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Frist Rent Appeal No. 597 of 1985, decided on 21st May, 1987.

---S. 17(1)--Ejectment of tenant, mode of--Eviction order cannot be passed merely on ground that tenancy was for a fixed period.

---S. 17(6)--Eviction of tenant--Bona fides and good faith- -Determination of---Where landlord asserted in his eviction application that he required premises for his own occupation and for occupation of his children and it was proved on record that he was not occupying residential building in cantonment area and he had not vacated such building without sufficient cause--Question with regard to bona fides or good faith in circumstances, held, would have to be determined in the context of provisions contained in subsection (6) of S.17.

--Ss. 17(4)(a) & 17(6)--Eviction of tenant--Bona fides and good faith -Determination of--Condition as laid down in sub-clause (i) of Cl. (a) of subsection (4) of S.17 that if landlord required a residential building in good faith for his own occupation, held, was to be read in context of conditions in subsequent sub-clauses (ii) & (iii) of S.17--Landlord was required to prove that he was not occupying any residential premises in cantonment area or in any local area for his needs or had not vacated such building without sufficient cause Good faith or bona fides of landlord would have to be determined in context of subsection (6) of S.17.

--S.17(4)(a)--Eviction of tenant--Personal bona fide need--Proof- Assertion or claim on oath by landlord that he required premises for his personal requirement and for- occupation of his family member, held, should be accepted by Rent Controller, as bona fide if such in or assertion was consistent with his averments in eviction application and was not shaken in cross-examination or disproved in rebuttal.

M.G. Dastgir for Appellant.

Shaikh Hamid Hassan for Respondent.

Date of hearing: 15th March, 1987.

This appeal under section 23 of Cantoments Rent Restriction Act, 1963 (hereinafter referred to as the Act) is directed against the order dated 29-9-1985 passed by the Additional Rent Controller, Clifton Cantonment, Karachi whereby he allowed the eviction application filed by the respondent and directed the appellant to hand over vacant possession of the premises in dispute to the respondent within sixty days from the date of the order.

The facts leading to the filing of the above appeal are that the respondent is the owner and landlady of a Bungalow No.20-B, 4th East Street, Phase 1, Pakistan Defence Officers Housing Authority, Karachi and the appellant is a tenant thereof at the monthly rental of Rs.4,000. The respondent filed eviction application (R.C. No.36 of 1984) against the appellant on the ground of default and personal requirement. The appellant resisted the eviction application.

On the pleadings of the parties, the Controller framed the following issues:-

(1) Whether the applicant requires the disputed premises in good faith for her bona fide personal use

(2) Relief

The respondent filed affidavit-in-evidence of her attorney Mohmood H . Aziz and her son-in-law Sardar Abdul Qayyum in support of the eviction application. The appellant filed his own affidavit-in- evidence in rebuttal. They were cross-examined by the learned counsel for the respective parties.

The Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided issue No.1 in the affirmative and allowed the eviction application as stated in earlier part of this judgment.

I have heard the learned counsel for the parties and have perused the impugned order. I have also gone through the R & P of the record with the assistance of the learned counsel for the parties.

The respondent averred in para 7 of the eviction application that "the applicant requires the premises in question for her own use and for the use of her children in good faith, who have now arrived in Karachi from abroad , to live permanently and they have no other place to live except the premises in question". The appellant denied the contents of pars. 7 of the eviction application. The appellant stated that "the applicant and/or her children have other properties within the same area and the requirements are neither bona fide nor in good faith".

Mohmood H. Aziz, attorney of the respondent stated that the respondent required the premises in dispute for her own use and for the use of her children in good faith who arrived in Karachi from abroad. The attorney further stated that the respondent and her Sumera Hanif are temporarily staying with her son-in-law as guest. He also stated that her husband had a job in Dubai for specific period and keeping in view the requirement of the premises in dispute, the said premises was let out to the appellant for the specified period of three years. The attorney also stated that since the specified period has expired and the respondent required the premises in question in good faith and the requirement is bona fide.

This witness to a suggestion in cross-examination replied that the respondent does not own any property in Pakistan. This witness admitted in his cross-examination that at the time of letting out the disputed premises, the respondent was residing in 7-A, 8th Central Street. This witness admitted that she is residing with her son-in-law ever since her return from Dubai. This witness admitted that house No.7-A, 8th Central Street belongs to respondent's son Faisal Hanef. This witness denied the suggestion that the respondent is residing in 7-A. This witness also denied the suggestion that the respondent wanted to relet the house on higher rent.

The respondent's son-in-law Sardar Abdul Qayyum stated that the respondent is residing with him as guest due to non-availability of her own accommodation. This witness admitted in his cross -examination that "the applicant has been living with me ever since her return from Dubai". This witness admitted that the premises where he is residing does not belong to him. This witness to a suggestion in cross-examination replied that "it is incorrect that applicant is not residing with me".

As against the above evidence the appellant stated in his affidavit-in-evidence that "it is absolutely false to say that the applicant has come from abroad to live permanently in Karachi and has no other place except the premises in question. It is also false to say that the applicant alongwith her child Sumera Hanif has been temporarily staying with her son-in-law as guest". The appellant further stated in his affidavit-in-evidence that "the real facts are that the entire bungalow 7-A is in occupation of the applicant. The said. bungalow is owned by Faisal Hanif son of the application who is of under age and staying with her son-in-law as guest' has been concocted by the applicant in order to give some support to her falseless claim for my ejectment or her alleged personal need"

The appellant to a question in cross-examination replied that "I cannot say for sure if the applicant ever lived in Ismail Building because I have never visited Ismail Building". The appellant to a question in cross-examination replied that "it may be correct that the applicant has come from abroad to live permanently in Karachi". The appellant denied the suggestion in cross-examination that "the applicant is living as a guest with her daughter and son-in-law". This witness denied the suggestion in cross-examination that "the applicant has only the disputed premises and that these premises are only suitable premises for her occupation".

The admitted position is that the premises in question was let out by the respondent to the appellant vide agreement to lease dated 11-4-1981. That the appellant took the premises in question for a period of three years commencing from 1st May, 1981 to 30th April. 1984. It is, therefore, clear that in that agreement there was an undertaking to vacate the premises by 30th April, 1984. An eviction order cannot be passed merely the tenancy was for a fixed period. Section 17(1) of the Cantonment Rent Restriction Act says that no tenant can be evicted except in accordance with the provisions of the Act.

If a landlady asserts in her eviction application that she requires the premises in question for her occupation and for the occupation of her children and it is proved on record that she is not occupying residential building in the cantonment area and it is proved that she has not vacated such a building without sufficient cause, then the question with regard to bona fide or good faith, will have to be determined in context of the provisions contained in subsection (6), of Section 17 of the Act. According to this provision if a landlady does not occupy the premises vacated by the tenant within one month) of the date of the obtaining of the possession, the evicted tenant will have the right to get his possession restored on his application to the Controller. In the present case the respondent has made a statement without any rebuttal that her husband had a job in Dubai for specified period and the respondent had come back to Karachi and further that the premises in question had been in her occupation before it was let out to the appellant. She has stated that she is not occupying any premises for her occupation but is staying with her, son-in-law as a guest. Nothing has been brought on record to show that the statement of the respondent is not correct.

The contention of the learned counsel for the appellant is that the respondent is staying with her unmarried son Faisal and it is impossible that a minor son alone can live in his own premises. This contention is without force. The respondent has established her bona fide requirement. The condition as laid down in sub-clause (i) of clause (a) of subsection (4) of section 17 of the Act that if the landlady requires a residential building in good faith for her own occupation is to be read in context of the conditions as laid down in subsequent sub-clauses (ii) and (iii) If it is proved that the landlady is not occupying any residential premises in the cantonment area or in any local area for her needs or has not vacated such a building without sufficient cause; then her good faith or bona fides will have to be determined in context of subsection (6) of section 17. The effect is that the assertion or claim on oath by the landlady that she required the premises for her personal requirement and for the occupation of her daughter Sumera Hanif, should be accepted by the Controller as bona fide if such claim or assertion is consistent with her averments in the eviction application and not shaken in cross examination or disproved in rebuttal. The evidence in this case fully justified the claim by the respondent that she required the premises in question for her own occupation and for the occupation of Sumera Hanif as she had no other accommodation of her own. The order of the Controller is in accord with the evidence on record. I think the Controller has rightly allowed the eviction application.

For the reasons stated above I find no merit in this appeal which is accordingly dismissed. The appellant is however granted two months' time to hand over the vacant possession of the premises in question to the respondent/ landlady provided he continues to deposit rent as ordered by the Controller.

There shall, however, be no order as to costs.

H.B.T./S-129/K Appeal dismissed

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