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First Rent Appeal No. 731 of 1980, decided on 3rd May, 1982.

‑ S. 13 (3) (a)(0‑Bona fide personal requirement‑Landlord employed and residing with family in a foreign country where no facilities available for his children for higher education‑Some children already getting admission in colleges at K (Pakistan) and living with grandfather in small house, not adequate to accommodate all family members‑Some children appearing in IX class examination‑No boarding arrangements at K for girl students‑Held, landlord genuinely and bona fide required premises to question for residence of son and daughter for college education at K and tenant's contention that eviction application be not deemed reasonable and bona fide cannot be accepted.

Ghulam Qadir and others v. Ghulam Hussain P L D 1965 Lah. 200 ; Muhammad Bashir v. Vensimal P L D 1980 Kar. 409 and Ghularn Nabi's case 1980 S C M R 751 ref.

---S. 13(3) (a) & (b)‑‑Eviction‑Choice of landlord‑Landlord having another house in same city in occupation of another tenant‑Held, tenant's contention that landlord could have applied for eviction of other tenant instead of his cannot be sustained in view of principle laid down by Supreme Court (choice of house being within prerogative of landlord).

Sabu Mal v. Kika Ram 1973 S C M R 185 rel.

Qutubuddin for Appellant.

Khalilur Rehman for Respondent.

Date of hearing : 3rd May, 1982.

The brief facts leading to the filing of this first appeal under section 21(1) of Sind Rented Premises Ordinance, 1979 are as follows :‑

2. The appellant is the tenant of respondent in respect of a house on plots No B/226, Block No. 10 Federal "B" Area Karachi on a monthly rent of Rs. 450 per month. The respondent landlord residing in Saudi Arabia with his family in connection with his employment, filed the Ejectment Application No. 4465 of 1978 in the court of II Rent Controller Karachi on the ground that there being no proper facilities in Saudi Arabia for education of Pakistani children in post matriculation classes and that his sons and daughters who then were studying in various classes and would be qualifying for college education would seriously suffer in their education unless they were shifted to Pakistan. On the plea that he intended to send back his entire family consisting of wife, three sons and daughters to Pakistan in the circumstances particularly because his eldest son and the eldest daughter had already taken their matriculation examination were required to be admitted in some college at Karachi where there are no hostels for girls and the children would have to live alongwith their mother in the premises in dispute.

2. The abovementioned ejectment application was contested by the appellant. At the trial, the respondent landlord examined himself and also his father Muhammad Siddiq who is also his attorney. The appellant tenant examined on his own behalf.

3. The learned Rent Controller after recording the evidence and hearing the parties advocates come to the conclusion that the premises are required by the respondent for the use and occupation of his children by order passed on 5‑8‑1980 allowed the said application and directed the appellants to hand over possession of the property in dispute to the respondent.

4. In the appeal filed against the abovementioned order the learned counsel for the. appellant Syed Qutabuddln Ahmed argued that the require ment of the landlord for the premises was not more than a mere desire and cannot be termed as requirement which could be described as bona fide for reasonable. The learned Counsel submitted that the respondent is residing in Saudi Arabia with his wife and children and that the mere fact that his daughter and son, who have already come to Karachi and have got admission in post‑matric classes here cannot be considered to require the premises bona fide and reasonable for his own use or use and occupation of his son and daughter as they have already come to Pakistan and are residing with their grandfather. The learned counsel in support of his arguments cited the case of Ghulam Qadir and others v. Ghulam Hussain (P L D 1965 Lah. 200).

5. I have considered the arguments of the learned Counsel advanced in the light of the submissions made above. The evidence of Khalid Rashid, the respondent (landlord) shows that he is employed as a Civil Engineer in Saudi Arabia where he is residing with his family including wife, daughters and sons. His evidence proves the fact that in Saudia Arabia there are no facilities for college education for the children of Pakistani nationals employed there and that his daughter had already passed her matriculation examination. His sons at the time when the landlord was examined in Court on 13‑5‑1979 had also appeared in the IXth class examinations. In the Court it is admitted during the arguments that the respondent's daughter and son, who have already passed matriculation examinations, have come over to Pakistan and have got admissions in the colleges at Karachi, for purposes of continuing their post matriculation education. In support of the assertion made as above during his evidence, the respondent produced certificate dated 5‑9‑1979 (Exh. 2) from Pakistan Inter‑National School Riyadh, Saudi Arabia wherein it is certified that hiss Iffat Siddiqui (daughter of the respondent landlord) had appeared in Class X examination of 1978‑79. It is also not disputed that the daughter and son of the landlord have come over to Pakistan for the purposes of education and are residing with their grandfather Muhammad Siddiq who has also been examined as a witness in the case. This witness (Muhammad Siddiq) deposed that he himself is residing in a house constructed on a plot of 80 sq. yds at Drigh Colony and it is not possible to accommodate the family of the respondent landlord in the said house. It is thus evident that the landlord's son and daughter who are college going students, cannot reside in the house as deposed by Muhammad Siddiq and which assertion has remained unrebutted. There is no denial of the fact that there are no boarding arrangements in Karachi for the girl students. The requirement of the landlord in the circumstances, of his own house in possession of the appellant, for purposes of accommodating his children in Karachi for educa tion purposes, is fully justified.

On the other hand the evidence led on behalf of the appellant consisted of Khawaja Moinuddin, the father of the appellant. In his deposition this witness while stating that he had no knowledge if there are no college education facilities in Saudi Arabia for Pakistani nationals, expressly admitted:

"The accommodation of father of applicant of Drigh Colony may be of two rooms only. I know the applicant wants to shift his family to Pakistan."

To the question put in re‑examination by the advocate for the appellant to explain the absence of appellant and not giving evidence, the said witness stated :-

"The opponent has not appeared himself in the Court because he is in service and cannot got leave."

6. In the Light of the evidence briefly discussed above, it is prove beyond any reasonable doubt that the respondent landlord genuinely and bona fide requires the premises in question for residence of his son and daughter for their college education at Karachi as there are no post‑matric education facilities for Pakistani students in Saudi Arabia. The respondent (Landlord) has no other house in Pakistan where he could accommodate his family. Two of his children, a son and a daughter who have passed their matriculation examinations have already come to Karachi where they have got admissions in Colleges and are compelled to reside with their grand father in Drigh Colony in a small house built on a plot of 80 sq. yds. The respondent who is an educated person, having his own independent living, and his own house, would, therefore, be entitled to see that his children do not live on the mercy of others even that of his own father and that also in a small congested house. In the circumstances the contention of the learned Counsel for the appellant that the application moved for eviction by the respondent is not to be deemed to be reasonable and bona fide, cannot be accepted. Reference may be made to the case of Mohomed Bashir v Vensimal (P L D 1980 Kar. 409) wherein after relying upon the case reported as Ghulam Nabi v. Rao Muhammad Usman Ali Khan (1980 S C M R 751) the learned Single Judge (Mr. Justice Zaffar Husain Mirza as he then was) observed as follows :-

"It is however strenuously urged on behalf of the respondents that Chiraghuddin's house where the appellant teas living at the time of the application had sufficient accommodation for the appellant and his family to satisfy their needs. It is however clear from the evidence that the house does not belong to the appellant and, therefore, he is putting up there with the courtesy of his son. Occupation of such accommodation even though suitable for the needs of the appellant will not be relevant for purposes of section 13(3) of the Urban Rent Restric tion Ordinance, 1959.

7. Another argument advanced for the learned counsel for the appellant was that the respondent has got another house at Karachi constructed over a plot of 200 Sq. yds. situated at North Nazimabad. The respondent landlord, however, in his evidence explained that the said other house was rented out by him about six years back and is not in his occupation. Admittedly the said house is in occupation of a tenant. The contention of the learned Counsel that the respondent could have applied for eviction of the said tenement instead of filing the. ejectment case against the present appellant however cannot be sustained in view the principle laid down in the case of Sabu Mal v. Mika Ram (1973 S C M R 185) where the Honourable Supreme Could observed as follows :‑‑

"If a landlord possesses snore than one house in the same urban area, the choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion, and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside."

Having observed as above the Honourable Supreme Court further held as follows :‑

"The law, however, provides an adequate safeguard by stipulating in subsection (4) of section 13 of the Ordinance, that the tenant may be put back in possession if the landlord does not occupy the premises himself after getting them vacated on the ground of personal need."

8. In the light of the 'above discussions and admission on the part of the appellant's own witness that the accommodation of the father of the respondent at Drigh Colony might be of two rooms only and that he knew that the respondent wanted to shift his. family to Pakistan coupled with the fact that the appellant had himself not cared to appear in the witness‑box and to submit to cross‑examination, in the light of the observations made in the case of Ghulam Nabi (1980 S C M R 751.) and the authoritative principle laid down by the Hon'ble Supreme Court of Pakistan in the case of Sabu Mal, referred to above, I have no hesitation in holding that the impugned order passed by the learned Rent Controller is based upon correct interpretation of facts and law and do not call for any interference.

9. The upshot of the above discussion is that the appeal stands dismissed as having no merit. The appellant however is granted six months time to vacate the premises subject to the condition that he deposits rent regularly with the Nazir of the Civil Court at Karachi every month during this period. Failure to deposit rent for any of the months as directed above or to vacate the premises on the expiry of the period allowed as above, whichever event happens earlier, writ of ejectment shall be issued without any notice to him.

K. M. A. Appeal dismissed.

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