1985 PLP 2134 (CLC)

The facts giving rise to this case are that the appellant Mst. Rasheeda Bukhari is the owner of Flat No. 10 of the building situating on plot No. 1-D, Block-A, Sindhi Muslim, Co-operative Housing Society, Karachi, which is in occupation of the respondent as tenant. On 1-12-1979 the appellant filed a Rent Case No. 5577 of 1979, seeking ejectment of the respondent from the disputed premises on the sole ground of personal requirement. The respondent opposed his eviction denying that the disputed premises are needed by the appellant for her personal requirement. It was further submitted by the respondent that he had paid Rs.15,000 as Pugree for getting the possession of the said premises.

2. After considering the evidence led by the parties the learned Rent Controller dismissed the ejectment application vide his order, dated 2-8-1983. 'It is from this order that the present appeal has been filed. I have heard the learned counsel for the parties in support of their view points and have also gone through the impugned order.

3. It appears that the only point in controversy between the parties is whether the appellant needs the disputed premises for her personal requirement. In support of her claim the appellant has filed her own affidavit and the affidavit of her father S. Saeed Rehman. She has stated in her affidavit that she is living with her parents in their two-bedroom flat where she and her son aged 10 years are sharing one bedroom with her sister and her two children. According to her the accommodation presently in her occupation is insufficient as her son who is studying requires a separate room for his studies. The appellant finds support from her father Syed Saeed Rehman inasmuch as that she is presently living with her parents in their house. The evidence of the appellant and her father on this point remains unshaken. There also no evidence to show that apart from the disputed premises, the appellant owns any other house or premises in the same locality or any where else. Her statement that she is a widow and has a 10 years old son has also not been challenged. The learned counsel for the appellant argued that in view of the above evidence, the appellant was entitled to claim possession of the disputed premises, regardless of whether the present accommodation occupation of the appellant is sufficient for her purposes or not. In support of his arguments, the learned counsel has placed reliance op the following three authorities. (1) Abdul Salam Akhtar v. Dr.Najam Parvez 1976 S C M R 52. (2) Abdul Aziz and another v. Muhammad Ibrahim P L D 1977 s C 442. (3) Muhammad Naseem v . Azmat Khan 1982 S C M R 1132. In the case of Abdul Salam Akhtar, the landlord sought ejectment of the tenant on the ground of personal need as the landlord himself was living in a rented house. The argument advanced on behalf of the tenant was that since the landlord was living in the rented premises and was in occupation of another residential building suitable for his needs in the same urban area, he was not entitled to have the disputed premises vacated. It was held: "The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view, extend to cover rented premises, for, otherwise, the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation which the landlord is occupying p at the time, must be shown to be his own and not merely rented premises." In the second case of Abdul Aziz, the ejectment of the tenant was sought also on the ground that the appellants required the shop in dispute in good faith for their own use. In this case too it was held that the word non-residential building used in section 13(3)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959, can have no other meaning except the one which is owned by the landlord for it is in respect of that building that he is required to make an application for any order directing the tenant to put him in possession to terms of the aforesaid section. In the third case of Muhammad Naseem also eviction of the tenant was sought on the ground of personal bona fide use. It was held:-- "?????????? even if the respondent was residing in the house of his mother he could still be entitled to obtain the ejectment of the petitioner because, as held by this Court in Abdul Aziz and another v. Muhammad Ibrahim P L D 1977 S C 444, section 13(3)(a)(i) cannot be extended to cover a building occupied by the landlord but not owned by him. Since the petitioner was not owner of the house in which he was presently residing being an occupant in his mother's house this circumstance was not fatal to his case." The law laid down in the above authorities clearly is that even if the landlord is shown to be in possession of some accommodation but the same does not belong to him, he will be within his right to demand vacation of his rented premises. As against the above authorities, the learned counsel for the respondent has relied upon a Single Bench authority reported as Mat. Hajra Bai Sulaiman v. Mat. Aisha Bai 1982 C L C 1444. Although the learned Single Judge has referred to first two of the above Supreme learlours authorities, he has chosen to distinguish them on the ground of difference in facts of the reported cases. Similarly the facts of the present case being different from those of the above reported case relied upon by the learned counsel for the respondent, the said authority will not be helpful to him. The upshot of the above discussion is that the only house owned by the appellant is in occupation of the respondent and the appellant herself alongwith her son is living with her parents in their house and therefore, for this reason alone the 4ppellant will be entitled to seek eviction of the respondent. Accordingly the appeal was allowed by short order, dated 20-1-1985 with no order as to cost and the respondent was directed to hand over vacant possession of the disputed premises to the appellant with in three months of the order. S.A.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.