1984 PLP 2121 (CLC)

S. 13?Ejectment?Bona fide personal requirement--Landlady with 5 children of school going ages living with her father?Mere fact that landlady had earlier rented out same premises when she had same number of children or that she was living with her father, held, did not militate hgainst her bona fide requirement of premises?Landlady, entitled to apply for ejectment on basis of increased requirements of her family?Landlady, held, had success-fully discharged burden of proving her bona fides in circumstances. 1982 C L C 2641 ; 1983 C L C 12 and Hajra Bai Sulaiman v. Aisha Bai 1982 C L C 1444 ref. JUDGMENT In the year 1976 the respondent filed an application for ejectment on the ground of default and personal requirement for her use and occupa?tion and her children. The learned Controller granted ejectment on the second ground. In her application for ejectment the respondent had given the following particular of her children : Name?? ??????????????????????????????????? Sex????????????????? ??????????? Present Age????? ??????????? Class (a) Aisha Humaira???????? ??????????????????????? daughter?????????? ??????????? 10 years?????????? ??????????? VI (b) Safia Mubashira????????????????????????????? ???? ?????????????????????????????? 9????????? ??????????????????????? IV (c) Muhammad Abdul Salam ?????????????? Son????? ??????????????????????? 8????????? ??????????????????????? IV (d) Muhammad Abdul Subhan? ???? ?????????????????????????????? 7????????? ??????????????????????? IV (e) Muhammad Abdul Malik.??? ??????????? ???? ?????????????????????????????? 5????????? ??????????????????????? I During the trial the ground for default was dropped and the matter proceeded on the sole ground of respondent's bona fide use and occupa?tion. In her statement the respondent stated that her husband resides in Muscat for the last 14 years and that she and her aforestated children are residing with her father, who has a house of two bed rooms and one drawing dinning room. In the house of her father eleven members, of his family are residing and since her children have grown up and are studying in schools in various classes it has become difficult for her to stay there as such stay is at the cost of her children's education and great incon?venience is caused to them. On her behalf her daughter, Aisha was also examined who at the time of evidence was about 12 years old. The third witness on her behalf, was her father, who has supported the facts stated by the respondent. The appellant examined herself, in which 'she denied that the respondent requires the premises for her bona fide use and occupation. She stated that the respondent resides in Muscat with her husband. The house was constructed in 1968 and in 1974 when the respondent was in need of the house, she rented it out to her. She further stated that sufficient accommodation is available with the father of the" respondent and, therefore, she does not need the house in dispute. She also stated that the respondent has constructed a house on first floor with three rooms, which is in her possession and, therefore, the requirement for the house in dispute is neither bona fide nor in good faith. The only question relevant for consideration is whether the respondent requires the premises in good faith for herself and for her family members specified above. Mr. Manzoorul Haq, the learned counsel for the appellant has assailed the finding of the learned Controller on the ground that the requirement of the respondent is not bona fide and in good faith because in 1972 she had same number of children as today still she rented out the premises to the appellant. According to the learned counsel the respondent's need in 1972 was the same as at the time of the filing the application, therefore, the requirement is not bona fide and in good faith. A perusal of the application as well as the statement of the respon?dent will make it clear that the respondent has 5 children whose ages are given in the aforestated paragraph. In 1972 when the house was rented out to the applicant, the age of the eldest child was 10 years and the yougest child was aged one year. Therefore, at that time the children were of very young age ranging from one year to 6 years. Hardly few would have been admitted to the school at that time and it would have been possible for the respondent to keep them in her father's house. It is an undeniable fact that with the growth of age and passage of time the needs also increase. The youngest child has grown up from one years to 5 years and the eldest daughter who was 6 years old in 1972 was about 10 years in 1976. By 1972 and thereafter all the children had been admitted in school. Besides schooling, with growing age they would be requiring more accommodation for their convenience, study and residence. The determination of requirement of a landlord entirely depends upon the facts and circumstances of each case. If after renting out the premises the requirement of the landlord increases then he is entitled on the basis of such increased requirement to make an application for ejectment. In the" present case with the passage of time the respondents requirement has also increased. The learned counsel next contended that the respondent has accom?modation with her father, and, therefore, she does not require the house in good faith. It has not been denied by the appellant that the respondent and her children do not reside in the house of respondent's father. This house does not belong to the respondent. There is conclusive evidence on record that this house consists of three rooms in which large number of persons belonging to the family members of her father are residing. The fact that the respondent is residing in her father's house does not debar her from requiring her own house for her bona fide need J and requirement. In the present case the respondent has sucessefully discharged the burden and proved that the premises is required for her bona fide use and occupation. The third ground pressed by the learned counsel is that the respondent has constructed an upper floor of three rooms which is sufficient for her requirement and, therefore, as it is in her possession, the question of her bona fide need does not arise. The upper floor is admittedly in possession of the respondent. However, from the evidence it is clear that so far only structure has been constructed. It is neither plastered nor doors and windows have been fixed. This fact has been stated by the appellant herself in that cross-examination. It is, therefore, clear that the upper floor is not in a habitable state. It cannot be expected that family of the respondent which consists of 5 children should go and live in an incomplete house which is under construction and without amenities. In view of these facts even the existence of incomplete structure on the first floor which is not habitable does not militate against the bona fide require?ment of the respondent. Mr. Manzoorul Haq, the learned counsel has referred to 1982 C L C 2641 ; 1983 C L C 12 and Hajra Bai Sulaiman v. Aisha Bai (1982 C L C 1444). The consensus of all these authorities is that the burden is upon the landlord to prove the bona fide need and if his evidence is shaken then the landlord's requirement is not established. Applying this principle to the present case I find the evidence of the respondent cogent and consistent. The respondent's statement is not inconsistent with the averments made in the application. Even P. W. 2' who was a young girl of 12 years at the time of statement has not been shaken in the cross-examination. It is not safe to entirely rely upon the evidence of child witness but in the facts and circumstances of the case I find that she has faced the cross-examination in an unshaken manner and has correctly stated and supported the statement of her mother relating to the require?ment and need of her family members. On the other hand, the evidence of the appellant does not falsify or contradict the facts stated by the respondent. Mr. Ilyas Ahmed, the learned counsel for the respondent has relied on P L D 1982 Kar. 557, to illustrate the meaning of "good faith" as used in section 13 of Urban Rent Restriction Ordinance 1959. I find that the respondent and her witnesses have been frank and honest and have fully established her bona fide requirement. In the result I find no force in this appeal, which is dismissed. M. B. A.????????????????????? ??????????????????????????????????????????????????????????????????????? Appeal dismissed. ***