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Before Ibadat Yar Khan, J
Haji MUHAMMAD IBRAHIM‑‑Applicant/ Appellant
versus
HAMZ00 KHAN‑‑Opponent/Respondent
First Rent Appeal No. 930 of 1984, decided on 20th May, 1987.
(a) Sind Rented Premises Ordinance (XVII of 1979)‑‑
‑‑‑S. 21(1)(3)‑‑Appeal‑‑Jurisdiction of Appellate Authority‑‑Where in appeal against order of Rent Controller, Appellate Authority felt that further enquiry was necessary, such enquiry could be made either by Appellate Authority itself or by Rent Controller‑‑Appropriate order for final disposal of case, held, should be passed by Appellate Authority, itself and not by Rent Controller.
(b) Sind Rented Premises Ordinance (XVII of 1979)‑‑
‑‑‑Ss. 15(2)(vii) & 21(1)‑‑Ejectment of tenant on ground of personal bona fide need‑‑"Good faith"‑‑What it means and connotes‑‑Jurisdiction of Courts‑‑Scope and limits of investigation‑‑Right of landlord to claim possession from a tenant, held, would be regulated by Court only to extent to examine whether request of landlord for possession was inspired with good faith or was frivolous and mala fide‑‑Sufficiency or insufficiency of accommodation available to landlord was a matter of individual taste and discretion with which a Court would hardly interfere‑‑All that Controller had to see or Appellate Court had to examine was whether landlord required premises in good faith for his own occupation or use or for occupation or use of spouse or any of his children‑‑Expression "good faith" should not mean to include investigation whether owner/landlord could be forced to make sacrifice by sand-witching a large number of his family members in a short space to facilitate decent living to tenant, who could find another rented premises, which might prove to be bit expensive, but which might be necessity of life.‑‑[Words and phrases].
Syed Abbas Zia for Applicant/ Appellant. Mazhar Ali B. Chohan for Opponent/ Respondent. Date of hearing: 13th May, 1987.
Haji Muhammad Ibrahim carrying a pack of 75 years on his shoulders and a flowing white beard on his face remained conspicuous in Court throughout these proceedings. Signs of fatigue and anxiety writ large on his face. He tried to overstep his counsel during the arguments on occasions when he could not control his exhaustion and sense of frustration.
2. This Haji Ibrahim owns building on Plot No.223/1 in the Baber Market of the Commercial Area, Liaquatabad, Karachi. The building has shops on the ground floor and residential flats on the first, second and third floors. As early as 1969 he rented out portion of the 1st floor consisting of four rooms to the present respondent at a monthly rent of Rs.150/‑. The going was good, till early 1980 when the appellant launched ejectment proceedings against the respondent by filing Rent Case No.772/1981 out of which this appeal has arisen praying for the ejectment of the respondent from the premises. The grounds for seeking ejectment of the opponent/ respondent from the premises, as disclosed in his rent application were the personal needs of two sons Muhammad Salim and Ahmad Raza. The appellant has a wife and eleven fully grown children. He has seven sons and four daughters. The opponent/ respondent resisted this application by filing his written statement. The main ground of opposition was that the landlord had sufficient accommodation at his disposal and the urge to eject the tenant/ respondent was inspired with questionable motive. The object, it was stated, for filing the application was to enhance the rent and not to press an urge for a bona fide personal requirement. It was also alleged that the landlord has other buildings owned by his wife. One such building was "Roshan Manzil" situated in Liquatabad.
3. On these allegations the appellant and respondent examined themselves before the Rent Controller. They were cross‑examined and the Rent Controller passed an order dated 4‑9‑1984 dismissing the application of the appellant /landlord holding that the appellant had not been able to prove either the number of the members of the family or the accommodation available to him for their use.
4. Against this order of the Rent Controller the present appeal was filed and it came up before me for hearing. During the arguments the respondent strenuously argued that a sizable unit in the building which was let out to a tenant Aslam Arain has been vacated by him and after this unit became available to the appellant, there was no need for further accommodation to be satisfied by throwing out the respondent.
5. After perusal of the case proceedings, I felt the necessity of detailed facts to be brought on the record particularly a proper investigation of the allegation that the accommodation of Aslam Arain had become available to the appellant after the rent order or it was a mere allegation. I, therefore, by my order dated 24‑12‑1986 remanded the case to the learned Rent Controller for recording further evidence of the parties and transmission of the case to this Court for final disposal. This was done because in my reading of Section 21 (3) of the Rent Act, I could not authorise the Rent Controller to pass a fresh order even after the recording of fresh evidence. For ready reference I would quote sub‑section (3) of Section 21 under which the case was remanded to the learned Rent Controller for recording fresh evidence and for being sent back for final orders. Sub‑section (3) of Section‑21 runs as under:‑
"The appellate authority shall, after 'perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final."
In my humble opinion if the appellate authority feels that further enquiry is necessary, then this enquiry should be made "either by himself or by the Controller". But the appropriate order which shall A be final, shall be passed by the authority itself and not by the Rent Controller.
6. Consequently; the case was remanded and the Learned Rent Controller has recorded further evidence and sent back the case to this Court for final disposal. Parties have led sufficient evidence this time. The appellant has filed his detailed affidavit and supported his allegations by filing Nikahnamas of his two sons, for whom the premises are required, the birth certificates of his grand‑children, the Site Plan and the Registration Forms. The respondent has also filed his affidavit and affidavits of two witnesses, Rasheed Ahmad. who is maternal‑uncle of the respondent and is a painter and the affidavit of another witness Mazhar, who is a Suzuki Driver.
7. It is now established through unimpeachable evidence on the record that the appellant has 11 sons and daughters. Before I come to the details of the accommodation available to the appellant, let me first give a brief description of the members of the family of the appellant. One daughter and a married son Ismail, who .has five children are living somewhere else and have to be excluded from discussion. The six sons who are very much present on the premises are: (1) Saleem, aged 28 years, married after the filing of the rent application with two sons; (2) Ahmad Raza, aged 26 years, married during the rent proceedings with one son; (3) Riaz Ahmad aged 25 years, unmarried; (4) Hafiz Muhammad Baber aged 18 years; (5) Ali Raza aged 12 years; and (6) three daughters whose ages are not given. All the members of the family noted above are living under one roof in one flat consisting of four rooms, a kitchen and toilet.
8. Now it would be appropriate to have a look on the building.
The ground floor is used as shops. The first floor is the disputed premises consisting of four rooms occupied by the respondent) opponent. A small portion on the first floor consisting of one room with attachment is occupied by another tenant Muhammad Siddiq. The second floor consisting of four rooms is occupied by the appellant himself. The third‑floor consisting of three rooms is occupied by Mansoor Ahmed, a married son of the appellant, having two children. He is independently occupying it since 1982. A small portion of the third floor is occupied by Aslam Arain, a tenant. The facts stated above would reveal that the appellant had filed ejectment application in February 1981 showing the need of the flat occupied by the opponent /respondent. These allegations proved to be true because after the filing of application these sons have actually been married. Salim was married on 7‑5‑1982 and has two sons and Ahmed Raza was married on 30‑11‑1984 and has also a son. These two sons have filed separate affidavits stating on oath that they are living with their wives and sons sharing the four rooms on the second floor of the building which is the only premises occupied by their father and mother and is also shared by three other unmarried sons and three unmarried daughters. It is not difficult to visualise the congestion in this four rooms flat with the appellant and his wife with two married couples with their children and other three grown up marriageable sons and three unmarried daughters.
9. During the arguments the main emphasis by the learned counsel for the respondent was that portion of the third floor which was occupied by a tenant Aslam Arain has been vacated by this tenant and surrendered to the landlord /appellant. To support this contention Mazhar, a Suzuki Driver has been examined, who has deposed that few months back he had transported the house‑hold goods of this tenant from this building to a place in Gulshan‑e‑Iqbal. Some postal receipts have also been filed to show that this tenant is now residing in the Gulshan‑e‑Iqbal house and not in this building. The reply of the learned counsel appearing for the appellant is that this tenant Aslam Arain is wanted in several cases and he is an absconding accused trying to escape arrest. Nevertheless he has locked up the premises and retains the possession of the premises obliging the appellant to apply for his ejectment; because neither he is vacating the premises nor paying any rents. Although this accommodation which, according to the plan submitted by the learned counsel for the appellant, consists of a room with attachment is not yet available and the appellant has a long way to go before the proceedings which he has filed against this tenant before the Rent Controller yield any result, the accommodation itself is not sufficient enough to satisfy the needs of this large family. Even if he succeeds in securing the ejectment of Aslam Arain and gets the possession of a room or two occupied by this tenant, still it should not be overlooked that in addition to the needs of already married sons Salim and Ahmed Raza the prospects of future requirements are stairing in the face. Riaz Ahmed is aged 25 years and Hafiz Muhammad Babar is aged 18 years and very soon they would themselves be requiring more and more accommodation to live as independent families.
10. Requirement of a person is always a matter of individual convenience. There may be cases when independent spacious bungalows are provided by affluent family to each issue after their marriage. But there are instances of large families sharing small cubicles with pets and poultry each breeding under the same roof. The family of the appellant is a middle class family and if he has a building and can provide a decent living to the married sons, there is no reason to deny him this convenience and force him to keep a tenant against his wishes. After all it is his privilege to take a decision how best he can use his property, whether by letting out to tenants for monetary gains or to put it to his own use. The right to claim possession from a tenant would be regulated by the Court only to the extent to examine whether the request for possession is inspired with good faith or it is frivolous and mala fide. Sufficiency and insufficiency of accommodation is a matter of individual taste and discretion with which a Court would hardly interfere. All that the Controller has to see or an appellate Court has to examine is that B the "landlord requires the premises in good faith for his own occupation or use or for the occupation or use of spouse or any of his children." The expression "good faith" should not mean to include investigation whether an owner/landlord can be forced to make a sacrifice by sandwiching a large number of his family members in a short space to facilitate a decent living to a tenant, who can, if he so desires, find another rented premises which may prove to be a bit expensive, but which may be a necessity of life.
I would allow this appeal and direct the respondent to vacate A the premises and hand over vacant possession within two months from the date of this order.
H.B.T./M‑157/K Appeal allowed.
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