1989 PLP 943 (CLC)

First Rent Appeal No.478 of 1986, decided on 16th October, 1988. Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S.15‑‑Ejectment‑‑Personal requirement‑‑Appreciation of evidence‑ Landlady living on first floor of demised premises seeking ejectment of tenant living on ground floor on plea of personal requirement for herself and her children‑‑Landlady taking further pleas that she was a teacher and number of children who came for tuition had increased and that she was suffering from hypertension and, therefore, it was essential for her to have residence on ground floor and avoid climbing stairs‑‑Pleas urged by landlady had been consistently taken by her in ejectment application as well as in her, affidavit in evidence and supported by witnesses whose veracity remained unshaken in their cross‑examination‑‑Landlady having four/five children between ages 13‑23 and some of them college‑going accommodation on first floor was quite inadequate for her needs‑‑Landlady giving sufficient details and justification as to her requirements and there was no contradiction in her averments made in eviction application‑‑Held, landlady had succeeded in discharging onus of issue that she required premises in question for her bona fide use and occupation. Hassan Khan v. Munawar Begum PLD 1976 Kar. 832;Abdul Qadir v. Mst. Kaisar Jehan 1986 CLC 1549; 1987 CLC 737 and Abdul Hameed v: Mst. Ameena Begum 1982 CLC 1018 ref. Nizam Ali Khan for Appellant. S.M. Akhtar Rizvi for Respondent. Date of hearing: 9th October, 1988. The appellant had sought ejectment of the respondent on the ground of personal requirements which were of three‑fold pasture. First, that she was living in the first floor of the house which consisted of only 3 rooms and accommodation had become inadequate for her needs because her children had grown up. Second, that she was by profession a teacher and was giving tuition in her house and because number of children in her tuition classes had increased, she needed more accommodation on this ground as well. Third, that she was suffering from hypertension and, therefore, it was essential for her to live on the ground floor and avoid climbing the stairs. The respondent is living on the ground floor of the same house. In his written statement the respondent contested the personal requirements of the appellant and stated that he was inducted in as a tenant in or about 1977. He asserted that the elder son of the appellant was living in USA and it was, therefore, incorrect that the appellant was living with all her children. In reply to the contention of the appellant that there were three rooms in the first floor and four rooms in the ground floor, he has stated that both the floors had the same accommodation. It was, .however, not disclosed as to whether this same accommodation consisted of three rooms or four rooms. It was further stated that the appellant was Head Mistress in a Government Secondary School and it was denied that .she was imparting private tuition at home. On the point of giving tuition by the appellant in her house, it was stated that, firstly, it was in the best interests of education that teachers should not give tuitions and should be discouraged from doing so and, secondly, it was stated that if the appellant was suffering from hypertension she could not over‑exert herself by giving tuition at her residence. On these pleadings the learned Rent Controller framed the following solitary issue:‑ "Whether the applicant needs the suit premises for her personal bona fide use?" The above issue having been decided in the negative, the Rent Application was dismissed vide impugned order dated 21st April, 1986. Hence this appeal. Counsel of the parties have been heard and the record has been perused. The appellant had examined herself and had produced one more witness Mst. Zeenat Maqsood Ali. In her affidavit, Mst. Zeenat Maqsood Ali stated that she was living in the neighbourhood of the appellant and was on visiting terms with her, that the appellant was living with her five children aged between 12‑23 years and that the eldest son of the appellant had gone abroad for higher education, that the first floor consisted of three rooms and was inadequate for the requirements of the appellant and of her children, that the appellant was teacher and she also gave private tuition at home and required more accommodation for this purpose as well and that the appellant was a patient of hypertension and had been advised by the doctors not to climb stairs. In cross‑examination she stated that her house was at a distance of one bus stop from the residence of the appellant, that she was on family terms with the appellant for the last about 8 years, that there was one room less on the first floor than on the ground floor, that she did not know the opponent and was not on visiting terms with him. She denied that both the floors had the same accommodation and she also denied that the appellant did not give tuition at her residence. In her own affidavit, the appellant mostly reiterated what she had already stated in the rent application but added that one of her sons had gone abroad for studies. As to the claim of the respondent vide para.3 of the written statement that he had given an amount of Rs.3,000 to the appellant at the commencement of the tenancy by way of fixed deposit and that this amount was still lying with the appellant, the appellant stated that the respondent had no doubt given her this amount but a sum of Rs.1,650 had already been adjusted out of it towards three months' rent. In cross‑examination she stated that the respondent had been inducted as a tenant in 1976 at the monthly rent of Rs.550 which had been enhanced to Rs.600 some 7 or 8 years ago. She denied that she was the Head Mistress and stated that she was only an Assistant Teacher in North Nazimabad Government Girls School. She further stated in her cross‑examination that it was correct that both the storeys i.e. ground floor and first floor had "same type of construction" but the upper portion was not complete till then. She denied that she was not sick and stated that she was suffering from High Blood Pressure. She further stated in cross‑examination that respondent had kept an accused of murder in the house and Police had raided the house and arrested the accused. She said that she was not ready to keep the respondent as her tenant even if he shifted to the first floor and surrendered the ground floor. She repelled a suggestion that her aim was merely to enhance the rent. The respondent had filed his own affidavit in support of his claim and in cross‑examination he stated that there were three rooms in upper floor in the building and on the ground floor also there were three rooms and not four rooms. He admitted that out of Rs.3,000 given by him by way of fixed deposit, three months' rent at the rate of Rs.550 had already been adjusted. lie admitted that the children of the appellant were school and college going but he could not say how many of them went to the college and said that he could not say if four of them went to the college. He denied that the appellant was not suffering from hypertension and said that he came to that conclusion by seeing the manner in which the appellant moved about. This is all the evidence produced by the parties in favour of their respective claims. The learned Rent Controller came to the conclusion that evidence adduced by the appellant was not sufficient to discharge the onus of the issue and as a result the ejectment application was dismissed. Learned counsel for the appellant has relied upon PLD 1976 Kar. 832 (Hassan Khan v. Munawar Begum) in which it has been held that when a landlord seeks ejectment of the tenant on the ground of his personal needs and requirements, then assertion or claim on oath by landlord that he required the premises for his personal use should be accepted by the Rent Controller as bona fide provided that the claim or assertion of the landlord is consistent with his averments in the rent application and is not shaken in cross examination. He has also relied upon 1986 CLC 1549 Abdul Qadir v. Mst. Qaisar Jehan in which the opinion of Mr. Justice Saeed-uz-zaman is that if the attorney of the landlady and her husband categorically stated on oath that he was suffering from heart trouble and was being treated in Cardio Vascular Institute and stated in his evidence that he had to climb stairs three or four times a day and he felt pain and strain while climbing stairs and when the testimony of husband of the landlady remained unchallenged in cross‑examination the learned Rent Controller was justified in believing personal bona fide requirement urged by the landlady in such circumstances. It was urged before the Court that in view of these observations the testimony of the witnesses of the appellant should have been believed. I find that the appellant had sought the ejectment of the respondent on the solitary ground of‑ personal requirement. This personal requirement is further sub‑divided into three parts. Firstly, she pleads lack o accommodation because of the growing up of her children, secondly, she requires more accommodation for carrying on tuition at her residence and, thirdly that she is suffering from hypertension and is advised not to climb stairs. These pleas have been consistently taken by her in the ejectment application as well as in her affidavit in evidence and are supported by her witness Mst. Zeenat Maqsood Ali. The veracity of both these witnesses has not been shaken in their cross‑examination either. It is an admitted position that the appellant has four or five children between the ages of 13‑23 years and many of them are college going. Accommodation of three or four rooms on the upper floor is certainly inadequate for the requirements of such a large family, specially when the children are growing up. No doubt, the eldest son of the appellant is studying abroad but this does not mean that he is not part of the family. For all practical purposes, he should be deemed to be living with her mother, even though he may be temporarily out of the country for educational purposes. The appellant is a school teacher. Although the respondent claimed that the appellant was Head Mistress, he has not produced any evidence to that effect. Even so, it is immaterial as to whether the appellant is the Head Mistress or simply a school teacher. The fact remains that she is in the education profession and judicial notice can be taken of the fact that most of the school teachers engage in private tuition. I see no reason to disbelieve the appellant that she is giving private tuition at her residence. There was no justification for the respondent to moralise on the desirability of a school teacher to give tuition at his or her residence. So far as the illness of the appellant is concerned, there is no medical evidence but there is assertion of the appellant duly supported by her witness and in view of the principles enunciated in the authorities just quoted above, there is no reason to disbelieve the assertion of the appellant in this regard. The appellant had stated that there was one room short in the upper floor than in the ground floor and it was pointed out to me that in cross‑examination she had stated that "it is correct that both the storeys i.e. ground floor and upper floor have got same type of construction. from this the learned counsel for the respondent wanted to deduce that there was contradiction in the claim of the appellant and her assertion that there was less accommodation on the first floor had been falsified. Such deduction is uncalled for because there being same type of construction on both the first and the ground floors does not mean that the built‑up area and the number of rooms in both the floors is the same. The appellant had clarified that although the construction on both the floors was of the same type yet the upper floor was not complete. The learned counsel for the respondent has relied upon 1987 CLC 737 in which it is held that in the absence of any detail either in regard to insufficiency of existing accommodation with the landlord for the requirements of his children, the landlord would be held to have failed in proving his bona fide requirements specially when the averments made in the eviction application and his evidence are contradictory. As discussed above, the appellant has given sufficient details as to her requirement and there is no contradiction in the averments made by her in the eviction application and her evidence and, therefore, this authority gives no support to the case of the respondent. Yet another authority relied upon by the learned counsel for the respondent is 1982 CLC 1018 Abdul Hameed v. Mst. Ameena Begum in which the landlady has filed an ejectment application on almost all possible grounds available under the law and had even claimed enhancement of rent and nothing was stated in the ejectment application about the landlady being prohibited from climbing stairs, and the landlady had also refused without any cogent reasons the offer of the tenant to exchange the first floor fur. the ground floor and on the basis of these facts it was held that the landlady had filed ejectment application on mala fide grounds. The facts of this authority are quite different from the facts of the present case inasmuch as the appellant has not sought the ejectment of the respondent on all the possible grounds available under the law. She has sought ejectment of the respondent only on one ground, that of personal requirements. The appellant has also not claimed, enhancement of rent which was Rs.550 at the commencement of the tenancy in 1976 or 1977 and was enhanced to Rs.600 some 8 years' ago and since when it is continuing at the same rate. The assertion of the respondent is of course there‑to the effect that the appellant had asked him to increase the rent, but that is not corroborated by, any other evidence. The refusal of the respondent to shift from they first floor to the ground floor, as per her cross‑examination, is also! not without justification. Her claim for personal requirement was not; merely on the ground that she was suffering from hypertension and advised not to climb stairs but also on the ground that she required more accommodation for her children who had grown up during the last 10 years and most of them were school going or college going and that she required more accommodation for carrying on her part‑time job of giving tuition to students. By shifting to the ground floor only one of her three problems could have been solved and, therefore, her refusal of exchange of accommodation with the respondent is plausible. As such the respondent cannot drive any benefit from this authority either. In view of what has been stated above, I am of the view that the appellant has sufficiently succeeded in discharging the onus of the issue. I am satisfied' that she requires the premises in question for her bona fide use and occupation. The learned Rent Controller Irshad evidently misappreciated the evidence. I would, therefore, accept the appeal, set aside the impugned judgment and direct the respondent to put appellant into possession within one month. In the circumstances the parties are left to bear their own cost. M.Y.H./A‑441/x. Appeal allowed.