Mst. HAJRA BAI SULAIMAN vs Mst. AISHA BAI

' This appeal is directed against the order of the VII Additional District Judge, Karachi, whereby the order passed by the Controller rejecting the appellant's application for ejectment has been confirmed.

2. Briefly, the facts are that Mst. Hajra Bai the appellant is the attorney of one Muhammad Hussain who is the owner of the disputed premises. She let out the said premises to the respondent. The appellant filed an ejectment application against the respondent on the grounds of default in payment of rent from April, 1974 to August, 1974, at the rate of Rs, 200 per month and for her bona fide personal requirement. The application was dismissed and appeal also met the same fate. The concurrent finding by both the Courts below is that the respondent has not defaulted in payment of rent and that the premises is not bona fide and reasonably required by the appellant for her own use.

3. Mr. Nisarally, the learned counsel for the appellant has contended that the Courts below have misread the evidence. The learned counsel has referred to a notice sent by the appellant demanding the rent which was replied by the respondent, who denied that rent was to be paid at the rate of Rs, 200 per month. It was pleaded that the respondent used to pay rent to the appellant directly which she used to accept without issuing any receipt. However, as from January, 1975, she refused to accept rent, the respondent sent the same by money order which was not accepted.

Thereafter the respondent deposited the rent in Court under application No, 1578/1975.

4. The learned counsel for the appellant has contended that in fact the Tent tendered by the respondent through money order was not remitted in the name of the appellant and therefore, it was not a proper tender and the Courts below have completely misread the evidence by treating money order as a valid tender. Mr. Mazhar Hussain, the learned counsel for the respondent has contended that admittedly Muhammad Hussain is the owner of the disputed premises and the appellant is his attorney. She is the landlady as stated in her notice Exh. 5-A. In reply (Exh. 5-R). The respondent's advocate made it clear that Mst. Hajra Bai the appellant is generally known as Baby Bai. All the money orders were sent in the name of Muhammad Hussain C/o Mst. Hajra Bai. In Exh. 7- A a note has been addressed to Hajra Bai. These facts have not been denied by the appellant.

According to the respondent the appellant was claiming to be the attorney of Muhammad Hussain, therefore; the money order was sent in the name of Muhammad Hussain at the address of the appellant and the same could have been received by the appellant herself. In the present case although the name of Muhammad Hussain had been mentioned, in fact the rent has been sent to the appellant and the money order receipt bears her name as well as her address. In these circumstances it is to be considered whether default has been committed by the respondent. Both the. Courts below have given their finding in the negative. Under section 13 of the Urban Rent Restriction Ordinance, 1959 the Controller has the discretion to grant or to refuse the ejectment.

This descretion however is not arbitrary but is governed by judicial principles. In this regard reference can be made to PLD 1975 Lah. 82 (?) and page 11 and also PLD 1966 Kar. 1156 (?). In the facts and circumstances of the present case it seems that the respondent had been tendering the rent. The confusion arose as the Money order was sent in the name of Mohammad Hussain the owner care of the appellant at her address who is the attorney of Muhammad Hussain. The default if any was of a highly technical nature. In the circumstances of the case that the Controller was justified in refusing to exercise his discretion in favour of the appellant.

5. The learned counsel for the respondent has also contended that the appellant refused to accept the money order but did not give any reason of her refusal therefor the rent was deposited in Court which has been withdrawn by her. If the appellant would have given some reason for refusal as pleaded in the case and thereafter respondent would have failed to tender in her name, then perhaps it may have been possible to argue that default has been committed.

6. The appellant had applied for ejectment on the ground of bona fide use and occupation. The learned counsel for the appellant has contended that the finding of both the Courts below is based entirely on misconstruction of the provision of law. He has contended that both the Courts below have refused to grant ejectment mainly on the ground that as the appellant was occupying a rented premises she did not require the premises for her use. The learned counse !Has relied on PLD 1977 Supreme Court page 442 and NLR 1979 Civil SC 367 where it was held that section 13 (a) (i)

(b) of West Pakistan Urban Rent Restriction Ordinance, 1959 does not extend to cover the rented premises. It is true that merely because a landlord is occupying a rented premises in the same urban area in which the disputed premises is situated will not attract the bar imposed by section 13

(a) (i) (b). If the landlord has proved his bona fide need and requirement the mere fact that he is occupying the rented premises in the same urban area cannot be held to be a bar for maintainability of such a claim. However, in the present case the facts are completey distinguishable. The appellant has claimed ejectment on ground of her personal use and occupation. In her statement she has stated that flat occupied by her consists of one bed room and another small room. She has stated that she is living with her husband, sister-in-law and mother-in-law and the accommodation is insufficient for her. In cross-examination she has admitted that her sister-in-law namely the sister of her husband is not residing with her. Her mother-in-law has expired. P. W. 2 Mahboob who used to collect the rent and is on visiting terms with the appellant stated that the husband of the appellant is employed at Dubai and comes here every year and stays only two/three months. In these circumstances it is difficult to establish that the appellant requires the premises for her bona fide use and occupation. Under section 13 sub secsection (3) (a), landlord may apply for ejectment of a tenant if he acquires c the premises in good faith for his own occupation or for the occupation of his children. This provision has been interperted to include the need of such family members of the landlord who are dependent upon him. In the present case the mother-in-law has expired and her sister-in-law cannot be said to be dependent on the appellant nor there is any evedince to this effect. At best it can be said that the appellant needed the premises for herself and her husband. In these circumstances the case for bona fide requirement of the appellant has not been established.

7. The learned counsel for the appellant has contended that as the appellant is residing in a rented premises and wants to reside in it and is not in occupation of any other house in the same urban area the ejectment application be granted. If this proposition is accepted then in all cases in which a landlord 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. The learned counsel for the appellant emphasised that as the appellant is residing in a rented premises she is entitled to get the disputed premises for her own use. It is not appellant's case that her landlord has asked her to vacate the premises. In fact she is pressing the application on a specific ground that the rented accommodation is insufficient for her need. In the circumstances unless bona fide requirement is proved she cannot succeed. 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. The learned counsel for the appellant contended that the appellant has made a statement on oath regarding her bona fide requirement and same should therefore be accepted. In support of her contention the learned counsel for the appellant referred to PLD 1976 Karachi page 832. This judgment is hardly of any assistance to the appellant.

In that case the landlord had proved his bona fide requirement and as his assertion on oath was found to be consistent with his averments in the application and not shaken in cross-examination or disproved in rebuttal, the same was accepted. In the present case no such situation has arisen.

On the contrary the appellant has failed to establish her bona fide requirement.

8. Mr. Nisarally has also relied upon NLR 1979 Civil SC 367. In this case the landlord, who was occupying a rented premisis applied for ejectment of the tenant on the ground of his bona fide personal requirement. In view of the finding that the landlord required the disputed shop in good faith for extension of his business and for storage of goods, the ejectment was granted. It is not a case where without proving the bona fide requirement the landlord had succeeded in obtaining order of ejectment merely on the ground that as he is occupying a rented premises he is entitled to eject the tenant. Reference has been made to 1976 SCMR 52. In this case the landlord was residing in a rented premises and applied for ejectment of the tenant of his own house which was let out, on the ground that it was required for his bona fide personal use. The ground was proved, in this background the Supreme Court maintained the order of eviction and observed that it is reasonable to assume that the legistature did not intend to disqualify a person occupying a rented premises from getting his own premises vacated for his own E use and occupation. Mere occupation of a rented premises does not give a cause to the landlord to obtain ejectment unless a case is made out as provided by section 13. The appellant's plea of her personal requirement has not been accepted by both the Courts below who have given concured rent finding against the appellant which is based on evidence on recored In the result there is no merit in this appeal which is dismissed. ' es