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First Rent Appeal No. 483 of 1983, decided on 6th April, 1987.

----‑‑‑Ss. 21, 2(j) & 15 (2)(iii)(a)‑‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 2(i) & 13‑11 Tenant"‑‑ Definition‑‑Ejectment on grounds of sub‑letting and personal requirement‑‑Tenant leaving for England and settling there with his family and handing over possession of disputed premises to his brother‑in‑law‑‑Person in possession of premises could not be termed as a legal heir of tenant and he had no right to withhold possession of premises on round of marriage with a sister of tenant‑‑Such person, therefore, cold not be termed as a "tenant"‑‑ Landlord having no other house of his own in the city or anywhere in Pakistan and he had ‑a right to live in his house‑‑Personal bona fide requirement of landlord, held, had been proved‑‑Appeal allowed, order of Rent Controller set aside and person in occupation of premises was directed to hand over vacant possession of premises to landlord within two months.

1979 C L C 720 cited.

S. Inayat Ali for Appellant.

Abedullah for Respondent.

Date of hearing: 6th April, 1987.

This appeal under section 21 of Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the said Ordinance) has been filed against the order, dated 30‑4‑1983 of XVII Senior Civil Judge/A S J and Rent Controller Karachi whereby he dismissed the Rent Application filed by Abdul Ghaffar, landlord. Appellant filed Rent Case 840 of 1979 on 15‑2‑1979 under section 13 of West Pakistan Urban Rent Restriction Ordinance on the grounds of default, subletting, personal bona fide requirement and nuisance. Written Statement was filed by the respondent. The Rent Controller on the pleadings of the parties framed following issues:‑--

(1) Whether the opponent has failed to pay/tender the monthly rent from March 1978 to onwards

(2) Whether the demised premises has been sublet by the opponent to his attorney Syed Ghazanfar Ali

(3) Whether the premises was let out for the use and occupation of the opponent alone

(4) Whether the premises are required in good faith for the use and occupation of the applicant

(5) Whether the opponent committed mischief and nuisance

In support of the contentions both the parties adduced the evidence before the Rent Controller. The appellant examined himself and S.A. Sajjad Haider, Choundry Lal Din. While respondent examined his attorney Ghazanfar Ali, Manzoor Hussain, Rifat Ali Zahid and Muhammad Ziaul Hasan. Rent Controller decided ‑all the Issues against the appellant and dismissed his application.

I have heard Mr. Syed Inayat Ali for the appellant and Mr. Ajeebullah for the respondent. Mr. Inayat Ali did not press the Issue No.l of default in payment of rent, therefore, no findings are necessary on this point. It is contended by Mr. Inayat Ali that the premises are in possession of Ghazanfar Ali as respondent Iftekhar Ahmed Ghaznavi who is the tenant has left for England and settled there with his family. It is also argued by the learned counsel that the applicant is a Government servant and has been transferred to Karachi where he is living in accommodation provided by the Government which is not sufficient for his family and he wants to live in his own house, therefore, bona fide requirement has been proved.

On the other hand contention of Mr. Ajeebullah is that bona fide requirement is not proved as the appellant has got Government accommodation which is sufficient for his family. It is further argued that Ghazanfar Ali is husband of a sister of respondent, therefore, as a family member he is living in the house and that the sister of the respondent used to live in the house even at the time the house was taken on rent, hence there is no evidence of subletting. He has relied upon 1979 C L C 720. He has also cited some authorities on the point of personal bona fide requirement and submitted that it is not proved.

The relationship and rate of rent are not disputed whereas the issue of default has not been pressed by the learned counsel for the appellant.

I have gone through the evidence and according to the statement of Ghazanfar Ali the respondent has taken the premises on rent and used to live alongwith his father, mother and one sister. He has stated that father and mother of respondent died in early 1976 and the said sister Saeed Fatima Ghaznavi got married with him in the year, 19721 and as such he is living in the said premises with his wife. If is stated that the respondent has temporarily gone to England but his luggage and articles are lying in the premises and whenever they come to Karachi they use to live in the said house. In the cross‑examination he stated that respondent left Pakistan in 1976 and visited only once while his wife and children visited Pakistan twice.

In these circumstances it is an admitted position that respondent is not living in Pakistan.

Now the question arises whether Ghazanfar Ali could be considered as a legal heir and a person occupying the premises bona fide according to law. It is now an admitted position that Ghazansfar Ali alongwith his wife is in possession of the premises as the respondent neither examined anybody nor he has himself come forward to prove that he is residing in the disputed house. According to section 15 (2) (iii)(a) the tenant is liable to be evicted if he has handed over the possession of the premises to some other person. The definition of 'tenant' as given in the Sind Rented Premises Ordinance, 1979 in section 2 (j) is and under:‑---

"(j) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes.

(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;

(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant;"

Ghazanfar Ali cannot be termed as a legal heir of the respondent and he has no right to withhold the possession of the premises on the ground of marriage with a sister of the respondent. The case was filed under section 13 of West Pakistan Urban Rent Restriction Ordinance and the definition of 'tenant' as given in section 2 (i) of this Ordinance is as under:‑

"(i) 'tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand, or slaughter‑house or of rents for shops has been framed out or leased by a municipal, town or notified area committee, or by the Corporation of the City of Lahore by the Lahore Improvement Trust or any other Improvement Trust."

In my view the respondent is not in occupation of the premises in question and has clearly handed over the possession of the premises to Ghazanfar Ali who cannot be termed as a tenant in view of the above discussion, therefore, the case of subletting has been proved.

With regard to the personal bona fide requirement it is an admitted position and the Rent Controller in his order also has clearly stated that the appellant is posted in Karachi but he has rejected his requirement on the ground that nowadays the appellant is occupying the premises given by the Government. From the evidence there is nothing to show that the appellant has got any other house of his own in Karachi or any where in Pakistan. In my view appellant has got a right to live in his own house with his family. 'He is the best judge of his own requirement. In these circumstances, I hold that personal bona fide requirement has been proved and there is no mala fide on the part of the appellant.

The Contention of the learned counsel that the case has been filed by the appellant as he wanted to enhance the rent cannot be accepted as there is no force in it.

For the reasons stated above, I allow the appeal and set aside the order of the Rent Controller with the result that appellant is entitled to have the vacant possession of the premises. Consequently I direct the respondent to hand over the vacant possession of the premises to the appellant within two months from this order.

S.Q./A‑41/K Appeal allowed.

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