P L D 1988 Karachi 581 (PLP)

This First Rent Appeal is directed against the orders of the learned IVth Sr. Civil Judge and Rent Controller, Karachi (East), dated 31‑7‑1985, whereby the learned Rent Controller ordered the eviction of the appellant in Rent Case No.864 of 1984.

2. The facts of the case in brief are, that the respondent is owner of a plot of land bearing No.125/2 P.E.C.H.S., Karachi. He constructed thereupon a house divided in two portions, which for the purpose ' of convenience may be described as northern portion and southern portion. The appellant is admittedly tenant of the northern portion since 1972. The respondent was a Government servant, serving as Deputy Secretary to the Federal Government of Pakistan at Islamabad, and retired in the end of 1983 or in the beginning of 1984. Somewhere, in August 1982, the southern portion of the house which was in occupation of some other tenant fell vacant and son of the respondent, occupied that portion of house as he was studying at Karachi. Before his retirement the respondent is alleged to have served notice upon the appellant, asking him to vacate the premises in his possession as he required the same for his personal bona fide use. The appellant did not vacate the premises, and, therefore, after retirement, the respondent came to live in the southern portion of the house which consists of one room and one drawing room. As it was not sufficient for his needs, therefore, he filed rent case under section 14 of the Sind Rented Premises Ordinance, 1979, against the appellant. Subsequently, on finding that he was disqualified from seeking relief under section 14 by virtue of subsection (2) of section 14, on his application the rent case was converted into one under section 15 of the said Ordinance. ‑ The appellant resisted the rent case and contended, that the rent case was not maintainable on the ground, that the respondent did not require the premises in good faith for bona fide needs and that from time to time he had increased the rent on the assurance that after his retirement the applicant/ respondent would riot get the premises, in possession of the appellant vacated, but would get vacated the southern portion of the house, therefore, it is contended, that the respondent was estopped from seeking eviction of the appellant on the ground of personal requirement. On the pleadings of the parries the learned Rent Controller framed the following issues: (i) Whether the application as framed and filed is maintainable in law? (ii) Whether the applicant is requiring the premises for his personal bona fide use and for use of his family? (iii). What should the decree be? The learned Rent Controller decided all the issues in favour of the respondent and passed the impugned order.

3. I have heard Mr. Yousaf Khatri, learned counsel for the appellant, ‑ and Mr. Badrudduja Khan, learned counsel for the respondent,' at length and I have also gone through the record and proceedings of the case.

4. The main contention of the learned counsel for the appellant is, that the respondent was estopped from seeking eviction on the ground of personal requirement on the basis of the assurances given by him, and on his behalf by other persons, who used to collect the rent, that if the rent was increased, the respondent would not, after his retirement, seek eviction on the ground of his personal bona fide need. It is submitted, that because of these assurances the appellant agreed to increase the rent and, therefore, the respondent could not seek eviction due to the operation of doctrine of promissory estoppel.

4. Admittedly, the rent was increased in 1974 from Rs.380 to

430. The rent was further increased in years 1977, 1978, 1979, 1980, 1981 and twice in year 1982, viz. for seven times. The rent was increased from Rs.430 per month in 1974 to Rs.1,000 in July, 1982 in the space‑of 8 ,years. For these 7 times, when the rent was increased, it is alleged, that every time, the respondent used to assure the appellant and her son Iqbal, that in case the rent was increased, the respondent could not seek: eviction of the appellant on the ground of his personal requirement after his retirement. There is only oral evidence of Iqbal on the alleged assurances given by the respondent before the increase of rent every time. The burden of proof of these assurances was upon the appellant. There is only word of Iqbal, who is attorney and ',son of the appellant, that the respondent had given aforesaid assurances before the increase of rent every time as against the word of the :respondent, denying to have given such assurances. In such a case the Court has to rely more upon the circumstances of the case rather that the oral Word of the parties.

5. The rent was first time increased on the basis of alleged assurances in O4‑October, 1977, whereas, the respondent retired in 1983‑84, viz. after more than seven years. It does not look probable or appeal to reason that on the same ground and same assurances the appellant would have agreed to increase rent 7 times in space of years. A normal person is bound to be suspicious, when he is asked to do something again and again for the same reason. No doubt, the appellant is a lady, but her son Iqbal is said to be present every time when on basis of said assurances, increase in the rent was agreed. Admittedly, this Iqbal is a businessman, and as such he would normally be shrewd and careful in money matters. He is unlikely to have agreed to increase of the rent seven times on the same assurances and on same ground. He is not such a simpleton that under the said circumstances, he would not have even obtained such assurances in writing from the respondent. There is nothing in writing to show, that any such assurance was given by the respondent. Looking to the inflation prevailing in the country in general and in Karachi particular the increase of rent does not appear to be abnormal. The increase in rent.every time is Rs.100 or less than Rs.100. There is no evidence to show that at the relevant time the prevailing rate of rent in that locality was less than what was agreed upon between the parties. It seems improbable that there was increase in rent due to any assurance that the respondent would not seek eviction on the ground of his personal requirement after his retirement. Not only there is no documentary evidence, but there is even no other evidence corroborating the evidence of Iqbal.

6. The learned counsel for the appellant has relied upon the case of Anwar Baig v. Mariam Bibi 1987 C L C 508, wherein it is held, that issue of estoppel can be proved by means of oral evidence only and it was wrong to contend, that the estoppel can be proved only when the oral evidence is supported by documentary evidence. I am in respectful agreement with this view expressed in this case. However, the oral evidence in proof of estoppel has to be such which can be believed and looks convincing. I have already pointed, that the oral evidence produced by the appellant is not sufficient to prove the estoppel.

7. Reliance is also placed on the case of Haji Ghulam Rasool v. The Chief Administrator of Auqaf, West Pakistan, reported in P L D 1971 S C 376, wherein, their Lordships have defined the doctrine of estoppel in following words:‑ "The doctrine of estoppel is not confined to the matters dealt with under section 115 of the Evidence Act, for "estoppels in the sense in which the term is used in' the English legal phraseology are matter of infinite variety and are by no means confined to the subjects dealt with in Chapter‑ VIII of the Evidence Act." It has been defined in Halsbury's Laws of England (2nd Edition), Vol.13, "as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability." It is in this sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. It is true that to raise an estoppel there must be something in the nature of a representation by the party against whom it is pleaded as a result of which the party to whom it is made has been induced to take a particular course of conduct."

8. The facts of this case are distinguishable. In the reported case the appellants with full knowledge of facts requested Revenue Authorities to correct the record by entering therein the true position and since have allowed that to remain unchanged for nearly eight years. It was, therefore, held that they were now debarred from setting up a different case and should at any rate not to be believed when they said that that was not true position. Reliance is also placed on the case of Gujrat State Financial Corporation v. Lotus Hotels Private Limited 1984 P S C

308. In the reported case, a Government undertaking had entered into a contract with a party and the party incurred expenditure and suffered liabilities, while acting upon promise. It was held, that Government undertaking was estopped from backing out from its promise.

9. In the instant case apart from oral evidence of Iqbal, there is no other evidence to show, that any such assurance was given by the respondent. As pointed earlier, even the circumstances of the case belie such contention. The learned counsel for the appellant has also cited certain English Authorities on promissory estoppel. I need not discuss these authorities as in my opinion, the evidence on record does not prove, that any assurances were given by the respondent, which could operate as promissory estoppel against him and preclude him from seeking eviction of the appellant on the ground of his personal requirement. My finding, therefore, on issue No.l is in negative.

10. Next we come to the bona fide requirement of the respondent. The burden of proof was undoubtedly upon the respondent. Admittedly, house in question consists of two portions. One portion presently in occupation of the respondent consists of one room, and one drawing room, whereas, the portion in possession of the appellant consists of two rooms and one drawing room. Admittedly, the family of the respondent consists of himself, his wife, two grown‑up sons, and one daughter, who is married. Admittedly, the daughter does visit her parents and it is not unbelievable that she would occasionally be visiting her parents alongwith her husband. Thus, for all times respondent and his wife and his two grown‑up sons would have to sleep in one room, which is neither convenient nor proper. The respondent would also naturally be in a very auckward position, when his visiting daughter is also made to sleep in the same room alongwith her husband.

11. The appellant is admittedly a retired Deputy Secretary of Federal Government and belongs to strata of society, where he requires one room to meet visitors and guests. As such the drawing room cannot be used by him as bedroom. In the above‑mentioned circumstances; the statement on oath of the respondent, that he requires other portion presently in the possession of the appellant, for his bona fide personal use, neither looks to be untrue nor mala fide.

12. Reliance is placed upon the case of Muslim Commercial Bank Ltd. v. Muhammad Sharif 1987 S C M R 1768. In this case their Lordships granted leave to appeal as landlord upon refusal of the tenant to increase rent, demanded vacant possession of the premises without asserting, that the premises were required for personal use. It was observed, that "section that premises were required for the personal use was in such a close proximity in point of time with demand of increase of rent, that it militated against plea of landlord, as a strong circumstance reflecting upon his bona fides. In the instant case there is nothing on record to show, that after last increase of rent in 1982 the respondent demanded further increase in the rent and that thereafter he filed the rent case.

13. In the case of Noor Muhammad v. Iqbal Ahmed 1985 C L C 1007 a learned Single Judge of this Court had held "No hard and fast rules could be laid down for quantum and quality of evidence to prove bona fide need of landlord for seeking eviction of a tenant. on that ground. Statement of landlord alone was sufficient to prove his personal requirement, if it can satisfy a prudent mind by objective evidence, that such requirement does exist." The learned Single Judge had relied ,upon the case of Muhammad Shaft v. Muhammad Azam 1983 C L C 2657.

14. In the instant case looking to the admitted facts and circumstances, the evidence of the respondent alone in my opinion is sufficient to prove his personal requirement, as it is obviously imprudent, for two grown‑up sons to sleep in the same room with their married parents.

15. In the case of Mst. Zehra Begum v. Pakistan burmah‑Shell. Limited P L D 1984 S C 38, their Lordships observed that "the bona fide requirement of the premises by the landlord for the occupation or use of his spouse or any of the children is, to being with need personal to him. He has only to place certain facts before the Controller to make objective assessment and review in appeal of needs and good faith possible." The learned counsel for both the parties have relied upon a number of other reported cases. In all those cases it is held, that burden of proof of bona fide requirement is upon the landlord and that he has to place material before the Rent Controller so that objective assessment could be made of his bona fide requirement and need. I need riot discuss all these cases, because each case has to be decided on its particular circumstances and evidence on record. So far the principles are concerned with ‑regard, to proof of good faith there appears to tie no difference of opinion amongst the superior Courts. The principle enunciated in all these C, cases is that burden of proof is upon the landlord, but his word alone is sufficient to prove his requirement if the same could be! spelt out from the circumstances and facts of the case.

16. I lave already pointed the admitted position of the accommodation in possession of the respondent and admitted position of the strength and number of his family members. In my opinion, a person cannot be denied the right to live comfortably in his own house in his old age after retirement. I need not go into the question of his future requirement after marriages of his grown‑up sores. Even his present requirements do indicate that he needs some more accommodation. I am, therefore, in agreement with the finding of the learned Rent Controller, that the respondent bona fide requires the premises in dispute for his personal requirement.

17. I find no merit in this appeal, which is accordingly, dismisses with no orders as to costs. However, the appellant is allowed six months' time from this order to find alternate accommodation and hand over the vacant possession to the respondent, subject tea the condition, that she continues to deposit rent with the Rent Controller as already ordered by the learned Rent Controller. H.B.T./N‑121/K Appeal dismissed