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First Rent Appeal No.1031 of 1984, decided on 14th June, 1987.

---S.15(2)(iii)(b)(c)--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(2)(ii)(b)--Infringement of condition of tenancy- Proof--Residential premises was let out by landlord on condition that same would be used by tenant for residential purposes or for any other lawful purpose--Tenant by putting such premises to a different use by converting same into office or by using same for purposes of storing or packing of goods, held, had neither infringed conditions contained in lease-deed nor had infringed provisions of law, because purposes for which premises was used by tenant were lawful as same were not legally prohibited.

---S.15(2)(vii)--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(3)(a)--Personal bona fide requirement--Proof--Burden to establish personal bona fide requirement was squarely on landlord- In order to avail of benefits conferred by that section to seek eviction of tenant, landlord, held, must satisfy essential ingredients of provisions of S.13 and must establish that he required premises in good faith for his own occupation or use or for occupation or use of his spouse or any of his children.--[Burden of proof].

---S.15--Civil Procedure Code (V of 1908), S.151--Application filed by one of landlords under S.151, C.P.C. during pendency of eviction application for allowing him to give his own evidence to prove that landlord was employed abroad had been transferred and posted in Pakistan, held, ought to have been granted by Rent Controller before dismissing his eviction application.

---S.15--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13--Personal bona fide requirement of landlord--Duration of- Landlord commencing proceedings for eviction of tenant on ground of his personal bona fide requirement in respect of rented premises, held, must be able to allege and show his requirement on date of initiation of action before Rent Controller which would be his cause of action--Requirement of landlord in respect of premises must continue throughout progress of litigation and must exist on date of eviction order passed by Trial Court.

---Ss.15 & 21-- Personal bona fide requirement of landlord--Extent- When landlord was able to show his personal requirement in respect of premises at time of commencement of action before Rent Controller and such requirement continued till date of eviction order and thereafter during pendency of appeal filed by tenant against such order or till date of dismissal of eviction application of, landlord, dismissal of eviction order, held, would cease to be final on preferring appeal by landlord.

---S.15--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(2)(3)--Personal bona fide requirement--Time for determination of--Provisions- of Rent Ordinances, nowhere prescribing either in, express terms or by necessary implication that requirement of landlord for his own use must be present and existing on the very day of moving eviction application--Material and relevant time for determining bona fide requirement of landlord, held, would be the day which Rent Controller might specify when allowing application of landlord for eviction and not date of application for ejectment.

Harcourt v. Lowe -(1919) 35 T L P 255; Burman v. Woods (1948) 1 KB .111; Prasad Shukul and others v. Keshwar Lal Chaudhuri and others A I R 1941 F C S and Mst.Amina Begum and others v. Mehar Ghulam Dastagir P L D 1978 S C 220 ref.

---Ss.15(2)(vii) & 21(1)--Unrebutted evidence on record showed that landlord requiring premises in dispute for his personal use was working abroad, but had been transferred and posted in Pakistan and had no place to live in except premises in "spate---Sufficient material on record available to prove bona fide personal requirement of landlord- Finding of Rent Controller against landlord arrived at by ignoring un-controverted facts on record was set aside by High Court in appeal.

Fazal Azim and another v. Tariq Mahmood and another P L D 1982 S C 218 ref.

---S..13(4)--Statutory safeguard to tenant--Landlord after securing possession of premises for purpose of his own occupation or his family, if subsequently not occupying same--Consequences--Tenant to move Rent Controller for restoration of possession to him as provided--Rent Controller on being satisfied of requirements of provisions of that section, would be obliged to make order accordingly.

S. Mazharul Jamil for Appellants.

Khalilur Rehman for Respondent.

Dates of hearing: 16th February and 23rd April, 1987.

This First Rent Appeal is directed against the order dated 10-9-1984 passed by XVth Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application filed by the appellants was dismissed.

The facts leading to the filing, of the above appeal are that the appellants rented out the premises bearing No. 27-A, Block No. VI, Shah rah-e-Faisal, P.E.C.H.S., Karachi to the respondents vide agreement of lease dated 21-12-1973 at monthly rental of Rs.1,000. The appellants filed eviction application No. 2695 of 1987 against the respondents on the grounds of (1) converting the demised premises into a warehouse and putting it to commercial use instead of residential, (2) damaging the demised property, (3) committing default in payment of rent since August 1977, and (4) personal requirement. The respondents resisted the eviction application and denied the allegations. The appellant No. 1 filed his own affidavit-in-evidence in support of the eviction application. The respondents filed affidavit-in-evidence of managing partner Shaikh Tariq Salimullah in rebuttal. They were cross-examined by the learned counsel for the respective parties.

The 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 all the three issues in the negative and dismissed the eviction application vide order dated 10.9.1984.

The appellants being aggrieved against the order dated 10-9-1984 of the XVth Senior Civil Judge/Rent Controller have preferred this. First Rent Appeal on ,the grounds mentioned in the memo of appeal.

I have heard the learned counsel for the parties and perused the record.

It is an admitted position that the respondents were inducted as tenant vide lease agreement dated 21-1.2-1973. -Clause 6 (a) thereof reads as under:----

"not to assign or sublet the premises which will be used for residential purposes or any other lawful purposes."

A perusal of the above Clause disclosed that the premises were to be used for residential purposes or any other lawful purposes. The Clause lays down no limitation about the purposes except that the purpose must always be lawful purpose. The purpose of the respondent is household packing, removals and storage company with their allied business of clearing and forwarding exports and imports and therefore, certainly lawful purposes and according to my interpretation storing of the goods, packing of the goods at the premises are not legally prohibited and therefore such use is within the meaning of the expression of 'lawful purposes' in Clause 6 (a).

It would be noticed that the premises had been mentioned in the lease agreement as a house. The lease agreement is not silent about the use to which the house was to put, but it specifically mentions that it can be used as a residential house or for other lawful purpose. Therefore, by putting it to a different use by converting it into an office or using it for storage purposes, the respondent had evidently not infringed part of Clause (b) of Section 13 (2) (ii) which does not prohibit the tenant from using a building for a purpose other than for which it was let-out: The respondent cannot also, be denied to have infringed one of the conditions on which they had evidently taken the house on lease, that is, to use it for their residence or any other lawful purpose. It seems that the Controller has rightly decided this issue. In this view of the matter I do not find any force in the first contention of the learned counsel for the appellant.

As regards the last contention of the learned counsel for the appellant that the appellants have established personal requirement and the learned Controller has misread the evidence it is the case of the appellant that "the appellants are residing in rented premises and are being pressed by their landlords to vacate premises and as such the applicants also required the premises in question for their personal bona fide use". The respondents denied the allegation of personal requirement. The respondent stated in their written statement that "the applicants are not entitled to get the opponent ejected from the disputed premises-on any ground mentioned in the application. The present case had been filed to relet the premises on higher rent, when the opponents refused to increase the rent as desired by the applicants and further it has been filed as repercussion of opponents' several notices and the last dated 27th August, 1977 calling upon the applicants to distemper and colour and repair the premises, which had never been done by the applicants since last several years". The appellant No. 1 filed affidavit-in-evidence and stated in para 3 thereof that "I and my brother Azmatullah do not own any house anywhere in Pakistan and we have been living in rented houses at very great inconvenience, as such we require the-said premises for our bona fide personal use". The appellant No. 1 further in para 4 stated that "I had to vacate the house I was living in as tenant again, .as the landlord had asked me to vacate the premises under my occupation, which has, caused me and my family very great incon venience and financial loss". The appellant No. 1 admitted in his cross-examination that "I am resident at A-23 Yasinabad now-a-days. He also admitted that this house is not rented with him but he was residing with his paternal uncle. The appellant to a question in cross-examination repelled that "I am residing alongwith my maternal uncle. My family is in America. It is not a fact that again I want to go to America.

As against the above evidence the sole proprietor of the respondents stated in para. 6 of his affidavit-in-evidence that "the demand of the applicants that they require, the premises for their personal requirement is mala fide. One of the applicant Mr. Muhammad Azmatullah is residing with his family in the Middle East for the last several -years and seldom comes to Karachi. The other applicant who is unmarried had been living in his own bungalow No. 273-A, Block 2, P.E.C.H.S. Karachi. He also left for taking service in the Middle East some times in 1980 and had returned now for some time. After his return he started living in his own house in House No. A/23/9 Yasinabad, Karachi. The adjacent bungalow of the applicants had fallen vacant several times which is of equal description as the present premises but the same was again rented out. There is no need of the house but greed to increase the rent". Tariq Salimullah denied the suggestion in cross-examination that the appellants required the premises in dispute for their personal requirement.

The learned Controller found that the appellants do not require the premises in question for their personal bona fide use and the main purpose of them is to enhance the rent". The basis of this finding is as under:----

(1) The appellant No. 1 Ikramullah has admitted that his brother Azmatullah who is applicant No. 2 is posted at Bahrain since for last four years and he is residing there alongwith his family.

(2) Applicant has further admitted that his family is also residing at America and he only is residing in Pakistan alongwith his maternal uncle.

(3) It has also further been admitted by the applicant that he is not paying rent to his maternal uncle.

Section 13 (1) of the Ordinance curtails the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the provisions of the Ordinance. It is thus enabling section. In order to avails of the benefits conferred by section 13 (3) to seek -eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlords in this case can seek eviction of the tenant inter alia under section 13 (3) (a). They must therefore, establish that they require the premises in good faith for their own occupation or use or for the occupation or use of their spouse or any of their children . The burden to establish the requirement of Section 13 (3) (a) isi squarely on the landlords.

In the eviction application the appellant No. 2 moved an application under section 151, CPC for allowing him to give his own evidence that he was transferred from Bahrain and posted back to Pakistan, Habib Bank Ltd, at Karachi Head Office. This application was filed on 25-7-1984. On 26-7-1984 notice on this application was ordered to be issued for 8-8-1984. The respondent filed counter -affidavit on 8-8-1984. Arguments on the main application and this application were heard on 9-8-1984. The eviction application was dismissed on 10-9-1984. This application ought to have been granted.

The Controller thus had before her a fact beyond dispute and beyond controversy that appellant No. 2 has been employed in Habib Bank Ltd. and has been posted at Bahrain. The appellant No. 2 dated that he was transferred to Pakistan and posted in the Head Office.

The respondent filed counter-affidavit and stated therein that the application is not maintainable, as he made the eviction application for his personal need in 1978. His transfer in U . A . R. at different places and then to Karachi is immaterial for the purpose of this case at this stage".

This approach of the respondents wholly overlooks the scheme of the Ordinance. The Ordinance enables a landlord to seek eviction of a tenant and obtain possession under various circumstances set out in Section 13. If a landlord bona fide requires possession of a premises let out for residential purpose or other lawful purpose for his own use, he can file eviction application and obtain possession. If he commences the proceedings for eviction on the ground of persona requirement he must be able to allege and show the requirement on the date of initiation of action before the Controller which would be his cause of action. But that is not sufficient. This requirement must continue throughout the progress of the litigation and must exist on the date of the eviction order and I say eviction. I mean: the order of the trial Court. Any other view would defeat the beneficial provisions or a welfare legislation like the Ordinance. If the landlord is able to show his requirement when the action commenced and the requirement continued till the date of the eviction order passed by the Controller and thereafter during the pendency of the appeal by the tenant or till the date of the dismissal of the application by the Controller and thereafter during the pendency of the appeal by the landlord. When a statutory right of appeal is conferred against the order and once in exercise of the right an appeal is preferred the dismissal order of the eviction order ceases to, be final.

Look at it from other aspect. A. bare perusal of section 13 (3) (,a),would show that the Ordinance does not either in express terms or by necessary implication prescribe that the requirement of landlord for his own use must be a present and existing one on the very day, of moving the application. There is nothing in this provision which may lead, to any such conclusion. On the other hand subsection (2) of section 1 3 lends considerable support to the contention raised on behalf of the appellants that the material and relevant time for determining' the bona fide requirement of the landlord is the date which the Controller may specify when allowing the application of the landlord for eviction. This would thus clearly indicate that the crucial date is not the date of the application for ejectment. Indeed if a literal construction of subsection (2) is to be visualised then it is even possible to postulate that the material date 'need not even be the date of the order but the one which the Controller may fix thereafter because this subsection in terms provides that he may direct the tenant to put the landlord in possession of the 'premises within such period as may be, specified. This would obviously be a future date. I am, therefore, inclined to take the view that there is intrinsic evidence in the relevant provision itself which militates against any such technical or harsh construction requiring that the need of landlord must be a present and an existing one on the date of the application.

As I read the provision referred to, it does not mean that the landlord has to occupy the premises the moment he makes the application, for if that was the meaning in a case like the present, that landlord would first be on the road and then make an application for eviction which when taken to the stage of, appeal might take anything upto 3 to 4 years to be decided. The result thus will be that the landlord instead of obtaining eviction of the tenant when he immediately requires the premises for his own occupation will be deferred from obtaining eviction of the tenant for a number of years. When a person is (a) occupying a rented premises or is taking shelter with a relation, (b) is retiring from service, and (c) is posted abroad, then his ordinary and normal anticipation is .that after vacating the rented premises or temporarily taking shelter with a relative, (b) at the end of the service, and (c) before transfer from abroad he will go back and occupy his own house and .for that purpose he must have vacant possession of the house and eviction of the tenant sometime before he actually evicts from the rented premises or actually suprannuates or returns back.

A reference may be made to the observation of Lush, J. in Harcourt v. Lowe, (1919) 35 TLP 255, in the context of construing section 1(3) :of the increase of rent and Mortgage Interest (War Restrictions) Act, 1915. The learned judge observed:-

"--In my opinion, the only time which it is necessary to consider in order to apply the provisions of the subsection is the time when the Court is asked to make the order.' It is quite immaterial to consider the time when the notice to quit was given. Even if the conditions do not exist at the time of the trial the plaintiff is, entitled to the judgment if he proves some other grounds which may be deemed satisfactory to the Court."

Again in a slightly different context, Lord Justice Somervell in Burman .v. Woods, (1984) 1 K.B. III, observed as follows in a rent case:----

"The Court has to direct its mind to the date of the proceedings and the evidence which at hears at the time, and clearly that is the date on which its order is drawn up; but it is plain that the relevant facts with regard to hardship may alter at any time: the occupier of the house whose hardship is the relevant consideration on January I may die on January 2; to take, a longer period, families may increase, there may be illness, or he may become more plentiful."

In Lachmeshwar Prasad Shukul and others v. Reshwar Lal Chaudhuri and others (AIR.1941 F.C:S.) it was observed as under:--

"It is also on the theory of an appeal being in the nature of a rehearing that the Courts in this country have in numerous cases recognized that in moulding the relief to be granted in case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against."

Now coming nearer home the aforesaid principle laid down in the English cases and Indo-Pakistan cases have been accepted by the Courts in Pakistan. In Mst: Amina Begum and others v. Mehar Ghulam Dastagir (P L D 1987 S C 220), which was a rent case, the Hon'ble Supreme Court observed as follows:-

"Indeed in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, To shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice."

The appellants sought eviction of the respondents on the ground of personal requirement. The Controller thus had before her a fact beyond dispute and beyond controversy that the appellant No. 2 was transferred to Pakistan and posted at head Office of Habib Bank Limited. This was an uncontroverted fact. Therefore, remand on this point is an exercise in futility because the fact alleged in the application for additional evidence is admitted.

The submission of the learned counsel for the respondents is that the appellants are also owners of adjacent building. The learned counsel for the appellants produced certain documents on record showing that the adjacent building does not belong to them.

In this context of the relevant provisions a passing reference to subsection (4) of section 13 of the Ordinance is also perhaps instructive. This provides a statutory safeguard in cases where al landlord secures possession of premises for the purpose of his own p occupation or his family's use but subsequently does not do so. Subsection (4) of Section 13 entitles the tenant to move the Controller for restoration of possession to him and on being satisfied of the requirements of this provision the Controller is obliged to make an order accordingly.

The learned counsel for the appellants has submitted that a landlord's eviction application may not be thrown out merely because he went abroad in connection with his service. This point was considered by the Hon'ble Supreme Court in the case of Fazal Azim and another v: Tariq Mahmood and another (P L D 1982 S C 218). The facts of the case were that the respondent No.1 and his mother sought eviction of the petitioners on the ground of personal requirement for the use of the respondent No. 1. The petitioner took the plea that the respondent had vacated the shop and had gone abroad to earn his livelihood. The Hon'ble Supreme Court laid down the following dictum:-

"The admitted fact that, respondent No. 1 went abroad cannot by itself be considered as showing lack of bona fides. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for period of time during the pendency of eviction proceedings. If during such a period he employs himself in a gainful occupation, that as general proposition, would not negate the assertion of bona fide on his part. In this case, the learned Courts below it seems misinterpreted the law, when raising a presumption in this behalf, against the landlord."

The dictum laid down in the above case is equally applicable to the facts of this case. The appellant No.2 has now been transferred to Karachi.

Mr. Mazharul Jamil the learned counsel for the appellants has contended that the appellant No. 2 had substantially proved the averment made in para 8 of the eviction. The appellants had clarified the position regarding ownership of the annexe, that it was originally owned by their father who had gifted to their mother. After her death, the father had gifted to their sisters. After the death of their father, there was family settlement and as a result of family settlement the sisters had become owners. His submission is that no dishonest motive can be attributed to the appellants merely because during the pendency of the proceedings the appellants made a representation to the P. E. C . H . Society or the Ministry of Works for correction of entries regarding ownership of the annexe. The learned counsel .for the appellants has also submitted that the annexe is owned by their sisters and they (sisters) filed eviction proceedings against their tenant for eviction. The respondents had not led any evidence to controvert the statement of the appellants that the annexe was owned by them alongwith their sisters. The respondents however, did not make any assertion that the annexe was in possession of the appellants nor they led any evidence to refute the contention of appellants that the annexe, after the death of their father, was inherited by the appellants alongwith their two sisters. The evidence on the file, therefore, amply proved that the appellant No 2 returned back after completing his assignment and he is not occupying any house of his own. The onus to prove that the premises in question was required by the appellant No. 2 in good faith for his own occupation was fairly discharged in this case. The appellants .had also fulfilled the legal requirements, namely, that the residential building occupied by him in the same urban area, is not owned by him and his bona fides cannot be questioned on any of the grounds convassed by the learned counsel for the respondent. There is sufficient material on the record to sustain the finding that the premises in 'dispute is required by the appellant No. 2 in good faith for personal use. The Controller has misread the evidence. The impugned order, insofar as it relates to personal requirement, is contrary to facts and, therefore, the appellants application could not be dismissed.

In the result, I accept the appeal on the ground of personal requirement; set aside the impugned order. The parties are left to bear their own costs. The respondents are however, allowed four months' time to vacate the premises subject to the payment of rent.

H.B.T./M-289/K Appeal accepted.

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