1989 PLP 644 (CLC)

This appeal Under Section 21 of the Sind Rented Premises Ordinance, 1979, has arisen in somewhat unusual circumstances.

2. Kalimullah Khan; predecessor‑in‑interest of respondents Nos.l to 5 owned premises bearing No. A‑131, Block‑'A', North Nazimabad, Karachi. He died in the year 1973, leaving behind a widow, the respondent No.2 and four daughters, respondents Nos.l, 3, 4 and

5. The respondent No.2, rented out the ground floor of the said premises to the appellant at the rate of Rs.450 p.m., under an agreement of tenancy. There was litigation between the legal heirs of said Kalimullah Khan, in respect of this premises, which ultimately ended in compromise. The respondent No.l, who is residing in a rented premises, required the disputed premises for her own use and occupation. She, therefore, asked the appellant to vacate the disputed premises, but with no success. On 19‑4‑1984, the respondent No.l filed an application for ejectment against the appellant in the Court of XIIth Senior Civil ‑Judge and Rent Controller, Karachi, making respondents Nos.2 to 5, as pro forma opponents.

3. The appellant resisted the application for ejectment. He contested the grounds of ejection by stating that there exists no relationship of landlady and tenant between him and respondent No.l. The bona fide requirement of respondent No.l, was also questioned.

4. The parties went to trial .on the following issues:‑ 1) Whether there exists relationship of landlord and tenant between the parties? (2) Whether the applicant requires the premises bona fide, for her personal use?

5. The respondent No.l, has examined her husband and attorney Shariful Hassan (P.W.1), while the respondents Nos.2 to 5, examined their attorney Sirajuddin Khan (P.W.2). In rebuttal the appellant has examined himself (D.W.1).

6. On the assessment of evidence available on record, the learned Rent Controller has decided both the issues against the appellant, and consequently directed his ejectment vide order dated 17‑7‑1986. This order is the subject‑matter of the present appeal.

7. Mr. S. Ansar Hussain, learned counsel for the appellant has referred to several points, but eventually confined his arguments to the bona fide requirement of respondent No.l. According to. him, mere wish or desire to have the accommodation is not sufficient. It may be pointed out that the element of need is also present in the case of desire. We do not desire what we do not need. The expression A "good faith" has been used in clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, designedly. Neither the word 'desires' nor the word 'needs' have been used in the above clause, and hence that would negate the two extreme views which are frequently pleaded in cases of this nature. A mere desire or an absolute necessity or need are both erroneous approaches on the plain language of clause (vii). The expression "good faith" employed in clause (vii) has to be interpreted in the light of definition thereof as embodied in section 2 (28) of the Sind General Clauses Act, 1956 which provides that "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently not." Honesty is a. state of mind and is, therefore, capable of proof by evidence of conduct. God alone knows the mind of man and the Courts, not being endowed with divine omniscience can only look at men's actions. No hard and fast rules can be laid down as to how such evidence should be appreciated ‑ The question whether or not a premises is needed by landlord/landlady for bona fide requirement, is purely a question of fact depending upon the circumstances of B each case. However, if the 'requirement' is found to be genuine, the Rent Controller will have no other option, but to order eviction of tenant.

8. The respondent No.l, is quite obviously residing in a rented premises. Para 6 of the affidavit‑in‑evidence filed by Stiarif‑ul‑Hassan (P.W‑1) recites this fact in the following words:‑ "That the applicant was living on 2nd floor of house No. A‑70, Block 'A', North Nazimabad, Karachi, as tenant but vacated the said premises on the notice of the landlady (copy of notice is enclosed and marked 'b'). Now rented A‑42, Block C 'A', North Nazimbad, Karachi."

9. This assertion has gone unchallenged in cross‑examination. The claim of respondent No.l, to occupy her own house, in such a situation appears to be justified. The facts oef Mst. Hajra Bai Sulaiman v. Mst. Aisha Bai, reported in 1982 CLC 1444, Muhammad Asghar and five others v. Mst. Jamila Khatoon, reported in 1979 C L C 367, and Muhammad Nasim Yar Khan v. Sh. Ataullah, reported in 1979 C L C 805 are distinguishable. Even otherwise all these cases relate to ejectment on the ground of personal requirement under the West Pakistan Urban Rent Restriction Ordinance, 1959, which laid down certain pre‑conditions for seeking ejectment, which conditions were deliberately omittd in clause (vii) of Subsection (2) of section 15 of he Sind Rented Premises Ordinance, 1979.

10. Again there is no rule of law that bona fides, being a subjective matter, can only be proved by the landlady stepping into the witness‑box. It can be proved in an ordinary way like any other fact in issue. The purdah‑observing ladies in our society entrust D this job to their husbands and other male members of family. No presumption, therefore, can be drawn against respondent No.l, who did not step into the witness box to testify about her bona fide requirement, which has come on record through. her husband, who himself is a beneficiary.

11. A point which was touched upon during arguments may now be dealt with. It is contended on behalf of the appellant that during the pendency of these proceedings the respondent No.l, got possession, of the first floor premises from Sarfraz Hussain, which is sufficient to accommodate her family of four members. As to suitability of accommodation, it is for the landlady to judge. The tenant has got no say in it. The case of Rajab Ali v. Darius B. Kandawalla and another, reported in P L D 1984 Karachi 14, provides a complete answer to the contention raised by appellant in this behalf. In this connection reference may be made to the authority of Supreme Court reported as M/s. Tigerwire Product Ltd. v. Abrar Hussain, reported in 1983 S C M R 402, wherein it was held:‑ "As to whether the respondent landlord is showing extravagence for occupying, big house which is owned by him is not a such circumstance to which the tenant.can object."

12. The evidence which has come on record shows:‑ (i) That the respondent No.l, does not own any property except a share in the disputed premises. That respondent No.l, was residing on second floor of premises No.A‑70 Block 'A', North Nazimabad, Karachi, as tenant, which she was forced to vacate. (iii) That respondent No.l, is presently residing in premise No.A/42, Block 'A', North Nazimabad, Karachi, on rent. (iv) That the wife of appellant owns a double storey house bearing No.101, Block No.4, Metrovel No.l, Karachi.

1. A landlady occupying a rented premises in the same locality is not obliged to show that the same was not suitable to her needs. To avoid possible eviction from the rented premises, it is but natural p for the landlady to occupy her own premises. In my view this factor, by itself should be a ground for eviction of a tenant and it is high time now that the legislature may take necessary steps to relieve the Sac landlord /landlady from this hardship

14. Having regard to the above factual and legal position I am of the view that there could not be a more appropriate case for exercise of discretion in favour of the landlady, which the learned Rent Controller rightly exercised. The appeal has got no merits and it dismissed with no order as to costs. The appellant is, however, allowed two months' time to vacate the demised premises. H.B.T/M‑657/x. Appeal dismissed.