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First Rent Appeal No. 822 of 1980, decided on 23rd December, 1982.

‑‑‑S. 13(3)(1)‑Personal use‑Landlord's requirement of demised premises for‑Landlord filing ejectment application on ground of requirement of demised premises for personal use and that of his sons‑Tenant denying landlord's said ground for ejectment and alleging landlord intending to let out premises on enhanced rent -Landlord fully supporting his averments in ejectment petition in his deposition and further elaborating them‑Nothing brought out in cross‑examination to show landlord's claim false or based on wrong statements‑Landlord also producing documentary evidence‑Tenant not adducing any evidence to prove his own mere verbal version -Landlord totally denying allegation of mala fides‑Held : Landlord's assertion on oath as to requirement of premises for personal use if consistent with averments in application and not shaken in cross‑examination, has to be accepted as bona fide‑Held further, landlord's desire to enhance rent would not per se be sufficient to cast doubt about personal bona fide requirement.

Haji Majeed v. Imamuddin 1981 C L C 718 rel.

Syed Ziaul Hasan for Appellant.

M. Abdul Aziz Khan for Respondent.

Date of hearing : 15th November, 1982.

This is an appeal under section 21 of the Sind Rented Premises Ordi nance, 1979 against the order dated 23rd September, 1980 passed by the IIIrd Rent Controller, Karachi in Rent Case No. 927 of 1976 allowing the applica tion under section 13 of the West Pakistan Urban Rent Restriction Ordi nance, 1959 and ordering the appellant to vacate the demised premises within (90) days from the date of order.

The facts of the case are as under :‑‑

1. The appellant is tenant of the respondent in respect of ground floor of building No. 54‑E, P. E. C. H. Society, Kashmir Road, Karachi on a monthly rental of Rs. 300. The first floor of the building is in occupation and use of the respondent /landlord.

2. The respondent filed application under section 13(3)(i)(a) of the West Pakistan Rent Restriction Ordinance, 1959 in the Court of the Rent Controller praying for ejectment of the appellant on the ground that he had rented out the premises to the appellant long time ago but since then his children had grown up and he himself had become old and infirm due to old age and, therefore, he found it difficult to live on the top floor and requited the ground floor for his own use and that of his sons. It was his case that he has three sons and two of them are married while the third is contemplating marriage. All required independent accommodation for themselves and their families. He had, therefore, requested the appellant to vacate the premises and served him with notice but the appellant had refused to comply with his request and, therefore, he had been put to necessity of filing the application for ejectment of the appellant.

3. The appellant in his written statement admitted being the tenant and emphasised the fact that he had not committed default in the payment of rent for the last 15 years. He denied that the respondent was infirm and stated that he was enjoying regular good health. He further denied that the respondent required the premises in question for his own use or that of his sons. It was his case that the respondent intended to let out the premises on enhanced rate of rent and to make other pecuniary gains. He further offered to shift to the upper floor of the premises if the respondent preferred to shift on the ground floor due to ole age.

4. It was further the case of the respondent that two of the married sons of the respondent were living separately from him as they had been provided suitable accommodation by their employers. He had further raised the plea that no other members of the family were residing with the respondent on the upper floor except his younger son and that the upper floor consisted of two bedrooms, one living room, two bath rooms and one kitchen. The appellant had asserted that the respondent had strained relations with his sons.

5. On the above pleadings of the parties, the learned Controller settled the only issue whether the applicant requires the premises for his personal bona fide use and for the use of his family, members. He decided the issue in the affirmative after considering the evidence on record, which consisted of the depositions of the respondent and two of his sons Azhar Bashir and Aziz Bashir. The appellant filed his affidavit of evidence and was cross examined on behalf of the respondent.

6. In the instant appeal it has been contended that the impugned order of the Controller and his finding .that the respondent required the premises for his own use and that of his sons, is based on misreading of the evidence on record as the building is on plot of 495 sq. yards and the respondent alone is residing on the upper floor. It was asserted that his sons are not residing with him.

7. A perusal of the record would show that the applicant in his application for ejectment had explained that he had rented out the ground floor of his house as that time his children were young and were students and did not require independent accommodation. With the passing of time he had retired from service, he had become infirm due to old age and was unable to go up and come down from the top floor. He had further stated in his application that of his three sons, two are now established in life and are married and the third son is now of age to marry. They, there fore, required independent accommodation and, therefore, he had sought ejectment of the appellant.

8. These statements of the respondent were fully supported in his deposition where he had further elaborated that his eldest son is Assistant Executive Engineer working in Steel Mills and his second son is technician working in Saudi Arabia. He had further stated that his youngest son is doing his own business and resides with him. His elder son's family also resides with him. He had further deposed to the fact that his second son also comes once in a year with his family and stays in his house and that his family stays with the respondent for about 2‑3 months each time.

9. The respondent had further elaborated that his youngest son had been engaged to be married, in Rawalpindi some months before filing of the application for ejectment. He had further asserted that he would get his son married as soon as he get the possession of the disputed premises.

10. With regard to accommodation available with him he had made it clear that there are two bedrooms, one drawing room, dining room etc. which was in‑the circumstances insufficient for his requirements.

11. It may be observed here that although in the application for eject ment the respondent had mentioned about his being old and infirm, in his deposition he further elaborated that be suffers from diabetes and arthritis and, therefore, he feels difficulty in going upstairs. He had produced photostat copy of his diabetic book and he had also produced medical certi ficate to show that he suffers from enlargement of heart. In his cross examination he admitted that his wife died in the year 1949 but he denied the fact that his sons reside in separate rented house. It was his case that his eldest son who used to get rent from the Steel Mills actually lived with him. He denied that he had strained relations with his sons and on the contrary he re‑asserted that his eldest and youngest sons reside with him. He produced photostat copies of identity cards of his sons in which the address shown was of the same building. He however, disagreed with the suggestion that he should change the top floor with the ground floor and permit the tenant to reside upstairs. The reason given by him was that he was required the accommodation for his sons.

12. As against all the aforesaid ‑evidence discussed above, there was only word of the appellant in his affidavit of evidence firstly that the respon dent was keeping good health and was not ill or infirm and secondly, that all the three sons of the respondent were well‑settled and two of them were married and had independent accommodation provided to them by their respective employers. He re‑asserted that the respondent had strained relations with his sons. He also re‑asserted that the respondent intended to give the premises on enhanced rent to gain pecuniary benefits.

13. As against the documentary evidence produced by the respondent the appellant has not made any attempt to adduce evidence to prove his mere verbal version about sons of the respondent not living with him or about their having separate residences. Again as against the documentary evidence produced by the respondent with regard to his illness and infirmity, there is mere word of the respondent to the contrary.

14. It is apparent that the statement in the application about person requirement of the respondent and his sons, has been fully supported in his deposition and nothing has been brought out in his cross‑examination which could show the claim to be false or based on wrong statements.

15. It is well‑settled legal position that assertion of the landlord o oath as to requirement of the premises for his personal use have to be accepted as bona fide if consistent with his averments, in his application and not shaken in cross‑examination or disproved in rebuttal.

16. With regard to the allegation of mala fides to the effect that the respondent wants to enhance rent for the premises, the respondent had totally denied the same in his deposition and even if it had been proved that the respondent desired to have enhanced rent, the fact would not per se be sufficient to cast a doubt about his personal bona fide requirement. Reliance in this respect is rut on a decision of this Court in Haji Majeed v. Haji Imamuddin (1981C L C 718).

17. Moreover, the safeguard against letting the premises to someone else after getting the tenant evicted was provided in subsection (4) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959 that the tenant could be put back in possession if the landlord does not occupy the premises himself after getting him evicted on the ground of personal need ; and similar safeguard is provided in section 15‑A of the Sind Rented Premises Ordinance, 1979, which repealed the earlier Ordinance, which provides penalty in such cases.

18. Under the circumstances stated above, I find that the decision of the learned Controller was based on proper appreciation of the evidence on record and was in all respects a legal and proper decision. There is no weight in this appeal which is dismissed however, with no order as to costs. The appellant is hereby directed to hand over vacant possession of the premises to the respondent within one month of the date of this order.

K. M. A. Appeal dismissed.

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