1989 PLP 571 (MLD)

(5)??????? What should the, order be? While taking into consideration, the evidence produced by the parties, the learned Rent Controller was pleased to decide issues Nos. 1, 2 and 3 in negative, while issue No. 4 was decided in affirmative, and' consequently the ejectment was allowed on, the ground of peronal bona fide use. The. present appeal is directed against above order of ejectment. I have heard Mr. Malik Muhammad Sadiq, learned counsel appearing for the appellant, Mr. Khalid Hamid, learned counsel appearing for the respondent, and have gone through the R & P of the case. It was contended by Mr. Malik Muhammad Sadiq, learned counsel appearing for the appellant that the respondent wanted to reconstruct the house in question for which he had not obtained permission from Building Control Authority and, therefore, the ejectment could not be allowed. That the ejectment application filed by respondent against tenant Muhammad Sharif on the ground of personal bona fide use was dismissed and, therefore the Rent Controller had erred in allowing the ejectment application. That the respondent had come falsely claiming enhanced rent and; therefore, the present application was mala fide. In support of his contentions he has relied upon:‑ (1) PLD 1988 Kar. 8. (2) 1984 SCMR 710. (3) 1983 CLC 1592. Mr. Khalid Hamid, learned counsel appearing for the respondent has contended that the family of the respondent/landlord consisted of seventeen (17) members which fact was specifically asserted in para. 5 of the affidavit of applicant but the same was not challenged, in cross‑examination, and therefore, it was proved that the family of respondent consisted of seventeen (17) members. That the evidence produced by the respondent clearly showed that they were in possession and occupation of only two rooms and, therefore, the house in question was required by the applicant for his personal bona fide use and that of his sons. It was further contended that it was, riot the, case of respondent in the application as well as in the affidavit filed in Court, that he wanted to re‑construct the house in question, and the learned counsel appearing for the appellant had misconstrued the reply given by the respondent in cross‑examination which was in fact irrelevant and inadmissible. I have considered the contention of the learned counsel. In para. 5 of the affidavit filed by respondent Muhammad Yasin it has been mentioned that the applicant requires the premises for his personal use and for his sons namely Muhammad Sabir (who is married and is living with his wife and three children), Muhammad Ejaz and Hafiz Muhammad Javed who are engaged but their marriages have been postponed due to shortage of accommodation. In support of his contention, he leas produced the photostat copy of Nikahnama, photosta copies of three identity cards of his sons, birth certificates 'and application forth for making entry in the birth register. He has further stated in his affidavit that the premises in his possession was not sufficient for the bona fide use of his sixteen other family members. In cross‑examination he has deposed that the entire building in question where the premises in dispute was situated was rented out to seven tenants and his son‑in‑law. He has admitted that Muhammad Hussain has vacated the house in his possession but it' is quarter. All the tenements are in the shape of quarters consisting of one room only. He has admitted a suggestion that one‑roomed quarter vacated by Muhammad Hussain is lying vacant because it will be insufficient. He has not applied for possession in respect of the removal of partition wall to convert all the one‑roomed quarters in a single room but as and when the same are vacated he shall seek permission. He has denied a suggestion that he‑does not intend to convert the tenements in one house and that the premises are not required by him in good faith. He has denied a suggestion that marriage of his son has not been proposed. He has denied that the rate of rent was Rs. 75 and Rs. 60 per month. He has admitted that PT‑1 Form mentioned rent at Rs. 60 per month for all tenements except one tenement in occupation of Abdullah but it was the assessment for the year 1970. He has admitted that he had filed ejectment cases against all the tenants and the same were dismissed but there was no plea of personal use except in case of Muhammad Sharif. All the tenants have not paid rent from August, 1980. He has denied a suggestion that he has filed the case to pressurise the opponent to pay enhanced rent. He has denied that the house in his occupation is sufficient. Sabir and Muhammad Ejaz sons of the respondent have fully supported the applicant in their affidavits in evidence. In cross‑examination witness Sabir has deposed it was not correct that his father depends on rental income. He has denied that first floor and second floor of the premises in question (in Pakistan Chauk) is in possession of his father, but a but on top floor is in his possession. There was one room on the top floor which has been converted into two to accommodate him after his marriage. His parents also reside with him at the top floor. He has denied that his uncle resides with them as member of joint family but he has a separate abode and resides in the same building. According to him, the said house was inherited by his father. He has denied that his father has also share in the house occupied by his uncle. The share of his father in the house in occupation of his uncle has not been determined. He has denied that his uncle was occupying four rooms but actually it was a single room. He has denied a suggestion that House No. 1732/9 was owned by his father. He has admitted that one Abdul Hakeem is tenant of House No. 1732/9, Baldia Town Karachi. That is an open plot on which their tenant runs cotton spinning machine. He has denied a suggestion that house No. 1732/9, is residential. He has denied that all the tenants pay Rs. 60 per month except Abdullah who pays Rs. 75 per month as rent. He collects rent on behalf of his father. It is a fact that they do not issue receipts. It is a fact that none of his brothers is yet married. He has denied a suggestion that the opponent had paid rent upto September, 1981 and October, 1981, they had deposited the same in Court as his father ‑refused to issue receipts. He was, married about five years back. The house vacated by Muhammad Hussain is lying vacant. They intend to make it one unit with the premises under dispute after having its possession. He has admitted that in the same building his sister also resides and they have not asked her for vacating the premises: He has admitted that they had not taken permission from Building Control Authority for converting various portions into one. He has denied that he has got a separate house in Pakistan Chauk. Muhammad Ejaz son of respondent has deposed in cross‑examination that his father does not depend upon rent but he satisfies his needs from, the rents. He has denied a suggestion that his father has filed this case, in. order to pressurise the opponent for enhancement of rent. He has also denied that his father intends to re‑let the above house after obtaining Pagri. He has also denied that all the tenants pay Rs. 60 except Abdullah who pays Rs.

75. He does not collect rent but his brother collects the same. Previously his father used to collect the rents. He has admitted that he is still unmarried. However, he has denied that his marriage has not yet been settled. According to him, he will be married with the daughter of his Khala who resides in Muhajir Camp. His uncle resides in the same building in a house of his grandfather who is dead. There is only one room in occupation of his uncle and, therefore, his father did not ask him to vacate. He has denied a suggestion that his father has sufficient accommodation. He has also denied that his uncle is in occupation of more than one room. He has also denied that his father collects rent. I‑re has denied that they do not intend to live at one place. He has admitted that his father had filed a case against opponent and the same was dismissed. He has also admitted that after getting possession from Muhammad Hussain, they have not brought any changes. He has further stated that they will make alteration at the same time after having possession of all the tenements. The appellant, tenant Zaman Khan has repeated his stand taken in the written statement. He has denied that the applicant requires the demised premises for his personal use or for the use of his family or sons. According to him after dismissal of the previous case false ground regarding personal use has been taken. The applicant had filed two separate cases against Muhammad Sharif and Muhammad Hussain on the ground of personal use. But the case against Muhammad Sharif was dismissed. That since he had not obtained any sanction or permission for alterations the 'ejectment could not be granted. That the application was mala fide and has been filed in order to pressurise him to pay more rent. In cross‑examination he has deposed that he used to pay rent directly to the applicant who never issued receipts. He has not seen the house of applicant Yasin. He has 4/5 children, and they reside in Pakistan Chauk. As far as, he knows, he has three children. He has married about 5/6 years back. He has denied that the rate of rent was Rs.

250. The evidence of the applicant/landlord and his sons Sabir and Muhammad Ejaz clearly shows that their family consists of seventeen members out of which three sons are major which is further sported by photostat copy of National Identity Cards produced with the affidavit of the applicant. It is also proved from the Nikahnama that Sabir son of the applicant is married. It is also proved from their evidence that Sabir has three children while the remaining two sons of the applicant, namely, Ejaz and Sajjad are of ma ageable age. According to them, the present accommodation in their possession consists of only two rooms and this fact has not been disproved or rebutted by the respondent. Even the appellant appears to be ignorant about the number of family members of the respondent/applicant. From the evidence produced in Court 'it has been proved that the family of the applicant/landlord consists of seventeen (17) members and the accommodation in their possession is insufficient for their needs and, therefore, I am of the considered view that the demised premises/house is A required by the respondent for his personal use and that of his sons. So far the dismissal of ejectment application against tenant Muhammad Sharif was concerned, it was not between the same parties; in other words, the appellant was not party to the said application and, therefore, it has no relevancy so far as the present case was concerned. As far as the first contention of Mr. Muhammad Sadiq learned counsel appearing for the appellant yeas concerned, it was not the case of the respondent in the, application as well as in the affidavits‑in‑evidence that he wanted to reconstruct the house in question, even none of his witnesses have stated so in their affidavit‑in‑evidence. It was only in cross‑examination that a reply had come that the applicant wants to convert all tenements into single unit which could‑only mean that he would renovate and make some suitable alterations in the building in order to make it single unit with a view to accommodate the entire family. I am, therefore, of the considered view that since the ejectment was not sought on the ground of reconstruction the contention was untenable. The learned counsel has relied upon the following: Mrs. Iqbal Bai v. Salim Rashid PLD 1988 Kar. 8 wherein the tenant had made, additions and alterations in the premises by dismantling walls, doors, windows arid kitchen in excess of the additions and alterations allowed by the tenancy agreement. The ejectment application filed by the landlord was allowed by the learned Rent Controller on the ground that the same had impaired the value of the premises. The matter carne up in. appeal before the High Court and it was observed that:‑ "The alterations authorised under the agreement must not be in contravention of any law i.e. Building Rules and. Regulations as an express right or liability does not restrict the implication of law. If certain alterations in existing structure are made which require permission under the law parties cannot contract out of the same, in disregard of that law or in violation of any condition prescribed by law." The above decision is distinguishable and is not applicable to the facts of the present case. ' As far ~as the reported cases of Abdul Qayyum and another v. Mst. Khursheed Jehan and others ‑(PLD 1984 SC 307) and Zehra Begum. v. Pakistan Burmah Shell (1983 CLC.1592) were, concerned, there is no cavil with the proposition laid down in the above two decisions, but the facts are distinguishable inasmuch as it was not the case of the respondent that‑he wanted to demolish the building and reconstruct the same, whereas in the case of Abdul Qayyum and another, the ejectment was sought on the‑ground of requiring shops in good faith for reconstruction while in the case of Zehra Begum and others the ejectment was sought on the ground of personal requirement and for reconstruction of building. In view of the above discussion, the respondent proved that he required the premises in question for his personal bona fide use and that of his sons, and therefore, the application was rightly allowed on this ground. The order passed by the learned Rent Controller does not suffer from any infirmity and, therefore, does not call for interference. The appeal is, therefore, dismissed with costs. However, the appellant is allowed four months' time to hand over vacant possession of the premises in question to the respondent subject to the condition that he continues to pay monthly rent regularly. In case the appellant fails to hand over vacant possession as directed, the learned Rent Controller shall issue writ of ejectment without issuing prior notice to the appellant, if any execution application is filed. I had decided the above appeal on 28‑11‑19.88 by a short order and these are the reasons for the same. H.B.T./Z‑87/K???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.