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First Rent Appeals Nos.984 and 985 of 1984, heard on 8th February, 1987.

‑‑Ss.13 & 14‑‑Application for ejectment‑‑Respondent/landlord stating in evidence that he, his sister and another person were owners of building in which tenaments in question were situated, he had 50% share in said building; appellants were tenants of his late ancestor and on her death they had been paying rent to him‑‑Tenants admitting that after death of his ancestor, they had been paying rent to respondent and on his refusal same was being deposited in Court‑‑Application filed by respondent, held, could not be defeated on ground that remaining two co‑sharers were not joined as applicants in ejectment application.

1985 C L C 562 ref.

1986 C L C 2639 distinguished.

‑‑‑Ss. 13 & 14‑‑Ejectment on ground of personal requirement of premises of landlord and his children‑‑Contention of tenant that need of landlord was not bona fide and he wanted enhanced rent for which tenants had moved councilor of area‑‑Landlord stating in his evidence that he had asked tenants to increase rent to extent to which water rates were increased and denying that he wanted enhanced rent‑‑ Mere demand for increase in rent generally not viewed with any suspicion‑‑Landlord with his family comprising 11 members living in rented premises consisting only one room and he having not been cross‑examined on said point, same presumed to have .been accepted by tenant‑‑Tenant not denying said position in affidavit filed by him‑‑Landlord further stating that his own landlord required his building for reconstruction and wanted same to be vacated‑‑Landlord, held, could not be said to have made any improv6ment in his evidence which could disentitle him to relief of ejectment.

1983 C L C 2872 and P L D 1984 Kar. 178 distinguished.

1984 C L C 2865 and Dcotor Muhammad Rafiq v. Muhammad Abdul Hayee 1983 C L C 237 ref.

‑‑‑S.14‑‑Evidence Act (I of 1872), S.67‑‑Ejectment application‑ Documentary evidence‑‑Landlord not confronted with documents, neither person who issued them nor person in whose favour same were issued produced‑‑Rent Controller, held, was right in not considering such documents.

P L D 1973 S C 160 and Messrs Bengal Friends & Co. v. Messrs Cour Benods Saba & Co. P L D 1969 S C 477 ref.

‑‑‑Ss. 13 & 14‑‑Application for ejectment in two cases‑‑Evidence recorded in one case adopted in the other case‑‑Parties represented by same Advocates before Rent Controller, landlord being one and grounds of default and personal use common in both cases‑‑Advocate of tenants giving statement at end of cross‑examination of landlord that "this evidence be adopted in the other rent case"‑‑Contention that evidence recorded in case of one tenant could not be considered in case of other tenant, held, was untenable and no prejudice was caused to tenants by adop g said procedure.‑‑[Evidence].

1985 C L C 1669 ref.

‑‑‑Ss. 13, 14 & 21‑‑Ejectment on ground of personal requirement of landlord‑‑Evidence of landlord that he and his family consisting of 11 members were living in rented premises, that his landlady wanted premises for reconstruction, that present accommodation was not sufficient for his needs and that accommodation in possession of two tenants would solve much of his problems not challenged in cross‑examination‑‑Landlord, held, had proved that his personal need for premises in occupation of two tenants was bona fide.

1980 C L C 604; 1985 C L C 2419; 1985 C L C 2455; 1984 CLC 1137; 1983 C L C 287; 1968 S C M R 1087; 1973 S C M R 1985; PLD 1984 Kar. 14; 1984 C L C 90; 1985 C L C 1518; 1985 C L C 2271; 1984 C L C 757; 1984 C L C 3093; 1984 C L C 2213 and 1983 C L C 2238 and 1983 C L C 2640 cited and examined.

Umar Yousaf Dada for Appellant.

Zahid Hussain Borhani for Respondent.

Date of hearing: 8th February, 1987.

This judgment will govern two First Rent Appeals bearing Nos.984 and 985 of 1984, as respondent /landlord is same, the grounds taken are common, even evidence was led in one case with the consent of the parties brought on record of the other case, and the parties were represented by the same Advocates.

The first rent appeals are directed against the impugned orders dated 2‑9‑1984 passed by the learned XII Senior Civil Judge and Rent Controller, Karachi, whereby ejectment has been granted on the ground of personal use.

The brief fact giving rise to the present appeals are that respondent Ghulam Rasool (hereinafter referred as Landlord) filed an application for ejectment against appellant Mst. Shakooran on 13‑12‑1982, while ejectment application against appellant Muhammad Siddique was filed on 1‑3‑1983 in the Court of Rent Controller, on the grounds of default, and personal bona fide use. The case of the appellant /landlord was that he is owner/landlord of the building known as Tayeb Ali building situated on plot bearing No.12/3, Sheet NO.R.C.11, Ranchore Quarters, Karachi. Mst. Hawa Bai his grandmother was the co‑owner with him and she has since died. The opponent /appellant Muhammad Siddique was his tenant in respect of Room No.4, which was on the ground floor of this building, on monthly rent of Rs.45. That appellant Mst. Shakooran was his tenant by virtue of section 2(j) of the Sind Rented Premises Ordinance as the recorded tenant Muhammad Naqi had died and opponent /appellant Mst. Shakooran is the widow of said Muhammad Naqi.

That Mst. Shakooran was tenant in respect of Room No.3, which was on the ground floor of the above building, and the rate of rent was Rs.36 per month. The tenants had failed to pay rent from October 1982 and as such they were defaulters. That the above premises in possession of opponents/appellants are required by the respondent/ landlord for his own use and for his children. The landlord has a large family. It was further stated that the landlord is living in a rented premises and his landlord requires the premises for reconstruction and many of his tenants have vacated the tenaments which were in their occupation. That the tenant /appellant Muhammad Siddique is living at another place and the house in question usually remains locked.

That the appellants /tenants filed their written statements in which the allegations were denied, and the plea raised was that the original owner of this property/ building was Mst. Hawa Bai widow of Hashan, and after her death the property was inherited by her sons Fakir Muhammad, Aboo and one daughter. Since Fakir Muhammad dies, his share of 51 Annas was inherited by the landlord Ghulam Rasool and his sister Mst. Fatima. It was further stated that the landlord wanted to enhance the rent which they refused to pay and, therefore, the landlord stopped accepting rent. They moved representation to the area councilor and when landlord refused to appear before him, they sent rent through money order but the same was refused and after that they have been depositing the rent in Court. That the owner/landlord of respondent Ghulam Rasool had been providing alternative accommodation to the tenants and, therefore, the ground of personal use was not bona fide.

On the pleadings of the parties the learned Rent Controller framed the following issues:‑

(1) Whether the applicant requires the premises in case for his personal bona fide use and for the use of his children

(2) Whether the opponent has committed default in payment of rent

(3) What should the order be

That on the side of respondent /landlord the respondent examined himself and produced rent receipt Exhs.P.l, P.2 and P.3 , a photograph showing condition of building in which he was residing as Exh.P.4, and photo copy of his reply submitted before the councillor as Exh.P.5. On the side of the appellants/ tenants appellant Muhammad Siddique was examined and he also produced photo copy of representation made by the tenants of the entire building as Exh.A, money order coupons as Exh.'B' to Exh.'G' receipts regarding deposit of rent in the Court Exh.'N' and Exh.N‑1, receipt dated 10‑9‑1975 Exh.N‑3 and receipts regarding payment of rents, Gas and Electric supply in different names and photo copies of rent receipts issued on behalf of Mst. Hawa Bai to different tenants as Exh . H . 5 to Exh . M‑31. One Muhammad Ibrahim son of Muhammad Hashim was also examined as witness by the appellant.

The parties gave consent statement dated 6‑12‑1983 that the evidence of one case may be considered in the other case also. Therefore, the evidence of appellant Muhammad Siddique and his witness Ibrahim was brought on record in Ghulam Rasool v. Mst. Shakooran Rent Case No.4862 of 1982. However, appellant Mst. Shakooran did not file any affidavit, nor appeared in the witness‑box. The learned Rent Controller allowed both the applications of the landlord on the ground of personal use only.

I have heard Mr. Umer Yousif Dada learned Advocate for the appellants and Mr. Zahid Hussain Borhani for the respondent, and have also gone through the record.

It was argued by the learned Advocate for the appellants tenants that the respondent /landlord did not require the premises in question in good faith, and in support of his above contention he pointed out the following circumstances:‑---

(1) That the respondent /landlord was not the sole owner of the premises in question but there were two other heirs as well.

(2) That there was no default in payment of rent and the respondent wanted enhanced rent, therefore, the appellants, and other tenants made representation to the area Councillor, but the respondent avoided to appear and refused to accept rent, therefore, the tenants sent rent through money‑orders which were also refused.

In view of the above circumstances the tenants have been depositing the rent in Court since then.

(3) That Mst. Zohra Bibi the Landlord of the respondent has been providing alternative accommodation to all her tenants, and on reconstruction they have been provided necessary accommodation. He has further argued that the respondent had demanded huge amount of "Pagri" from the contractor of landlord which he refused to pay and, therefore, the portion occupied by the respondent could not be reconstructed.

(4) That the respondent has made improvements in his evidence, inasmuch as it was not mentioned in the ejectment application that his family consists of 11 members and, that his mother‑in‑law was also residing with them.

(5) That the respondent is already in possession of three rooms which were enough for him and his family.

(6) That there was already a dispute between the parties, which could also be a reason for filing the ejectment application.

(7) That the Rent Controller has mis-appreciated the evidence produced by the parties, and even some of the documents produced by the appellants were not considered. Lastly it was argued that the 'evidence of one case could not be considered in another case and, therefore, the learned Controller had committed an illegality.

In support of the above contentions Mr. Umer Yousif learned Advocate for the appellants has relied upon 1986 C L C 2639; 1980 CLC 604; 1983 C L C 2872 and P L D 1984 Kar. 178.

In reply it was contended by Mr. Zahid Hussain learned Advocate for the respondent that:‑---

1. It was not necessary that all the landlords should file ejectment application.

2. That merely because in respect of ground of default the finding of the learned Lower Court was against the landlord, it will not prove mala fides on the part of landlord.

3. That there was no clear evidence led by the appellants as to which tenament had fallen vacant and to whom it was rented out, and when. Moreover it is the discretion of the landlord to choose as to which accommodation will be suitable and sufficient for him, and it cannot be determined by the tenant.

4. That mere allegation of the tenant that landlord accepted "Pagri" or higher rent, years back would not militate against bona fide of landlord.

5. That the evidence recorded in one case can be read and considered as evidence in other case with the consent of the parties.

6. That the landlord was not obliged to unfold all the details of his case in ejectment application and lastly the documents Exh.H‑5 to Exh.M‑31 were neither proved according to law, nor the respondent was confronted with the same, and, therefore, they could not be taken into consideration by the Rent Controller.

In support of his contentions Mr. Zahid Hussain relied upon 1985 C L C 562; 1984 C L C 90; 1968 S C M R 1087; P L D 1984 Kar. 14; 1973 S C M R 185; 1985 C L C 2271; 1985 C L C 1669; 1984 C L C 2865 and P L D 1973 S C 160.

I have considered the contentions of learned Advocates of the parties and have also gone through the record and proceedings of the two cases.

The case of the respondent /landlord in evidence is that he, his sister and one Aboo were owners of the building in which the tenaments in question are situated, and he has 0.50 paisas share in the said building. The appellants were tenants of late Mst. Hawa Bai his ancestor, and on her death they have been paying rent to him. The appellants have not denied the above position and it is their own case that they have been paying rent to the respondent after the death of Mst. Hawa Bai and on his refusal the same is being deposited in Court. Since the appellants did not challenge that the respondent /landlord could not legally receive rent, and in fact it is their case that they have been paying rent to the respondent, therefore, the application filed by the respondent could not be defeated on the ground that the remaining two co‑sharers were not joined; as applicants in the ejectment application. It was held in the case M.S. Khan v. S.M. Sirajuddin 1985 C L C 562 observation at page 564 that when the tenant has been paying rent the very landlord and when it is not disputed that the landlord was legally entitled to recover rent, then in fact his title was not challenged. The case of Mst. Fatima Bai v. Issa reported in 198& C L C 2639 relied upon by the learned Advocate of the appellants is distinguishable, inasmuch as in that case the lady who had filed ejectment application had only 1/8th share in the property, and the remaining 7/8 share belonged to other heirs of the landlord, who did not file ejectment application. Moreover, she had filed ejectment application for two portions of premises consisting of 6 rooms on the ground of personal use under section 14 of Sind Rented Premises Ordinance. On the facts it was held that since she had 1/8th share in the property and other heirs did not file ejectment application, and she could not need 6 rooms for her personal use, therefore, it was held that the bona fide need of widow was doubtful.

The next contention of the learned Advocate of the appellants was that‑ it was proved that the need of the respondent was not bona fide and he wanted enhanced rent, for which the tenants had moved the councillor of the area, and when the landlord avoided to appear before him they sent rent through money orders, and when the same were refused, they have been depositing it in the Court. Even the learned Rent Controller has decided this issue against the landlord, therefore, he argued that the need of the respondent was not bona fide. In this connection he relied upon Nasir Mahmood v. Mustajab Begum 1983 CLC 2872, in which it was held that the requirement of landlady was neither reasonable nor bona fide but was aimed at increasing the rent, and, therefore, the appeal was allowed and ejectment application was dismissed. In the present case the respondent has stated in his evidence that he had asked the tenants to increase the rent to the extent to which the water taxes were increased. He has produced his reply given to area Councillor on 19‑1‑1983 Exh.P.5 which also show that his demand for increase as only to the extent of increase in water tax. He has denied the suggestion that he wanted enhanced rent and, therefore, the ejectment application was filed. It has been held in Captain Doctor Muhammad Rafiq v. Muhammad Abdul Hayee 1983 C L C 237 observation at page 240 that a mere demand for the increase in rent is generally not viewed with any suspecion but if it is coupled with some other circumstances it becomes clear that in the garb of personal requirement the intention was to pressurise the tenant for increase in rent.

It is the case of the respondent /landlord that he is living in rented premises which consists of only one room and that his family consists of himself, his wife, mother‑in‑law, 6 daughters and two sons ranging in age from 11 months to 18 years. They were living in one room without any Toilet or W.C. even the kitchin is being maintained in the said room. The small place in which they are living also disturbs the study of his son. He was not cross‑examined by the appellants on the above point, and, therefore, it is presumed to have been accepted by the appellants. Even in the affidavit filed by the appellant Muhammad Siddiq this position was not denied. In cross‑examination he stated that the family of applicant /landlord consists of 8 members and that he is living in a rented house.

Moreover the house in which he was living was required by his landlady for reconstruction.

It was further contended by Mr. Yousif Umer Advocate for the appellants that the landlord of the respondent has been providing alternative accommodation to the tenants and on reconstruction they have been provided with new accommodation. That the respondent is demanding huge Pagri from the contractor of the landlord which he has refused to pay and, therefore, he is not vacating the premises. There suggestions have been put to the respondent but the same have been denied. According to the evidence of appellant Muhammad Siddik the contractor's name was Ibrahim Ismail, but instead of this contractor, one Ibrahim son of Muhammad Hashim was produced in Court to prove that the contractor of the landlord of the respondent has been providing alternate accommodation to the tenants but the respondent Ghulam Rasul has refused to vacate the premises in his possession as he wanted huge Pagri. He has further stated that he was living in the same building in which Ghulam Rasul respondent was living. In cross-examination he has stated that he is tenant but the receipt is issued in the name of his brother. The owner of that building is one Sardar Ali Memon. He has admitted that he is maternal‑nephew of appellant Muhammad Siddik. The evidence of this witness is of no help to the appellants because on one hand he is interested being maternal‑nephew of appellant Muhammad Siddik, and on the other hand it was doubtful whether he was tenant in the building the portion of which was occupied by respondent as tenant. The case of appellant Muhammad Siddik is that the tenament in possession of the respondent belonged to one Mst. Zohrat Bibi whereas the evidence of this witness shows that the owner of the building was one Sardar Ali Memon. He has not produced any rent receipt, and when he was confronted with this situation he replied that the rent receipts were issued in the name of his brother. Moreover, neither the contractor has been produced nor the landlady has been produced to prove the allegation against the respondent. The next contention of Mr. Umer Yousif that the respondent had made improvements in his evidence, and therefore, he is not entitled to relief inasmuch as it was not mentioned in the ejectment application that his family consists of 11 members and that his mother‑in‑law was also residing with them is untenable. The case of Abdullah Khan v. Abdul Majid P L D 1984 Kar. 178 relied upon by him is distinguishable inasmuch as in the reported case the landlord had not stated in his ejectment application that he was a T . B . patient and his wife was a heart patient, but in his evidence in Court he stated that he was T . B . patient and his wife was heart patient, and, therefore, it was observed that since the landlord had made improvements upon his case, he was not entitled to the relief on the ground of personal use. In the present case the landlord had stated in paras. Nos. 3 and 4 of his ejectment application that the premises in occupation of the opponent is bona fide required by the applicant for his own and for his children's requirement. The applicant has large family. It was further stated that the applicant is living in rented premises and the landlord of the applicant requires his building for reconstruction and many of his tenants have been vacated. In view of the stand taken in the ejectment application the respondent/ landlord has only elaborated the above contention by saying that his family consists of 11 members which includes his mother‑in‑law also. This fact has not been controverted even by the appellants and, therefore, it cannot be considered as an improvement due to which the respondent could be refused relief. It was held in Mst. Maryam v. Haji Ahmed 1984 C L C 2865 that the landlord was not obliged to unfold all the details of his case in ejectment application. In view of the above factual as well as legal position it cannot be said that the landlord had made any such improvement in his evidence which could disentitle him to the relief of ejectment. With regard to the grievance of the learned Advocate of the appellants that the documents Exh.H‑5 to Exh.M‑31 were not considered by the learned Rent Controller which has occasioned miscarriage of justice, it will suffice to say that these documents were produced after the evidence of respondent was recorded. He was not confronted with these documents, nor the person who issued these receipts, and the person in whose favour these receipts were issued was produced, and, therefore, the learned Rent Controller was right in not considering the same. It has been held by their Lordships of the Supreme Court in Messrs Bengal Friends & Co. v. Messrs Cour Benode Saba and Co. P L D 1969 S C 477 observation at page 483, that the documents which are not copies of any judicial record, could not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them as required by section 67 of the Evidence Act. This legal position was re‑affirmed by l their Lordships in the case of Khan Muhammad Yousif Khan v. S.M. Ayoob P L D 1973 S C 160. The next contention of the learned Advocate of the appellants that the evidence recorded in the case of appellant Muhammad Siddik could not be brought and considered in the other case is untainable. The learned Advocate has failed to appreciate that the parties were represented by the same Advocates before the Rent Controller, the landlord was one, and the grounds of default and personal use were common in both cases. Even, the learned Advocate E of the appellants had given statement on 6‑12‑1983 which is at the end of cross‑examination of respondent Ghulam Rasul that "This evidence be adopted in the other rent case". It has been held in Muhammad Usman v. Wali Muhammad 1985 C L C 1669, that evidence recorded in one case reproduced verbatim in others plea that proceedings thus stood vitiated parties produced separate affidavits in each case. One Advocate appearing for appellants and one for all respondents in all cases. Landlord appearing as witness, cross‑examination and Agreement by counsel of parties that cross‑examination to be read in all other cases. No illegality, held committed by trial Court in recording evidence as such and no miscarriage of justice was caused to either party. Plea, therefore, not tenable. This reported case applies to all the 4 corners of the facts of the present case and, therefore, no prejudice was caused to the appellants by adopting the above procedure. Lastly on the ground of personal bona fide use the evidence of respond net /landlord is that his family consisted of 11 members, and that he was living in rented premises and that his landlady wanted the premises for reconstruction, that the present accommodation is not sufficient for his needs. That the accommodation in possession of the 2 appellants will solve much of his problems. That the appellant Muhammad Siddik was occupying some other house, and tenament in his possession mostly remains closed. This evidence of the respondent /landlord has not been challenged in cross‑examination, but the case of the appellant Muhammad Siddik in his evidence is that number of tenements belonging to the respondent in the building in question had been vacated by tenants earlier and the same were again rented out to some other persons, and that the landlady of the respondent landlord has been providing alternate accommodation to the tenants, and even after the reconstruction the tenants have been provided with new accommodation. The respondent was demanding huge Pagri from his landlady which she has refused to pay, and therefore, the portion in possession of the respondent could not be reconstructed. However, it has been admitted by appellant Muhammad Siddik in cross‑examination that the name of his father is Noor Muhammad. House No. M.B.3/1130 Baldia was his property previously but now he has sold it to his widow sister‑in‑law namely Fatima Bai about two years back. No writing to this effect was executed but only a receipt was issued. In an other question he has admitted that his wife purchased a flat in Mill Walla Apartment for her married son. A suggestion was made to him that he owns a house at Muhajir Camp or Lyari but same was denied.

The learned counsel for the appellants cited before me 1980 CLC 604; 1985 C L C 2419; 1985 C L C 2455; 1984 C L C 1137; 1983 C L C 287 and 1.986 C L C 2639 regarding the principles to be taken into consideration while deciding the question of requirement for personal use, and further the landlord who is living in rent premises must show that the premises in his possession are not sufficient for his need. Legal position enunciated in these reported cases lay down as to what kind of evidence should be produced by the landlord in support of plea of requirement for personal need, and under what circumstances the landlord will be refused relief on the ground of personal need.

On the other hand the learned counsel for respondent landlord on the point of personal use has cited 1968 S C M R 1087; 1973 SCMR 1985; P L D 1984 Kar. 14, 1984 C L C 90; 1985 C L C 1518; 1985 CLC 2271; 1984 C L C 757; 1984 C L C 3093; 1984 C L C 2213; 1983 CLC 2238 and 1983 C L C 2640.

The decision reported in 1963 S C M R 1087 cited by learned Advocate for the respondents, lays down the principle that the landlord has discretion to insist that particular portion is to be made available for him. The fact that one flat in premises had fallen vacant earlier and the same was rented out on rent by landlord does not affect good faith of landlord. In P L D 1973 S C M R 185 it was held that the landlord who possess more than one house, the choice as to in which house he would like to live is the matter within his discretion. In PLD 1984 Kar. 14, it was held that suitability or sufficiency of accommodation for landlord cannot be determined by tenant. Same is the principle laid down in the other decision cited by the learned counsel for the respondent. Decisions reported in 1983 C L C 2238 and page 2640 lay down that the persons closely related to the landlord and residing with him, their need can also be treated as need of the landlord. Stepfather has also been treated as a part of family.

In view of the above factual and legal position, and my discussion in the earlier part of the judgment, the landlord /respondent had proved that his personal need for the premises in occupation of the two appellants was bona fide and, therefore, the First Rent Appeals Nos. 984 and 985 of 1984 accordingly dismissed, but with no order as to costs. The appellants are granted two months time to vacate the premises provided that they continue to deposit monthly rent with the Nazir of the Rent Controller.

S.Q/M‑85/R Appeals dismissed.

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