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First Rent Appeal No.832 of 1983, decided on 16th April, 1987.

---Ss.2(F) & 15 (vii) --Ejectment application, maintainability of--Person collecting rent of premises on behalf of landlord being a "landlord" within definition of word "landlord" contained in S.2(F), ejectment application filed by him on behalf of original landlord as his attorney on ground of personal bona fide requirement of such landlord held, would fall within purview of S.15(vii) and would be maintainable.

1982 C L C 1444; 1984 C L C 265; 1984 M L D 846; 1985 C L C 2271; 1985 S C M R 2012; 1986 C L C 395 and 1986 C L C 869 rel.

--S.15(vii)--Ejectment of tenant--Personal need--Proof--Assertion of landlady on oath that since accommodation at her disposal was quite insufficient, she bona fide needed premises in dispute for her own living alongwith her children, having not been shaken in cross examination or disproved in rebuttal--Personal bona fide need of landlady, held, was proved and her application for ejectment could not be said as having been filed with mala fide intention in circumstances.

Mst. Hajra Bai Suleman v. Mst. Aisha Bai 1982 C L C 1444; Mst. Anwari Begum v. Noor Hassan 1984 C L C 265; Ghularo Akbar Mangi v. Mrs. Shah Noor Afzal 1984 M L D 846 and Mrs. J.C. Rahman v. Mrs. Sultan Ahmed 1985 C L C 2271 ref.

S.H. Rizvi for Appellant.

S.M. Alam for Respondent.

Dates of hearing: 15th and 16th April, 1987.

This appeal u/s 21(1) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) has arisen from an order of eviction dated 10th October, 1983 passed against the appellant in Rent Case No.4705/81 by learned IInd Senior Civil Judge/ Controller, Karachi.

The Rent Case. No.4705/81 was filed by Muhammad Hussain Siddiqui u/s 15 of the Ordinance, representing to be attorney and Rent Controller of Mst. Durdana Begum w/o Khaja Naseeruddin. It is in respect of tenement bearing No.448-C on 3rd floor of the building, in occupation of the appellant as the tenant. The applicant Muhammad Hussain averred in the application that the owner of the house, namely Mst. Durdana Begum was living with her husband Khawaja Naseeruddin at .Lahore while he was in Govt Service there and that her husband had died and she was forced by the circumstances to 'shift to Karachi alongwith her three grown-up sons and five daughters and she needed the rented premises for their own living. The application was resisted by the appellant/tenant on several grounds including non-maintainability of the application. The learned Controller repelled the objections agitated by the appellant except the allegations of default in payment of rent and passed the order of eviction on the ground of the personal bona fide need of the landlady.

The learned counsel for the appellant has urged - that the ejectment application filed by Muhammad Hussain Siddiqui could not be maintained as he, being the attorney and/or Rent Controller could not file ejectment case for the personal use of the landlady. He has next urged that bona fide need advanced by or on behalf of the landlady has not been proved in as much as that other two tenements in the same building are at the disposal of the landlady. He has alleged that in fact Muhammad Hussain Siddiqui's interest is in getting the premises vacated for his own use and he has made reference to his statement in cross-examination that he would occupy the premises. He has relied upon the cases reported in 1982 C L C 1444; 1984 CLC 265 and 1984 M L D 846.

On the other hand, the learned counsel for the respondent has contended that the application is maintainable as Muhammad Hussain Siddiqui filed it in the capacity of landlord's attorney and Rent Controller. In this respect he has relied upon a case reported in 1986 C L C 869. He has further contended that bona fide need for getting the rented premises vacated has been proved by the evidence of the landlady Mst. Durdana Begum herself and her attorney Muhammad Hussain Siddiqui, who is her brother. He has relied upon the cases cited at 1985 C L C 2271; 1985 S C M R 2012; and 1986 C L C 395. He has denied that the landlady has first floor and second floor of the building at her disposal. According to him, the second floor is in occupation of a tenant against whom a Rent Case No.748/85 is pending in the Court of IIIrd Senior Civil Judge/ Controller, Karachi (East). He has further stated that the first floor is in occupation of the children of a cousin sister of the landlady, by name Mst. Khaleequnisa and the respondent does not have any other place of her own to live in.

The objection to the maintainability of the rent case has been raised on the' ground that Muhammad Hussain Siddiqui could not file case for eviction of the tenant for the personal use of the landlady and the learned counsel for the appellant has referred to section 15 of the Ordinance and urged that subsection 7 of section 15 provides that the landlady could seek eviction of the tenant for her own occupation or use or for the occupation or use of his spouse or any of his children. According to him, the brother could not file the eviction case on behalf of his sister on the ground that the rented premises would be occupied or used by her or her children. The contention of the learned counsel is that only husband can file such eviction case for the benefit of his wife and vice-versa. According to him the case reported in 1986 C L C 869, relied upon by the learned counsel for the respondent, is not attracted as in that case the eviction case was filed by husband for the benefit of his wife but, in the instant case, the brother has filed eviction case for the benefit of his sister which is not permitted by law. The objection to the maintainability 'of the application does not seem tenable. The ejectment application was filed by Muhammad Hussain Siddiqui as the attorney and rent collector of the landlady Mst. Durdana Begum. Being the rent 'collector, he held the status of landlord within the definition of word "landlord" contained in clause (f) of section 2 of the Ordinance and he filed the ejectment case as the attorney of the landlady. The landlady did file her own affidavit in evidence reiterating the regards of, bona fide need of getting the rented premises vacated for her own living alongwith her children. The ejectment application was essentially an application on her behalf and therefore it fell within the purview of subsection 7 of section 15 of the Ordinance.

As regards the issue of personal need in good faith, there is evidence of the landlady that after the death of her husband, the circumstances have compelled her to shift to Karachi alongwith her children and she has been supported by her brother Muhammad Hussain Siddiqui. The appellant has disputed her bona fide need. The learned counsel for the appellant has urged that the landlady is owner of the entire building consisting of ground floor and three storeys and that she is already in possession of the ground floor and the first floor, while she has filed ejectment case against the tenant on the second floor as well as against the appellant occupying the third floor. He has further urged that the landlady has admitted in cross-examination that one of her sons is serving in Saudi Arabia and daughters are married and they have been living with their and therefore the number of her family members is reduced 6 including herself and only accommodation of one floor sufficient for her requirement. According to him, the second floor has vacated the premises about one and half years ago and the premises is lying vacant at the disposal of the respondent/ landlady. He has alleged mala fides behind ejectment case against the appellant. The learned counsel for the respondent has contended that the ejectment case against the tenant on the second floor is still pending and the tenant has not surrendered its possession and that premises is not available to the respondent. He has further contended that the first floor was in occupation of a cousin sister of the landlady and after her death her children were living there and that premises too is not available to the respondent. According to him the third floor is the only premises for getting it vacated for personal living of the landlady alongwith her children. He has pointed out that it has been brought in evidence that the building is situated on a small plot and each floor consists of one bed room, one small hall with small out houses and the landlady would need all the three floors for accommodating herself and her five children. He has stated that the ground floor is a commercial premises and is not available for living purpose.

Amongst the cases relied upon by the learned counsel for the appellant, the first case is MST HAJRA BAI SULEMAN VERSUS MST. AISHA BAI 1982 C L C 1444. In that case, eviction of the tenant on the ground of personal requirement was not accepted as the ground advanced was that the landlady was occupying another premises and there was no further evidence as to what was the need of the landlady for getting the premises vacated. This case is not directly applicable to the facts of this case. The other case is that of A1ST A.NWARI BEGUM VERSUS NOOR HASSAN 1984 C L C 265. The eviction of the tenant was refused on the ground that the landlady was occupying ground floor, the tenant was residing on the top floor and some portions on the first and second' floor had fallen vacant during the pendency of the proceedings and they were let out to other tenants. That is not the case her. In the third case of GHULAM AKBAR MANGI VERSUS MRS. SHAH NOOR AFZAL 1984 M L D 846, ejectment application was not allowed as the landlord was living in official residence and one flat in the same building was available for his personal use but he had not occupied it. The facts of that case were obviously different from the facts of this case. As against the aforesaid cases, the learned counsel for the respondent has placed reliance on a case Mrs. J.C. Rahman v. Mrs. Sultan Ahmed 1985 CLC 2271. It was held in that case that assertion of landlady on oath as to requirement of personal use had to be accepted if such assertion was not shaken in cross-examination or disproved in rebuttal. It was further held that discretion of landlady to choose anyone of the premises belonging to her and the landlady's demand for ground floor could not be frustrated on the ground that upper portion was lying vacant. In the other case BHALEDINO V. DIN MUHAMMAD AND 6 OTHERS 1986 C L C 395 relied upon by the learned counsel for the respondent, it was held that statement made on oath by landlord with regard to personal requirement being inconsonance with pleadings remaining unchallenged and unshaken and supported by witnesses with no rebuttal had proved the case of landlord for needing rented premises vacated for his bona fide use and occupation.

As discussed above, the respondent landlady has sought eviction of the appellant of the rented premises on the ground that she would live there alongwith her children on her shifting from Lahore consequent to the death of her husband. The learned counsel for the appellant has contended that the husband of the landlady died at Lahore many years back and she had been living there and she claimed that her family consisted of three sons and five daughters but she came with truth in cross-examination that one of her sons was in Saudi Arabia and two of her daughters were married and they were living with their husbands and therefore her requirement stood reduced to the family consisting of herself and her two sons and three daughters and her requirement is to be considered in that perspective. He has not contended that she could accommodate herself and her children on the first floor which is available to her after the death of her she-cousin as claimed, or even on the second floor which has been vacated by the tenant. During the pendency of appeal, an-application u/s 21(3) of the Ordinance (CMA 1422/85) was filed for allowing the appellant to adduce evidence that the first floor and the second floor are lying vacant for the disposal of the landlady. It has not been disputed on behalf of the respondent that the lady living on the first floor has expired, but it has been represented that children of that lady are still occupying that premises. As regards"' the other ground that the tenant on the second floor has vacated the premises, the learned counsel for the respondent has made categorical statement that the rent case No.748/85 filed against that tenant by name Hakim is' still pending in Court. The learned counsel for the appellant has not controverted the statement made by Mr. S.M. Alam Advocate that the rent case No.748/85 filed against the tenant on the second floor is still pending: In these circumstances, no additional evidence sought to be reduced under application CMA No.1422/85 seems necessary. Admittedly, the accommodation on each floor consists of one bed room and one hall without houses. The respondent's family needing the premises presently for their living consists of herself and her five children. The family's reasonable requirement would be at-least -two floors for comfortable living. In such circumstances, the need put forth by the respondent for getting the rented premises vacated does not seem unreasonable. It may be mentioned that- the learned counsel for the appellant has pointed out that the landlady's brother Muhammad Hussain Siddiqui who had filed rent case has disclosed in cross-examination that he would live in the premises sought to be vacated. In this respect, the learned counsel for the respondent has argued that such statement has reference to the requirement of the landlady and the statement was made in that context. Of course, Muhammad Hussain Siddiqui did make such statement that he would live in that premises but reading that statement alongwith his other para of her statement, it appears that such statement has reference to the requirement of the landlady and her children. It is not alleged that the landlady owns or is in occupation of any other premises in Karachi. It is not disputed that her husband was in service at Lahore and he died there. All these circumstances lead to the conclusion that the respondent does bona fidely need the rented premises for her own living alongwith her children and there do not seem mala fide behind the ejectment case. For the aforesaid reasons, the appeal is dismissed with no order as to costs.

The appellant is allowed three months time for vacating the premises.

H.B.T./R-12/K Appeal dismissed.

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