at the rate of Rs. 275 per month. Subsequently the premises in question were repurchased by the present respondent from the landlady under a registered sale deed executed on 29-3-1976 and a notice under section 13(A) of the said Ordinance was served on the tenant intimating change in title of the premises and further directing the tenant to hand-over vacant possession of the premises to the new landlord for the reason that he had purchased the same for personal use and that of his family. It was further alleged in that notice that tenant had sublet the premises and made further additions and alterations, which had impaired the utility of the premises. Notice was replied by the tenant on 8-4-1976, in which title of the new landlord was acknowledged by making payment of rent through cheque and other allegations were denied. Respondent then filed application under section 13 of the Ordinance for ejectment of appellant from the said premises in the Court of 1tnd Rent Controller on the grounds of personal bona fide use, subletting and damage to the premises due to additions and alterations. Written statement was filed in which allegations were denied. With regard to the requirement of premises for personal bona fide use, the tenant took the stand that the new landlord was an Advocate and was standing counsel of the previous landlady as such he knew that the premises were in occupa tion. 1t was further stated that sheds were constructed with the consent of previous landlady arid after nationalisation of schools in 1972, the appellant continued pre-primary classes under the name of Fazli Coaching Centre in the disputed premises and that was also with the permission of the previous land lady or that this fact was very much within her knowledge. Keeping in view the pleadings of the parties, the learned Rent Controller framed issues with regard to requirement of premises for personal bona fide use, subletting, impairing the value and utility and change in the use of premises. After recording evidence, ultimately the Rent Controller answered all the issues in negative with the exception of issue with regard to the change in the use of premises, which was answered in positive but application for ejectment was dismissed. The First Appellate Court did not agree with the Rent Controller and the finding on issue with regard to the requirement of premises for personal use was reversed. On Issues Nos. 2 and 3 regarding subletting and impairing the value and utility of premises, the findings of the Rent Controller were affirmed but on issue with regard to change in the use of premises finding of the Rent Controller was reversed and consequently the appeal was allowed mainly on the ground that the landlord required the premises reasonably and in good faith for his personal use and that of his family. Mr. Ashraf Kazi, counsel for the appellant/tenant contended that since the findings of the two Courts below are in conflict with each other, evidence has been misread. In fact the learned Advocates for both parties confined their arguments on the issue of requirement of premises for personal bona fide use of the landlord and his family only and other issues were not pressed. On this issue landlord has examined P. W. 1 Mst. Umal Baneen, who has testified before the Rent Controller that she is owner of House No. 2267/19 in Pir Elahi Bux Colony in which the respondent Muhammad Rafiq is a tenant since last 16/17 years. Tire said house consists of two rooms and one verandah and she had asked Muhammad Rafiq to vacate the same. She also produced an extract of P. T. 1. register from the office of Excise and Taxation, which is Exh. 6 on the record. According to this extract the house in question is composed of three rooms and is situate on total area of 160 sq. yards. Respondent Muhammad Rafiq examined himself and deposed before the Rent Controller that he resides in the rented premises which consist of two rooms and one verandah, which he has converted into third room. This assertion stands confirmed by the extract Exh. 6, which mentions three rooms. Respondent has further deposed that in the rented premises mentioned above he resides with his family, which consists of 9 members to include three adult sons and four daughters, wife and himself. He has also produced a ration card Exh. 8, which shows that he has a family of nine members. It is also beyond dispute that respondent himself is an Advocate practising at Karachi. He has further testified that he has purchased Bungalow No. K-P, Modern Colony from Mst. Khalida Begum for Rs. 70,000 under a registered sale-deed and it is his only house, in which he wants to move with his family as the rented accommodation is insufficient and unsuitable for his needs. There is no dispute about the fact that Bungalow No. K-1 Modern Colony, which is tenement in dispute in this case, is much better accommodation than House No. 2267/19 in Pir Ellahi Bux Colony in which respondent is tenanted now. The former is built on 700 sq. yarns as asserted by respondent and not challenged by appellant. while the latter is built on total area of 160 sq. yards, as proved by Extract Exh No.

6. Agreement of lease between appel lant and Msr. Khalida Begum Exh. 14 on the record shows that the disputed house consists of three bed-rooms. one dining room, one drawing room, to bathrooms. a kitchen, latrine and one verandah with electric and sanitary fittings. Appellant has not denied this assert on. The two houses mentioned above are in two different rating areas. One in Pir Ellahi Bux Colony and the other in Manghopir Area. The contention of Mr. Ashraf Kazi that respondent does not need pre mises in dispute in good faith for his own personal use for the reason that he was Advocate for Mst. Khalida Begum and knew about the premises being in occupation of appellant is not tenable nor his contention that the building in question was purchased at a cheap price. Appellant has accepted notice under section 13(A) of the Ordinance sent by the Respondent and admitted title of respondent by sending rent to him by cheque, hence the relationship between the parties as landlord and tenant has been established and the appellant cannot turn back and call in question the title of respondent on that account. The prerequisite for section 13(3)(a) of the Ordinance is that the landlord requires the premises in good faith for his own occupation or that of his children and is not occupying another residential building suitable for his needs at the time in the same urban area. There is sufficient evidence on the record that the landlord has a large family of nine members out of which seven are his children and is presently putting up in rented house com posed of two rooms and a verandah converted into a third room, which is insufficient and unsuitable accommodation for his purposes. This accom modation is in different rating area and is inferior to the accommodation in dispute. 'There is also no bar if the landlord has a grown-up son and he is on his own fact and is an earning member because the requirement under the relevant section is that he needs the premises in good faith for his own occupation or for the occupation of any of his children who must be dependent on father. Reference can be made with advantage to the case of Adamati v.! Mst. Rubab Bai (P L D 1967 Kar. 437). An objection was raised that building in question is being used for com mercial purposes and is not covered by definition of residential building. This contention is not consistent with evidence on record. Appellant has himself admitted in his deposition before the Rent Controller that he took the premises for residential purposes as well as for running a school. lie has also said so in his written statement. Agreement of lease Exh. 14 also proves that building was residential. Even if the building was composite partly for business and partly for residence, it does not become non-residential building and eviction can be made under section 13(3)(a) of the Ordinance. Reliance is placed on the case of Muhammad Amin Beg v. Pir Muhammad Khan (P L D 1965 Lah. 385). In the instant case the house in occupation of the landlord in the differ ent rating area is not owned by him but is a rented house and the requirement of subsection (3) (a) (ii) (b) of section 13 is that the landlord is not occupying another residential building usable for his needs at the time in the same urban area in which such building is: situated. Reference to another residaial building by the landlord can not the rented premises: Reliance is on the case of Abdul Rahim & Muhammad Ibrahim (P L D 1977 S C 442). In this case landlord has proof of his claim that he has purchased the premises in question and has no other house of his own and is living in rented accommodation which is insufficient and unsuitable for his needs, as such requires the discrete premises for his personal bona fide use and that of his children. Armrest, of the land lord are not rebutted and there is nothing adverse in cross-examination to falsify or cast doubt on his claim as such he is entitled to possession of his own house. Such view was also taken in case Hassan Khan v. Mrs. Munawwar Begum (P L D 197& Kar. 832). In the circumstances and for the facts and reasons given above, I main tain the judgment of Ist Appellate Court and dismiss this Second Appeal with costs. Appellant is directed to hand over vacant possession of disputed premises to the respondent within four months from the date of this judgment and he would also pay the rent for this period to the landlord. M. A. K. Appeal dismissed.