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First Rent Appeal No.321 of 1986, ,decided on 9th July, 1987.

---S.15---Fresh ejectment proceeding--Maintainability of--Where landlord had earlier filed ejectment cases against tenant, such earlier filing of cases, held, would' not be sufficient to disentitle him to seek eviction of tenant through fresh ejectment proceeding if facts and circumstances so justified.

---S.15(2)(vii)--Personal bona fide requirement--Proof Unrebutted evidence on record proved that landlord requiring premises in dispute for his personal requirement himself was residing with his large family in highly paid rented house and was not in occupation of any other house in same urban area--Personal bona fide requirement of landlord in respect of premises in dispute, held, was proved in circumstances.

Syed Anisur Rahman v. Mst.Sara Bai P L D 1985 Kar. 714; Mst. Hajran Bai Suleman v. Mst. Aisha Bai 1982 C L C 1444; Associated Sales Agencies v. The Standard Insurance Company 1985 C L C 2419; Fazal Karim v. Mst.Shabbiran and others 1983 C L C 2877; PLD 1981 Lah. 326; P L D 1982 Kar. 790; P L D 1982 Kar. 182; 1981 C L C 327 and P L D 1978 Kar. 188 ref.

Umer Qureshi for Appellant.

Zahid Marghoob for Respondent.

Date of hearing: 8th March, 1981

The appellant who is tenant of the respondent in respect of House No.540-A, Block L, North Nazimabad, Karachi at a monthly rent of Rs.600. has filed this appeal against the' order of III, Senior Civil Judge and' Rent Controller, Karachi (West), dated 29-4-1986 whereby he has held that the premises in case were required by .the respondent for his own personal bona fide use and has directed the appellant to hand ever vacant possession of the same to the respondent within a period of, 60 days from the aforesaid date of the order.

2. The facts giving rise to this appeal are as under:-

(i) That by virtue of an agreement of lease dated 26-12-79 the respondent let out the house in question to the appellant on a monthly rent of Rs.-600 for a period of 11 months commencing from 1-1-1980.

It may be mentioned here that the appellant had come in occupation of the premises in question on 10-6-1975 when a lease agreement was executed for' 11 months on a monthly rent of Rs.550. Upon the expiry thereof another lease agreement dated 5-7-1976 was executed between the appellant and. the respondent far a period of 11 months. The rent of the house was now agreed to be Rs.500 per month. The appellant then continued to be in occupation of the house. It was, however, on 2.2-12-1979 that a fresh agreement as stated above, was executed. In this way the appellant is in continuous occupation of the disputed premises from 10'-6-1975.

(ii) On 24-5-1980 the appellant filed a Rent Case bearing No.3'122/80 for eviction of the appellant on the grounds of personal requirement of the house in question, This ejectment case, however, could not succeed, and the Rent Controller dismissed the application on 11-7-19.84: The appellant filed an appeal against that order in this Court which was registered as F . R . A . No.82.6/84. This appeal has also been dismissed.

(iii) During the pendency of F.R.A. No.826/84 in this Court, the respondent again filed an application on 15-8-1985 under section 15 of the Sind Rented Premises Ordinance, 1979, which was registered, as Rent Case. No.2450/85 far ejectment of the' appellant on the grounds of personal bona fide requirement and default in payment of rent.

4. The appellant resisted the said application denying all the allegations made in the application.

5. The learned Rent Controller 'framed issues and recorded the evidence of the parties. The respondent examined himself and also produced three more witnesses whereas on behalf of the appellant he himself came in the witness box. At the stage 'of the arguments the application was not pressed in respect of default in payment of rent. The issue regarding bona fide need of the disputed premises by the respondent has been decided in his favour and the learned Rent Controller has held that the respondent was in bona fide requirement of the suit premises for his person and for his family. The appellant being aggrieved by the above order has filed the present appeal.

6. I have heard Mr. Umer. Qureshi, Advocate, for the appellant and Mr. Zahid Marghoob for the respondent.

7. The learned counsel for the appellant submitted that the learned Rent Controller erred in not appreciating the fact that the grounds taken in the memo of appeal of F.R.A.-826/84 were exactly the same as have been taken in the Rent Case No.2450/85 out of which this appeal has arisen. The learned Rent Controller in his submission, further erred in not considering that the respondent had failed to establish his personal bona fide need in respect of the disputed premises. In this connection the learned counsel drew my attention to the fact that on 31-10-1984 the appellant had sent legal notice to the respondent asking h4m to furnish a fresh address and start collecting rent directly from. him from November. 1984. In his reply dated 20-11-1984 the respondent has, nowhere mentioned that he required the premises in dispute for his personal need. No request has been made in this letter asking the appellant to vacate the premises in question. This fact has also been acknowledge by the respondent in his cross-examination. He has also stated in his cross-examination that he needed the suit house since 1977. He also admitted that upon expiry of the earlier rent agreements a fresh agreement dated 22-12-1979 at the rate, of Rs.600 per-month was executed between him and the appellant. He has further admitted that he received the rent for June 1977, December, 1979 and did not ask the appellant in writing to vacate the suit premises. The counsel stressed that since the rent in the area where the disputed premises is situated is about Rs.1000 hence the application is filed with mala fide intentions. The learned counsel then contended that the impugned order with regard to the alleged personal need of respondent has bona fide and in good faith is based on misreading of evidence and non-consideration of documents on record. The learned counsel then contended that the witnesses of the respondent were interested. and hence no reliance could .be placed on their evidence.' Taj Muhammad, it is so urged; has admitted that the respondent and he are on thick terms. M. A. Rahman is the real brother of the respondent: Regarding Syed Iradat Hussain, the present landlord of the Respondent in respect of House No.105, Azizabad, Federal "B" Area, the learned counsel submitted that he is a fake landlord. He submitted that his statement was not reliable as he was not the owner of the house since he could not produce any document establishing .his ownership. He also urged that no rent receipt was filed either by the respondent or his landlord. In support of his contention the learned counsel referred to the following sut6horities:-

(i) Syed Anisur Rahman v. Mst..- Sara Bai (P L D 1985 Kar.714) wherein it is held as under:---

-----------In order to judge the credibility of the witnesses the court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it Io look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. This point cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence."

(ii) Mst. Hajra Bai Suleman v. Mst. Aisha Bai 1982 C L C 1444.

It was contended on behalf of the landlord that as the landlord was residing in a rented premises and wanted to reside in the disputed premises and was not in occupation of any other house in the same urban area the ejectment application should be granted. It was held:----

" .. ..If this proposition is accepted then in all cases in which a landlord is residing in a rented house files an ejectment application on the ground of his bona fide need and requirement then it should be granted automatically without any investigation relating to the bona fide requirement because the landlord wishes to occupy his house. This is not permissible in law" .."As landlord has to prove his requirement by convincing and satisfactory evidence. Mere desire of the landlord to occupy his house or his feeling however strong it may be that he bona fide requires the premises is not sufficient to prove personal requirement."

(iii) Associated Sales Agencies v. The Standard Insurance Company (1985 C L C 2419). In this case also it was held that "merely because a landlord is in occupation of a rented premises he cannot ipso facto obtain an ejectment of tenant in respect of his own premises unless he proves his bona fide".

(iv) Fazal Karim v. Mst. Shabbiran and others (1983 C L C 2877) wherein it has been pointed that in P L D 1981 Lahore 326 the rule which has been laid down is "that the statement of landlord on oath 'is to be given due importance but that does not mean that the same has to be accepted ignoring other evidence on record which might have the effect of rebutting the claim made or which reflects on the bona fides or good faith".

8. Mr. Zahid Marghoob, the learned counsel for the respondent, contended that in the legal notice dated 28-4-1985 (Ex.A-5/9) served on behalf of the respondent upon the appellant it was specifically mentioned that the respondent required the demised premises for his personal occupation as he had returned back from Pipri and was residing with his family in a rented house on monthly rent of Rs.1,050 with an advance/fixed deposit for Rs.12,000. The appellant failed to vacate the premises and hence he filed the ejectment application which has given rise to this appeal. It is also clearly mentioned in the ejectment application. He then drew my attention to the affidavit of the respondent and the rent Agreement (Ex: A-5/3) dated 19-12-83 whereunder he had taken House No.1045/2, Azizabad, Federal "B" Area, on the above-noted monthly rent and fixed deposit. The respondent is thus under great financial burden and hence the ejectment application has been, according to him, rightly allowed. He emphasised that the evidence led on his behalf is confidence inspiring and nothing has been brought in cross-examination to shake at in any manner. There was, the counsel contended, no misreading of evidence. The allegation of enhancement of rent and thereby, to establish the mala fide of the respondent was not as such pleaded in the written statement. There was even otherwise no iota of evidence to prove this alleged fact. The counsel placed reliance on the following authorities:----

(1) P L D 1982 Kar. 790 and 182

(2) 1981 C L C 327.

(3)P L D 1978 Kar.188.

9. I have perused the pleading and the evidence of the witnesses examined on behalf of the parties with care and I find that the learned Rent Controller has given due consideration to every relevant aspect of the matter and has, for the matter, rightly allowed the eviction application. Undoubtedly the respondent had earlier also filed cases against the appellant for his eviction from the disputed premises but it will not be sufficient to disentitle him to seek eviction of the appellant through a fresh proceeding if the facts and circumstances so justify. It is now proved on record that the respondent is presently residing in a rented house bearing No. 1045/2 Azizabad, Federal "B' Area Karachi, on a monthly rent of Rs.1,050. This house is built on an area of 120 sq. yds. while the respondent's own house which is in occupation of the appellant is constructed on a plot of 266 sq. yds. The respondent is receiving a rent of Rs.850 per month whereas he is paying a rent of Rs.1,050 per month. I am not impressed by the arguments of the learned counsel for the appellant that Syed Raghib Hussain, the landlord of the respondent was a fake landlord. Syed Raghib Hussain has deposed that he is the owner of the house which is let out to the respondent vide Rent Agreement dated 18-12-1983 (Ex.A-5/3) and that he had received from the respondent a sum of Rs.12,000 as fixed deposit. A suggestion was made to this witness that he was falsely deposing in favour of the respondent but he rejected the same. He has given all the relevant details with regard to his said house having been mortgaged with bank. He is straight-forward in his deposition and there is no justification to disbelieve him simply for the reason that he could not bring the N I C of the premises. He was not required by the appellant to bring the said documents. Moreover, he was not questioned about rent agreement dated 19-12-1983 (A-5/3) nor about the rent receipt dated 6-1-1984 for the month of January, 1984 and all subsequent rent receipts brought on file duly signed by this witness. In his cross-examination he has further stated that he was living in House No.F-A-39, Federal Capital Area, for the time being as the ground floor of the house has been let out' to the respondent. The evidence of M.A. Rahman, the brother of the respondent remains also unshaken particularly with regard to the respondent's having' lived with him for some time prior to his taking the House No.1045/2,Azizabad, Federal "B" Area, Karachi, on rent. He has also given the size of the family of the respondent. No doubt this witness is the real brother of the respondent yet I find that he has deposed all the facts in a straightforward and honest manner. I need not refer to the evidence of Taj Mohammad as he is described to be an interested witness .by the appellant simply for the reason that he happens to be a friend of the respondent for the last about 20 years, The plea of the appellant that ejectment application was filed with male fide intentions to press him to enhance the rent does not find support from the material available on record. The appellant has admitted that the respondent was living in Azizabad although he has expressed his ignorance about the fact whether he was living in a rented house: However, in view of the deposition of respondent and his two witnesses namely, M. A. Rahman, and Syed Raghib Hassain, I am convinced that the learned Rent Controller has not, fallen into an error in holding that the respondent was living in a rented house after the sale of his house by his brother on 4-1-1984 and requires the, house in occupation of the appellant in good faith and bona fidely for himself and his family.

10. In the result, the appeal is dismissed with no order as to costs. The appellant is directed to hand over vacant possession of the premises to the respondent within one month of the date of this order.

H.B.T./M-325/K Appeal dismissed.

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