1989CLC536 (PLP)

It is desirable to state briefly certain facts giving rise to this litigation.

2. On 6‑3‑1979, the respondent filed an application for ejectment against the appellant, who is her tenant in respect of first floor of premises bearing No.5/E‑10/25 situated in Nazimabad, Karachi, at a monthly rent of Rs.180 under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (since repealed on the grounds of default in payment of rent and requirement for personal use. The appellant resisted the application for ejectment by filing the written statement on 14‑11‑1979, in which he denied both the said grounds. The, respondent examined Mirza Ashfaquddin Baig (P.W.1), who is her husband and attorney, while the appellant examined himself (D.W.1) and Muhammad Ramzan (D.W.2). On 2‑3‑1983, the XIth Senior Civil Judge and Rent Controller, Karachi, dismissed the application for ejectment. The respondent filed F.R.A. No.313 of 1983, before this Court against the said order which was pressed only on the ground of personal requirement. On 22‑12‑1986, the appeal was disposed of in the following terms:‑‑ "By consent of the parties, F.R.A. No.313 of 1983 is allowed and the impugned order dated 2‑3‑1983 is set aside. The Rent Case No.1204 of 1979 is remitted to the IVth Senior Civil Judge/Rent Controller (West). Karachi for disposal to accordance with law after affording opportunity to lead evidence in support of their respective pleas. Both the learner: counsel have submitted that Rent Case No.1350/83 is also pending between the same parties before the Controller. The learned Controller directed to dispose of both the cases within six months from today."

3. The parties adduced additional evidence before the Rent Controller and this time both the issues were decided against the appellant, who was directed to vacate the demised premises within 00 days. This order dated 11‑1‑1988, is the subject‑matter of this appeal. 4. 1 have had the benefit of a very careful argument on both the sides. Mr. Raja Qureshi, learned counsel for the respondent has not pressed the issue of default in payment of rent before me. The learned counsel for the parties have confined their arguments only on the issue of personal requirement.

5. It is the case of the respondent that at the time when she had rented out the house to the appellant, her daughters were minor. They have now grown up and all the members of family, therefore, cannot reside in a two‑roomed house which too is rented one. The landlord of that house has again filed an ejectment Case No.572 of 1974, which is pending decision before Vth Additional District Judge, Karachi. It is alto the case. of the respondent that her husband has developed heart disease and she requires proper accommodation. The reason as to why the respondent has preferred the disputed premises finds place in para. No.6 of the application for ejectment, which reads as follows:‑‑ "That the unit which is in possession of the opponent is the biggest of all and the family of the applicant can only be accommodated there. The rest two units are smaller and even both the units will not be sufficient for the applicant's family."

6. Mirza Ashfaquddin Baig (P.W.1) has testified the same facts which are unfolded in the application for ejectment. He has produced documentary evidence to show that he is a heart patient.

7. The appellant met the ground of personal requirement by a denial professing ignorance of almost every assertion made on behalf of the respondent. According to him, the sole purpose behind this litigation is to compel him for enhanced rent.

8. Section 13(3) (a) of the Sind Urban Rent Restrictions Ordinance, 1959, provides:‑‑ "(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:‑‑ (1) in the case of a residential building, if:‑‑ (a) he requires it in good faith for his own occupation or for the occupation of any of his children; (b) he is not occupying another residential building, suitable for his needs at the time in the same urban area in which such building is situated; and (c) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area.

9. Under this clause the Rent Controller should accept the requirement of a landlady, if reasonably proved on record, unless ,strong circumstances to the contrary exist. The record as it stands shows that the respondent is living alongwith her ailing husband and three grown‑up daughters in a small rented house consisting of two rooms. It is also the case of respondent that her landlord had filed an ejectment case against her which is pending decision. In a situation like this where the landlady is residing in a rented house and is being pressed by her landlord to vacate the said premises, her desire to occupy her own house cannot be said to be mala fide.

10. There is again no rule of law that bona fides being a subjective matter can only be proved by the landlady testifying in the Court. It can be proved in an ordinary way like any other fact in issue. The grounds on which the ejectment is sought, have come on record through the husband of the respondent, who was a natural witness.

11. The word "requires" posses an objective element and is to be construed with reference to the requirement of the landlady. "In determining the reasonableness of the requirement, the Court may take into consideration all the surrounding circumstances and facts, e.g. the status of the landlord, the state of his health, the nature of his work or avocation, social habits, the style of living, the size of his family, amenities and space requirement, social customs, conventions, habits, usages and practice of the society."

12. There is also evidence on record to show that the husband of the landlady who appeared as her attorney before the Rent Controller is a heart I patient. Exhs.F/2 to F/6 indicate that he is suffering from 'myocardial infection'. The requirement of the respondent to occupy her own house for a better living is, therefore, justified.

13. The learned counsel for the appellant has objected to the production of these documents at late stage of the case. It may be noted that the case was remitted to Rent Controller only for the production of the documents which were not brought on record through oversight. The respondent produced photo copies of these documents alongwith affidavit as the original were lying in other rent case which was subsequently withdrawn. The appellant was, therefore, not taken by surprise when the original ones were brought‑ on record at the late stage of the case. The Rent Controller is a special Tribunal and the proceedings before him should not be judged from the point of view of mere technicalities.

14. A point which was touched upon during arguments may now be dealt with. It is contended on behalf of the appellant that the second floor of the building owned by the respondent is admittedly lying vacant and the respondent could have occupied it, if she was really in‑need of a better accommodation. At first sight the argument appears to be attractive but the same is effectively answered by the learned Rent Controller in the following words:‑‑ "The learned counsel for the opponent has also argued that applicant's husband and attorney has admitted that second floor of his house is lying vacant, as such, the applicant could occupy the second floor, if she is really short of accommodation. The contention of the learned counsel for the opponent is without force as it is prerogative of the landlord to select any of the premises for her residence. In a similar case reported in 1983 C L C 329, it was held that it is the prerogative of the landlord to select any of the premises out of his several premises owned by him for his own use and occupation. It was also held that the requirement of landlady of sixty years to occupy the premises of ground floor in preference to that of the upper floor of same building cannot be considered as unreasonable or mala fide."

15. It may be recalled that the respondent had made it clear at the initial stage of the case that the premises in dispute is the biggest out of all tenements. The evidence which has come on record again proves that the husband of C' respondent is heart patient. Obviously the tenement situated on second floor of the building will not be suitable to respondent. In this view of the matter the cases reported as Mst. Anwari Begum v. Noor Hassan 1984 C L C 122, Haji Ahmad Zaheer Khan v. Anwar A. Rahim 1984 C L C 2714, Sultan Press Ltd. v. Muhammad Hassan P L D 1985 Kar. 624; Mst. Farukh Nisa v. Sardar Ahmad and 6 others P L D 1985 Kar. 639; Syed Anisur Rehman v. Mst. Sara Bai P L D 1985 Kar. 714; Muhammad Alim v. Ahmad Mian 1986 M L D 1610; Zafarullah v. Muhammad Akbar and another 1986 M L D 1755; Riyaz Khan v. Sodagar Khan 1983 C L C 1343 and Muhammad Ibrahim v. Mst. Nazeer Begum etc. 1987 M L D 255 are distinguishable.

16. The evidence which has been adduced by the respondent makes out a case for her requirement of the disputed premises in good faith. The premises which she is presently occupying is not suitable to her needs. She has also not vacated any premises without sufficient cause. The appellant has again failed to make out a case of bad faith. The demand of higher rent by the respondent is not established from the record.

17. Having regard to the above factual and legal position, I see no reason to interfere with the finding of the learned Rent Controller. The appeal has no merits and is dismissed with no order as to costs. The appellant is, however, allowed two months' time to vacate the demised premises. H.B.T./A‑466/K Appeal dismissed.