1980 PLP 1183 (CLC)

This second appeal has been filed by a landlady, Ust. Sajida Bano, who succeeded in securing an ejectment order against her tenant. Mst. Maqsoodan Begum, from a Rent Controller but, on an appeal having been filed by the tenant, the order of the learned Rent Controller was set aside by an Additional District Judge and the landlady's application for her ejectment was dismissed. The landlady has, therefore, challenged the order of the appellate authority by means of this second appeal.

2. The appellant had sought ejectment of the tenant, who is respon dent in the instant appeal, from a house on the ground of personal-need. As stated above, her plea was accepted by the learned Rent Controller but it did not find favour with the learned Additional District Judge. The main reason given by the learned Additional District Judge for, non-suiting the appellant was that she was already having a house and since the accommo dation in that house was not less than the accommodation available in the disputed house, her requirement was not bona fide. In taking this view, the learned Additional District Judge relied on Muhammad Siddiq v. Abdul Hameed (P I. D 1976 Kar. 696).

3. With reference to the aforesaid reason given by the learned Additional District Judge, learned counsel for the appellant urged that the house presently occupied by the appellant did not belong to her. Admittedly, it is owned by her father-in-law and it by tier. Learned counsel for the appellant, therefore, maintained that since the house now lived in by the appellant was not owned by her, her ejectment application could not be thrown out on the ground of her occupation of the said house. He cited Abdul Salam Akhtar v. Dr. Najani Parvez (1976 S C M R 52) and Mansoor Ahmad v. Bashir Hussain Babri (P L D 1977 Lah. 532) to support his contention.

4. In this case of Abdul Salam Akhtar it was ruled by their Lordships of the Supreme Court that if a landlord occupies a rented house, his occupation of such a house does not debar him from seeking possession of the premises owned by him. In the case of Mansoor Ahmad it was held that if a landlord lives with his relative as lodger that does not constitute a valid ground for the dismissal of his application for ejectment of tenant. Since it is not disputed that the premises now occupied by the appellant belong to her father-in-law, she could not, therefore, in view the aforesaid authorities, be non-suited for being in occupation of those premises.

5. In Muhammad Siddiq's case, relied upon by the learned Additional District Judge, at the time of the launching of ejectment proceedings, the landlord occupied a flat in Korangi Township which had been allotted to him by the Karachi Development Authority. It appears that the allot ment of the flat was intended to mature into ownership on the satisfaction of the terms of allotment. There was, however, no such allotment in favour of the appellant herein in regard to the house lived in by her. Therefore, the case of Muhammad Siddiq being distinguishable on facts did not advance the case of the respondent. Even if the allotment in the case of Muhammad Siddiq was in the nature of a lease, I would, with respect follow the view taken by their Lordships of the Supreme Court in the case of Abdul Salam Akhtar in preference to the one expressed by the Sind High -Court in the case of Muhammad Siddiq.

6. Another reason given by the learned Additional District Judge for accepting the first appeal of the tenant (respondent) was that the house in which the appellant now resides is as big as the house in dispute. Even if it be correct, and the fact that the house now lived in by the appellant (landlady) does not belong to her is also overlooked, she will be justified in going in for .the house in dispute. I say so for the reason that she will be having more accommodation in the disputed house than in the house now occupied by her because in the latter the accommodation is being shared by her with her father-in-law and mother-in-law but in the disputed house she will not have to share the accommodation with them.

7. Another factor which merits consideration is that Asif Mahmood (A.W. 4), who is the husband and attorney of the appellant, had depose that the appellant's mother-in-law (who is his mother) quarreled with the appellant and that the appellant's father-in-law (who is his father) had asked her (appellant) to get out of his house. This statement of Asim Mahmood was supported by Muhammad Sadiq (A.W. 2) who is another witness examined by the appellant. Nothing was pointed out by the learned counsel for the respondent to discredit the testimony of Muhammad Sadiq. Also, there is no evidence to rebut the aforesaid evidence of the appellant. I, therefore, feel that it has become difficult if not impossible, for the appellant to continue living in the present abode.

8. It is also to be noted that the said two witnesses of the appellant as also her two other witnesses, namely, Muhammad Ramzan (A.W. 3) and Mst. Sajida Bano appellant, who was examined on Commis sion, had deposed that the disputed house was needed by the appellant. None of the witnesses examined by the respondent, except the rest herself, had stated to the contrary. It will, therefore, be improper disbelieve the overwhelming evidence of the appellant in support of her of personal requirement.

9. The upshot of the foregoing discussion is that it was rightly he by the learned Rent Controller that the appellant needed the house dispute in good faith for her own occupation and that the learned Additional District Judge had erred in reversing the aforesaid finding oft learned Rent Controller. The order of the learned Rent Controller dismissing the application of the appellant for ejectment of the responder cannot, therefore, be affirmed.

10. In this view of the matter, I accept the appeal with costs, set as the order of the learned Additional District Judge and restore the order of ejectment passed by the learned Rent Controller. The respraiadent is however, allowed a period of four months to vacate the disputed premises. M. Y. M. Appeal accepted.