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First Rent Appeal No. 115 of 1986, decided on 21st December, 1986.

---S.15(2)(vii)--Eviction of tenant--Plea of personal bona fide heed- Proof--Landlord filing eviction applications against tenants in respect of large and auspicious building consisting of five flats and four shops on ground of personal bona fide need--Landlord was proved to be in occupation of his own house sufficient to accommodate his family and also carrying on of his business in his own shop--Plea of personal bona fide need in respect of premises in dispute having not been proved by landlord by cogent and valid reasons, bona fide requirement of landlord in respect of premises in dispute, held, was not established in circumstances.

1985 C L C 562; P L D 1984 Kar. 141; 1984 C L C 2418; 1983 C L C 2511; 1984 C L C 755; 1984 C L C 645; 1984 C L C 1061; 1984 C L C 315; P L D 1983 Lah. 103; 1964 M. P. L. N. 12; A I R 1960 Madh.Pra. 345; 1983 S C. M R 402; P L D 1984 Kar. 14; Karamatullah Khan v. Muhammad Umar 1984 C L C 645; 1984 C L C 1061, 1984 C L C 3157; Ch. Allehditto v. Abdul Aziz 1984 C L C 651; Shakir Hussain Chishty v. E. A. Breqouza P L D 1984 Kar. 141; Malik Muhammad Ramzan v. M/s. General Iron Stores etc. 1984 C L C 2418; 1984 C L C 755; Sultan Press v. Muhammad Hussain P L D 1985 Kar. 624; Rashid Hussain and 2 others v. Hassan Haji Ahmed P L D 1973 Note 138 209 and Dildar Hussain Nayyar v. Niaz Muhammad Dar and another 1985 S C M R 1769 ref.

F.M. Piracha for Appellant.

Qamar Muhammad Khan for Respondent.

Date of hearing: 8th December, 1986.

I propose to dispose of seven First Rent Appeals bearing Nos. F.R.A. No. 115 of 1986 to 121 of 1986 by this single order as grounds taken in all the rent cases are common and landlord is same.

2. Muhammad Raziq/landlord filed 7 (seven) Rent Cases Numbers R.C. No. 3937/79 to R.C. No. 3943/79 against tenants on personal bona fide requirement. The Rent Controller by single order dated 16th February, 1986 allowed the applications and directed the appellants to handover possession of the premises to respondent within one month. Appellants being aggrieved with the judgment of VIII, Senior Civil Judge/Rent Controller (South) Karachi filed these appeals under Section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as 'Ordinance').

3. Appellants are tenants of shops and flats of Rahim Manzil, Survey No.1, Sheet No.1Y-38, Old No.1Y-38/K-10, Tanury Road, Lyari Quarters, Chakiwara No.1, Karachi. Respondent in rent application stated that he has a large family with small existing accommodation and also has his welding and motor repair business in a small shop. He purchased the building with the sole purpose and object of accommodating his family therein and for the expansion of his welding, motor repair and garage business. The ground of additions and alterations has also been taken. In written statement tenants/ appellants took the plea that premises are not bona fidely required by the respondent for personal use but rent cases have been filed so as to get the entire building vacated to let out at enhanced rent and pugree.

4. Rent Controller on pleadings of the parties framed the following issues.

(i) Whether appellants have committed wilful default in payment of rent

(ii) Whether the premises in dispute are and use required by the respondent bona fidely and in good faith for his own use and use of his family members

(iii) Whether the appellants have carried out the additions and alterations which have materially impaired the value and utility of the premises in dispute

Issues No.1 and -3 were not pressed. The Rent Controller/ Senior Civil Judge, VIIIth Karachi by judgment dated 27th July, 1983 allowed the rent applications and passed eviction orders. The appellants filed appeals in High Court. All the appeals were allowed. The order of the Rent Controller was set aside by an order dated 7-10-1984 passed in F.R.A. No. 639/83 and cases were remanded with the observations that bona fide requirement of family members of Respondent/ landlord, should only be considered and request of families of two brothers of respondent be excluded. Once again VIIIth Rent Controller and Senior Civil Judge (South) Karachi, allowed all the rent cases and these appeals have been filed.

5. Mr. F.M. Piracha, appearing for the appellants contended that family of respondent consists of 12 members out of which nine are minors therefore, requirement of entire building of five flats and four shops is not genuine and cases have been filed with mala fide. He has argued that respondent owns one shop and residential accommodation and this fact was concealed. He has referred to the cases reported in 1985 C L C 562, P L D 1984 Kar. 141, 1984 C L C 2418, 1983 C L C 2511 and 1984 C L C 755. It is contended that sons of respondent are minors and grounds were not taken in the rent application and shifting of ground is not permissible. He has referred to the cases reported in 1984 C L C 645, 1984 C L C 1061, 1984 C L C 315. He argued that landlord should be needy not greedy. On this, reliance is placed on P L D 1983 Lah. 103, 1964 Madhra Pradesh Law Notes page 12 and A I R 1960 Madh.Pra. 345.

Mr. Qamar Muhammad Khan appearing for respondent argued that accommodation with respondent is not sufficient and bona fide requirement has been proved. It is argued that it is desire of landlord to live in his own house, carry out business in his own shops. He has referred to the cases reported in P L D 1984 Karachi 141 and 1983 S C M R 402.

6. Rent Controller, in his earlier judgment dated 27th July, 1983, considered the requirement of 12 family members of respondent and 22 members of his brothers. This was not accepted by High Court. The cases were remanded back. The order of remand was not challenged in Supreme Court. It was observed by this Court to consider the bona fide requirement of family members of respondent. On remand in Rent Case No. 3940/79 (F.R.A./115 of 1986), respondent Muhammad Raziq filed his affidavit-in-evidence in which he stated that building consists of five-small shops on the ground floor each measuring 8 x 12 feet and three residential tenements each comprising of two small rooms with usual amenities. He has stated that his family comprising of his wife and ten children, five sons, five daughters, aged mother, aged widow paternal aunt are presently living in two hutments raised, unauthorisely on Municipal land. He is doing business of Auto Electrician, welding etc. on Municipal land on Chakiwara Road. According to him that place is on road which is not safe. He has given justification of his requirement. It is stated that his sons Muhammad Tariq aged 20 years and Muhammad Arif aged 15 years will be associated in business. The same is the evidence of respondent in all the rent cases. The cross is also same. In his cross-examination, respondent admitted that his one child is major and in all 14 members of family are living in the present premises. The house in occupation and shops are owned by him. He has denied suggestion in respect of his own shop on plot No. 279-P.T.1 shown to him and is produced as Ex. 10/A. He is running business in his shop constructed by cement block since 1960, Photographs produced as Ex. 10-B. He has stated that business has not increased. He has stated that "I do- not want to vacate the premises in my possession and demised premises is at the distance of about 200 yards from the premises in occupation". The building which he wants consists of two storeys having five flats and there are ten tenants in the building and he is seeking ejectment of all the tenants of the building.

Appellants in their evidence have stated that they are old tenants having large families. The respondent has sufficient accommodation in his possession and his requirement is not bona fide.

7. The respondent has filed cases against all the tenants occupying three shops and four residential flats. The cases were remanded by this Court to Rent Controller to consider personal requirement of family of respondent as per clause (g) of section 2 of the Ordinance in order to demonstrate that the personal requirement of a married brother cannot be included as a part of personal requirement of landlord. The requirement pleaded at the initial stage at the time of filing rent cases was for 34 members including family of his brother. In fact the family of landlord comprising of 14 members, therefore, bona fide requirement for 14 members cannot be equally working members but after remand of the case respondent again pleaded that entire building is required for his use. The Rent Controller has considered the cases reported in 1983 S C M R 402 and P L D 1984 Kar. 14 but not considered the other aspect of the cases. Respondent in all the cases pleaded in para. No.4 of rent application that:-

"That opponent is the close neighbourer of the applicant since a very long time and they very well know that the applicant has got a very large family with a very small existing accommodation and also has welding and motor repair business located .in a small shop. This fact was made known to the opponent on repeated occasions i.e. that the applicant purchased the building in question from its previous owner with a sole purpose and object of accommodating his family therein and for the expansion of his welding, motor repairing and garage business. The inclusive of the premises occupied by the opponent is accordingly needed in good faith by the applicant for his bona fide personal use."

The same are the contents of the affidavit in evidence filed by Muhammad Razik/landlord on 4-5-1980 in all the cases. The language of rent application and affidavit are stereotype.

8. On remand he filed another affidavit in evidence on 4th December, 1984, in which he required the premises for 14 members of family, as stated above. The Rent Controller in his judgment over-looked that the requirement of 34 members and 14 cannot be the same, the respondent is in possession of a shop and own residential accommodation, that his business has not increased and he does not intend to vacate the premises in his possession and in spite of that wants the entire building. Form PT-1 Ex. 10-A has been produced showing that respondent is owner of AK-10-195-38 a garage but he has denied to be the owner of that premises. He has stated that he is not owner, of plot No. 279, whereas in identity cards of son of respondent and other members of his family the residence is shown as 279 Denso Road, Chakiwara. Respondent in his rent cases has shown his residence, House No. 279-Denso Road Old Behar Colony Chakiwara No. 1. There are also material contradictions in the evidence of respondent in respect of accommodation and other points.

9. Now I revert to the case law. In cases of Karamatullah Khan v. Muhammad Umar 1984 C L C 645, 1984 C L C 1061, 1984 C L C 3157 and in case of Ch. Allahditto v. Abdul Aziz reported in 1984 C L C 651, it has been held that introduction of requirement of son, shifting of personal requirement for son, which fact was never alleged in pleadings, the party cannot be allowed to prove a case different from what is pleaded earlier. In the present case respondent in the rent cases not pleaded requirement for his son in business nor it is stated that his son who is major is to start business independently. In case of Shakir Hussain Chishty v. E. A. Breqouza, P L D 1984 Kar. 141 held that landlord not disclosing in his application for ejectment that he also owns another flat in the same area, the requirement not fulfilled. With regard to suppression of fact the reliance is placed on a case of Malik Muhammad Ramzan v. M/s. General Iron Stores etc. 1984 C L C 2418 and 1984 C L C 755 where it has been observed that when landlord is not coming with clean hands and suppressing material fact in rent application, the bona fide requirement is not proved. In case of Sultan Press v. Muhammad Hussain reported in P L D 1985 Kar. 624, held that when Rent Controller not considering material placed before him, the order could not be sustained. In the above case it is observed that a mere Ipse-dixit of landlord that he requires premises in good faith is not enough but such fact must be supported by valid reasons as to his requirement being genuine. In case of Rashid Hussain and two others v. Hassan Haji Ahmed reported in P L D 1973 Note 138 at p. 209 observed that law provides relief to needy and not to greedy. Lastly in case of Dildar Hussain Nayyar v. Niaz Muhammad Dar and another reported in 1985 S C M R 1769 observed that it is for the Rent Controller and the first appellate authority to ascertain and determine the exact need of the respondent and then decide upon the question of passing an order of ejectment.

10. High Court set aside the ejectment order passed by the Rent Controller in earlier First Rent Appeals and observed that requirement of brother's family of respondent be excluded, but ignored the fact and again has allowed all the applications for the requirement of 14 members and shops for respondent. For the reasons stated above, I hold that bona fide requirement of five flats, four shops is not proved. Consequently I allow the appeal and set aside the order dated 16th February, 1986 of VIIIth Senior Civil Judge and Rent Controller (South) Karachi with no order as to costs.

H.B.T./M-118/K Appeal allowed.

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