1990 PLP 399 (CLC)

The appellants are the joint tenants in respect of the demised premises which they had taken on rent for running a school vide rent agreement (Annexure `A')dated 6‑1‑1980 on a monthly rent of Rs.2,000 which was subsequently '‑enhanced to Rs.2,500 in 1985. The respondent/landlord was at that time living ' somewhere else and it was in 1984 or 1985 when he constructed first floor over `the demised premises and moved in it. He riled ejectment application (Rent Case No.762/86) on 1‑10‑1986 and sought ejectment of the appellants on three grounds. firstly, he claimed that he was retiring in January, 19F.7, on attaining the age of 60 years and that he was a heart‑patient and his wife was a patient of high blood pressure and they were under medical advice not to climb stairs or to bear any stress or strain. On the point of personal requirements it was also claimed that the accommodation on the first floor was not sufficient for the six family members and in addition to these family members a widowed daughter had also come to live with the respondent. Secondly, it was alleged that the appellants were a source of continuous nuisance, as they kept the common gate locked and that the school was generating a lot of noise, which was making it difficult for the respondent to live peacefully, especially in view of the ailments from which the respondent and his wife were suffering. Thirdly, it was alleged that the appellants had not been themselves running the school but had transferred the possession to Nisar Mahmood Khan without the permission of the respondent. The allegations of subletting and or causing nuisance could not be proved by the respondent and the learned Rent Controller rejected them. However, the learned Rent Controller held that the respondent had succeeded in proving the bona fides of his personal requirements and on this account ordered the ejectment of the appellants vide judgment dated 17‑2‑1988. The appellants/tenants have come in appeal and it is contended that the learned Rent Controller did not properly appreciate the evidence and even made some misstatements of fact in the impugned judgment. Learned counsel for the parties have been heard and record perused.

2. The personal requirements of the respondent are of two kinds. First, he states that due to his ailment and the ailment of his wife he cannot live on the first floor and must, therefore live on the ground floor. Second, he claims that the first floor, on which he is living, is incomplete structure and it is not sufficient for his large family of which he has given sufficient datails in paras. 6 and 10 of the ejectment application. I shall deal with both these grounds separately.

3. It is an admitted position that the first floor did not exist in 1980 when the demised premises were rented out to the appellants. It was specifically provided in para 7 of the rent agreement (Annexure `A') that if the landlord so desired, be could construct an upper storey but he could not give it on rent but could only use it for his own residence. Subsequently, the respondent constructed an upper storey and moved into it in 1984 or 1985. It is not clear why he did so if he was advised by his doctor that using staircase was injurious to his health. Annexure `D' is a medical certificate dated 19‑8‑1986 given by Dr. Mohammad Sarwar, which shows that the respondent was under his treatment and was advised not to climb stairs. It is, however, an admitted position that the respondent himself did not abide by this advice and elected to live on the upper storey hardly a year before the issuance of this medical certificate. Since the medical certificate does not specifically state since when the respondent was under the treatment of the said doctor, it can only be presumed that he was under his treatment for some considerable time. In fact, Annexure `H' is dated 12‑7‑1984. It is an admission and discharge slip of the NICD Karachi showing that the respondent was admitted in this hospital on 8‑7‑1984 and discharged on 12‑7‑1984. Annexure `I' is an examination report dated 15‑7‑1984 of the same institution. Annexure `L' is, again, an admission and discharge slip of the same hospital showing that the respondent was admitted there on 6‑12‑1983 and discharged on 12‑12‑1983. It is thus clear that the respondent, even though he was suffering from heart ailment, considered it perfectly alright to live in the upper storey. This is sufficient to indicate that the ailment of the respondent was not of such a nature as to make it undesirable for the respondent to live in the upper storey. Otherwise, he would not have elected to construct the upper storey and moved therein.

4. I am also of the view that the documentary medical evidence, consisting of a medical certificate (Annexure `B') and the admission and discharge slip have not been sufficiently proved and no reliance can be placed upon them. It was necessary for the respondent to examine Dr. Mohammad Sarwar to prove the certificate (Annexure `B'). The same can be said in respect of medical certificate dated 26‑8‑1986 (Annexure 'C) in respect of the wife of the respondent. How can it be assumed that these certificates were issued by the doctors whose signatures appear on these certificates? Besides, it is stated in Annexure `N' that the wife of the respondent had been under the treatment of Dr. Nisar Ahmad Tahir for the last few years. This means at least two or three years prior to August, 1986, when this certificate was issued and it is an admitted position that it was during this period that the respondent and his family moved into the upper storey of the house. No one is expected to act against his own interest and the fact that the respondent and his wife moved into the upper storey shows that it was not injurious to their health to live in the upper storey or to use the stairs. The respondent may well have been suffering from heart ailment or his wife from hypertension but this in itself is not sufficient to claim that they cannot live on the upper storey, especially in view of the circumstances just mentioned above. I do not agree with the learned Rent Controller that the appellants failed to rebut the evidence of the respondent and which must, therefore, be believed. As a matter of fact, there was no sufficient evidence at all for the appellants to rebut and as such the question of their failure does not arise.

5. The other ground, on which the respondent claimed to require the demised premises is that he has a large family for which the accommodation in his possession was not sufficient. He has given the details of his family‑in paras. 6 and 10 of the ejectment application, which show that two grown‑up sons aged 18 and 22 years, two unmarried daughters aged 19 and 25 years, one widowed daughter aged 32 years and one wife (in all six persons) are living with him. Now, the respondent did not state either in his ejectment application or in his affidavit ?in‑evidence that there has been any increase in his family after August, 1985, when he moved in the upper storey of the house. The ejectment application was filed on 1‑10‑1986, i.e. after about one year of his moving into the upper storey. The ages of the sons and daughters given by the respondent would suggest that there has been no change in the number of the persons of the family of the respondent since he moved into the house. The‑respondent has failed to show as B to how the accommodation on the first floor suddenly became insufficient for his requirements, although it was sufficient for his requirement when he moved in the house. Thirdly, one year is not a sufficiently long period to make any changes in the requirements of the family. I am, therefore, of the view that the respondent failed to prove that accommodation in his possession in the upper storey is insufficient for his requirements. 6.???????? It is pertinent to note that on 27‑8‑1986 the respondent served a notice on the appellants, presumably under Section 14 of the Sind Rented Premises Ordinance, 1979, in which the only thing stated was that he had reached the age of superannuation and therefore required the premises. 1n this notice the respondent did not state anything whatsover about his personal requirements either on the ground of his illness or on the ground of paucity of accommodation C for his large family. The. fact that these things were not mentioned in this notice suggests that the ground of personal requirements came to the mind of the respondent after 27‑8‑1986 and is therefore an afterthought. The learned counsel for the appellants has also relied upon P L D 1985 Kar. 624 (Sultan Press v. Mohammad Hassan) in which it is held that a mere wish or an ipse dixit of the landlord is not sufficient to prove the bona fides of his claim of personal requirements. There is no doubt that giving notice under section 14 of the Ordinance has no bearing upon the filing of ejectment application under Section 15 of the Ordinance and that enhancement of rent in the past is no ground to suspect the bona fides of the landlord on subsequent occasion. The learned counsel for the respondent, however, referred to the cases of Abdul Ghani versus Ahmad Ibrahim Ameen Danwala (P L D 1982 Kar. 935) and 1983 C L C 1653. While notice under Section 14 given by the respondent is not a bar to the filing of ejectment application under Section 15 of the Ordinance but the notice at least shows that on the date on which it was given personal requirements were not in the mind of the respondent; otherwise, he would not have failed to incorporate them as well in the said notice. I agree with the learned counsel for the respondent that enhancement of rent from Rs.2,000 to Rs.2,500 has no bearing on the bona fides or otherwise of the claim of the respondent about his personal requirements. As a matter of fact, the rent was enhanced only once since 1980 and that too only by Rs. 500 and as such the respondent has a good case to seek enhancement of rent. The learned counsel for the respondent had also relied upon 1986 C L C 869 (Haji Abdul Ghani v. Abdur Rasooi), 1986 C L C 1549 (Abdul Oadir v. Qaiser Jahan) P L D 1976 Kar. 832 (Hassan Khan v. Mrs. Munawar Begum) and 1984 C L C 365 (Abdur Rahim v. Abdul Khaliq Qureshi). The gist of these judgments is that when a landlady proves ailment and examines her doctor in support of her claim that she was advised not to use stairs then the bona fides of her requirements should not be questioned and that if the husband and attorney of a landlady makes an averment to that effect and his testimony has not been shaken in cross‑examination, he should be believed even if there is no medical evidence. Every case has to be judged on its own merits. The circumstances in which the respondent claims that he requires these premises for his personal requirements has thrown a shadow of doubt on the genuineness of the claim and for the reasons already given above it is not possible to concede the bona fides of the claim of the respondent. For the reasons given above, I would set aside the impugned judgment and accept this appeal. The ejectment application thus stands rejected. Under the circumstances of the case the parties are left to bear their own costs. Z.S./A‑696/K????????????????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.