1989 PLP 1178 (MLD)

While taking into consideration the evidence produced by the parties, the learned Rent Controller decided Issue No.1 in affirmative and consequently the ejectment application was allowed. The present appeal is directed against the said order of ejectment. Mr. S.T. Hasan husband and attorney of the respondent/landlady filed his affidavit in which he has stated that the applicant requires the disputed premises for her personal need and for her children as well as for his bona fide need in good faith. He has denied that since February, 1984, they have been putting pressure and harassing the opponent to increase the rent to Rs.3,

000. The allegations was false. He has further stated that he is presently serving as Director (Training) in Pakistan Banking Council, at Karachi, and shall retire from service on attaining the superannuation age of 00 years on 1‑lth August, 1987. After his retirement, he intends to start an institution for training candidates in banking and to impart education necessary for service in Financial Institutions or such other occupation as may be conducive for family. He the welfare of the applicant and her possesses sufficient qualifications and skill in this respect. He has produced the following certificates in order to show his experience and ability: (i)Certificate by American Society of Training Directors .....Annexure "B". (ii)Certificate by Pakistan Society for advancement of training .....Annexure "C". (iii) Certificate by Pakistan Institute of Management .....Annexure "D". (iv) Certificate by Pakistan Administrative Staff College .....Annexure "E". (v)Certificate by American Society of training Directors regarding completion of Training Director's job .....Annexure "F'. (vi) Certificate by Institute of Personal Training P.I.D.C .Annexure "G". (vii) Certificate by University College of Swansea .....Annexure "H". he has also produced photo copy of Retirement Notice, dated 11‑11‑1986 as Annexure "I". That the tenant/appellant was approached and requested many times to vacate the house in question because it was needed by the applicant for her personal bona fide use, her children and husband, but he has refused to vacate the same. That the opponent was served with notice, dated 11‑3‑1987 which was replied on 9‑4‑1987, Photo copies of the same have been produced. He has admitted that after the service on the opponent the first floor of the bungalow fell vacant and was let out to Syed Yasir Ammar Zaidi as it was not suitable for the need of the applicant. That the choice of the premises and its sufficiency is always right of the landlord and the tenant has no right to determine which premises will suit the landlords requirement. As the first floor was not suitable for the need of the applicant and her family, it was not occupied. In cross examination he has deposed that his wife is residing with him at Gulshan‑e‑Iqbal. He has denied that the disputed house is constructed on 1,500 sq. yards but it is constructed on 870 sq. yards. He had purchased original plot measuring 1,800 sq. yards from K.D.A. Later on it was bifurcatcd and half of it was sold out by his son as he was allottee of the half portion. He has admitted that he had let out the first floor of the disputed house but after one year it remained vacant. He did not remember as to after how much time of letting out the first floor he has Filed the present case. He has admitted that the disputed premises is residential premises. He has admitted that rent of the premises was Rs.450 in 1974 and now the rent was Rs.1,

000. He has also admitted that he had rented the first floor of the house at Rs.3,

000. He has denied it suggestion that he has filed the present case to get the house vacated and to re‑let it on higher rent. He has denied a suggestion that he has sufficient accommodation for their use. He has denied a suggestion that there is no doctor in his family. The tenant/appellant has filed his own affidavit‑in‑evidence in which he has repeated the contents of his written statement. He has further stated that the present case wits filed by the applicant in the 3rd week of April, 1987, but she has rented out the first floor of the premises in question on 1‑4‑1987 on a monthly rent of Rs.1,

000. That the applicant had added to her application in the affidavit in‑evidence the words "or such occupation as may be conducive for the welfare of the applicant and her family" and in the witness‑box in cross‑examination her attorney defined "or such occupation" or other use' as for the use of his son who is a Doctor for his Clinic. That this plea was not taken either application or in the affidavit‑in‑evidence by the applicant and therefore it further indicates clearly that the reason for seeking ejectment of the opponent is not genuine and intention is only to rent out the premises at a higher rent to some other person. In cross‑examination he has deposed that he is residing in the demised house alongwith his daughter and wife. 1‑iis wife and daughter had gone to America but now she has come back. He knows the hushand of the applicant but he did not know if he was Director of Banking Council. He has admitted that Mr. S.T. Hasan hits retired from service. He did not know if Mr. S.T. Hasan is giving training. He has admitted a suggestion that before filing of this case applicant had given him notice that she requires the house for her personal use and that he had replied the same. The applicant does not require the house for personal use because she has a big house. He has been reading newspaper Jang and Dawn. He did not read any news in the newspaper regarding programme of bank officers in a hotel. I lc has produced :t cutting of various newspapers which was regarding the programme as Exh.0/1 and O/''. He has admitted a suggestion that Mr. S.T. Hasan had told him that he requires ground floor for opening training centre. He has also admitted that in front of his house there is a U.S.S.R. Cultural Centre. He did not know that any programmes regarding the cultural activities were held. The applicant had given first floor on rent after service of notice on him at the rate of Rs.3,000 per month, while he is paying Rs.1,000 per month. There is difference in the accommodation of ground floor and first floor. He has denied a suggestion that the landlord needs premises for her bona fide use. His one son and one daughter are residing in America, while his one daughter is residing with him. He has denied a suggestion that his daughter is not residing with him. He has denied a suggestion that landlady requires ground floor bona fide. I have hoard Mr.S.Hyder Raja Naqvi, learned counsel appearing for the appellant, Mr. Mansoorul Arfin, learned counsel appearing for the respondent, and have gone through the R & P of the case. It was contended by Mr. Hyder Raza that the respondent is living in the house of her husband in Gulshan‑e‑Iqbal, and that when notice was given to the appellant first floor of the house was lying vacant and the same was rented out before the ejectment application was filed, but these facts were not disclosed in the application and therefore the application was mala fide. He has further contended that the premises in dispute were .rented out to the appellant for residential purpose and therefore the ejectment could not be allowed on the ground for requiring the same for commercial purpose. In support of his contentions the learned counsel has relied upon P L D 1983 Lah. page 425, 1984 C L C page 2596 and 1987 C L C page

472. Mr. Mansoorul Arfin, learned counsel appearing for the respondent has contended that no question was put to Mr. S.T. Hasan husband of the respondent that the premises were not required for his personal bona fide use. That newspaper cutting Exhs.O/1 and O/2 clearly show that the training courses had been started and even the appellant had admitted in cross‑examination that Mr. S.T. Hasan had told him that he requires the premises for starting institution, which is further supported by the certificates produced in Court. It was further contended that there was difference of accommodation available on ground floor and first floor, and it was for the landlord to decide as to which accommodation will be sufficient for her needs. I have considered the contentions of the landlord's counsel. As far as the First contention of Mr. Hyder Raza was concerned, it is of course an admitted position that at the time when notice was served on the appellant the first floor of the demised premises was lying vacant and that it was rented out at Rs.3,000 per month before the ejectment application was filed. However, Mr. S.T. Hasan husband and attorney of the respondent has stated in para. 8 of his affidavit‑in evidence that after sending notice, dated 11‑3‑1987 to the opponent as aforesaid, the first floor of the bungalow fell vacant and was let out to Syed Yasir Ammar Zaidi as it was not suitable for the need of the applicant. He has further stated that he was advised by the counsel for the applicant that the choice of the premises and it's sufficiency is always with the landlord and it was right of the landlord, and tenant had no right to determine as to which premises will suit the landlords requirement. As the first floor was not suitable for the applicant and for the need of her family, it was not occupied. Even the appellant has admitted in cross‑examination that he is in occupation of entire ground floor and servant room constructed in the Garage. There are three bath rooms and one proper attached bath room. There is drawing and dining room, one bedroom, one passage, one servant quarter and basement in the house in question. There is difference in the accommodation of ground floor and first floor. The landady does not require the premises for her personal bona tide need and that of her husband and children as he has a house in Gulsan‑e‑Iqbal. In the case of Habib‑ur‑Rahman v. Faqir Muhammad P L D 1983 Lah. page 425, the landlord had not disclosed in his ejectment application and evidence that he was also in occupation of other business premises and had also not tried to establish that such other premises were not suitable for his needs and therefore his ejectment application was dismissed by the Rent Controller. He filed 1st Appeal before the District Judge which was also dismissed by the learned Additional District Judge. He went before the High Court wherein it was observed; that the view of the 1st Appellate Court was sound inasmuch as if the conduct of the landlord is such he does not take the Court into confidence nor approaches it with clean hands and is guilty of suppression of facts, then this conduct if the landlord will reflect and recoil on his bona fides and good faith for establishing his personal need or need of his son, and the appeal was dismissed. In the case of Shaikh Ejaz Ahmed v. Muhammad Abdul Latif 1984 C L C page 2596, the landlord had leased out two flats in same building to his near relations during pendency of proceedings and he had failed to mention in his evidence that only premises occupied by tenant were suitable for his needs and two flats rented out by him were not suitable, it was held, that the landlord had failed to establish good faith in circumstances. With utmost respect, the above two decisions are distinguishable inasmuch as Mr.S.T. Hasan husband and attorney of the respondent had clearly mentioned in his affidavit‑in‑evidence that the first floor was rented out by them because it was not suitable for their needs. Even the appellant was cross examincd and he has admitted that there was difference of accommodation available on the ground floor and the first floor. Under these circumstances it could not be said that the respondent had suppressed material facts from the Court or that there was no evidence to show that the ground floor was more suitable for their needs and therefore the two decisions relied upon by the learned counsel for the appellant arc not applicable to the facts of the present case. It has been proved from the evidence of Mr.S.T. Hasan and the documents produced by him that he was serving as Director (Training) in Pakistan Banking Council, at Karachi and had retired on 14th August, 1987. This fact has been admitted even by the appellant in cross‑examination. The certificates Annexures "B" to "H" clearly show that he had sufficient knowledge and could run an institution for training candidates in banking and impart education necessary for service in Financial Institutions. It was also admitted by the appellant in cross‑examination that Mr. S.T. Hasan had told him that he wants to start institution for training candidates in banking. The newspaper cuttings produced before the Lower Court also show that training programme for branch managers of banks had been started at Karachi. It was also admitted by the appellant in cross‑examination that there is U.S.S.R. Cultural Centre in front of the house in question. Mr. S.T. Hasan has specifically stated in his evidence that they do not possess any other accommodation suitable for their needs to run the institution. As far as the suggestion made to him in cross‑examination regarding a house situated in Gulshan‑e‑Iqbal was concerned, his case was that they were residing in the same premises and that it was not suitable for their needs as far as running of institution was concerned. As far as the decision in the case of Moinuddin v. Master Bashir Ahmed 1987 C L C page 472 was concerned no doubt Haider Ali Pirzada, J., of this Court while relying upon two earlier decisions reported as Seth Girdhari Lal v. Mst. Marzia Bano and another P L D 1963 Ouetta page 25 and Jamil Ahmed v. Mst. Sultana Jehan Begum P L D 1974 Kar. page 319, took the view that the non residential buildings/shops cannot be directed to be given in the possession of landlord for residential purposes of his own, his wife or children. With utmost respect the decisions relied upon in the above cases were under the West Pakistan Urban Rent Restriction Ordinance, 1959 and not under Sind Rented Premises Ordinance, 1979. There is a marked distinction in section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, which has since been repealed by the Sind Rented Premises Ordinance, 1979 and section 15 of Sind Rented Premises Ordinance, 1979, whose provisions are not in pari materia with those of the repealed Ordinance. Under the repealing Ordinance the words "premises" and "building" do not make any distinction between commercial and residential use nor clause (vii) of section 15 spells out any such distinction. It was so held by their Lordships of the Supreme Court in the case of Abdul Malik v. Haji Ejaz Ahmed 1985 S C M R page 1555, it was further observed that the word "premises" means a building or land let out on rent but does not include a hotel. Accordingly, there is a marked distinction between the provisions of the two statutes and it is not permissible to impart those considerations as were available under the West Pakistan Urban Rent Restriction Ordinance, 1959, while defending an action for ejectment under the Sind Rented Premises Ordinance, 1979. Equally even if the premises were let out for a non‑residential purpose, that stipulation in the agreement cannot override the plain meaning of the above referred to provisions nor can it operate as an estoppel" and the Petition for Leave was dismissed. Therefore the contention that since the premises in dispute were rented out for residential purposes, the ejectment could not be allowed on the ground of personal hona fide use for commercial purpose was devoid of force. In view of the above; discussion, the order passed by the learned Rent Controller does not call for interference and the appeal is accordingly dismissed with no order as to costs. However, I allow four (4) months time to the appellant to hand over vacant possession to the respondent, subject to the condition that he continues to pay monthly rent regularly. In case the appellant fails to hand over vacant possession as directed, the learned Rent Controller shall issue writ of ejectment without issuing any prior notice to the appellant, if any execution application is Filed. M.Y.H./S‑377/K Appeal dismissed.