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First Rent Appeals Nos.833 and 890 of 1984, decided on 5th April, 1987.

---Ss.15 & 21--Personal requirement--Court has to consider facts of each case as a whole in order to examine question of bona fides of landlord as to his personal requirement.

---Ss.15 & 21--Personal requirement--Landlord, besides his wife, having four children, and keeping in his possession only one room on first floor of premises--Desire of landlord to obtain possession of one more room of same size in occupation of tenant on second floor, held, was reasonable and bona fide personal requirement--Finding of Rent Controller, holding otherwise, which was contrary to evidence on record was reversed.

Mst.Begum Jan v. Abdul Rasool 1984 C L C 755; Qamaruddin v. Hakim Mahmood P L D 1983 Kar. 570 and Abdul Majid v. Anwar Ali 1983 C L C 2511 ref.

----Ss .15 & 21--Default in payment of rent--Entire period of default not explained by tenant--Finding of Rent Controller in favour of landlord arrived at keeping in view state of evidence on record--Order of ejectment, passed by Rent Controller on ground of default in payment of rent, upheld.

Mohammad Saddiq for Appellant.

Zahid Marghoob for Respondent.

Date of hearing: 5th April, 1987.

These are two connected appeals filed by the landlord and the tenant and, therefore, I intend to dispose of the same by the common judgment.

First Rent Appeal No.833/84 has been filed by the landlord for assailing the order of the learned Rent Controller dated 25-7-1984 rejecting two out of the three grounds pleaded in the Rent Case No.24/82 for ejectment namely, personal requirement and nuisance. The appellant in the aforesaid appeal hereinafter referred to as the landlord. Whereas F.R.A. No.890/84. has been filed by the tenant against the aforesaid order for assailing the ejectment order granted on the ground of default. The appellant in the latter appeal hereinafter referred to as the tenant.

2. The relevant facts leading to the filing of the above two appeals are that the aforesaid ejectment application was filed on three grounds, namely, default for the period commencing from December, 1978 till the filing of the ejectment application on' 2-2-1982, personal requirement and nuisance. The above application was resisted by the tenant. The learned Rent Controller on the basis of the pleadings of the parties framed the following issues:-

(1) Whether the opponent has committed default in payment of rent from December, 1987

(2) Whether the applicant requires the premises in question for his and his children's personal bona fide use

(3) Whether the opponent has indulged such activities which has caused nuisance to the applicant and neighbours

(4) What should the order be

The landlord in support of his case filed his affidavit-in-evidence and also affidavits of the three witnesses namely, Govind, his friend, Mst.Razia Sultana, his sister-in-law and Akbar Ali, his brother-in-law, whereas tenant filed her own affidavit-in-evidence. The parties cross-examined the aforesaid witnesses on their affidavits. The learned Rent Controller allowed the ejectment application on the ground of default but rejected the other aforesaid two grounds. The landlord being aggrieved by the above order dated 25-7-1984 filed the aforesaid F.R.A. No.833 of 1984 whereas the tenant also being aggrieved filed F.R.A. No.890 of 1984.

3. Mr.Zahid Margh.oob, the learned counsel for the landlord has not pressed the ground of nuisance before me. He has, however, pressed the ground of personal requirement. I have gone through the affidavits-in-evidence filed by the witnesses on the above point and I find that the landlord in par as 11, 12 and 13 of his affidavit has pleaded his personal requirement, which read as follows:-

"(11) That I say that my family consists of myself my wife Mst.Razia Sultana, two sons and two daughters, who are now aged about thirteen years, twelve years, nine years and seven years, I produce herewith the National Identity Card of myself and, my wife alongwith National Registration Forms of my children (which shows the numbers of my family members to be six in number) as Exhibits A/2, A/3 and A/4 respectively.

(12) That I say that one room accommodation in my possession is quite inadequate for growing requirements of my children two of whom are schoolgoing. I produce herewith school cards of my two children as Exs. A/5 and .As/5

I require the rented premises to cope with the accommodation problem, as the premises in my occupation is not sufficient for a family of six members.

(13) That I have got no other house in Karachi and in dire need of the rented premises, which when vacated by the opponent will relieve me of mental agonies and accommodation problem."

(4) The tenant in the cross-examination has brought on record the factum that the ground floor of the building in question is in occupation of the landlord's brother Sabir Ali, who is residing with his daughter aged about 7 or 8 years. In the cross-examination of the landlord, it was suggested to him that his brother Sabir Ali was residing jointly with him, which suggestion was denied by him but the same has been admitted by the landlord's witness Akbar Ali, his brother-in-law. It has come on record that the wife of Sabir Ali had expired about a year before the filing of the rent case and, therefore, Sabir Ali was putting up in the ground floor with his aforesaid only daughter. Mr.Sadiq, learned counsel for the tenant has vehemently urged that since the landlord has suppressed the fact that he was also in fact in possession of the ground floor and his brother was living with him jointly, this fact itself is sufficient to dismiss his ejectment application on the ground of personal requirement. In furtherance of his above submission he has referred the following cases: -

(1) Mst.Begum Jan v. Abdul Rasool 1984 C L C 755.

(2) Qammaruddin v. Hakim Mahmood P L D 1983 Kar. 570.

(3) Abdul Majid v. Anwar Ali 1983 C L C 2511.

5. The ratio decidendi of the abovecited cases seems to be that in case a landlord omits to mention or suppress a relevant fact in his ejectment application on the ground of personal requirement the Court may dismiss his application if such omission or suppression was actuated with bad faith. In the present case it has been proved that the landlord is in possession of one room measuring 11' x 10' on the first floor. It has also been proved that the landlord's brother Sabir Ali is occupying the ground floor having only one room of the same size, whereas the tenant is also in occupation of one room of the same size on the second floor. The third floor is in the occupation of the landlord's sister. Even if I were to accept the contention of Mr. Sadiq that the landlord had deliberately suppressed the fact that he and his brother Sabir Ali were living jointly after the expiry of his sister-in-law, the factum that the ground floor is in exclusive possession of Sabir Ali and his daughter remained unrebutted. In my view, the Court has to consider the facts of each case as a whole in order to examine the question of bona fide of the land lord as to his personal requirement. In the instant case the fact that the landlord in addition to his wife has 4 children whose ages are mentioned in para. 11 of the affidavit-in-evidence has not been challenged in hiss cross--examination. In my view, the desire of the landlord to obtain the possession of the one room of the aforesaid size in addition to one room in his occupation of the same size, keeping in view the number of the family members as six, is a reasonable bona fide personal requirement and, therefore, I allow the landlord's above appeal on the ground of personal requirement as the finding of the learned Rent Controller is contrary to the evidence on record.

5. As regards the question of default, it may be observed that the learned Rent Controller has allowed the ejectment on the aforesaid ground, as he was of the view that there were contradictions between the ocular evidence of the tenant, his written statement, and his affidavit-in-evidence. The tenant has placed on record a photo copy of a money order and of a rent receipt deposited in Misc. Application No.344/79 filed on 16-7-1979 in the Rent Controller's Court. The money order is for a sum of Rs.40, which was rent for two months at the rate of Rs.20 p.m. The Post Office stamp is dated 23-6-1979, whereas the rent deposit receipt is dated 23-7-1979 for a sum of Rs.60 only. The tenant has not produced any further rent deposit receipt to indicate that the rent for the entire period i.e. from December, 1981 had been deposited. Even if I were to take into consideration the above photostat copies of the said documents, which were not produced before the learned Rent Controller, the entire default period has not been explained. Or, the contrary in the cross-examination the tenant has stated that the landlord refused to accept the rent from December, 1978 and that she has been tendering rent since then. It may be pointed out that the money order was sent for two months in June, 1979 whereas rent was deposited in the aforesaid Misc. Application for three months only. The finding of 'the learned Rent Controller, keeping in view the state of evidence on record, can be sustained. I would therefore dismiss the tenant's appeal. However there would be no order' as to costs. However, I will allow six months time to the tenant from today to hard over vacant possession of the tenement. In case the tenant fails to hand over the vacant possession on the expiry of the above period, the learned Rent Controller shall issue writ of ejectment without further notice to the tenant.

M.Y.H./K-40/K

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