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Before Sajjad Ali Shah, J
Dr. JUZAR ALI‑‑Appellant
versus
Mrs. MANI BAI‑‑Respondent
First Rent Appeal No.924 of 1984, heard on 4th May, 1987.
(a) Sind Rented Premises Ordinance (XVII of 1979)‑
‑‑‑S. 15(2)(ii)‑‑Ejectment of tenant‑‑Plea of default‑‑Proof‑‑Landlord in his ejectment application alleged that tenant did not pay rent for about 20 months, while in his affidavit without mentioning specific period of default, vaguely stated that tenant remained defaulter in spite of repeated reminders and in cross‑examination he alleged default only for 4/5 months‑‑In view of the fact that plea of landlord on ground of default suffered from inherent inconsistency and that such plea having been pressed by landlord only half‑heartedly, landlord, held, failed to establish his plea on ground of default.
(b) Sind Rented Premises Ordinance (XVII of 1979)‑
‑‑‑S. 15 (2) (vii)‑‑ Ejectment of tenant on ground of personal need‑ Landlord is not prevented from living in his own house of which he was exclusive owner and there being no bar to select portion in premises in which landlord wanted to live‑‑Tenant, held, could not dictate to landlord as to which accommodation was sill able for him.
Sabu Mal v. Kika Ram 1973 S C M R 185 ref.
(c) Sind Rented Premises Ordinance (XVII of 1979)‑
‑‑‑S. 15(2) (vii) ‑‑Ejectment of tenant‑‑Personal bona fide need‑ Proof‑‑When landlord elected to live in his own house, his need, held, would be presumed to be bona fide unless mala fides were alleged by tenant against landlord and proved.
Rajab Ali v. Darius B. Kandawalla P L D 1984 Kar. 14 ref.
(d) Sind Rented Premises Ordinance (XVII of 1979)‑--
‑‑‑Ss. 15(2)(vii) & 21(1)‑‑Ejectment of tenant‑‑Plea of personal bona fide need‑‑Quantum of evidence to prove such plea‑‑Question with regard to quantum of evidence to prove plea of personal bona fide need by landlord in respect of premises, held, would depend on peculiar facts of each case‑‑Same would depend‑upon how need was described and what were attending circumstances‑‑If landlord himself was living in borrowed or rented accommodation and was owner of the only house which was in occupation of tenant and landlord wanted to acquire his own house, then in that context his statement on oath, if it was consistent with averment made in his application, would be sufficient unless creditability of such landlord was shaken in cross‑examination or there was rebuttal to his claim on record.
Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832 ref.
Ahmad Ali Memon for Appellant.
Mirza Waqar Hussain for Respondent.
Date of hearing: 4th May, 1987.
This first rent appeal is directed against the order dated 22‑8‑1984 of VIIth Senior Civil Judge/Rent Controller, Karachi, whereby ejectment application filed under section 15 of the Sind Rented Premises Ordinance, 1979 has been dismissed.
Briefly stated the relevant facts giving rise to this appeal are that Dr. Juzar Ali appellant is landlord (to be referred hereinafter as such) and Mrs. Manu Bai respondent is tenant (hereinafter to be referred as such) of tenement on the first floor situate on plot No.C/85/C, Saify Co‑operative Housing Society, North Nazimabad, Karachi, Monthly rent was Rs.500 per month which is raised to Rs.600 p.m. There was tenancy agreement for 11 months subject to subsequent renewal for three years. Landlord applied for ejectment on the grounds of personal need, damage to the property as drive way was dug without permission and default. In the written statement filed by the tenant allegations have been denied. Initially in the Court of Rent Controller three issues were framed but issue with regard to the damage was not pressed. In the evidence landlord examined himself and his sister Mst. Aqeela. On the other hand tenant examined her son and attorney Abbas Tahir Ali.
Now so far the question for the default is concerned, plea of the landlord on this ground suffers from inherent inconsistency. In paragraph 12 of the ejectment application filed in the Court of learned A Rent Controller, it is stated that the tenant has remained defaulter in the payment of rent, at least for the period from 1‑2‑1980 onwards. Ejectment application was filed on 20‑9‑1981. This shows that claim was made that rent was not paid for about 20 (twenty) months. Landlord in his affidavit of evidence has just vaguely stated in paragraph 5 that tenant remained defaulter in spite of repeated reminders. He did not pin point the period specifically for which the default was committed. This was perhaps for the reason that the landlord was away in America for higher studies and in his absence his sister Mst. Aqeela used to receive rent. In the cross‑examination landlord stated that tenant was in default in the payment of rent for about 4 to 5 months when he filed the ejectment case. He further admitted that he did not remember exactly the period for which the tenant was the defaulter. He further stated that his sister used to issue receipts and she was in possession of the counterfoils of rent receipts. Mst. Aqeela in her affidavit of evidence filed before the Rent Controller has only vaguely stated that tenant had regularly committed default in the payment of rent. In the cross‑examination she has admitted that tenant was not defaulter in the payment of rent when this rent case was filed but the tenant was regular defaulter.
On the other hand in the written statement filed by the tenant, allegation of default is denied and it is stated that the sister of the landlord had asked the tenant to enhance the rent and when tenant did not agree, she stopped accepting the rent hence the rent was sent by money orders which were not accepted and then the rent was deposited in the Court in Misc. Rent Case No.2278/1980. In that case tenant started depositing rent from 21‑4‑1980 and the ejectment application was filed on 20‑9‑1981.
Abbas Tahir Ali son and attorney of tenant has stated same thing about default in his affidavit of evidence as is stated in the written statement that no default has been committed and after refusal of acceptance of rent the same has been deposited in the Misc. Rent case. There is rent receipt Exh. 4‑D on the record which shows that rent had been paid upto December 1979 in the month of January 1980. There is no dispute about the fact that on behalf of tenant rent was deposited in the Court in Misc. Rent Case No.2278/80 and the first deposit was made in the month of April 1980. Attorney of the tenant was not effectively cross‑examined on the point of default. It was contended by the learned counsel of the tenant that since tenancy agreement had expired, there was no agreement in existence between the parties and tenant was allowed under the law to pay rent due after 60 days. In these circumstances rent for the month of January became due on the first February and was payable after 60 days on 1st May but the deposit was made earlier than that in the month of April in 1980. It was also contended on behalf of the tenant that Rs.3,000 of tenant were available with landlord as security deposit which could be adjusted if there was any default. On these premises it was submitted on behalf of the tenant that there was no default at all. In fact Mr. Ahmed Ali Memon counsel for the landlord argued on this point only half‑heartedly and stated that his main ground is personal need. I therefore, hold that there was no default.
In this appeal the main issue is requirement of premises in question for personal need. It is stated in the application for ejectment that the landlord was out in United States of America for higher studies and when he came to Pakistan on holiday he entered into agreement for 11 months with tenant renewable for the maximum period of 3 years upto January 1980 because by that time he expected to return to Pakistan after completion of his studies. After the expiry of the term of 3 years upto January 1980 as stated above the tenant was called upon to vacate the premises but she refused to do so. In the evidence landlord has stated that he had returned alongwith his wife and two sons from America after completion of his higher studies and has been living in the house of his mother on temporary basis. He has also stated that there is one flat which originally belonged to his father and that flat was in the ownership of his sister after the death of his father. There is no dispute about fact that the premises in question belong to the landlord for the reason that tenancy agreement was executed by the landlord and tenant on 1st February 1977, authenticity of which is not' called in question. According to the landlord he is the exclusive owner of double storey bungalow on Plot No. C /85/ C Saify Co‑operative Housing Society North Nazimabad Karachi in which on the first floor tenement in question is situate. Landlord has expressed his desire to acquire the accommodation on the first floor which is suitable for him and his family of wife and two sons. He has admitted that the ground floor is in occupation of other tenant. There is nothing in law to prevent the landlord from living in his own house of which he is exclusive owner. He could also select the portion in which he wants to live. Tenant cannot dictate to the landlord as to which accommodation is suitable for him. Presently landlord is living on temporary basis with his mother in her house. In fact the property on which the accommodation in question is situated is the only property belonging to the landlord and if he wants to acquire tenement in question from the tenant for his personal use, there is nothing in the law which comes in his way. It is held in the case of Sabu Mal v. Kika Ram 1973 S C M R 185 with relevant portion at page 189 that if a landlord possesses more than one house in the same urban area, the choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion, and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside. Additionally section 15‑A of Sind Rented Premises Ordinance, 1979 contemplates that if landlord after acquiring the premises for personal need from the tenant does not occupy the same or lets it out to another tenant within one year he shall be punishable with fine which shall not exceed one year's rent and the original tenant who has been evicted could apply to the Controller who can pass order for restoration of possession to him.
It is well‑settled that if landlord elects to live in his own house then his need is presumed to be bona fide unless mala fides are alleged by the tenant and proved. In this context reference could be made to the case of Rajab Ali v . Darius B . Kandawalla PLD 1984 Karachi 14. Now the question arises for consideration as how much evidence is to be produced by the landlord to prove his personal need. This question with regard to the quantum of evidence depends on the peculiar facts of each case. It depends how the need is described and what are the attending circumstances. If the landlord is living himself in borrowed accommodation or rented accommodation and he is owner of the only house which is in occupation of the tenant and he wants to acquire his own house then in that context his statement on oath, which is consistent with averments made in application would be sufficient if the creditability of such landlord is not shaken in the cross‑examination or there is no rebuttal to his claim on the record. In this context reference could be made to the case of Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832. In the instant case there is sufficient evidence by the landlord in support of his claim of personal need and there is nothing available on the record to suggest that the tenant has alleged mala fides. Only one question was suggested to him in cross‑examination that he did not require the premises in question for his personal bona fide use but wanted to sell the same through Estate agents which he has denied. A part from that the trend of the cross‑examination was to suggest that the landlord should continue staying with his mother if he wanted to look after her. Landlord made a categorical statement that he did not want to stay with his mother and wanted to reside separately in his own house. I am satisfied with the worth of evidence produced by the landlord in support of his claim of personal need quality‑wise and quantity‑wise in the instant case. He has come back to his own country with his wife and two sons and is living presently in the borrowed accommodation in the house of his mother and the house of which he is himself owner is in occupation of tenant. He is at liberty to select any tenement in his own building for his residence as he has already done. I, therefore, set aside the impugned order and allow eviction on the ground of personal need and direct the tenant to hand over vacant possession to the landlord within three months from the date of this judgment. In the result appeal is allowed to the extent stated above and there would be no order as to costs.
H. B . T . /J‑19/ K Appeal allowed.
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