P L D 1984 Karachi 139 (PLP)

This is an appeal against the order, dated 9-6-1983, passed by the learned Senior Civil Judge and Rent Controller, Jacobabad, in Rent Application No. 17/82, dismissing the present appellant's application for personal require ment of his youngest son Salim Masood. The above application was filed by the present appellant on the above personal ground. The application was resisted by the respondent and inter alia it was pleaded that the appellant has been making attempts in the past to get the respondent ejected from the pre mises in question by filing cases, which failed, and therefore, he has advanced the ground of personal requirement of his youngest son. It was also pleaded that factually the appellant wanted to enhance the rent. The learned Rent Controller on the basis of the pleadings of the parties framed the following one issue "Whether the applicant requires the disputed premises for bona fide use and occupation of his son Saleem Masood." After recording the evidence and hearing of the parties he decided the same against the appellant. The appellant' being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal Mr. Wahid Bux Baloch, learned counsel for the appellant has urged that the learned Rent Controller had no option but to grant the application on personal ground as the appellant was able to prove the personal requirement of his son. He has further urged that from the cross-examination of the respondents it is evident that factually the respondent is not using the premises continuously but is using occasional ly, and therefore, the respondent tactually does not need, the premises.

3. As regards the above first -contention, it may be observed that it is an admitted position that the appellant had filed previous rent application in respect of the premises in question on. the ground of his personal requirement. The above application was finally dismissed by the High Court on 30-11-1980 in a second appeal. It is also an admitted position that similar applications were filed by the appellant in respect of other shops which also failed. The appellant, started second round of the litigation by substituting personal requirement of his sons in place of his personal requirement. It may be pertinent to mention that F.R.A. No. 24/83, which was against ejectment order arising out of Rent Application No. 2 of 1981 filed by the applicant in respect- of another adjacent shop on the ground of his another son Nadeem Masood came up for hearing before me on 24-8-1983 which was allowed by me on the ground that this Court in the judgment, dated 30-11-1980 given in second appeal found that the appellant's personal requirement was not bona fide, the personal requirement of a son for the same purpose after a few months from the disposal of the above second appeal, was not bona fide. However, it has been urged by Mr. Wahid Bux Baloch that in the aforesaid appeal the personal ground of the son was that he wanted to use the shop as a godown, whereas in the present case the averment of the appellant was that his another son needed the shop for business and, therefore, the above case is distinguish able. In the instant case it has come on record through the appellant's admission in his cross-examination that Salim Masood is a student of first year, he .has no business experience and factually he does not know any business. It was not even stated by the appellant what type of business, . his son- Salim Masood intended to start. In view of the background of the previous litigation, and because of the above appellant's admissions and vague averment as to the personal requirement of the appellant's youngest son I am inclined to hold that the view found favour with the learned Rent Controller seems to be in consonance with law.

4. Reverting. to the second contention of Mr. Wahid Bux Baloch, learned counsel for the appellant, that factually the respondent has not been using the premises regularly but using the same occasionally as he is a lecturer in the Government College, Thul, and, therefore, factually the respondent does not require the- promises, it will suffice to observe that when a landlord files an application for ejectment on the ground of his personal requirement or the requirement of his son, it is the requirement of the landlord or his son, which is to be considered, whether it is a bona fide requirement, and not the fact that a tenant is not regularly using the premises. It is not a case of granting of an ad interim injunction, in which inter alia balance of convenience or incon venience of both the parties is to be assessed. In a rent application for' ejectment of the nature in issue, the initial burden of proof is on a landlord, who seeks ejectment on his personal ground or personal ground of his son etc. to prove by convincing evidence that his or his son's personal requirement is bona fide and not fanciful or prompted for an extraneous reason. Once he discharges this burden, the landlord becomes entitled to get ejectment order ~A notwithstanding that it may cause hardship or inconvenience to the tenant. Conversely a landlord cannot obtain an ejectment order on his personal ground simpliciter for the reason that granting of ejectment order will cause no hardship or inconvenience to the tenant. However, a Court while viewing attending circumstances may also take into consideration the above aspect.

5. It was also urged by the learned counsel for the appellant that since the respondent has admitted in his cross-examination that since 1975 the appellant had not asked for enhancement of rent, the above factor was suffi cient to prove the personal bona fide requirement of the appellant's son. I am,) not inclined to accept the above contention. The factum that a landlord has riot asked for enhancement of rent for a number of years may be one of the relevant factors to be considered in a case of personal requirement, but this fact itself is not sufficient to prove a landlord's personal requirement. For the aforesaid reasons, the appeal is dismissed with no order as to costs: M. s. A. Appeal dismissed.