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First Rent Appeal No.615 of 1985, decided on 17th November, 1986.

‑‑Ss. 15 & 21(1)‑‑Preamble‑‑Eviction of tens not‑‑Purpose of ordinance‑‑Plea of personal bona fide need‑‑Very purpose of Ordinance according to preamble, held, was to make effective provisions for regulation of relations between landlord and tenants and to protect their interest in respect of rental premises within urban areas ordinance has imposed restrictions on the right of landlord to evict and on the jurisdiction of Rent Controller to pass eviction order against tenant‑‑As onus of proving conditions, on proof of which clone tenant might be evicted lay on landlord, very purpose of ordinance would be defeated if landlord was allowed to come forward and to get tenants turned out on bare plea that they wanted more accommodation for their occupation.

‑‑‑S. 15(2) (vii)‑‑Eviction on ground of personal bona fide requirement‑‑Duty of Rent Controller‑‑‑ Before ordering eviction of tenant on ground of landlord's requirement in good faith for‑his own occupation or his spouse or any of his children from house occupied n part by tenant and in part by landlord, Rent Controller, held, must be in a position to ascertain extent of portion in occupation of and lord and whether such accommodation was or was not sufficient 'or requirement of landlord and if not, whether portion occupied by tenant was required to be available to landlord.

.Ss. 15(2) (vii) & 21(1) Eviction of tenant personal bona fide need proof portion of premises in dispute already in occuption of landlord unquestioningly proved to be more than sufficient for his requirement . Findings of Rent Controllor that landlord required in good faith more accommodation than he already had, without ascertaining extent of premises occupied by landlord and without being able to determine how much space landlord would require in good gaith for his occuption , held , were wrong and unjustified and eviction passed by Rent Controllor on ground of bona fide personal requirement fo landlord could not be sustained in circumstances.

Rustom J.E. Kaikobad for Appellant .

Dewan Bashir Ahmed Khan for Respondent .

Data of hearing: 23^rd September ,1986.

This First Rent Appeal is directed against the order, dated I1‑8‑1983 passed by the XVIth Rent Controller, Karachi, whereby he allowed the eviction application filed by the respondent and directed the appellant to hand over vacant and peaceful possession of the premises in dispute to the respondent within one‑ month from the date of the order.

The facts leading to the filing of the above appeal are that the respondent is the owner and landlord of Plot No.207‑B, Sindhi Muslim Society, Karachi and the appellant is the tenant in respect of the first floor of the said building at the monthly rental of Rs.450. The respondent filed eviction application No.118 of 1983 against the appellant on the ground of personal requirement in good faith for his personal need. The appellant resisted the eviction application. The Respondent filed his own affidavit‑in‑.evidence besides affidavit‑in‑evidence of his son‑in‑law Khaliq Ahmad. In rebuttal the appellant filed his own affidavit‑in‑evidence. They were cross‑examined by the learned counsel for the respective parties.

The learned Rent Controller, after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided both the issues in the affirmative vide order dated 31‑8‑1983.

The appellant being aggrieved against the order dated 31‑8‑1983 of the XVIth. Rent Controller, Karachi, has preferred this first Appeal on the grounds mentioned in the memo of appeal.

Mr. Rustom J. E. Kaikobad, the learned counsel for the appellant has contended that there is complete misreading of evidence by the learned Controller which has resulted in serious miscarriage of justice against the appellant.

On the other hand Mr. Dewan Bashir Ahmad Khan, the learned counsel for the respondent, has submitted that the findings of the learned Controller are in accordance with the evidence on record.

The respondent assertd in the eviction application that he is an old man of about 70 years and is a patient of asthma whereas his wife is also aged about 60 years and is a heart patient. In addition the landlord has a daughter and a son‑in‑law, who are living in a rental premises. The present premises in occupation of the landlord is not sufficient and in the interest of his health and his wife's health he has to isolate himself from his daughter and son‑in‑law and as such requires the premises in possession of appellant for his personal and his wife's use and occupation in good faith. The respondent further averred that "the landlord and his wife being very aged and ill need their daughter and son‑in‑law to live with them in order to their care". The appellant filed his written statement stating therein that "the present premises in occupation of the applicant and his wife is more than sufficient to accommodate his daughter and her husband and the alleged association of married daughter and her husband is not deemed to be required for the applicant".

The respondent filed his own affidavit‑in‑evidence in support of the eviction application and stated therein that "I and my wife both are aged. I am running into 70 years of my life, suffering from asthma and hence, have become weak and infirm. I further say that my wife who should look after me is a heart patient and is also old running into 60 years of her life". The respondent further stated that "I have a daughter and son‑in‑law who are living in a rental premises, as the present premises in my possession is not sufficient to accommodate my daughter and son‑in‑law to look after me and my wife". The respondent further stated that "on account of my disease I have to be isolated as such there is no more room in the premises in my occupation hence I say that I require the premises presently in occupation of tenant/opponent for myself in the interest of my health and life in bona fide good faith." The respondent admitted in his cross‑examination that the house in dispute is consisted of three bedrooms, drawing room and dining room. The Respondent also admitted that the same accommodation is on the upper floor. The respondent also admitted in his cross‑examination that the disease is not dangerous one. The respondent also admitted that "I do not want to live in isolation. My wife became heart patient since last more than two years. She has not yet recovered. At present she is at home. I want to keep my daughter and son‑in‑law with me". The Respondent stated that he needed this house for his personal use, for use of his daughter and son‑in‑law. The respondent denied the suggestion in his cross‑examination that the accommodation in his possession was not sufficient.

The respondent also filed affidavit‑in‑evidence of his son‑in‑law Khaliq Ahmad. He supported the respondent and stated therein that he and hips wife wished to shift in the premises in which they are living in order to keep watch round the clock on their health and food". He also stated that the present premises in occupation of his father‑in‑law was not sufficient enough to accommodate them. Khaliq Ahmad admitted in his cross‑examination that "the ground floor accommodation is sufficient for needs of applicant and his wife".

As against the above evidence, the appellant stated in his affidavit‑in‑evidence that "the applicant has sufficient accommodation in his occupation comprising three bedrooms and dining and drawing room plus compound wall an open space on the ground floor of the said premises. The applicant and his wife are the only two inmates occupying the said accommodation. That the same accommodation is so big that it can accommodate his other relatives like married daughter and her husband too." The appellant also stated that "the applicant does not require the demised premises in good faith for his personal use." The appellant to a suggestion in cross‑examination stated that "I do not think so if Abdul Rehman needs this house for his own use, as he is already having three bedrooms plus dining room".

As the preamble of the Ordinance shows, the very purpose of the Ordinance is to make effective provisions for regulation of relations between landlords and tenants and protect their interest in respect of rental premises within urban areas. The Ordinance has imposed restrictions on the right of the landlord to evict and on the jurisdiction of the Controller to pass an eviction order against the tenant and A that the onus of proving the conditions, on proof of which alone the tenant may be evicted, lies on the landlord and that the very purpose of the Ordinance would be defeated if the landlord was allowed to come forward and to get tenants turned out on the bare plea that they want more accommodation for their occupation.

In the light of the aforesaid background, let me, therefore, consider whether on the evidence on record, the respondent landlord can be said to have discharged the onus and has been able to prove that the premises in dispute are required for the bona fide occupation of the respondent landlord and his daughter and son‑in‑law.

The case of the respondent as to his requirement of this premises has been made out in paras 2 to 6 of the eviction application.

In notice dated 12‑7‑1982 issued by the respondent through his advocate, the requirement alleged is "suitable for my client and his family members . But the case made out by the respondent in the eviction application as to the, requirement for accommodating his daughter and son‑in‑law, as the accommodation in his possession was not sufficient, and in the interest of his health and his wife's health, he had to isolate himself from his daughter and son‑in‑law and as such requires the premises in possession of the opponent for his personal and his wife's use and occupation in good faith. The learned Controller has, held that "it appears that the applicant's only off‑spring is the married daughter and he desires to keep the married daughter in his own house so that she and her husband can look after the interests and health of the applicant and his ailing wife. I am of the opinion that this liking of the applicant is only natural and in advanced age and during illness it becomes increasingly clear that one is too much dependent upon some one to support him in his daily life". The learned Controller has, however, held that "in the light of the above discussion I am of the considered opinion that bona fide personal requirement of the premises for the use and occupation of the applicant's daughter and son‑in‑law whom he wants to usher in their house for looking after the ailing parents is proved".

Clause (vii) of subsection (2) of section 15 of the Ordinance uses the expressions "Landlord or his spouses" "any of his children". The relevant portion of clause provided that the requirement of the premises in good faith for the landlord's ‑own occupation and also expressly provided for the occupation or use of his spouse or any of his children. The law‑making authority, after providing that the requirement of the premises in good faith for his own occupation is provided further that the requirement for the occupation of his spouse or any of children, the conclusion that should be reasonably drawn is that the requirement of the spouse or a child would constitute a ground for eviction.

This brings me to the consideration of the most important question in this case, namely, whether the Controller is right in holding that "evidence on record sufficiently proves that the premises in question are required in good faith for the use and occupation of the respondent's daughter and son‑in‑law.

There can be no manner of doubt that before ordering eviction on the ground of the landlord's requirement in good faith for his own occupation or his spouse or any of his children, whether for his residence of business or otherwise, and ordering eviction of tenants from the house occupied in part by the tenants and in part by the landlords, as in this case, the Controller must be in a position to ascertain the extent of the portion in the occupation of the landlord and whether such accommodation is or is not sufficient for the requirement of the landlord and if not, whether the portion occupied by the tenant is, therefore, required to be made available to the landlord. The evidence on record, read with the relevant portions of the pleadings of the parties, has given me a very strong impression that the building consists of two floors. In the eviction application, signed and verified .by the respondent himself, the plot of land has been described in para 1 as a plot No.207‑B, Sindhi Muslim Society, Karachi and the opponent is the tenant in respect of the residential house on 1st floor in the buildings". In reply the appellant's assertion in para 1 of the written statement that in view of the aforesaid legal objections the same is denied except that the opponent 'is ‑the tenant of Dr. Haq".

P.W.1 Abdul Rehman stated in his affidavit‑in‑evidence that he is residing at 207‑B, ground floor and the appellant in his tenant in respect of the residential house on first floor.

From all these, it cannot be ascertained with any amount of certainty as to what is the extent of accommodation in the possession of the landlord and even how many bedrooms are in his possession and how many much accommodation or what bed‑rooms are in possession of the tenant and whether the ground floor in possession of the landlord is not or cannot be sufficient for his daughter and son‑in‑law. And if this much only, namely what is the accommodation available therein and how much of it is in occupation of the landlord and, as such, how much more he can require in good faith, cannot be ascertained, then I do not understand how any Controller can find that the landlord requires in good faith with more accommodation then he. has now. I may frankly confess my inability to understand how a Controller can order eviction of the tenant in favour of the landlord and order recovering of possession of the premises occupied by the tenant on the ground that the landlord requires in good faith that premises, without ascertaining the extent of the premises occupied by the landlord and without thus being able to determine how much more the landlord can require in good faith for his occupation.

In para 3 of the affidavit‑in‑evidence of the appellant the ground floor, that is, the premises occupied by the respondent has been described to consist of (1) 3 bedrooms, (2) dining rooms, (3) drawing rooms and an open space on the ground floor of the said premises. The respondent landlord admitted in his cross‑examination that the, first floor consists of the same accommodation.

In para 3 of the eviction application and in para 6 of the affidavit‑in‑evidence the respondent stated that in the interest of his health and his wife's health he has to isolate himself from his daughter and son‑in‑law as such there is no more room in the premises in his occupation. It is pertinent to note that the respondent admitted in his cross‑examination that the disease is not dangerous one. The Respondent also admitted that "I do not want to live in isolation".

In this state of affairs, I am afraid that it would not be possible for. me to hold that for his daughter and his son‑in‑law, or for that matter isolation, respondent requires in good faith more accommodation in the occupation of the appellant.

On the materials on record, therefore, it cannot be held that the respondent requires in good faith any more accommodation for himself or his daughter and his son‑in‑law.

As already pointed out, the learned Controller has held that the Respondent requires the premises in question for accommodating his daughter and son‑in‑law. But I am afraid this finding of the learned Controller cannot be sustained for more than one reason. As I have already pointed out herein before, the specific and categorical case made by the respondent in para 3 of the eviction application as to his requirement is for "the present premises in occupation of the landlord is not sufficient and in the interest of his health and his wife's health he has to isolate himself from his daughter and son‑in‑law and as such requires the premises in possession of opponent for his personal and his wife's use and occupation in good faith". In the eviction application the respondent has not even remotely suggested about any requirements for his daughter and son‑in‑law.

There are three bedrooms on the ground floor in premises No.207‑B, Sindhi Muslim Society, Karachi. If one room is left for the use and occupation of the respondent himself as his bedroom, one for his wife, there is still one bedroom available which can be kept for his daughter and son‑in‑law. It is an admitted position that there is one and the same boundary wall for houses Nos.207 and 208 where his brother is residing. Regard being had to the composition of his family and his existing accommodation in premises, and the fact that two houses are adjacent to each other, even if his brother's wife stay in premises No.208‑B, they can very well‑attend to the respondent and his wife and there are bedrooms or at least one bedroom is available which can accommodate his daughter and son‑in‑law. In the circumstances I find no other alternative but to hold that the respondent had not made out a case for insufficiency of his existing accommodation at ground floor of premises No.207‑B and his bona fide requirement of premises on first floor of 207‑B for his own use and occupation and for the use and occupation of his daughter and son‑in‑law. Hence in the facts and circumstances of the present case, I hold that the requirement of the respondent landlord is not bona fide and is made out for an oblique motive to evict a tenant for the purpose of his own use and occupation and for the use and occupation of his daughter and son‑in‑law within the meaning of section 15 (2) (vii) of the Sind Rented Premises Ordinance, 1979,

After going through the depositions of the witnesses examined by the parties, I am of the view that the respondent has not proved that he required the premises in dispute for his daughter and son‑in‑law. I am influenced by the facts that the premises in his. occupation is quite sufficient to accommodate his daughter and, son‑in‑law.

I am, therefore, of the opinion that the learned Controller was wrong in allowing the eviction application, and the order of eviction passed by the learned Controller cannot be sustained and must, therefore, be set aside. I accordingly set aside the impugned order under appeal, the eviction application stands dismissed. The appeal is, therefore, allowed but with no order as to costs.

H . B . T . /J‑15/ K Appeal allowed

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