1989 PLP 2882 (MLD)

(iii) Personal requirement.

3. The respondent has resisted the application for ejectment. He disputed the default by stating that the rent for the month of August 1980 was not collected by the appellant through .her Rent Collector, and he, therefore, tendered the same through money order, which was refused. The rent was then deposited in the office of Rent Controller. The allegation of sub-letting and plea of personal requirement by the appellant were also denied by the respondent. It is contended that the disputed premises is located in commercial area and, therefore, the appellant wanted to convert the same into commercial one, and to achieve that object she had riled application for ejectment against her other tenants, namely Hakeem Naseeruddin and Mrs. Cooper, which came to be dismissed.

4. The parties went to trial on the following issues:- (1) Whether opponent is defaulter in payment of rent from 1st August, 1980 to 31st July, 1982? (2) Whether opponent has left the premises and sublet it to a person without permission of applicant? (3) Whether applicant requires the premises in question for use of her children? (4) What should the order be?

5. The appellant has examined her husband and attorney Haji Abdullah (P.W.-1), while the respondent has examined himself (D.W.-1).

6. On the assessment of evidence available on record, the learned Rent Controller decided all the issues against the appellant and consequently dismissed the application for ejectment, hence the present appeal.

7. Admittedly there is no written agreement of tenancy between the parties. There is also no denial of the fact that the respondent had paid rent upto July, 1980. There is also no dispute that the respondent is an old tenant of appellant. A receipt dated 1-10-1960, is produced by the respondent to prove this assertion. Haji Abdullah (P.W.-1), the attorney of the appellant has also admitted that the rent was being collected by him or by his son or by the Rent Collector from the house of respondent. According to the appellant, the respondent was not found in his house when an attempt was made to collect rent for the month of August, 1980 from him. The respondent, however, disputes this position by stating that he waited for the Rent Collector of the appellant for payment of rent and when he did not come, he tendered the rent through money order dated 17-9-1980, which was refused. The respondent then started depositing the rent in Misc. Rent Case No. 6004 of 1980. He made first deposit on 15-10-1980, vide receipt of Nazarat which is on record. The rent for the month of August, 1980, became due on 1-9 1980. The law allows the tenant a period of sixty days from the period for which the rent is payable, and thus the above deposit was made within the grace period. The respondent has, therefore, not committed any default within the meaning of clause (ii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979.

8. Subsection (3) of section 10 of the Sind Rented Premises Ordinance, 1979, lays down that where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. It is the case of respondent that the appellant had avoided to collect rent in order to create a ground for ejectment. When examined in juxtaposition to the allegation made by respondent in para No.4 of his affidavit-in-evidence that the appellant had filed similar cases against her other tenants also, this plea appears to be correct. Ordinarily `or' is used in disjunctive sense and, therefore, recourse can be had to any of the modes prescribed by section

10. In such a situation it was not obligatory upon the respondent to have first offered the rent to the appellant and on her refusal to accept it, recourse could be had to any other mode for tendering rent. No exception, therefore, can be taken to the finding of learned Rent Controller on the issue of default.

9. The evidence on the issue of sub-letting is sketchy and vague. Haji Abdullah (P.W.-1) speaks about this issue in para 5 of his affidavit-in-evidence in the following words:- "

5. That the opponent intended to convert the residential premises into commercial one and the opponent shifted from the disputed premises to newly constructed bungalow in University Road, Karachi,- and abandoned the rented premises and locked and wanted to sub-let the premises." This evidence, even if taken on face value, hardly serves the required purpose. This issue was, therefore, rightly answered in favour of respondent.

10. The ground of personal requirement of the disputed premises rinds place in para 6 of the affidavit-in-evidence riled by Haji Abdullah (P.W.-1), husband and attorney of the appellant in the following words:- "

6. That the number of times the opponent has been verbally called to vacate the disputed premises for the bona fide use of the applicant's children as they are now grown up and marriageable age and have no proper accommodation."

11. Under clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, the landlady should establish that she requires the premises in good faith for her own occupation or use, or for the occupation or use of her spouse or any of her children. Mere desire or wish to have accommodation is not sufficient. The question of bona fides is a question of fact and the Controller is entitled to look to every relevant fact or circumstance affecting the position of the landlady. Gross unreasonableness may in proper circumstances lead the Controller to hold that the requirement of the landlady is not bona fide.

12. Admittedly the appellant is residing alongwith her family members in a bungalow constructed on a plot measuring 1000 square yards. The premises in dispute is situated in commercial area. According to respondent, the appellant wants to convert the premises into commercial one and to achieve that object she had filed ejectment cases against her other tenants also which were dismissed. Haji Abdullah (P.W.-1) admits this position in the following words:- "It is incorrect that I want to convert the disputed premises into commercial. I may convert the disputed premises into commercial, if need arises and permission is granted by competent authority."

13. The appellant has also admitted to have filed ejectment cases against her two tenants, but without any success. It, therefore, does not require much of calculation how to multiply 2 by 2.

14. Mr. Abdul Sattar Memon, learned counsel for the appellant has cited the cases of Rajab Ali v. Darius Kandawalla and another, reported in P L D 1984 Karachi 14, Syed Zahir Hussain Trimiri v. Mohammad Anwar, reported in 1987 CLC 1402, Junaid Ahmad v. Slialt Niramul Haq reported in 1986 CLC 1296 Ch. Nabi Bux v. Malik Nasir Ahmad and two others, reported in 1987 MLD 442, Mst.Roshan Ara v. Saeed Ahmad, reported in 1957 M L D 2978, Mst. Musarrat Amin v. Mohammad Mobin, reported in 1955 CLC 2033, and Iqbal-ul-Haque v. Syeda Begum Jafari and another, reported in 1986 C L C 17-19, with a view to give support to the case set up by the appellant. Mr. Habib-ur-Rehman, learned counsel for the respondent has, on the other hand, cited the cases reported as Hassan Bhai v. Haji (1985 MLD 215), Noor Mohammad v. Iqbal Ahmad (1985 CLC 1007), National Bank of Pakistan v. Wadhumal (1985 CLC 1053), Mst. Farukh Nisa v. Sardar Ahmad and 6 others (P

1. D 1985 Karachi 639) at.] Syed Anisur Rehman v. Mst. Sara Bai (P L D 1985 Karachi 71-1), to show that the landlady is obliged to satisfy the Rent Controller that she required the premises in good faith. The above authorities lay down broad principles to be followed where ejectment is sought on the ground of personal requirement. One thing is, however, common in all these cases that no hard and fast rule can be laid down for quantum or quality of evidence to prove bona fide need of the landlady. I, therefore, do not find it necessary to discuss these authorities, because it is a question of fact in each particular case, whether the evidence produced by the parties can, or cannot, be considered to be sufficient to prove a particular issue.

15. The evidence which has come oil record does not prove the bona fide requirement of the landlady. The ground of personal requirement cannot be coined to meet such a situation. I am, therefore, in agreement with the view taken by learned Rent Controller on the issue of personal requirement.

16. In the result the appeal fails and is dismissed \kith no order as to costs. M.Y.H./Z-92/K Appeal dismissed.