1985 PLP 2033 (CLC)

1983 C L C 2174 distinguished. (c) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑S. 15(2) (vii)‑‑Bona fide need for children‑‑Words "for her own occupation and use" held, would include use of her family members which mean her children.[Interpretation of statutes]. (d) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 15(2) (vii)‑‑Personal bona fide requirement‑‑Plea of‑‑Rebuttal‑ Demand of higher rent‑‑Mere allegation of demand of higher rent, held, was not sufficient to disprove bona fides of landlord unless it was established that landlord's plea for ejectment was merely a colourable device for obtaining ejectment. M. Abdul Karim Siddiqui for Appellant. Abid Husain for Respondent. Date of hearing: 25th November, 1984 The appellant filed ejectment application against the respondent on two grounds (i) default in payment of rent and (ii) bona fide requirement for personal use and occupation. The issue relating to default has not been pressed. The learned Controller, however held that the premises is not bona fide required by the appellant and the application was dismissed. In the ejectment application the appellant had alleged that she requires the premises in question in good faith for her residential purpose. The appellant and her children are residing at Nigeria where her husband is employed on contract service. At the time when the application was filed she had three children; one daughter aged 8 years, one son aged 5 years and another daughter aged 3 years. According to the appellant her children are growing in age and in Nigeria there is no proper Muslim educational facilities and whatever is available there, is very costly. She has, therefore, decided to shift to Karachi with her children and reside in her own house. The respondent denied these allegations, and the main defence was that the appellant wants to eject the appellant on this pretext and rent it out at a higher rate. The appellant examined her attorney who has stated all these facts in his affidavit. In cross‑examination most of the questions relating to the age of the children and their requirement, the lack of proper educational facilities in Nigeria does not seem to have been seriously challenged. All the efforts were made to show that she is residing with her husband, and that the entire object of the appellant is to realize higher rent. The respondent has thus challenged the bona fide and good faith of the appellant. Mr. Abdul Karim Siddiqui, the learned counsel for the appellant has contended that the appellant has returned back to Pakistan with her children, and is staying with her father‑in‑law, her attorney, and in this regard he has filed certain photo copies of receipts showing admission of her children in a local school. But since these documents were not produced before the Controller, nor any proper application has been made for admitting these documents as additional evidence, I have excluded them from consideration. However, as pointed out by the learned counsel for the appellant, 1 have noted that the appellant is present in person in Court. The principle for establishing personal bona fide use and occupation is now well settled as held in P L D 1976 Kar. 832 and confirmed in 1980 S C M R 593 that where the averment made on oath in consistent with the averment made in the application, and the same is not shaken in cross‑examination, nor disproved in rebuttal then even if there is some deficiency in such evidence, the claim of the landlord for bona fide use and occupation is to be accepted. This liberal view seems to have been taken in view of the protection afforded to the tenant and the penalty imposed on the landlord who after obtaining possession of the premises on the ground of personal bona fide use and occupation relet it to any other tenant. This statutory provision seems to be a sufficient safeguard against a greedy landlord. In the present case the appellant has established material facts which are consistent with the averment in the application. They are that the appellant is residing at Nigeria with her husband and children. It may be noted that during the pendency of the case, there has been an addition in the family and a girl was born which at present is about 4 years old. The main anxiety of the appellant is that she should educate her children in an Islamic way in Pakistan. This education is not available in Nigeria and the education which is available is very costly. The desire of a parent to educate their children according to their own conviction and faith is always very genuine, particularly in cases when the children are female and are of growing age. At present one of the daughters of the appellant is 13 years old, the other is about 8 years. One cannot ignore the fact and it has to be noted that all Pakistani immigrants who are residing abroad specially in the developing countries and have daughters of growing age are anxious to return or send them back to Pakistan for proper education and upbringing according to their own culture, custom, and tradition so that they may be able to get a suitable match for them. If with this view the appellant wants to come and reside in Pakistan and educate her children, then her requirement is bona fide and genuine. The appellant has established these facts. Mr. Abid Hussain the learned counsel for the respondent has contended that the appellant did not examine herself, and, therefore,1 the bona fide requirement has not been proved. It is not an absolute rule that in every case the landlord has to enter into the witness‑box and prove his bona fide requirement. The proof of bona fide requirement or the examination of the landlord entirely depends upon the nature of his need and requirement. If the need is of a general nature and not specific or special then, the landlord or any of his family member or attorney who is pesonally aware of those facts can depose to it. In the present case the only need pressed by the appellant is that she wants to come back with her children for their education. This fact has been deposed by the attorney who is father‑in‑law of the appellant and the grandfather of the children. He is in no less a better position than the appellant herself to depose these facts. The rule regarding personal examination can only apply where the landlord requires the premises for his economically independent children or for their special and specific need and, therefore. such need has to be proved by such person for whom the premises is required.

3. Mr. Abid Hussain the learned counsel for the respondent relied on 1983 C L C 2174, but the principle of this case is not applicable to the present one. In that case the ejectment was sought on the ground that the appellant intended to live in Larkana with his family while he was employed in Government service at Karachi. The landlord's attorney was examined who tried to improve the case that the appellant was about to retire. This plea was not accepted as this plea was not pleaded and the person aware of all the facts was not examined. The requirement, in the circumstances of that case, was of a peculiar nature which could 'be explained by the landlord himself. In the present case, the appellant's attorney has been examined. The appellant being a lady could be represented by her attorney or any family member and there being no special requirement, her non‑appearance does not adversely effect her case. Mr. Abid Hussain the learned counsel contended that in the application there is no allegation that the appellant requires the premises for the use of her children. The allegation made in the application are that the appellant requires the premises in question in good faith for her own occupation and use. The words for her own occupation and use will include the use of her family members which means her children. This contention. therefore, has no force. In cases where a party needs that premises for her personal requirement, and his bona fides are challenged, then it is the duty of the tenant to establish such facts to disprove the bona fide. In the present case except the allegation as stated by the respondent that the premises is required only for the purpose of letting out at higher rent or that higher rent was demanded by the appellant no other fact has been brought on record to disprove or rebut the appellant's good faith. Mere demand of higher rent is not sufficient to disprove the bona fides of the landlord unless it is established that his plea for ejectment is merely a colourable device for obtaining ejectment. The respondent has also examined one Zikrur Rahman to show that in 1975 the appellant had obtained the premises in dispute on the same ground and rented it out at higher rent. This fact does not seem to have been sufficiently established by this witness, nor his statement inspires confidence, particularly as his evidence was recorded after both the parties had closed their side. In the result the respondent has failed to establish that the appellant's requirement is mala fide and lacks bona fide. The appeal is, therefore, allowed. Three months are allowed to the respondent to vacate the premises, and hand over vacant possession to the appellant. H . B . T Appeal allowed.