1986 PLP 1751 (CLC)

A.S. Qureshi for Respondent. Date of hearing: 19th September, 1985. This first Rent Appeal is directed against the impugned order, dated 28‑11‑1982 of learned Xth Senior Civil Judge/Rent Controller, Karachi, whereby application for eviction filed under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 has been dismissed. Briefly stated the relevant facts giving rise to this appeal are that appellant before' me Mrs. Safia Hassan is landlady and would be referred as such hereinafter. Mst. Zubaida Begum is tenant and during the pendency of appeal she died and her son Ishrat Hussain, who was in occupation, was joined as Legal Representative and statutory tenant. Tenament in question is a flat consisting of two rooms on the first floor of building, which is specified in the application for ejectment. o Landlady with her family lives on the second floor of the same building. r Rent is Rs.300 per month. Ejectment application was filed on the grounds 7 of default and personal need. Before the Rent Controller landlady examined her husband and Attorney Abu Akhtar Hassan and tenant a examined tier son Ishrat Hussain. Rent Controller refused ejectment on both grounds and consequently dismissed ejectment application. Mr. A.F.M. Mukarram, Advocate for appellant before me at the very outset submitted that he would not press appeal on behalf of landlady on the ground of default but would press the same only on the ground of personal need. In this context landlady in her application for ejectment filed in the Court of Rent Controller stated that she and her husband and their seven grown‑up children, who were all college‑going, faced hardship due to paucity of accommodation. In this context no further particulars are given in the ejectment application as to where and what accommodation is in the occupation of landlady. Only in the caption, where names of the parties are mentioned, address of the landlady is shown as second floor on the Plot No. 581‑82/C Khushhal Road P.E.C.H.S. Karachi. In the written statement, tenant denied the allegation in paragraph 5 and stated that the landlady does not require the premises in question as the premises already in her occupation are sufficient and suitable for her and her family members. Abu Akhtar Hassan, husband and Attorney of the landlady stated in the affidavit of his evidence in paragraph 6 that the family of the landlady consisted of him, her and seven children. The number of the family members had increased to 12 as wife of son of landlady with her two children had tall‑.en permanent abode with the landlady. Once again it is reiterated positively in the same paragraph 6 that almost all seven children of the landlady ~:re college/school‑going students. In paragraph 12 of the affidavit this fact is reiterated that landlady requires demised premises for her own use and use of her children and family members in good faith. It is noticeable that in the affidavit except the beginning where name of the deponent, is mentioned and there is address of the deponent, nowhere else the fact is mentioned as to how many rooms were in occupation of the landlady. Husband of the landlady in the cross‑examination stated that he was in occupation of two bedrooms, one drawing room and one dining room and further denied as incorrect suggestion that there were four bedrooms in his use. He admitted that first floor of the building was in occupation of his two tenants. Contention raised on behalf of the tenant is that allegation of the landlady that the rented accommodation was required for her personal need was vague and no attempt was made to state as to how much accommodation was already available to the landlady. It was further stated that on the second floor landlady already had four rooms and she got two other rooms on the first floor making six. rooms available for the landlady and her family members. It was stated on behalf of the tenant that the landlady did not describe correctly the number of family members in the application and affidavit of evidence of her husband where it is stated that the family consisted of landlady, her husband and seven children. In the cross‑examination husband of landlady stated before the Rent Controller that he has five sons and five daughters and his three daughters were married and resided with their husbands. Mr. A.F.M. Mukarram, Advocate attempted argue that in the application as well as affidavit of evidence three married daughters were excluded from the family as they were married and were living with their husbands. He further stated that these married daughters also visit the house of their parents alongwith their husbands hence some rooms were required for them also. Learned counsel for the landlady was unable to give any satisfactory explanation as to why number of family members and numbers of rooms in the occupation of landlady were not clearly and specifically mentioned at the earlier stage of proceedings before the Rent Controller. On the other hand on this point vague allegation in the ejectment application is denied in the written statement and tenant stated in paragraph 9 of the affidavit of the evidence that need of the landlady, was not bona fide as she and her children resided in four rooms on the second floor. It was asserted by the tenant that four daughters of the landlady were married and lived away from her separately. One daughter resided near Jheel Park in P. E. C. H . S. , second and third daughters resided in their own houses in commercial area and the fourth married daughter was residing in England. It was asserted by the tenant that two sons of the landlady were not residing with the landlady. One son by name Shamim was in the Army and was residing in Nausherah and the other son Athar was residing in Saudi Arabia. On what is stated above tenant was not cross‑examined which means that the facts stated by the tenant were not denied by the husband of the landlady. In this context only one suggestive question was put to the tenant and he denied that wife of Major Shamim son of landlady lived with her children with the landlady. It is beyond dispute that tenant and landlady lived in the same building on different floors. If tenant denied that wife of son of landlady did not live with her, then no attempt was made on behalf of landlady to give further proof in support of assertion. Since statement of tenant with regard to other family members as mentioned above is not challenged on behalf of the landlady then indisputable position is that out of five sons and five daughters in the family of the landlady four daughters were married and lived separately on their own and two sons also lived away from the family. That means out of 10 children, six lived away and only four lived with the landlady. Landlady, her husband and four children would make in all six family members. Four rooms on the second floor are already in occupation of the landlady. Additionally Mr. A.F.M. Mukarram Advocate stated in the Court before me and this fact was admitted by the husband of the landlady who was present in the Court that two rooms on the first floor of the building have been acquired which accommodation was vacated by the tenant after the filing of the ejectment application in the instant case. This would make six rooms for six family members. Another factor which goes against the landlady is that the tenant was inducted in to possession by an agreement executed on 10‑10‑1974. Even at that time the circumstances were same and there was no change and the ejectment case was filed against the tenant on 1d‑1‑1977. This shows that ejectment case was filed after only 21 years. It is not the case of the landlady that within these 21 years the circumstances of the family of the landlady had changed requiring more accommodation. No such assertion is made and no such evidence is produced. In the instant case, therefore, on the basis of evidence produced by the parties, it can be said that the landlady has failed to prove that she required in good faith demised premises for her use and use of her family members. Mere wish is not enough and the need is to be specified in clear terms and further some evidence is to be produced to show reasonableness of that need. In support of the proposition reliance is placed on the case of Sultan Press Ltd. v. Muhammad Hassan P L D 1985 Kar.

624. For the facts and reasons stated above impugned order is maintained and the appeal is dismissed with no order as to costs. H. B. T. Appeal dismissed.