1986 PLP 1539 (CLC)

These two appeals arise out of two judgments, dated 29‑10‑1984 whereby, the appellants were directed to hand over the possession of Flats Nos. 1 and 2 of Building No. R.B. 7‑10/2/2, Teerath Singh Lalwani Road, Arambagh, Karachi.

2. The appellant Muhammad Mah is occupant of Flat No. 1 and the appellant Fakhar Jahan and others are occupants of Flat No. 2 of the said building. The respondent Sultan Ahmed is in occupation of Flat No. 3 of the said building and he is the joint owner of the other two flats alongwith his brother Mukhtar Ahmed. The respondents had sought eviction of the appellants on the ground that the accommodation with them was insufficient to accommodate Sultan and his family, Mukhtar Ahmed and his wife and their real mother and stepfather, Mahmood Khan. It is an admitted position that every one of the 3 flats consists of only two rooms which are commonly known in Karachi as room to room accommodation. The ejectment application was filed in the year 1975. After recording the evidence of the parties the then Rent Controller had dismissed the ejectment application. But the first appellate Court set aside the order of the Rent Controller and allowed the ejectment. However, in second appeals filed by the two appellants the High Court of Sind allowed the appeals of the two appellants on 25‑4‑1982 and remanded the case back to the Rent Controller in the following terms:‑ "In my view the requirement of a stepfather may not be covered by the provision of section 13 of the late Ordinance unless a stepson who seeks ejectment for providing accommodation to his stepfather 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 stepfather 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. 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 case certain new facts came into existence warranting filing of a fresh rent case for ejectment on the ground of personal need.. Further question which requires consideration is whether the respondents are justified in claiming the possession of 2 flats if toe requirement of the respondents' stepfather 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." The matter was thereafter tried by the Rent Controller and the affidavits of Sultan Ahmed, Mukhtar Ahmed and Mahmood Khan were filed in support of the case of the respondents but since Mukhtar Ahmed did not produce `himself for cross‑examination, therefore, his affidavit has to be excluded from consideration. However, it is on record that the statement on oath of Mukhtar Ahmed was made at the earlier stage, and the same can be perused in support of the respondents' case. Sultan Ahmed ' and Mahmood Khan were cross -examined. On behalf of the appellants Muhammad Mah and Mohomed Ashiqeen filed their affidavits‑in‑evidence and they were duly cross- examined.

4. The question is as to what was the accommodation needed by Sultan Ahmed, Mukhtar Ahmed and whether the requirement of their mother and stepfather had to be considered in this respect or not.

5. Sultan Ahmed had stated that he and his wife and daughter, mother and step father were residing together. The other respondent Mukhtar Ahmed had stated that he had to shift to the house of his father‑in‑law because there was shortage of accommodation far him and that he wants accommodation for himself and his wife. It is a0 admitted position that Mukhtar Ahmed has got a daughter now. In these circumstances it is quite clear to me that there is a clear need for Sultan Ahmed to, have one Flat because he has got to have one room for himself and wife and one room for his daughter who must 1e of a young age today and, therefore, she cannot sleep in the sable room as that of the father and mother. Similarly, Mukhtar Ahmed respondent, has got to have a flat for himself and for his wife as he will >e having no privacy if he is‑ made to sleep in the other room to room Flat No.3 of Sultan Ahmed. The need of Mukhtar having a flat for himself is clearly established by the fact that Mukhtar went away from his flat as soon ' as he was married and I am clearly of the view that he did a very right thing as otherwise he could not have enjoyed a newly‑married life. It is, therefore, obvious that one separate flat is needed for Mukhtar and his wife. His daughter is of course of a small age today but she would be growing in due course and, therefore, she shall have to have a room and thus the flat which was given to Mukhtar would be fully occupied. Since Flat No. 2 is adjacent to Flat No. 3, therefore, it is proper that the 'occupants of Flat No. 2 should vacate the same for Mukhtar Ahmed. Since Flat No. 2 is occupied by Fakhar Jehan and others, therefore, I dismiss their appeals in this respect. I may state here that the evidence of Muhammad Mah, Muhammad Maraj and Ashiqin has not in any way denied the responsibility of the need of accommodation for Mukhtar. In fact the judgment of the high Court in Second Appeal No. 461 of 1980 has taken note of the requirement of respondent No. 2 namely Mukhtar Ahmed and an observation has been made that his requirement was prima facie genuine as he wAs putting up with his father‑in‑law.

5. Mr. S.M. Afzal wantqd to submit that some flats in the building had fallen vacant during the pendency of these proceedings and then rented out. But apart from the statement of Muhammad Maraj there is no supporting evidence in this respect and, therefore, no proper basis for this submission has been made out. Mr. Afzal has tried to submit that even Sultan had admitted one flat on the first floor had fallen vacant. But Sultan Ahmed had also stated that the roof of the said flat had fallen down and consequently I find that there was no other accommodation available to Mukhtak Ahmed, therefore, his need continues to be genuine. I have considered the Flat' Nti. 2 to be appropriate for Mukhtar in view of the fact that it is adjacent to the Flat N0. 3 which is occupied by Sultan Ahmed. It would be good for the family to be near to each other.

6. In respect of the accommodation for the mother and stepfather which is the other point of controversy between the parties. Sultan Ahmed had stated that his father and mother had been living with him and he had denied the suggestion that stepfather was residing separately in Jhuggi. This submission of Sultan Ahmed is obviously incorrect because Mahmood Khan, the stepfather had himself admitted in his affidavit that since there is no accommodation in the F19t No. 3, therefore, .he used to have a sleep in a temporary but on the Compulsory space of the building and that he was 73 years old. He had Also stated that he was passing a retired life and he and his wife, were dependent upon respondent. As against that Muhammad Mah has stated in para. 3 of the affidavit, that Mahmood Khan has been residing on the same building for about 20 years and that he was residing with his family in a wooden but and he never resided with the applicant and that Mahmood Khan was doing his own work as he used to sell Halwa Poori. Muhammad Mah was not cross‑examined at all on the point that Mahmood Khan was living with his family for 20 years in a wooden house. The evidence of Muhammad Ashiqin, had stated that Mahmood Khan was residing in a wooden but for more than 15 years and he had a Halwa Poori stall. Mahmood Khan had also stated in his cross‑examination that he used to work previously but he is not working any more and he had also admitted that he was living in Jhuggi attached with the building but he had shifted 4‑5 years back and was living with Sultan Ahmed. The result of this evidence is that Mahmood Khan and his wife have been living in a separate wooden accommodation in the same building for the last 20 years and that Mahmood Khan was also making his own living at least upto 1980. It is further on record that Mahmood Khan was living in a wooden but with his family, therefore, in the circumstances of the case it appears to me that Mahmood Khan and his wife are used to be living in a wooden but separate from the respondent and their need has, therefore, to be kept out of the consideration particularly in view of the fact that section 13(3)(a)(I)(a) of West Pakistan Urban Rent Restriction Ordinance allows a parent to seek premises for any of the children but does not allow the son or daughter to seek premises for A the use of himself or their parents. In fact in para. 6 of the affidavit of Sultan Ahmed, dated 17‑5‑1983 he has clearly specified that he requires Flats Nos. 1 and 2 for accommodating his mother, stepfather and brother Mukhtar and his wife and baby. The requirement for the mother and father is not covered under the above provision of law. I, therefore, have to exclude the requirement of mother and father of respondents Sultan Ahmed and Mukhtar Ahmed from consideration in this case. The result is that only the need for one flat had been established by the respondent and that has been allowed. Further result of the above discussion would be that F.R.A. 1144 of 1984 of Muhammad Mah has to be allowed. I, would, however, allow 4 months time to Mst. Fakhre‑Jahan and others to vacate the premises. Direct writ of possession without notice will be issued against them in respect of Flat No.

2. They shall also regularly deposit the rent as ordered by the Rent Controller and in case they failed to deposit the rent then the writ of possession will be issued on the failure to deposit the rent. H.B.T. Appeal allowed.