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First Rent Appeal No. 743 of 1980, decided on 25th February, 1982.

‑‑ S. 13 (2) (i), (iii) & (3) (a) (i)‑Ejectment ‑ Mala fides Landlady filing ejectment application on almost all possible grounds available under S. 13 and also claiming rent at enhanced rate landlady in notice to tenant mentioning making of prior demand for vacation of premises and claiming enhanced rent but not mentioning her ill‑health and/or nuisance etc.‑Even in ejectment application nothing mentioned to suggest landlady being prohibited from climbing upstairs Landlady after filing appeal also acquiring vacant possession of first floor (of similar accommodation) of house‑Landlady refusing without even alleging cogent reasons, tenant's offer to exchange first floor for ground floor in his possession‑First floor constructed but landlady not moving therein and soon thereafter filing ejectment application‑Held, landlady bent upon ejecting appellant on one ground or other and filed ejectment application mala fide in order to pressurise tenant to accept enhanced rent.

Farooq Beg v. Muhammad Arif P L D 1981 Kar. 67 rel.

Muhammad Uris v. Zainuddin P L D 1981 Kar. 345 and Ghulam Farooq v. Fazal Ghani 1980 C L C 1082 ref.

Sabu Mal v. Kika Ram 1973 S C M R 185 and Interhom Ltd. v. Nisar Ahmad Khan 1981 C L C 981 distinguished.

Niazi A. Khaliq for Appellant.

Abdul Majeed Khan for Respondent.

Date of hearing : 21st February, 1982.

The appellant above‑named, being aggrieved by order of ejectment dated 21st August, 1980; passed by the II Rent Controller, Karachi, in Rent Case No. 1650/77, has preferred this appeal on the following facts and grounds

Mst. Amina Begum respondent above‑named, had brought applica tion for ejectment of the appellant Abdul Hameed, from the house bearing No. 304/14, Federal "B" Area, Karachi, on the grounds of personal require ments, default in payment of rent and making additions and alterations in the premises in case. The brief facts of the respondent's case are, that the respondent is owner and landlady of the house, bearing No. 304/15 Federal "B" Area, Karachi and the appellant is the tenant of the respondent in the abovesaid house, at a monthly rent of Rs. 360. It was alleged in the said application, that the respondent requires the premises in case for her own use. It has been alleged, that the appellant has committed default in payment of rent since January, 1977. It has been further alleged, that the appellant has converted the varandah of the house, in a shop, without permission of the respondent and has also damaged the floor of the house and has thus impaired the value and utility of the premises in case. Therefore respondent had prayed for ejectment of the appellant who filed written statement in which he has contended that respondent does not require the abovesaid house for her own use bona fide and in good faith. The appellant had also contended, that the rent of the premises in case is Rs. 175 per month. He has also denied, that he has committed default in payment of rent or that he has committed such acts, which have resulted in impairing materially the value and utility of the case premises.

3. On the above pleadings of the parties following issues were framed by the learned Rent Controller :‑

(1) What is the rate of rent per month

(2) Whether the opponent committed any wilful default in payment of monthly rent since January, 1977

(3) Whether the opponent has committed any act to impair the value or utility of the premises in case

(4) Whether the applicant in good faith requires the premises in case for her personal bona fide use or for the children

(5) What should the order be

4. On the above issues respondent had examined P. W. Azam Ali Farooqui, while the appellant had examined himself.

5. The learned Rent Controller taking into consideration the evidence adduced before him and after hearing the learned Advocates for the parties, by his order dated 21st August, 1980, allowed the ejectment application in question, on ground of personal and bona fide use only, while holding on issue No. 1, that the rent of the premises in question was Rs. 175 per month.

6. The appellant above‑named, being aggrieved by the impugned order dated 21st August, 1980, has filed the above first appeal, on the grounds mentioned in the memo of appeal.

7. I have heard the learned Advocates for the parties and have gone through the statements of the witnesses recorded by the learned trial Court as well as through the impugned order in question. I have also considered various authorities cited by the learned Advocates for the parties.

8. The main contentions raised by the learned Advocate for the appellant before me were (a) That the learned Rent Controller has misread the evidence on record, and (b) that after filing of the above appeal the respondent has obtained the vacant possession of the first floor of the house in question, which is now in possession of the respondent and as such the question of personal and bona fide use, on the ground of unsuitability of the premises in occupation of the respondent, at the time of filing of the ejectment application has ceased to exist. The learned Advocate for the appellant further submitted, that only ground, which though was not originally taken by the respondent, about her illness, on account of which she now states, that the first floor of the house in question is not suitable for her due to this, the appellant is ready and willing to shift to the first floor, in exchange of the ground floor, which is in his possession, but the respondent is refusing to accept this proposal, which shows her mala fide, intentions in respect of filing of ejectment application in question. In support of, these contentions the learned Advocate for the appellant relied upon cases reported in P L D 1981 Kar. 345 and P L D 1981 Kar. 67.

9. The learned Advocate for the respondent on the other hand submitted, that acquiring of possession of the house in question, after the filing of above appeal is not material for consideration in the present appeal and in support thereof the learned Advocate for respondent relied upon cases reported in 1973 SCMR185and1981CLC981.

10. As far as the offer of the learned Advocate for the appellant for exchange of accommodation between the parties, the learned Advocate for the respondent, after consulting his client, submitted, that the said offer was not acceptable to her, as acquiring of possession of the first floor by the respon dent, after filing of the above appeal did not affect the legality and validity of the impugned order of the learned trial Court, and as such respondent was entitled to obtain possession of the ground floor also, from the appellant on the basis of said order, as she has established her personal and bona fide need, by the evidence adduced by her, before the learned Rent Controller and as such the above appeal is liable to be dismissed.

11. I have carefully considered the above submissions made by the learned Advocates.

12. The ejectment application in question was filed on various grounds including for personal and bona fide use. In this connection the main ground for personal and bona fide use, on which basis only the ejectment application has been granted, was based on the following basis

(a) Respondent was living in rented house in a very congested area, unhealthy place and nuisance on account of heavy traffic on Nishter Road and consequently respondent remains sick due to bad atmosphere.

(b) That accommodation in possession of the respondent in rented house was not sufficient, for her family and further respondent wanted to get her elder son married.

13. It may be noted, that there is nothing in the ejectment application to suggest, that respondent was prohibited from climbing stairs, due to her ill‑health. It may further be noted, that respondent's husband in his deposition stated, that first floor of the house in question was constructed in 1976 or so, but they did not move into these premises, as his children at that time were minors and consequently it can be presumed, that the premises were not required by respondent at that time, for her personal and bona fide deed and or for marriage of her elder son. Ejectment' application in question was filed on 28‑5‑1977. It was further mentioned that in legal notice dated 4‑4‑1977, the respondent had mentioned, that demand for vacation of the premises in question from appellant was being made much prior to said notice and further ground of ill‑health and, or nuisance etc. is not at alia mentioned in the said notice, by which enhanced rent was claimed at Rs. 36 p. m., keeping in view these admitted facts and refusal of the respondent to exchange first floor of the property in question, with appellant, as respondent after filing of ejectment application has acquired vacant possession of the first floor of the said house, without cogent reasons, the bona fide of the ejectment application will have to be considered, as argued by the learned Advocate for the appellant, before me.

14. It is admitted position, that respondent after filing of above appeal has acquired vacant possession of the first floor of the property in question, from her tenant, which according to learned Advocate of the parties is similar in accommodation, to one in possession of the appellant. In view of this admitted position, the learned Advocate for the appellant submitted, that this fact must be taken into consideration in this appeal and relied upon cases re‑, ported in P L D 1981 Kar. 345 and P L D 1981 Kar. 67. I have gone through these authorities and find that the learned Judge in the case relied in P L D 1981. Kar. 67 has held as under :‑

"Landlord, during pendency of his application seeking ejectment of tenant on ground of personal bona fide requirement, succeeding in getting vacated another premises of same class, in same urban area, while through proceedings before Rent Controller or otherwise‑ Landlord in such case cannot be allowed to proceed with pending case, unless satisfied Controller as to premises thus got vacated, being not suitable to his needs."

15. The above observations of the learned Single Judge in P L D 1981 Kar. 67, are supported by observations made in the case reported in 1980 C L C 1082.

16. The learned Advocate for the respondent in respect of his contention, that above fact ought not to be taken into consideration, relied upon cases reported in 1973 S C M R 185 and 1981 C L C 981. I have gone through these two authorities and in my opinion, these cases are based on different facts and as such not applicable to present case. In view of this, I am the opinion, that this admitted fact cannot be ignored, as suggested by the learned Advocate for the respondent.

17. According to statement of husband of the respondent the first floor was constructed in 1976 or so and/or last time rented out, as at that time, there was no personal and bona fide need for its occupation, as C respondent's sons were minors. It may be noted, that soon after this, in May, 1977, the ejectment application was filed by respondent. This action on the part of the respondent goes to prove prima facie mala fide intentions of the respondent in filing the ejectment application in question. Besides this it may be noted, that respondent filed the ejectment application in question on almost all possible grounds available under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and also claimed rent at enhanced rent, than agreed rent, on basis of alleged oral agreement. The learned Rent Controller not only rejected the other grounds, but also held, that agreed rent of the premises was Rs. 175 p. m. and not Rs. 360 p. m. as alleged by respondent. Against these findings respondent has filed no appeal. This shows, that respondent is bent upon ejecting appellant on one ground or the other and as such evidence adduced on behalf of the respondent does not inspire confidence at all. It is also significant to note, that respondent is not at all prepared to consider exchange offer made by the appellant in open Court, in this appeal; without even alleging any reasons for such refusal, like unsuitability of the first floor for her occupation and o insufficiency of accommodation, on first floor etc. In view of all these fact and circumstances, I am of the opinion, that respondent filed the ejectment application in question mala fide, in order to pressurise appellant to accept the enhanced rent of Rs. 360 p. m., otherwise I see no reason, why fair offer of exchange made by appellant was not accepted by respondent.

18. I therefore, allow the above appeal and set aside impugned order dated 21‑8‑1980, passed by the learned Rent Controller, in R. C. Case No. 1650/77, for ejectment of the appellant. In view of the above facts and circumstances of the case, I would pass no orders as to costs.

K. M. A. Appeal allowed.

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