1984 PLP 846 (MLD)

The appellant filed written statement in which he denied all the allegations and stated that the respondent is demanding increase in rent which he had failed to pay, therefore, he filed rent case. The learned Rent Controller on the pleading of the parties framed following issues:- (i) Whether opponent is a nuisance to tare applicant' (ii) Whether applicant wants enhancement in rent? (iii) Whether applicant requires the disputed premises for her personal bona fide use?"' Issue No.1, was trot pressed by the applicant therefore, learned pent Controller has not made any observation on this issue. His findings on issue No.2 are in negative. The learned Rent Controller considered issue No.3, and ordered the ejectment of the appellant. He, in his order, held that disputed premises is required by respondent for her personal bona fide use. Before the Refit Controller, Fazalur Rehman, attorney/husband of the respondent was examined: On the other hand appellant examined himself. Attorney of respondent has stated in his evidence which is Exh.1, that he is husband and attorney of the respondent and appellant is the tenant of the premises mentioned above, a Rs.275 per month which does not, include the water charges, conservancy charges etc. acid the appellant has failed to make the payment with the result that water supply was disconnected. Therefore, he had filed rent application No.1644/1978 under section 10 of fire Ordinance. The Rent Controller, in that rent application made the respondent responsible and against that order respondent filed an appeal and learned VIth Additional District Judge by an order, dated 24-9-1978; set aside the order of the Rent Controller. Attorney of respondent in his evidence also stated that he requires the premises for his personal bona fide use off account of the act that he has three children, one wife, and a widow mother, therefore, the present accommodation is not sufficient for him. The allegation regarding default in payment of rent for the months of November, and December, 1978 and also for the month of January, 1979, has been made in the evidence. In cross-examiantion he has admitted that he is residing in the official residence provided to him at Nishtar Road by his employer. He has also stated that he got vacated the flat on the first floor of the disputed premises and it is in his possession. The terrace of the disputed building is also lying vacant, because tie got ejected from Mr. Riaz through Court by filing refit case. The appellant in his evidence before the Rent Controller stated chat respondent started demanding increase in rent which he refused, therefore, he has filed the application. Her contention is that Karachi Development Authority disconnected the water supply therefore, he alongwith other tenants filed an application before the Rent Controller for 'restoration of amenities, therefore, applicant became-annoyed with him and other tenants, and she started harassing them through her husband. He also deposed that respondent refused to accept rent from all the tenants of building therefore, they started paying the rent in some Misc. Application. He, has also stated that respondent has one complete vacant flat in the building which he got vacated on the plea of personal requirement which has not yet occupied, and another flat vacated by Riaz is also lying' vacant therefore, he is not in need of the premises for her personal use. I have heard Mr.G.M.Qureshi, learned counsel for the appellant and Mr. Khuda Bux Umrani, for respondent. Mr.Qureshi. contended that appellant is the tenant of this flat since, 1974, and he has no other place to live. He has also submitted that due to the previous litigation which annoyed the respondent, therefore, he filed this rent case with mala fide intention. Mr.Umrani; on the other hand argued that respondent alongwith her husband, three children, and mother are living in official residence provided by United Bank Ltd., which is not sufficient for their requirement and it is a privilege of landlord to live in` the premises of her choice. On this point he has relied upon the cases reported in 1973 S C M R 185; 1981 C L C 981; 1983 ^C L C 1512 and 1983 C L C

6. I have gone through the evidence and case-laws referred to by the learned counsel for the respondent. I agree with the contention raised by Mr. Umrani that it is choice of landlord to live in his own house. The other circumstance that respondent is presently living in an official residence cannot be ignored. The fact that in the same building one flat is also lying vacant which he has not yet occupied. The terrace is also at the disposal of the respondent. Moreover the original rent case of respondent is she wants premises to be vacated in good faith for her bona fide use and use of her children but in the evidence her attorney has specifically stated as under:- "That I say, I require the premises for my personal bona fide use on account of my three children, one wife and widow-mother dependent on me." This shows that landlady is not in need of the premises. The rent application also disclosed that respondent is in need of a flat and if it is so, the flat adjacent to the present premises and terrace are sufficient to meet her requirement. The fact that the respondent's. husband has official residence where he is living and a flat and terrace are also available to them. The respondent has failed to prove the bona fide requirement. The learned Rent Controller has also held that husband of respondent is paying huge amount which is being deducted from his salary. He will get that amount from his employer as house rent if he will shift to his own flat. But learned Rent Controller has ignored the fact that in the rent application the prayer is made for one flat whereas one flat is available with him which he has not yet occupied. Had he any intention to derive financial benefits he could have immediately shifted to the vacant flat. For the reasons mentioned above, I set aside the order of the Rent Controller. Consequently the rent application of the respondent stands dismissed, with no order as to costs. M.A.K. Appeal accepted.