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First Rent Appeal No.113 of 1986, decided on 8th February, 1987.

---Ss.15(2)(vii) & 21(1)--Personal bona fide requirement--Proof- Landlord having sufficient accommodation at his disposal disentitled to seek ejectment of tenant for personal requirement--Landlord having failed to establish his personal bona fide requirement in respect of disputed premises, findings of Rent Controller regarding personal bona fide requirement of landlord were reversed by High Court in appeal.

Arif Bilal Sherwani for Appellant.

Shaikh Muhammad Fazil for Respondent No-2.

Date of hearing: 2nd December, 1986.

The appellant above-named being aggrieved by order, dated 30-1-1986 of the Vth Senior Civil Judge/Rent Controller (West), Karachi passed in Rent Case No.930 of 1985, by which he has been ordered to be evicted, has preferred this appeal on the following facts and grounds:

The brief facts leading to the filing of this appeal are that late Shaikh Muhammad Anil was the owner of house No.2603 comprising of two units bearing Nos.2603/1 and 2603/2 in Pir Elahi Bux Colony, Karachi and the appellant is the tenant of the respondent in respect of- Unit No.2603/2 at the monthly rental of Rs.125. The respondent filed eviction application on the ground of personal requirement. The appellant resisted the eviction application.

The parties adduced oral as well as documentary evidence in support of their case. The respondent examined Shaikh Muhammad Pervez while the 'appellant examined himself besides Zainuddin.

The learned Controller having considered the evidence adduced before her and after hearing the learned counsel for the parties allowed the respondent's application vide order, dated 30-1-1986 and the appellant being aggrieved against the said order has preferred this First Rent Appeal.

I have heard the learned counsel for the parties and have also gore through the eviction order. I have also gone through the statements of all the witnesses produced by the parties as well as the documents on which the parties have relied and produced before the Controller.

The contention of the learned counsel for the appellant is that the learned Controller has misread the evidence.

The eviction application was filed by late Shaikh' Muhammad Aqil against the appellant and averred in para. 2 of the eviction application that he required the premises in question in good faith for the occupation/use of his sons. The then landlord died and his Legal Representatives were brought on the record. They filed amended eviction application wherein they averred that "the deceased applicant 'required the premises in question in good faith for the occupation/use of his sons, now the applicants above named": The appellant filed written statement wherein he denied the allegations made in the eviction application. Sheikh Muhammad Pervez filed affidavit-in-evidence and stated therein that the premises in question are required in good faith for his use and occupation. It was also stated that for want of occupation the marriage of the son was delayed. Sheikh Muhammad Pervez admitted in his cross-examination that they are three brothers and one sister. The names of his brothers were also disclosed in cross-examination. They are Sheikh Muhammad Fazal and Sheikh Muhammad Farooq and one married sister. The witness also admitted that his two brothers are married and he was bachelor. This witness admitted in his cross-examination that his brother Farooq is residing in a separate apartment of his own. This witness admitted that he is residing in H/5 Beach Apartment and it consists of two bed rooms. This witness admitted in his cross-examination that his father was residing with him. This witness denied the suggestion that after securing possession of other property was relate to other tenants. This witness also denied the suggestion that Zainuddin was their tenant. The witness denied the suggestion that he vacated the premises and thereafter it was let out on enhanced rent. The witness also denied the suggestion that they let out the property to one Noor Elahi.

As against the above evidence the appellant stated in his affidavit-in-evidence that the late Sheikh Muhammad Aqil and sons had sufficient accommodation in their occupation to meet their needs and the eviction application was filed to harass him to enhance the rent. The appellant admitted in his cross-examination that he is paying the same rent since last ten years. The appellant also admitted it his cross-examination that late Sheikh Muhammad Aqil had three grow, up children. The appellant denied the suggestion that they wanted the premises for their bona fide use. The appellant to a suggestion replied that they wanted to evict him just to let out the premises at higher rent.

The question which I have to consider is whether the respondents required/needed the disputed premises or not.

Late Shaikh Muhammad Aqil and after his death the present respondents averred in the eviction. application that they required the premises in question in good faith for their own occupation/use. Sheikh Muhammad Pervez stated that the premises in were dispute required in good faith for their own use and occupation and the appellant was requested several times to vacate the same but he had been avoiding to vacate the same on one pretext or the other and as such compelled to file rent case. It is an admitted position that there are three sons of late Sheikh Muhammad Aqil. It is also an admitted position that following accommodation are with them:

(1) Sheikh Muhammad Fazil, his wife and three children who are aged 10,7 and 4 years respectively. He is occupying flat No.H-5 Bridge Apartment.

(2) Sheikh Muhammad Farooque, his wife and two daughters. He is occupying flat N.H-6- Bridge Apartment.

(3) Sheikh Muhammad, Parvez with his mother Shah Jehan Begum is occupying house No.2603/2, Pir Elahi Bux Colony, Karachi.

The house No.2603/1, that is, the premises in dispute consists of three rooms. The area of two rooms is 8' x 8' while the area of third room is 7' x 15'.

The house No.2603/2 consists of three rooms and the area of these three rooms is approximately the same as that of the premises in dispute.

The respondent No.4 admitted in his cross-examination that their property near Gulistan Club was auctioned by the Income-tax Department. The respondent No. 4 also admitted in his cross-examination that they sold one flat and purchased the present flat. It is pertinent to note that he did not give the flat number which was purchased from the sale proceeds of that flat. The respondent No.4 admitted in cross-examination that respondent No.3 is residing in a separate apartment. It is pertinent to note that he did not give the details of the apartment. It is an admitted position that during the pendency of the proceedings the respondent No.4 and respondent No.1 shifted in house No.2603/2. The house No.2603/2 was vacated by the tenant during the pendency of the proceedings.

The admitted position on record is that (1) the respondent No.2 occupies apartment No.H-5 in Bridge Apartment, (2) the respondent No.3 occupies apartment No.H-6 Bridge Apartment, and (3) respondents l and 4 occupy house No.2603/2 Pir Elahi Bux Colony. The respondents 1 and 4 were occupying Shanti Lodge, Karachi. The respondent No.4 disclosed his address in his affidavit-in-evidence. The respondents got vacated house No.2603/2 during the pendency of the case and voluntarily shifted in that premises. It is not explained as to why the accommodation in premises bearing No.2603/2 could not serve that need of respondent No.4 when it is admitted that the premises bearing No.2603/2 in the occupation of the respondents 1 and 4 is identical in accommodation the premises occupied by the appellant. After going through the evidence on record I am of the view that the respondents failed to establish personal and bona fide requirement in respect of the premises in dispute and the circumstances/show that the application lacked bona fide. The finding of the Rent Controller on this issue is, therefore, reversed.

For the aforesaid reasons I accept this appeal, set aside the order of Rent Controller and dismiss the eviction application of respondents. There will, however, be no order as to costs.

H.B.T./A-32/K. Appeal accepted.

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