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First Rent Appeal No. 614 of 1982, decided on 10th April, 1983.

--- S. 15 (2)(vii) Ejectment from house on ground of personal use -- Landlord seeking ejectment of tenants on grounds inter alia of requirement of premises (bungalow) for personal use and use of wife and son-Landlord himself residing in rented house--- Son's marriage being delayed for lack of accom modation in rented house Landlord of landlord (respondent) persistently compelling landlord to vacate rented. house and start ing ejectment case Held, landlord has every right to occupy his own house after getting tenants ejected and in circumstances he has stronger reason to claim possession thereof from tenants.

Abdus Sattar Usman Memon for Appellants.

Amjad Hussain for Respondent.

Date of hearing : 10th April, 1983.

The appellant has filed this appeal from the order of ejectment dated 27th April, 1982 passed by the VlIth Senior Civil Judge and Rent Con-troller, Karachi in Rent Case No. 6814 of 1980. The facts of the case are that Bungalow No. C/2 situated in Dhoraji Colony, Karachi belongs to deceased 1gbal, the husband of respondent No. 1 and father of respon dents Nos. 2 to 4. The appellant had taken the said bungalow on rent from deceased Iqbal in February, 1975 on monthly rent of Rs. 65') payable in advance every month. After the death of Iqbal the appellant continued to occupy the bungalow as tenant of the legal heirs of Iqbai i.e. the respondents. The case of the respondent set up in his eject ment application before the learned Rent Controller was that Bungalow No. C/2 situated in Dhoraji Colony, Karachi belongs to him which he had rented out to deceased Iqbal in February, 1975 on monthly rent of Rs. 650. After the death of Iqbal his legal heirs/representa tives i.e. the present four appellants, who are wife and children of Iqbal continued to occupy the bungalow as tenant of the res pondent.

2. It is alleged by the respondent that the appellants committed default in payment of rent from May, 1980 onwards, that they have also sublet a portion of the bungalow to some other person without his consent and lastly that the premises in question were required by the respondent for his own use and for the use of his wife and son who was going to be married. It was also alleged by the respondent that he himself is occupying a rented house for which he is paying monthly rent of Rs. 800. He, therefore, filed the above ejectment application on 27th November, 1980.

3. The appellants admitted in their written statement that they are tenants of the respondent since 1973 but they have denied that any default was committed or that the bungalow was sublet or that the respondent requires this bungalow for his personal use. They have further alleged that they have spent Rs. 90,000 over repairs of this bungalow and that the respondent cannot eject the appellants before he makes payment of Rs. 90,000 to them. It is not denied that the respondent himself is living in a rented house but they state that he owns another bungalow also which is Bungalow No. 98 in Garden East, Karachi. They have, therefore, pleaded that the ejectment application is liable to be dismissed.

4. On the above pleadings the learned Rent Controller framed the following issues:

"(1) Whether the Opponents have committed default in the payment of rent from May, 1980 to November, 1980

(2) Whether the Opponents have subletted or handed over the pos session of premises in question to some other person

(3) Whether the premises in question is required by the applicant for his own occupation and for the occupation of his wife and son who is to be married

(4) What should the order be "

After recording evidence of the parties the learned Rent Controller held that the subletting of premises was not proved but the pleas of default in payment of rent and bona fide requirement of the respondent were proved. On these findings the ejectment application was allowed and the appellants were directed to vacate the bungalow within two months.

5. During arguments only the question of bona fide requirement was pressed by the learned counsel for the respondent. His plea wasthat the respondent himself is residing in a rented house for which he is paying Rs. 800 per month as rent. It is also in evidence of the respondent that he has got a wife and son who is going to be married but his marriage _A is being delayed because of lack of accommodation in the rented house in which he is presently living. About Bungalow No. 98, :n Garden East, the respondent stated that it belonged to his wife which has been sold away three years back. Accordingly to Mr. Abdus Sattar Memon learned counsel for the appellants Bungalow No. 98, Garden Fast is still occupied by the respondent and that for this reason he is not entitled to have the premises in dispute vacated. It is argued that no documentary proof has been produced by the respondent in respect of sale of Bungalow No. 98, Garden East.

6. Learned Rent Controller placed reliance upon the affidavit of respondent Noor Muhammad in which he had stated that Bungalow No. 98, Garden East is not in his occupation, that it belongs to his wife and that it has been sold away. It was further held by the learned Rent Controller that since it was admitted that the respondent was living in a rented house, hence he was entitled to get his own house vacated for his bana fide requirement,

7. During the arguments learned counsel for the respondent produ ced a certificate in respect of payment of capital gains tax issued in connection with the sale of Bungalow No. 98, Garden East. The certi ficate was perused and returned to the learned counsel because it was not accompanied with an application at the appellate stage. However, there can be no doubt as to the fact that there is sworn testimony of the respondent that house No. 98, Garden East has been sold away and that even otherwise that House did not belong to the respondent. It was the property of the respondent's wife. Mr. Abdus Sattar Memon^'s contention was that the wife of the respondent was only the ostensible owner while the real owner was the respondent himself of the said house in Garden East. There is no evidence on record to hold that the real owner of the house in the Garden East was the respondent himself. The certified copy of Form P. T. 1 produced by the appellants in their evidence as Annexure 0/10^' shows that Amina Bibi wife of Haji Noor Muhammad is the owner of Bungalow No. 98, Garden East. He has also placed reliance upon the entry in Column 3 of this form in which the bungalow has been described residential/ self. It has been argued that this entry proves that the appellant himself is residing in Bungalow No. 98, Garden East which ostensibly belongs to his wife but in fact is the property of respondent himself. It may be stated that Form P. T. 1 (Annexure '0/10') was issued on 20th December, 1972. The entry in the form would show the position of this house as obtained in the year 1972. However, the entry does not show that Haji Noor Muhammad the respondent is himself still occupying Bungalow No. 98, Garden East.

8. I have no reason to take exception to the findings of the learned Rent Controller that Bungalow No. 98 in Garden East which belongs to the respondent^'s wife has already been disposed of and that presently he is residing in a rented house which fact is not denied by the appellants themselves.

9. Since the respondent is occupying a rented house, therefore, he has every right to occupy his own house after getting the appellants ejected. It is also in evidence that the landlord of the respondent has been persistently compelling the respondent to vacate the house occupied by him. The respondent's landlord has also filed an ejectment case against the respondent, certified copy of which has been filed as Annexure "0/1". This document shows that Haji Saleh Muhammad,' whose house was taken on rent by the wife of the respondent who are living together, has taken legal steps to eject the respondent and his wife from the house which they are occupying. In view of this case, the respon dent has stronger reason to claim possession of his own house from the appellants.

For the above reasons no exception can be taken to the findings of the learned Rent Controller that the respondent is entitled to get possession of the premises in question for his bona fide requirement. The appeal is, therefore, dismissed with costs. The appellants, however, are granted three months time to vacate the rented premises.

K. M. A. Appeal dismissed

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