Find a Lawyer

First Rent Appeal No. 780 of 1980, decided on 24th October, 1982.

-- S. 15 (2) (vii) - Bona fide requirement of premises for own occupation-Burden of proof-Tenant's sole ground that landlord has not discharged. burden of proof of requirement of premises in good faith for own occupation especially when occupying another residential building suitable for his needs in same urban area Landlord himself appearing as witness and stating premises nearer to his place of work from rented accommodation he occupied-Land lord submitting to cross-examination, successfully maintaining his position with regard to personal requirement and producing his own landlord as witness-Landlord, held, properly discharged burden of proof of his bona fide requirement of premises.

Muhammad Asghar and S others v. Mst. Jamila Khatoon 1979 C L C 367 distinguished.

Abdul Salam Akhtar v. Dr. Najam Pervez 1976 S C M R S 2 ; Barkat Ali v. Sughra and others P L D. 1979 Kar. 40 and Ghulam Mohyuddin v. Muhammad Ishaq and 3 .others 1980 L C. 241 ref.

Nizam Ali Khan for Appellant.

Mubarak Hussain Siddiqui for Respondent.

Date of hearing : 17th October, 1982.

This appeal has been filed under section 21: of the Sind Rented Premises Ordinance, 1979 -against the order of Rent Controller No. 11, Karachi dated 21st August, 1980, allowing the application of the respondent for ejectment of the appellant on the ground that the demised premises are required by the landlord in good faith for his own use and directing the appellant hand over possession of the premises within a period of 119 days from the date of the order.

The facts of the case are that the appellant is tenant of the respondent in respect of residential premises consisting of flat No. C/37 Azam Square, Liaquatabad, Karachi at monthly rent of Rs. 125. On 30th August. 1977 he filed application before the Rent Controller under section 13 of Sind Urban Rent Restriction Ordinance, 1959 for ejectment of the appellant on the grounds ; that the appellant is a habitual defaulter and was in arrears of rent since March, 1977 and further that the respondent required the premises for his personal bona ,de use.

The appellant in his written statement filed on 2nd January, 1978 admitted the tenancy and the rate of rent, but denied that he had defaulted in payment of rent. It was his case that he regularly paid rent to the respondent himself and obtained receipts. The respondent did not turn up to collect the rent upto August, 1977 and, therefore, he remitted the rent from month of March, 1977 to August, 1977 by money order which was refused by the respondent.

With regard to ground of requirement of premises by the landlord for personal use the appellant in the written statement asserted that the respondent has got many other houses properties within the urban area and that the house in which he was residing belonged to him and is not a rented house. He raised the further plea that the respondent wanted to increase the rate of rent but he had not agreed and that in fact the respon dent did not need the flat for bona fide use.

The learned Rent Controller settled the following issues :-

(1) Whether the opponent is a defaulter and does not pay the rent regularly.

(2), Whether the applicant requires the premises in dispute for his personal bona fide requirement If so what is the effect.

(3) To what relief if any the applicant is entitled

With regard to Issue No: 1 the learned Controller on the basis of the rent receipts produced by the appellant held that although there had been default in the payment of rent since the respondent had been receiving lump sum rent and had been a party to such practice the default could not be considered to be deliberate and, therefore, he exercised his discretion in favour of the appellant holding that the default was not such for which the tenant could be ejected.

Issue No. 2 was decided in favour of the respondent.

The impugned order of the learned Rent Controller is being challeng ed on the sole ground that the respondent had not discharged the burden of proof under section 13(3) of the Sind Urban Rent Restriction Ordinance 1959, that he required the premises in good faith for his own occupation specially as he was occupying another residential building suitable for hiss needs at the time in the same urban area.

As already stated it was the plea of the appellant that the respondent bad other houses/properties and was occupying a house which belonged to him. It was his further plea that the respondent had asked for enhance ment of rent to which the appellant had not agreed, which showed his mala fides.

The respondent gave his own evidence stating that he required the demised premises for his own use as he lived in rented premises and his landlord wanted him to vacate the same. He stated on oath that he did not own or have any other house except the demised premises. He made a definite statement in reply to the allegation of the appellant that the house in which he is residing is not his own and that it is incorrect to say that he wanted to increase the rent. He reiterated his statement in the ejectment application that he was residing in rented premises. Elaborating the reasons for his personal requirement he stated that the premises were nearer to his place of work from the rented accommodation he was occupying by about 7 miles. Thus, it is clear that the respondent himself appeared as a witness and gave expression to his requirements and sub mitted to cross-examination and successfully maintained his position with regard to personal requirement as there is nothing brought out therein which could be considered as discrediting his stand. In view of the stand taken by the appellant in written statement that the premises presently occupied by him belonged to him, he examined his landlord Ghulam Muhammad who fully supported his version that he was occupying rented premises. Ghulam Muhammad even produced the original lease-deed, a photostat copy of which was placed on the record to prove that the respondent was his tenant. He also stated that he was negotiating sale of his property and, therefore, wanted the respondent to vacate.

On the other hand the appellant who gave evidence tried to support his allegations that the respondent was owner of the premises now in his occupation by making vague assertions that a relative of the respondent had given him the information. He could not. even give the name of the relative.

Mr. Nizam Ali Khan, the learned Advocate for the appellant has relied on the decision of- this Court Muhammad Asghar and 5 others v. Mst. Jamrla Haroon 1979 C L C 367, to support his contention that the respondent had failed to discharge the burden of proof with regard to requirement of the premises for his personal use as occupation of rented house by .landlord is not conclusive to prove his need being bona fide. The facts of that case are, however, distinguishable as in that case the landlady herself did not enter the witness-box to state on oath that her requirement was bona fide. Under those circumstances it was observed that :-

"Even it' she is occupying a rented house that fact does not, by itself justify a conclusion that her need is bona fide because, many a time the owners of the house like to live in rented house because the rent paid by them for the rented accommodation happened to be far less than what they charge for their own house."

In the instant case the landlord seeking ejectment for personal need' as already stated did enter the witness-box, and expressed the reasons for requirement of the premises for personal use.

In Abdul Salam Akhtar v. Dr. Najam Pervez1976 S C M R 5.2 ., a decision of the Supreme Court it was inter alia, held that landlord occupying the rented premises is entitled to get his own premises vacated for his own occupation. It was observed by their Lordships of the Supreme Court as under :-

"The requirement that the landlord should riot be in occupation of another residential building suitable for his need at the time does not, in our view extend to cover rented premises, for otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and had no place to live at all. It would be more reasonable to hold that the other residental accommodation which the landlord is occupying at the time must be shown to be his own and not merely rented premises."

The learned counsel for the appellant next relied on a decision of this Court in Barkat Ali v. Sughra and others' P L D 1979 Kar. 40, in which it was observed that onus lies on landlord to establish his entitlement to possession of premises in occupation of tenant by bringing himself within exception to subsection (1) of section 13 and that burden .cannot be dis. charged by a bare and bold statement of landlord that the premises are required to start some unspecified business. The decision does not at all help the case of the appellant as for reasons already given the respondent has properly discharged the burden of proof with regard to his bona fide) requirement of the premises. Reliance has also been placed on the Lahore High Court decision in Ghulam Mohyuddin v. Muhammad Ishaq and 3 others980 C L C 241, wherein it was observed to prove requirement in good faith for own occupation the landlord himself should appear as witness to express his desires, intentions and requirement. The decision however supports the case of the respondent rather than that of the appellant.

With regard to the plea that the, respondent wanted to enhance the rent, the respondent emphatically defied the allegation but even otherwise desire for increase in rent under the present conditions of rampant inflation cannot by itself be considered as a pointer to landlord's maladies.

Under the circumstances discussed above there in no weight in the appeal which is dismissed, however with no order as to costs. The appellant is directed to give vacant possession of the premises to the respondent within one month of the date of this order.

K. M. A. ' Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.