1983 PLP 2640 (CLC)

(4) Whether the opponent is source of nuisance to the occupants of the building and to the applicants? (5) To what relief the applicants are entitled? He decided all the above issues against the respondents through his order dated 4th April, 1978. The respondents being aggrieved by the above order filed Rent Appeal No. 280/78, which was allowed by the learned Additional District Judge through his aforesaid order dated 15th November, 1980 on the ground of personal requirement. The appellant being aggrieved by the above order has filed the above second appeal. 11 Appeal No. 461 of 1980 The brief facts leading to the filing of the above appeal are that the respondent filed the above Rent Case 2367/75 against the present appellant on the ground of personal requirement and on account of impairing the value of the premises. The above application was resisted by the present appellant. The learned Rent Controller on the basis of the pleadings of the parties framed the following issues:- (1) Whether the applicants require the premises in occupation of the opponent for personal bona fide use? (2) Whether the opponent has materially impaired the value of the premises in question? (3) Whether the applicant is entitled to a decree? After recording the evidence and hearing of the parties the learned Rent Controller recorded findings on all the above issues against the respondent through his aforesaid order dated 4th April, 1978. The respondents being aggrieved by the above order had filed Rent Appeal No. 281/78, which was allowed by the learned III Additional District Judge, Karachi through his aforesaid order dated 15th November, 1980. The appellant being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal Mr. S. M. Afzal, learned counsel for the appellants has contended that the learned first appellate Court was not justified in reversing they finding of the learned Rent Controller on the question of personal requirement as the respondents' applications were mala fide. On the other hand, it has been urged by Mr. Rehmat Ellahi, learned counsel for the respondents that the factum that the rent was enhanced by the respondents about a year and half back would not snake the present applications for ejectment on the ground of personal require ment mala fide and that the learned Additional District Judge was justified in recording the finding in favour of the respondents on the aforesaid ground.

3. It may be pertinent to observe that though the rent cases were filed on other grounds as well as stated hereinabove but before the learned first appellate 'Court, the respondents urged only the ground of personal requirement and, therefore, for the purpose of the present appeals the only ground, which is to be considered is the ground of personal requirement,

4. In support of the application the respondents examined themselves as P. Ws. 1 and 2 and also examined one Mushtaq Ahmed, father-in-law of respondent No. 2 as P. W.

3. On the other hand the appellants examined themselves. However, in the rent case filed against Muhammad Mah the other tenant Muhammad Meraj against whom the other rent case was filed was examined as a witness. In nutshell the evidence adduced by respondents is to the effect that the building in question was purchased jointly by the 2 respondents in 1971, which has 10 flats i.e. 5 flats on the ground floor and 5 flats on the first floor and that respondent No. 1 is in possession of one flat It has been deposed by respondent No. 1 that the two fiats in question are needed. for accommodating their old parents and respondent No. 2, who is putting up with his father-in-law P. W. 3 Mushtaq Ahmed. The case of the appellants is that the respondents before fling of the present ejectment case against Muhammad Mah had filed a previous rent application, namely, R. C. No. 2419/73 for ejectment which was compromised by respondent No. 1 and the rent was increased prior to the filing of the present case and that respondent No. 1 was in fact living in a flat in Moulvi Musafarkhana area, which was vacated by him and gave it on Pagri. It has also been deposed by appellant Muhammad Meraj in his examination-in-chief that the respon dents have no real father but have a step-father and real mother, who are putting up in a flat in the same building. However, to his cross-examina tion, he came out with the statement that the respondents' step-father and mother were putting up in a but, which is a Pacca hut. 5. (a) It has also been contended by the learned counsel for the appellants that the personal need of a step-father is not covered by section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959. Mr. Rehmat E11ahi in support of his contention has referred to the case of Adorn rlli Hussain Ali v. Rabab (PL D 1965 Kar. 408), and the case of Sadhumal v. Kikarm Hemendas (1973 S C M R 185). On the other hand Mr. S. M. Afzal has referred to the case of Mst. Almas Begum and others v. Haii Pir Bux and others (P L D 1964 Pesh. 278) and the case of Sh. Khushi Muhammad v. Khawaja Rashid (1968 S C M R 1158.). (i) As regards the above Karachi case reported in P L D 1965 Kar. 408, it may be observed that Qadiruddin Ahmed, J. (as he then was) while construing the provision of section 13(3)(i)(a) of the late Ordinance held that the expression "for his own occupation" is to be given a liberal construction as to include not only need of the family but of dependents and persons essential for such occupation and also other genuine requirement. It was further held that the requirement of the premises by landlady for better and more convenient accommodation for her and her husband was a requirement covered by the above provision. (ii) In the aforesaid case reported in 1973 S C M R 185, it may be stated that the Supreme Court while declining to grant leave for appeal against the judgment of a learned Single Judge of the Erstwhile High Court of Sind & Baluchistan observed that "if a landlord possesses more than one house in the same urban area, the choice of the house in which he would like to live himself is surely a matter within his prerogative and discretion and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside". (iii) Whereas in the case reported in I' L D 1964 Pesh. 278, heroze Nana Ghulam Ali, J. held that a landlord initially accepting enhanced rent in respect oaf a premises but subsequently seeking ejectment of the tenant on the ground of personal requirement, the factum of enhancement of rent militates against the bona fide requirement of the landlord. (iv) As regards the case reported in 1968 S C M R 1158, it will suffice to observe that the Supreme Court allowed an appeal against the judgment of a D. B. of the Lahore High Court passed in L. h. A. on the ground that the first appellate Court reversed the finding of the Rent Controller without discussing the evidence and giving reasons for rejecting evidence as adduced by the tenant. The case was remanded by the` Supreme Curt to the High Court for hearing, (b) In the instant case the factum that respondent No. 2 is putting up with his father-in-law has not been controverted by the appellants. What has been urged by the learned counsel for the appellants that the present rent applications were mala fide as the rent in respect of both the flats in question was increased from Rs.18 P. M. to Rs.26 P. M, immediately preceding to the filing of the instant cases i.e. as per appel lant Muhammad Meraj's statement in his cross-examination about 6 months or a year prior to the filing of the present case, rent was increased, whereas in the other case of appellant Muhammad Mah a previous rent case for ejectment was compromised on enhancement of rent from Rs.18 f. M. to Rs.26 f. M. 1 have sent for the file of Rent Case No. 24191773, which was a rent case filed by the respondents against appellant Muhammad Mali, on the ground of default for the period commencing from Ist January, 1973 but it was dismissed in default on 23rd December, 1979. It may also be observed that as per diary sheet the last date on which the advocate for the respondents had appeared in that case was on 9th November, 1973. It may also be mentioned that the case was dismissed in default prior .to the service of the notice of the case on aforesaid appellant Muhammad Mah. It seems that the above case was not prosecuted by the respondents as appellant Muhammad Mah had enhanced rent to Rs.26 from Rs.18 as mentioned in the rent case. According to the learned counsel for the respondents this compromise was effected on 25th November, 1973 whereas the present rent case was filed in July, 1975.

6. In my view the requirement of a step-father may not be covered by the provision of section 13 of the late Ordinance unless a step-son who seeks ejectment for providing accommodation to his step-father and his real mother brings something on record to indicate that they are part of his family and were putting up with him or brings on record some facts, which show that the requirement of his step-father and his mother falls within the compass of the requirement of the persons covered by the aforesaid provisions. The requirement of respondent No. 2 prima facie seems to be genuine as admittedly he is putting up with his father-in-law. However, it was urged by Mr. S. M. Afzal that the requirement of respondent No 2 was very much there when the rent case with appellant Muhammad Mah was compromised and the rent was enhanced in the case of appellant Muhammad Meraj. In my view, simpliciter enhancement of rent will not conclusively prove mala fide on the part of a landlord but it may be a relevant factor to be considered. If a landlord can bring sufficient evidence on record to satisfy the Court that his personal requirement is genuine, in that event notwithstanding the enhancement of rent, the Rent Controller may grant ejectment application on the ground of personal requirement.

7. Since in the instant case, the rent application which was filed against Muhammad Mah for ejectment was compromised by enhancing rent, the question which requires consideration is, as to whether from the date of the aforesaid compromise till the filing of the present rent cases certain new facts came into existence warranting filing of a fresh rent case for ejectment on the ground of personal requirement. Further question, which requires consideration is whether the respondents are justified in claiming the possession of 2 flats if the requirement of the respondents' step-father and mother is to be excluded. In my view it will be just and proper if the cases are remanded to the learned Rent Controller. I accordingly allow these appeals, set aside two orders under appeal and remand the case to the learned Rent Controller with the direction that he should allow the opportunity to the parties to adduce evidence on the above points and to decide the cases after taking into consideration inter alia the above points. There will be no order as to costs. . M.Y.H. Appeals accepted.