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First Rent Appeal No.77 of 1984, decided on 5th April, 1987.

‑‑‑Ss.13 & 15‑‑Ejectment of tenant‑‑Bona fide personal requirement‑ Demand in enhancement of rent not to affect bona fide personal need‑‑In case for ejectment on ground of bona fide personal requirement, no adverse presumption, held, could be advanced against landlord's bona fide, merely on ground‑that he had been getting rent increased from time to time or that he had been demanding enhancement in rent‑ Requirement of premises for bona fide personal use could be established by convincing evidence which had not been rebutted or disproved by the other side.

Musarat Amin v. Muhammad Mobin 1986 C L C 2033 and Mst. Safia Amir Hussain v. Mst. Razia Zaidi1986 C L C 1483 rel.

‑‑‑Ss. 13 & 15‑‑Bona fide personal requirement of landlord‑‑Proof of‑ Where landlord was an old man with a large family consisting of wife, four sons, one of whom was married and rest were of marriageable age whose marriage had been held up due to Daucitv of accommodation and one unmarried daughter and the other though married was living with him, such landlord, held, would be in need of premises in occupation of tenant.

Ashraf Ali v. Ali Muhammad 1986 C L C 735 and Riaz Khan v. Sodagner 1983 C L C 1343 distinguished.

‑‑‑S. 21‑‑Bona fide personal requirement‑‑Dismissal of ejectment petition on ground that landlord failed to prove bona fide personal requirement‑ Where assertion of landlord that he required premises for his personal use was found to be consistent with averments in his application and not shaken or disproved in rebuttal, such assertions, held, were to be accepted as bona fide‑‑Rent Controller being not justified‑in dismissing application for ejectment, High Court set aside order of Rent Controller and directed ejectment of tenant on ground of bona fide personal requirement of landlord.

Hashmi Begum v. Zohra 1985 M L D 1514 and Ikhlaq Illahi v. Nawab Ahmed 1986 C L C 1100 distinguished.

Nooruddin v. Asghar Ali 1968 S C M R 1087; Muhammad Sidiq v . Maryam Bibi 1975 S C M R 111; Saboomal v . Kikaram1973 S C M R 185 and Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832 rel.

Aftab Kazilbash for Appellant.

Raja Shamsuzaman for Respondent.

Date of hearing: 5th April, 1987.

This appeal is directed against the order of XVth Rent Controller dated 11‑12‑1983 whereby an application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 filed by the appellant against the respondent was dismissed.

2. The appellant is the landlord of a house constructed on Plot No.105‑E/2, P.E.C.H.S. Karachi. In July 1974 the appellant had rented out second floor of the said premises to the respondent on monthly rent of Rs. 250. The rent was subsequently enhanced to Rs. 425 per month. The appellant is a retired Government servant and has 11 grownup family members. One son of the appellant is married and that son alongwith his wife and son is also residing with the appellant. The accommodation in possession of the appellant is insufficient for his needs. The appellant could not marry his three sons because of shortage of accommodation. He has, therefore, requested for the eviction of the respondent as he requires the said premises for his bona fide personal use.

3. The respondent admitted relationship of landlord and tenant between the parties as well as the rate of rent. He, however, denied that the appellant required the premises in his possession for his bona fide personal use. According to him the appellant had been enhancing rent from time to time and on the last occasion when the respondent refused to accept his unreasonable demand for enhancement of rent the appellant filed this ejectment application taking false plea of personal requirement of the house which is mala fide.

4. On the pleadings of the parties the only issue that came up for determination before the learned Rent Controller was regarding the requirement of the premises in question for the personal bona fide use of the appellant and his family. The issue was decided in favour of the respondent and it was held by the learned Rent Controller that the appellant did not bona fidely require the premises for his personal use and that of his family members.

5. I have heard Mr. Aftab Kizilbash, Advocate for the appellant and Mr. Raja Shamsuz‑Zaman, Advocate for the respondent and have gone through the record of the case with the assistance of the learned counsel.

6. The conclusion of the learned Rent Controller, that the requirement of the premises in dispute by the landlord was not bona fide, is based on two grounds. The first ground is that the appellant has admittedly enhanced the rate of rent from time to time. It was in the beginning Rs. 260 per month which had been subsequently increased on various occasions and at present is Rs.425 per month. The appellant had subsequently refused to receive the rent and his explanation for doing so was that he wanted to get possession of the premises from the respondent. The learned Rent Controller has not believed this explanation because the appellant had admitted in the cross‑examination that he had requested the respondent to enhance the rent to Rs. 2,000 per month in view of the fact that the rate of rent was increasing everywhere in the locality. By now it is nearly settled that the allegation of demand of higher rent or even increase of rent by the landlord from time to time does not show that the requirement of, the premises was not in good faith. In this connection reliance was placed in the case of Musarat Amin v. Muhammad Mobin reported in 1986 CLC 2033 wherein Saleem Akhtar, J. held that mere allegation of demand of higher rent was not sufficient to disprove bona fides of the landlord unless it was established that landlord's plea for ejectment was merely a colourable device for obtaining ejectment.

In the case of Mst. Safia Amir Hussain v. Mst. Razia Zaidi reported in 1986 CLC 1483 Abdul Qadeer Chaudhry, J. held that mere increase of rent by landlady did not show that she did not require premises in good faith and circumstances of each case were to be taken into consideration. It was further held that simply because the parties had agreed to increase rent the application for eviction should not be dismissed.

7. It would therefore appear that in a case for ejectment on the ground of bona fide personal requirement no adverse presumption can be advanced against the landlord's bona fides merely on the ground that he had been getting rent increased from time to time or that he had been demanding enhancement in the rent. Each and every case is to be judged from the facts and circumstances established through evidence on which the requirement of the premises for bona fide use is based and it is to be seen whether such requirement has been proved by convincing evidence or that the same has been rebutted or disproved by the other side.

8. The learned Rent Controller also came to the conclusion that the requirement of the appellant was not bona fide in that the appellant had rented out the ground floor of the said premises to one Mazhar Ali about 2 or 3 years ago. Had his demand been bona fide he would not have rented out the ground floor to Mazhar Ali and would have occupied the same himself. With this finding of the learned Rent Controller also I do not find myself in agreement.

Respondent's counsel cited the case of Ashraf Ali v. Ali Muhammad reported in 1986 CLC 735 wherein the entire first floor and two rooms of ground floor were got vacated by the landlord during the pendency of the proceedings and it was held that the requirement for further accommodation was not bona fide.

It may be pointed out that every ruling is to be taken as an authority on its own facts. In this ruling the landlord was already in occupation of 3 flats. He got 2 additional rooms on ground floor and the entire first floor vacated. It was further held that he has failed to establish the bona fide requirement of premises for his sons, who were serving outside Karachi while in the present case it is not so. All the sons of the appellant as well as his two daughters are residing with the appellant at Karachi. He then cited Riaz Khan v. Sodagner 1983 CLC 1343 where one house which the landlord got vacated was lying vacant while in the present case it is not so. The ground floor which has been got vacated during the pendency of this appeal has already been occupied by the appellant. He has further cited 1984 C L C 1969 wherein it was held that when no explanation was given for not utilising a portion which had fallen vacant the presumption will be that the landlord's demand for personal occupation was mala fide.

9. This application for ejectment was filed in the year 1979 while the ground floor of the premises in suit was given on rent by the appellant to Military Estate Officer on rent in 1974 i. e. as far as 5 years before the filing of the application and not 2 or 3 years ago as stated by the learned Rent Controller. It appears that the said confusing had crept in the mind of the learned Rent Controller by the fact that P.W. Wajid Hussain, the son of the appellant had stated in his cross‑examination that previously Rajab Ali was residing in the ground floor and thereafter it was rented out to Mazhar Ali. This was already clarified by the appellant Zahid Hussain in his cross‑examination where he made it clear that the ground floor was rented out by him to Military Estate Officer in 1974 and it continues to be with him although the Military officers who occupied the premises are changing from time to time. Hence it cannot be said that the premises had fallen vacant and were given by the landlord to another tenant instead of occupying himself. The facts and circumstances of this case clarify indicate that the appellant Zahid Hussain has got a large family. He is an old man. His wife is alive. He has got 4 sons, one of whom is married and has got one wife and one son. It is stated from the Bar that two more children are born to him. It is on the record that the appellant has got three more grown up children and that their marriages were held up due to paucity of residential accommodation. The appellant has got 4 daughters, 2 or 3 of whom were married. One daughter was unmarried and was living with the appellant. Another daughter was a widow and she was living with the appellant and third daughter though married was living in a rented house and the appellant's son was paying the rent of that house. Admittedly the premises in dispute is a house constructed on a plot of 200 square yards. The appellant had stated that it has 4 rooms, while according to the respondent it had 6 rooms. Looking to the size of plot it is difficult to believe the statement of the respondent. Moreover the size of the rooms even if numerous, in a house on such a small plot cannot be spacious enough to accommodate such a large family. Hence the desire of the appellant in the circumstances of the case does not appear to be unreasonable or mala fide. It was stated by the respondents counsel from the Bar that during the pendency of this appeal the ground-floor has been got vacated by the appellant and that he is now occupying the same. This additional accommodation should satisfy the needs of the appellant and therefore, there was no justification in allowing his appeal. Mr. Aftab Kiziibash, the learned counsel for the appellant admitted this fact but at the same time stated that the requirement of the appellant has further increased in that his another son had married and subsequently divorced his wife and was going to marry again. He also pointed out that two more children have born to his second son as already pointed out above. He further submitted that one of his daughters has become widow and was living with him. Under these circumstances it was not possible for him to accommodate all his family even in these two floors of the house and that still he badly needs the ground floor which is in occupation of the respondent.

The respondents counsel has cited the case of Hashmi Begum v. Zohra reported in 1985 M L D 1514 and Ikhlaq Ellahi v. Nawab Ahmed reported in 1986 C L C 1100. In both these cases it was held that mere desire or assertion of the landlord on oath that he requires the premises for his bona fide personal use was not enough and that it was his duty to establish the same by leading evidence on record. Neither of these rulings would apply to the facts of this case because from the record it is quite clear that the appellant has established by bringing sufficient evidence on record that he requires the premises in suit for his personal bona fide need and that of his family.

As against this in case of Nooruddin v . Asghar Ali reported in 1968 S C M R 1087, the Supreme Court has held that where landlord was genuinely seeking extra accommodation on the ground that two of his family members were going to be married, it was held that the demand of the landlord was bona fide. It was further held that the landlord has discretion to choose the portion which is more suitable to him and the fact that one flat in the premises had fallen vacant earlier and was let out on rent by the landlord does not militate against the good faith of the landlord's demand.

In Muhammad Sidiq v. Mariam Bibi 1975 S C M R 111, the fact of the landlady's son having a shop in his possession and vacating it does not spell out lack of bona fide in absence of evidence of vacated shop having belonged to the landlady.

In Saboomal v. Kikaram reported in 1973 S C M R 185 it was held that a landlord possessing more than one house in the same urban area has a choice as to the house in which he would like to live.

In Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832, it was held that in a case of ejectment on the ground of requirement for personal use assertion or claim on oath by landlord that he required premises for his personal use, found to be consistent with the averments in his application and not shaked in cross‑examination or disproved in rebuttal, is to be accepted by the Controller as bona fide.

10. I am, therefore, of the clear view that the learned Rent Controller was not justified in dismissing the application of the appellant. Hence I allow this appeal and set aside the order of the learned Rent Controller and direct the respondent to vacate the premises in dispute and hand over its possession to the appellant. Four months' time is granted to the respondent to vacate the premises.

A.A./Z‑11/K Appeal accepted.

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