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First Rent Appeal No. 239 of 1981, decided on 4th May, 1982.

‑S. 13 (3) (a) & (6)‑Requirement for personal use‑Bona fides of claim‑Landlady seeking ejectment on basis of personal use and denying motive of enhancement of rent and her application for ejectment being counterblast to tenant's application for repairs Except for word of tenant about attempt at enhancement of rent, no evidence on record to support it‑Held, dispute over repairs of premises cannot be considered as affecting bona fides of ground for personal requirement of premises.

Pirzada Rafique Ahmed v. Chaudhury Abdur Rehman 1980 S C M R 772 ref.

‑‑S. 13 (3) (a) & (b)‑Requirement for personal use‑Bona fides of claim‑Tenant contending landlady having other two tenements rented out to other persons‑Landlady's affidavit clearly showing her genuinely seeking extra accommodation for herself and her family members‑Held, bona fides of claim cannot be questioned, because of other portions of building being not requisitioned and no ejectment application in respect of such portion being made.

Messrs Interhom Ltd‑, Karachi v. Major (Recd.) Nisar Ahmad Khan 1981. C L C 981 ; Nooruddin and others v. Asghar Ali and others 1968 S C M R 1087 and Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832 ref.

A. M. Naqvi for Appellant.

Khudabux Umrani for Respondent.

Date of hearing : 18th April, 1982:

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 has been filed against the order dated 15‑4-1981 passed by the Senior Civil Judge and Rent Controller in Rent Case No. 1971 of 1979 ordering ejectment of the appellant and directing him to vacate the premises in dispute within 30 days of the order.

Respondent who is the owner of building situated on plot No. 234/B PECHS, Karachi leased out the ground floor of the building to the appellant at a monthly rent of Rs. 400 payable in advance. An agreement of lease dated 1st day of October, 1973 was executed and the lessee agreed to pay to the lessor the sum of Rs. 3,000 as advance rent for 5 months and Rs. 1,000 as security deposit. It was further provided in the agreement that after adjustment of 5 months' advance rent the monthly rent would be payable in advance every month.

On 12th April, 1979 the respondent filed application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 for ejectment of the appellant on the ground that she reasonably and bona fide required the demised premises in good. faith for her own occupation and for the occupation of her son. She further mentioned in the application that the marriage of her son Shoaib Jilani was scheduled to be solemnised by the end of the year, 1979 and, therefore, the premises were urgently required by her for the use of her son. It was further stated by her in the application that the accommodation in her possession consisted only of two bedrooms on the first floor of the building and the said accommo dation was inadequate and unsuitable to the housing requirement of the applicant. She had pointed out that her married daughter Mst. Kubra Shoukat along with her husband also lived in her first floor flat and her second daughter , Mrs. Razia Hussain, who was then in America was scheduled to return to Karachi in June, July, 1979 and she would also be staying with the applicant.

The appellant in his written statement denied that the respondent required the premises in his occupation, bona fide, for her own or her children's use. He contended that the respondent had four apartments in the building out of which three had been rented out ; one to Mr. Ashfaq, the other to Mr. Khurshid and the third to him. It was further his case that in February, 1978 the respondent ‑desired to increase the rent and the other two tenants had agreed to increase the rent to Rs. 500 per month from September, 1978. He, however, refused to accept the demand for increase of rent. He further stated iii the written statement that in November, 1978 at his 'instance his advocate had issued notice. to the respondent asking her to carry out repairs and on receipt of the notice the respondent's son started harassing him and also the respondent and her daughter Mrs. Ktibra Shoukat threatened him. The matter was reported to the police and the Martial Law Authorities. . However, nothing was done. in respect of his request for repairs and white‑wash of the tenement and' therefore he had filed Rent Case No. 5998 of 1978 which was pending in the same Court of the. Rent Controller. It is the case of the appellant that the application for ejectment was moved as a counterblast of the case filed by him.

With regard to the contention about the respondent requiring the premises, the appellant denied that Mrs. Kubra Shouicat was residing with the applicant and stated that she sometimes cable to live with the applicant as married daughters do off and on. With regard to the second daughter Mrs. Razia Hussain, the appellant stated that she visits Pakistan on temporary basis and had different premises in Karachi.

On the pleadings of the parties already referred to the only issue that arose for a finding was whether the premises in dispute are required by the respondent and her son for personal bona fide use in good faith. The parties filed affidavits of evidence and were subjected to cross examination. On behalf of the respondent her son, namely, Shoaib Jilani also filed affidavit of evidence and at the request of the appellant Junaid Yousuf was examined as a Court witness. The learned Rent Controller, after considering the pleadings of the parties and the evidence on record, gave a finding in favour of the respondent and passed the order which has been impugned in this appeal.

The appellant has contested the impugned order' on the following grounds

(1) That the learned Controller failed to appreciate the facts and evidence on record with regard to improper motive for filing the application for ejectment.

(2) That the ground of personal use is belied by the fact that the respondent let out other accommodation in the same building to other tenants.

With regard to ground No. 1, the allegations with regard to improper motive consists of the following

(1) That there was attempt to get the rent enhanced.

(2) That the application for ejectment was filed as a counter‑blast Rent Case No: 5998(78 filed by the appellant in connection with repairs of the premises. With regard to the first main ground I have gone through the record of the proceedings before the learned Controller and I find that except for the word of the appellant about the attempt for .enhancement of rent e there is no documentary or other evidence on the record to support the same. In Pirzada Rafique Ahmed v. Chdudhury Abdur Rehman (1980 S C M R 772), a decision of the Supreme Court in a case of ejectment on the ground of requirement for personal use it was held that a ‑ demand of higher rent by landlord does not by itself cast any doubt about personal bona fide requirement of the premises by landlord which had to be independently proved. It was observed in that decision as under :‑‑

We do not find any reason for interference and agree with the dictum contained in Badruddin. Hassan Farooqi and others v. Mangi Industrial Board that a demand of higher rent by itself does not cast any doubts about the personal bona‑ fide requirement if the factum of bona fide requirement is independently proved."

Mr. Khudabux Umrani, the learned counsel for respondent, has pointed out that the case with regard to repairs filed by the appellant .was dismissed and no appeal was filed. In any case, the fact that there was a dispute over the matter of repairs of the premises cannot be considered as affecting the bona fides of the grounds for personal requirement of the premises for the respondent and her son.

With regard to the ground about the requirement of the respondent and her son for the premises in question, there was evidence before the learned Controller of the respondent that there are in all four apartments in the building each one of them consisting of two rooms and that Messrs Ishfaq and Taimoor are her tenants in respect of two of the apartments. She has denied that Khurshid is her tenant and has explained that Khurshid was her tenant about three years back and in his place Taimoor became her tenant. She had stated that it was incorrect to suggest that due to bad relations with the appellant she had filed the application for ejectment. She had also denied that she had filed the application for ejectment, as counterblast to the case for repairs. It was her case that she was residing with her son and her daughters frequently visited her and that the marriage of her son was held up due to dearth of accommodation. There was evidence of her son Shoaib Jilani before the Controller supporting her evidence about personal requirement and stating that the premises were required in good faith for her own occupa tion and for his occupation. He further stated that his marriage which was scheduled to be solemnised in the end of the year 1979 could not take place for want of his, accommodation and that the respondent and he urgently require the premises for personal use since the accommodation in their possession at present consists only of two rooms on the first floor. There is nothing in the cross‑examination or in the evidence of the appellant which would be considered as disproving the claim of the respondent for her bona fide requirement of the premises for her and her son.

With regard to the only other ground of substance, namely, that there are other two tenements rented out to other persons, Mr. Khudabux Umrani, the learned .counsel for the respondent has referred to the decision in Messrs Interholm Ltd., Karachi v. Major Nisar Ahmed Khan (Retd.J(1981 C L C 981) a decision of this Court in which it was held that it is for the landlord to make his choice with regard to the house where he would like to live and the tenant cannot compel him to select one house or the other. Reliance in that respect was placed in the decision on the case of Sabumal v. Kika Ram (1973, S,C.M R 185).

The requirement for personal use of the respondent and her son and daughters, as stated by the respondent in her affidavit in evidence clearly shows that she is genuinely seeking extra , accommodation for herself and the members of her family and the bona fides of the claim cannot be d questioned due to the fact that other portions of the building are not being requisitioned by her and no, applications for ejectment in respect of those portions have been made. In Nooruddin and others v. Asgharali and others (1968 S, C M R 1087) a decided of the Supreme Court where it was attempted to be argued that good faith' was wanting as another flat in the premises had fallen vacant earlier, but the landlords had let out that flat to a tenant and had not utilised it themselves, it was observed as under :‑‑‑

"The question, however, as to which portion of the building would suit the landlords better must be left to their discretion, and there is nothing unreasonable in the landlords insisting that a particular portion of a building should be made available to them."

In Hassan Khan v. Mrs. Munawar Begum (P L D 1976 Kar. 832) a decision of this Court it was inter alia observed that assertion or claim on oath by landlord that be required the premises for his personal use if found to be consistent with his averments in his application and not shaken in cross examination or disproved in rebuttal is to be accepted by Rent Controller as bona fide. As already stated in the instant case, the assertions made by the respondent are fully supported by her averments in the application and the same have stood the test of cross‑examination. There is also evidence of her son fully supporting her assertions with regard to bona fide personal requirement of the premises for herself and for him. 1, therefore, see no substance in this appeal which is dismissed, however with no order as to costs. The appellant should hand over vacant possession of the premises within one month of the date of this order.

K. M. A. Appeal dismissed.

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