1985 PLP 1166 (MLD)

This second appeal is directed against the judgment and decree of Vth Additional District Judge, Karachi, in Rent Appeal No. 531 of 1978 whereby the order passed by Vlth Civil Judge, Karachi, dated 12-5-1970 was reversed and the appellants were directed to be ejected -from the first floor of J.M. 317 Kamla Nehru Cosmopolitan Colony, New Town, Karachi.

2. The appellants are the tenants and the respondents are the landlords of the premises in dispute. In 1970 the respondents had applied for ejectment of the appellants on the ground that the appellant No. 1 has sublet the premises to appellant No. 2 and that he has refused to pay the rent after May, 1968 and that the premises in the occupation of the respondents comprising of only five rooms were insufficient for accommodating 15 adults and 11 minors. The respondents had also alleged that appellant No. 1 owns his house. The appellant resisted the application and took the position that the appellant No. 2 had been in the premises since 1952 and he was the real brother of appellant No. 1 and that they were not defaulters in payment of rent because the respondent refused to accept the rent and thereafter it was sent by money order and later on deposited in Court. It was further stated that the, application for personal need was mala fide. It was also alleged that notice under section 30 of the Displaced Person Act, 1958 was necessary which had not been served.

3. The issues in respect of necessity of notice under section 30 of the Displaced Persons Act, 1958 and owning of the house by the appellant No. 1 and requirement of premises in good faith by respondents and subletting of the premises and default in payment of rent were framed.

4. The case of the respondents was sought to be proved through the depositions of Ghulam Mohammad, Abdul Latif and Ghulam Ali who are all brothers inter se. In support of the case of the appellants Abdul Qadir made his deposition. The Rent Controller did not grant the ejectment and dismissed the application.

5. Issues in respect of notice under section 30 of Displaced Person Act and whether application was not maintainable were treated as dropped. In respect of the fact whether appellant No. 1 owned a house it was answered in the affirmative while on the question of subletting and requirement for personal use the finding was in the negative and the default was found not to be proved.

6. However, the Additional District Judge in appeal reversed the findings on the point of default, personal requirement as well as subletting. He held that the appellant No. 1 had sublet the house to respondent No. 2 as it had not been proved that possession of respondent No. 2 was permissive. In respect of default the Additional District Judge held that the appellant No. 1 had not been regular in payment of rent and had sent rent for several months together and that landlord was within his right to refuse to accept the rent if it was not sent in time and he, therefore, held that the appellants were defaulter in payment of rent. On the ground of personal requirement he held that since some of the respondents were either residing in the rented houses or residing with their sisters, therefore, their need was genuine and bona fide. He also, held that the fact that the appellant No. 1 own a house No. 81/2 in P.E.C.H.S., Karachi, was enough to straight away order the eviction of the appellants from the disputed premises because it entitled the respondent to seek immediate eviction of the appellants.

7. Mr. Mushtaq Memon argued that there was no justification in the finding of default. The learned counsel is right because it has been conceded by the respondent that rent from January to June, 1968 was paid by money order. In respect of the rent of July and August 1968, it is sufficient to note that money order Exh. 0-6 for the two months rent was sent on 2-9-1968 but was refused. This was a correct tender of rent and should have been accepted by the respondents. In any case, the rent for July and August, 1968 should be deemed to have been tendered within time as it was sent by money order within' time specified i.e. 60 days. Thereafter, since the money order had been refused the appellant deposited four months rent from July to October, 1968 in Court on 9-10-1968 and continued to deposit the rent thereafter and hence the finding of default arrived at by the learned Additional District Judge was completely uncalled for 'and arbitrary and, therefore, it is hereby set aside.

8. In respect of the finding of subletting it is enough to state that the appellants had positively proved by the evidence of Abdul Qadir that Abdul Ghani had been living in the premises since 1952. They had also produced an order of the Settlement Authorities Exh. 0-2 where it was shown that Abdul Ghani was living on the first floor since 1959 and that order of the Settlement Authorities was only passed inter-parties and, therefore, the respondents are deemed to have had knowledge of the same and they have not given any explanation of that. The claim of the respondent that Abdul Ghani hail shifted to these premises about 6-8 months before the filing of their applications is completely belied by Exh.0-2 which shows the presence of Abdul Ghani since at least 1959. I am surprised that the Additional District Judge did not even bother to look at Exh.0-2 and thus arrived at incorrect findings of subletting. I have, therefore, no hesitation in upsetting the said finding and I come to the conclusion that Abdul Ghani had been living with his brother Abdul Qadir in the disputed premises since before 1959.

9. However, in respect of the finding of personal need it appears) to me that the said finding is justified. The ground floor premises is stated to be consisting of four bedrooms plus drawing, dining and verandas where the respondent's family was living. In 1970 when Ghulam Muhammad made his statement then four adults and six minors of the family had been living in that accommodation and it was required that Abdul Latif's family which consisted of two adults and five children should be accommodation therein and further Abu Bakar's family consisting of two adults and two children should also be accommodated therein. This would have made, a family of 21 persons and that could) not be accommodated in four bedrooms. Mr. Mushtaq had argued that in fact there were five bedrooms with the respondent but that position the appellants have not been able to establish either from their own deposition or from the cross-examination of Ghulam Muhammad or Abdul Latif. The further accommodation needed for by the respondents was for Ghulam Ali Kapadia who had retired by the time that he was examined in Court in 1973 and who had a wife and a child of two years in 1973 who must be 14 years old now. Ghulam Ali had made the statement in Court and, therefore, his need could quite legitimately be taken into consideration. Therefore, the respondents had been able to establish their bona fide requirements of the premises in dispute Mr. Mushtaq Memon has however relied upon the submission that things had changed a great deal between 1970 and 1982-83 and the same should be taken into consideration. He stated that Abu Bakar had gone to Gulshan-e--Iqbal and Ghulam Muhammad has built his own house in Defence Society. But Ghulam Muhammad has countered that statement with his counter-affidavit filed in 1984 and stated that ten persons were still living in the said house and that in any case the house in Defence Society was not complete.

10. I must state here that tie photograph of the house under consideration at Defence Society does not show to be a complete house but it is under completion and could be expected to be complete in near future. However, the same was not complete at the time that the affidavit of appellant No. 1 was filed.

11. Mr. Mushtaq Memon wanted me to take note of the changed circumstances. I am not adverse to taking note of the changed circumstances, but there should be some legitimate limit of the changing circumstances. This matter has been pending consideration since 1970 when there were six minors of Ghulam Muhammad family who have all now grown up and some of them have been married and the girls have gone with their husbands after having suffered the shortage of, accommodation.

12. According to me for the purpose of consideration the bona fide of the landlord their need which they have been able to prove at the time of their depositions in Court should be the relevant factor for decision in respect of personal need or at the most one could say that the need as it existed on the day of application was decided by the E Rent Controller should be the last day for considering the question of bona fide needs. On that day in 1978 when the Rent Controller dismissed the application for ejectment the need of the respondents was firmly established as they had a large family which could not be accommodated in accommodation which they had and therefore- they should have been allowed the ejectment. But apart from that day of 1978 I am convinced that even today the need for the respondent's family to secure more accommodation is firmly established. It is correct that today Abdul Latif and his family are accommodated in a portion of the first floor which have been got vacated from another tenant of the same name Abdul Latif. This, however, goes to show that the respondents were in genuine need of the premises and they did not want to give the same on Pugree to someone else otherwise they would have accommodated some other tenant on Pugree. Mr. Mushtaq's contention was that today only Ghulam Mohiuddin with his wife plus Muhammad Ali and Ahmed Ali were living on the ground floor with four bedrooms and, therefore, the same was sufficient for the entire family. I do not agree. Ghulam Mohiuddin arid his wife do require a separate bedroom and similarly Muhammad Ali and Ahmed Ali require a separate bedroom for themselves because they are adults and their marriages are to be solemnised; therefore, this would mean occupation of three bedrooms out of the four bedrooms with the respondent. Then the accommodation is needed for Ghulam Ali and his wife who is a co-owner and, therefore, one bedroom would be required for him. Then again the child of Ghulam All who would be today 14 years, as he was two years old in 1973, would require a separate bedroom as he cannot live in the bedroom of Ghulam Mohiuddin and his wife of Ghulam Ali and his wife or for that matter in the bedroom of Muhammad Ali and Ahmed Ali who are required to be married. Therefore, from whatever angle we look upon the situation even today at least five bedrooms are required for these persons and they have only four bedrooms.

13. I may state here that the accommodation in respect of the amenities, namely, drawing room and dining room and verandas has to be kept out of consideration when we are dealing with the requirement of bedrooms. One cannot also lost sight of the fact that Ghulam Mohiuddin has been married in 1984 and, therefore, his family would be expanding and then against Muhammad Ali and Ahmed Ali who are to be married would also be expanding their families. Even the 14 years child of Ghulam Ali would be growing up. However, his requirement can be met with a bedroom for some years. One cannot also lost sight of the fact that Mahmood who is settled in Canada would sometimes require to visit his family and it would be his natural desire to live in the house which he owns. And, therefore, the respondents could reasonably require to keep a bedroom for Mahmood and his family.

14. I am, therefore, convinced `that the application for ejectment should have been allowed in 1978 and was rightly allowed in 1982 and the order of ejectment should be maintained even today even if the submission of Mr. Mushtaq Memon in respect of the changed circumstances was to be kept in consideration.

15. I am also of the view that the appellant No. 1 who is their recorded tenant of the premises has had the advantage of owning a house in 1971 in the name of himself and his brother respondent No. 2 which he had stated to have disposed of in 1971. Apart from that the H appellant No. 1's wife has admittedly a house on 350 sq. yds. in Clifton and this house should have been treated as the basis for evicting the appellants from the disputed premises in view of the provisions of section 13(3)(b) proviso (ii) which allows the Rent Controller to evicts a tenant in case he and his wife or any of his dependent children own a house in the same urban area. Of course, this is not an independent provision and is to be used only when the need of the landlord is proved to be bona fide. In the present case the need of the respondent had been clearly proved to be bona fide and, therefore, this provision should have been used to eject the appellants as the appellants Nos. 1 and 2 had owned a house upto 1971 and the appellant No. 1's wife still owns a house.

16. In these circumstances I had passed the following short order in this appeal on 21-4-1985, which is reproduced below:-- "21-4-1985. Heard Mr. Mushtaq A. Memon and Mr. Abbas H. Mirza. For reasons to be recorded this appeal is dismissed' on the ground of personal need, but the findings of default and subletting are reversed. Result is that the ejectment order is maintained. The appellants are however allowed six months time to vacate the premises I, starting from today subject to the deposit of rent in Court. Direct writ of possession without notice shall be issued, on the expiry of 6 months from today, or even earlier if the rent was not deposited in time. A.A. Appeal dismissed.