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First Rent Appeal No. 257 of 1983, decided on 15th December, 1985.

‑‑S. 13‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss. 15 & 21‑‑Deposit of rent by tenant in miscellaneous rent case and not in ejectment application of landlord‑‑Effect of‑‑By depositing rent in miscellaneous rent case, tenant, held, had substantially complied with the order of Rent Controller for deposit of tentative rent, particularly when there was no specific direction that rent would thenceforth be deposited in rent case and not in miscellaneous application.

1985 S C M R 170 and 1984 C L C 3102 distinguished. P L D 1979 Lah. 618 rel.

‑‑‑S. 13‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss. 15 & 21‑‑Personal bona fide need of landlord‑‑Finding of fact based on misreading of evidence‑‑Effect‑‑Finding of fact on bona fide personal requirement of premises based on misreading of evidence, held, could not be sustained and was set aside in appellate rent jurisdiction of High Court.

‑‑‑S. 13‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss. 15 & 21‑‑Bona fide personal requirement, right of‑‑Landlady residing in a small rented house alongwith her large family‑‑Desire of such landlady to live in tenement was bona fide‑‑Landlady, held, had a right to live in her own house and leave the rented housed she so chooses‑ Desire of such landlady to live in her own house could not be regarded as unreasonable or mala fide.

P L D 1975 Kar. 1985 S C M R 739; 1980 C L C 604 and 1985 C L C 1943 ref.

‑‑‑S. 13‑‑Sind Rented Premises Ordinance (XVII of 1979), S. 15‑‑Bona fide personal requirement of landlord‑‑Proof of insufficiency of accommodation occupied by landlord whether necessary‑‑Held, it would not be necessary for a landlord residing in his own house or in a rented house to state that same was insufficient for his needs‑‑Such fact, could be inferred by Court, from the facts and circumstances.

1982 C L C 868 and 1982 C L C 1599 rel.

Habibullah Samo for Appellant.

Nooruddin Ramzan for Respondent.

Date of hearing: 15th December, 1985.

This appeal is directed against the Order of VIII Rent Controller, Karachi dated 29‑2‑1983 whereby he dismissed an ejectment application filed by the appellant against the respondents on the grounds of default in payment of rent and requirement of the rented premises for bona fide personal use of the appellant and her children.

This appeal also calls in question an earlier order of the Controller dated 21‑12‑1981 under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 refusing to strike off the defence of the respondent on the alleged non‑compliance of the order for deposit of tentative rent.

Briefly stated the case of the appellant is that she is the owner of a building on plot No. R.C. 12/54, Dharamsi Street, Near Bohrapir, Ranchore Lines, Karachi. The respondent is her tenant in tenement No. G/1 in the said building at Rs.30 per month. The respondent has defaulted in payment of rent from 1‑1‑1978 to 30‑4‑1978. Moreover the appellant requires the said tenement bona fidely for her use and or the use of her children.

The respondent admitted the relationship of landlord and tenant and the rate of rent. She however denied to have committed default in payment of rent. She alleged that the appellant refused to accept the rent and was insisting on enhancing the same. Hence she tendered rent by money order which was refused. Consequently she started depositing the rent with the Rent Controller vide Misc Rent Case No. 1732/78. She has also denied that the tenement was required by the appellant bona fidely for her own use or for the use of her children. She has alleged that the appellant had sufficient accommodation already in her occupation.

On the pleadings of the parties the points of default in payment of rent and requirement of the tenement for her personal use came for consideration before the Controller, the appellant filed her affidavit and of her son Siraj, while the respondent filed her affidavit alone. The parties cross‑examined each other's deponents on the affidavits. The learned Controller after taking into consideration the evidence so recorded and the arguments of the respondent's counsel (appellant's counsel had not 'come forward to argue the case) dismissed the application as shown above.

I have heard Mr. Habibullah Samo, for the appellant and Mr. Nooruddin Ramzan, for the respondent. Mr. Habibullah Samo, did not press his appeal so far as the issue of default in payment of rent was concerned. He challenged the finding of the Controller on the issue of requirement of the tenement for bona fide personal use and the order refusing to strike off the defence. So far as the latter point is concerned he made a short submission in that he contended that the respondent continued to deposit rent in misc. rent case referred to above in spite of the order for deposit of tentative rent in this rent case (No. 2112/72). Hence although there was no short payment of rent, but the non‑compliance of the order of deposit of tentative rent was still there because the rent was not deposited in rent case (No. 2112/72) in which the order was passed but was being deposited in Misc. Rent Case No. 1723/78. He cited 1985 SCMR 170 where bank drafts were issued by the tenant in the name of the landlord and not in the name of the Court, Supreme Court did not treat it as a deposit in compliance of tentative rent order of the Controller. This ruling is not applicable to the present case, because in this case rent has been deposited in cash with the Controller while in the case under the ruling a draft was produced before the Court to show that the rent was offered to the landlord which too was disputed.

In this connection in all fairness to the appellant reference may be made to 1984 C L C 3102 where a tenant was depositing rent in Miscellaneous application despite order passed by the Rent Controller for depositing of rent in rent case, it was held to have amounted to non‑compliance with the order of the Rent Controller and the defence of the opponent ought to have been struck off. This ruling also does not apply to the facts of the present case. Firstly, there is no clear direction of the Controller that the rent should be deposited in the rent case and not in misc. rent case. Apart from that, in this ruling deposit of rent which was said to have been made was not proved. The observation of the learned Single Judge of the High Court that as rent has been deposited in the miscellaneous proceedings there was no compliance of the order of the Controller was an obiter dicta and cannot be considered to be an authority on the point. This ruling was also cited before me in F.R.A. 1080/84 and was distinguished on the same ground. In F.R.A. 1080/84 it has been held by me that where there was no clear direction by the Controller that rent should be deposited in the rent case and not in misc. case the deposit of rent in the misc. case would not amount to non‑compliance with the order of deposit of tentative rent.

The above contention of Mr. Habibullah Samo, therefore does not hold any water. There was also no direction in the order for deposit of tentative rent that the rent had to be deposited in this rent case. The order may be re‑produced as under: --

"Advocates for the parties present. Heard them and perused the rent account filed by the parties Tenancy, rate of rent i.e. Rs.30 p.m. and period of arrears from Jan. 1978 to June, 1978 are admitted. Under the circumstances, the opponent is directed to deposit in Court arrears of rent at the above said rate for a period from Jan. 1978 to June, 1978, amounting to. Rs.180 less the amount of rent which he has already deposited in Misc. 1722/78 on or before 31st August, 1978.

The opponent is further directed to keep on depositing the future monthly rent at the above said rate commencing from July, 1978 before the 15th of each subsequent calendar month till the final decision of this case. The case adjourned to 3‑9‑1978 for Karachi dated 27‑7‑1978.

(Qazi Mohd. Hussain Siddiqui)

III RENT CONTROLLER, KARACHI

Reliance in this connection was placed on PLD 1979 Lahore, 618 where rent was deposited in Misc: case and that too in the name of the previous landlord and not in the rent case in which the tentative order was passed, it was held that the same does not amount to non‑compliance with the order of the deposit of tentative rent. Hence the order for striking of the defence was not passed.

I am therefore of the clear view that the respondent has not failed to comply with the order for deposit of tentative rent. He had substantially complied with the same by depositing the rent in Misc: rent case particularly when there was no specific direction that the rent would thence‑forth be deposited in the rent case and not in the Misc: rent application. I would therefore, up‑hold the finding of the Rent Controller on the application under section 13(6) of West Pakistan, Urban Rent Restriction Ordinance, 1959.

Now I come to the requirement of the tenement for bona fide personal use of the appellant. A finding of fact has been given by the learned Controller that all the sons of the appellant are residing in their own houses alongwith their families and the applicant is residing in a two roomed house alongwith her daughter and son Siraj. This accommodation is sufficient for these three members of the family of the appellant for whom she wants to get the disputed tenement vacated. This finding of fact given by the Controller is based on misreading of evidence. It is quite clearly and fully borne out from the evidence on record that the appellant's son Farooq, his wife and children, appellant's another son Siraj, who is to be married and appellant's daughter, and the appellant herself are all residing in a two roomed house. This fact has been deposed by the appellant in para. 5 to 9 of her affidavit. The respondent's counsel did not challenge the statement of fact mentioned above in the cross‑examination of the appellant. Similarly appellant's witness Siraj, has also stated in paras 3 and 4 of his affidavit that Farooq and his wife and children, Siraj himself, the appellant and her daughter are all living in a two roomed house. Hence they bona fidely required the present tenement. Siraj, has also not been cross‑examined on the above statement of fact which was thus gone unchallenged. It would therefore, appear that evidence of the appellant and her son Siraj with regards to Farooq, and his wife and children living with the appellant and requiring the tenement is not at all shaken in cross‑examination nor even challenged therein. The respondent in para. 4 of her evidence has made a general allegation that all the sons of the appellant have their own houses. The appellant's counsel cross‑examined her and suggested to her that Farooq was the son of the appellant and was living with her in the same house alongwith his wife and children and had no house of his own. No doubt this suggestion has been denied but the appellant has done her duty by confronting the respondent with this statement of fact. The statement of respondent that Farooq was not son of the appellant or that Siraj was living in a separate house do not appeal to reason and ere not at all convincing.

I am further, satisfied that the appellant is residing in a small rented house consisting of two rooms only alongwith Farooq, his wife and children, Siraj, who is about to be married and her daughter. Her desire to live in the disputed tenement is bona fide. After all such a big family cannot be expected to continue to live in a two roomed house. Apart from that a landlord has also a right to live in his own house and leave the rented house if he so chooses. Her desire to do so cannot be regarded as unreasonable or malafide. Mr. Habibullah Samo, has relied upon P L D 1975 Kar. 7. In this ruling averments were made in the application about requirement of landlord of a house for bona fide personal use of himself and his son. Nothing was brought out in cross‑examination which could show that the requirement was false or mala fide. It was held that the assertion of the landlord on oath was to be accepted if it was consistent with the averment in the application. He has also relied upon 1985 S C M R 739 where it was held that the children for whom premises is required need not be dependent on the landlord. The above ruling fully applies to the present case.

As against this Mr. Nooruddin Ramzan cited 1980 C L C 604 (Karachi) where it was held that even if the landlord is occupying another premises as tenant he has to show that the same are un‑suitable for his need. He therefore, submitted that since the appellant had not shown that the two roomed house in which he is living not suit able or insufficient for her need therefore, she should not be granted the relief of ejectment. This ruling does not apply to the facts of the present case because the fact that so many members of appellant's family live in such a small house itself implies that the accommodation is insufficient and unsuitable. Mr. Nooruddin Ramzan cited another ruling reported in 1985 CLC 1943 (Karachi). This ruling also does not apply to the present case. In this ruling an enquiry was conducted by the High Court on the allegation of change of tenants. The landlord was called upon to produce the counter‑foils which he did not produce. It was shown that he owned as many as 40 tenements and 5 buildings. It was alleged that he was in the habit of changing tenants very often. Hence it was held that his suppression of the counter‑foils of the receipt amounted to avoid the disclosure of the change of tenant. Hence it would not apply to the fact of the present case at all. I am of the clear view that it was not necessary for a landlord residing in his own house or in a rented house to state that the same was insufficient for his needs. This fact can be inferred by the Court from the facts and circumstances of the case. In a ruling reported in 1982 C L C 868 it was held that omission by a landlord to mention in her ejectment application that her another house in which she was living was insufficient for her requirements was not sufficient to refuse ejectment. In another ruling reported in 1982 CLC 1599 it was held that occupation of a rented premises does not debar the landlord from seeking eviction on the ground of personal requirement.

I am therefore, satisfied that the appellant requires the disputed tenement for her bona fide personal use and that of her children. Consequently I allow the appeal and set aside the impugned order. The respondent is directed to handover the vacant possession of the disputed tenement to the appellant within 4 months.

A . A . / K‑28 / K Appeal accepted.

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