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First Rent Appeal No. 208 of 1985. decided on 10th December, 1985.

---S.15(2)(ii)--Bona fide personal requirement--Any misstatement, material to the controversy or suppression of fact whose disclosure will prejudice claim of landlord, would reflect against good faith and bona fides of landlord.

Begum Jan v. Abdul Rasool 1984 C L C 755 and 1983 C L C 1409 ref.

Abdul Majid Khan for Appellant.

Muniruddin Alvi for Respondent.

Date of hearing: 10th December, 1985.

The respondent filed ejectment case against the appellant in respect of house No. 525 Pir IIlahi Bux Colony, Karachi on the ground of personal bona fide requirement and default in payment of rent. The learned Controller allowed the application on ground of personal bona fide requirement but rejected the plea of default. I have heard Mr. Abdul Majid Khan, Advocate for the appellant and Mr. Muniruddin Alvi for the respondent at length and gone through the entire evidence on record. Mr. Abdul Majid Khan the learned counsel for the appellant has contended that the respondent has failed to establish her personal bona fide requirement and as she has made misstatement and come with unclean hands, she is not entitled to any relief. The respondent's case is that she is residing in a single room in the house of her parents where a large number of family members consisting of married and unmarried brothers and sisters also reside. It is, therefore, inconvenient to reside in the said house. It was also pleaded that she requires the disputed house in good faith for her occupation and for the occupation of her family. According to Mr. Abdul Majid Khan in her cross-examination the respondent has admitted that she is residing with her sister in a house in North Nazimabad Karachi. The learned counsel contends that there is discrepancy in the statement and the pleading as in the ejectment case she has stated to reside in the house of her parents in Nazimabad which is constructed on a plot of 216 square yards. The ejectment application was filed on 15-11-1980 and she was cross-examined on 25-5-1982. There is every possibility that she was residing earlier with her parents but subsequently has shifted to her sister. This fact has been corroborated by the evidence of Noor Jahan sister of the respondent. This statement itself does not militate against the bona fides of the respondent. If the appellant wanted to establish respondent's lack of bona fides she ought to have proved such facts. A person pleading lack of bona fide is bound to establish it. The evaluation of evidence clearly shows that the claim of the respondent was made in good faith and bona fide. She is residing either in the house of her parents in North Nazimabad or in the house of her sister. There is no evidence on record to show that she is residing in her own house or in the house of her husband. Therefore change of residence which may have happened with the passage of time cannot be a sufficient factor for rejecting the testimony of the respondent and her witness.

The learned counsel for the appellant further contended that the correct facts have not been stated by the respondent and as she has suppressed them she is not entitled to the relief. In this regard the learned counsel has referred to 1984 C L C 755 where the landlord was seeking ejectment of the tenant on ground of personal requirement misrepresenting that she is a widow. In these circumstances it was held that such misrepresentation adversely reflects on the bona fide of the claim. The learned counsel also referred to 1983 C L C 1409. This case is completely distinguishable on facts. In this case misstatement regarding accommodation available to the landlord was held to reflect adversely on his bona fide. It is thus well settled that any misstatement which is material to the controversy or suppression of fact whose disclosure will prejudice the claim of the landlord reflects against the good faith and bona fides of the landlord. In the present ease there is no misstatement of fact. There may be variation which is not a misstatement and in fact, I find that both the statements are correct.

The learned counsel then contended that burden was upon the landlord to prove his bona fides and good faith. He has referred to 1984 C L C 2418. P L D 1985 Quetta 142 and P L D 1985 Kar. 639. There can be no dispute with the proposition of law. In the present case the respondent has established her bona fides, good faith and personal requirement. She does not own any house. She is living either with her parents or with her sister. She is the owner of the house in dispute. From the record it seems that her husband has retired and both of them are living some where else. In these circumstances the finding of the learned Controller is proper and unexceptionable.

The learned Controller has given his finding against the respondent on issue relating to default claimed by the respondent. Mr. Alvi the learned counsel for the respondent has, therefore taken this opportunity to assail this finding in this appeal. The default has been claimed for the period 1-5-1983 to 31-1-1975. The ejectment application was filed on 15-11-1980. The rent from 1-5-1973 to 31-1-1975 has been deposited in the previous rent proceeding and thereafter rent from February 1975 till the filing of the ejectment case was deposited in the same rent proceedings which had been disposed of. In these circumstances the question of wilful default will not arise Mr. Abdul Majid the learned counsel has further contended that in view of 1980 C L C 664 the rent due beyond the period of three years cannot be made subject-matter of ejectment. In view of the fact that the appellant had deposited the rent Court upto date the question of default does not arise. The appeal is, therefore, dismissed. The appellant should hand over the vacant possession to the respondent within four months.

M.A. K./A-121/K Appeal dismissed.

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