MFS. ABDUL HAMID KHAN Versus SHAMSUL HASSAN

This appeal arises from the order of the learned IIIrd Senior Civil Judge, Karachi, whereby he has allowed the application for ejectment of the appellant from the disputed premises, namely, the back portion of the ground floor of the building bearing No. 2/74‑J P.E.C.H. Society, Karachi (hereinafter called the 'demised premises') and directed the eviction of the appellant on the ground of personal bona fide requirement with a direction to him to hand over the vacant possession to the respondent within sixty days from the date of the order i.e. 11‑3‑1987.

2. The application for ejectment was moved on the ground of personal bona fide requirement of the demised premises by the respondent for himself and his elder son named Manzoor Hussain, who has become of marriageable age. The appellant resisted this application by filing a written statement, contending, inter alia, that the demised premises were let out to him sometimes in the year 1967 at a monthly rent of Rs.200 only. The respondent wanted to enhance the rent to Rs.1,500 per month to which the appellant was not agreeable. The respondent had thereupon stopped collecting the rent, which led to the filing of Miscellaneous Rent Application No. 317 of 1979 before the Court of Rent Controller for permission to deposit the rent. It is since then that the rent at the rate of Rs.200 per month is being deposited in Court. It was further pleaded that the front portion of the ground floor of the building in question had been vacated by the tenant or was likely to be vacated very shortly and the personal requirement of the respondent if any, could be more satisfactorily met. It was denied that the above‑named son of the respondent was to be married. The portion in occupation of the respondent was more than sufficient for their personal requirements. She, therefore, prayed for the dismissal of the application.

3. Out of the pleadings of the parties the learned Rent Controller framed the following issues:‑

"(1) Whether the applicant bona fide requires the premises in question for his personal use anti. for his family?

(2) What should the order be?"

He answered the issue No.l in the affirmative and consequently allowed the application as stated above.

4. I have heard Mr. Ashraf Bhatti, learned counsel for the appellant as well as Mr. K.B. Bhutto, learned counsel for the respondent, at length.

5. The learned counsel for the appellant urged with vehemence that the application was filed with male fide intention for the obvious reason that the appellant was not acceding to the unreasonable request of the respondent for enhancement of rent from Rs.200 to Rs.1,500 per month. He submitted that the appellant was and is ready and willing to enhance the rent but to a reasonable extent. He read over to me the cross‑examination of the two witnesses of the respondent to show that it was an admitted position that two premises, namely, front portion of the ground floor and the back portion of the first floor had fallen vacant during the pendency of the rent application and they were relet at enhanced rent of Rs.1,800 per month and Rs.1,000 per month with six months' rent in advance and six months' rent as deposit. In his submission since the respondent during the pendency of the application for ejectment on the ground of personal bona fide requirement had two premises available to him and yet he failed to occupy any one of them, it goes to show that his alleged requirement was not bona fide. In support of his contention he placed reliance on the decision of this Court supported in P L D 1981 Kar. 67, 1984 C L C 1848, 1984 C L C 2714, P L D 1983 Lah. 425 and 1987 C L C 614.

6. Mr. KB. Bhutto, learned counsel for the respondent on the other hand, strongly pleaded that the applicant is an old man of about 68 years of age. He is feeble person and chronic patient of diabetes and rheumatism and he is almost blind and cannot see even during. the day time. He is a retired Government officer having no source of income except the rental income from the building in question, a portion of which has been let out to the respondent. The respondent in his affidavit‑in‑evidence has categorically deposed that he had chosen the disputed tenement for his personal requirement on account of both his need for accommodation as well as financial expediency. In his submission, its entrance is adjacent to the staircase for upper floors of the building and it is additionally convenient to the applicant and his family to reside therein. He drew my attention to the fact that in the written statement the appellant has stated that the enhanced rent was demanded at Rs.1,500 per month whereas in cross‑examination it has been suggested to have been demanded at Rs.1,000 per month. It gives a clear indication that the contention of the appellant in this behalf is factually incorrect and is malicious. He also drew my attention to the statement of the appellant in cross‑examination wherein she has admitted that 'it is correct on the left side of entrance the portion which is in my occupation there is stair‑case of upper floor'. She has further deposed that 'applicant is blind man and retired and got two sons'.

Applicant is having no other business and he is a retired Government servant. She has also clearly admitted that 'it is correct that applicant and his wife are aged and remain ill'. The counsel, therefore, submitted that the requirement of the disputed premises was thus duly proved on record. He further submitted that it is the privilege of the landlord to choose any of the tenements in his building to reside and he cannot be compelled to reside in any particular premises. Since the respondent had filed the application for ejectment against the appellant in respect of the tenement which is best suited to him, he did not mind to relet the premises which had during the pendency of the ejectment application fallen vacant. He submitted that the applicant is straight forward in his submissions and whatever was suggested to him he candidly admitted the truth thereof. He emphasised that the respondent's evidence is consistent throughout and his case could not be demolished at any stage. In support of his contentions the learned counsel for the respondent cited the following authorities:‑

1973 S C M R 185, 1968 S C M R 1087, 1975 S C M R 111, PLD 1976 Kar. 832, 1983 C L C 1192 and 1985 C L C 1509.

Lastly, the counsel urged that by virtue of section 15‑A of the Sind Rented Premises Ordinance, 1979 a protection has been made available to the tenant by enacting that 'where a landlord who has obtained possession of the building under clause. (vii) of section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession the tenant who has been evicted may apply to the Collector for an order directing that he shall be restored to possession of the building or premises, as the case may be, and the Controller shall make an order accordingly.

7. I have given my earnest consideration to the facts and circumstances of the case and I find that the respondent could not be debarred from getting an order of ejectment against his tenant simply on the ground that another premises had fallen vacant during the pendency of the ejectment proceedings which were let out by him. It is to be seen and judged in the context of the facts of each individual case as to whether the re‑letting of some other premises which fell vacant during the pendency of ejectment application against another tenant reacts against bona fide requirement of the landlord or not. Hence, it cannot, I think, be adopted as a matter of rule that whenever during pendency of application for ejectment on the ground of personal bona fide requirement, the landlord gets possession of another premises in the same or some other building and relets the same, he would stand deprived of his right to get an order of ejectment against the tenant in the pending proceedings. In the instant case, it has come in the evidence led on behalf of respondent that the main source of his income is the rentals of the building a portion of which is in occupation of the appellant as a tenant. It is also an admitted fact that the respondent is an old, feeble, ailing and a blind man. It is also an admitted fact that the front portion premises on the ground floor which had been relet during the pendency of this case consists of four rooms which has been let out on a rent of Rs.1,800 per month whereas the demised premises consists of two rooms and fetching a rent of Rs.200 only. The respondent's deposition in this behalf, it seems appropriate, may be reproduced below. It is as under:‑

"8. That I need the disputed two‑roomed tenement on the ground floor as it is sufficient, convenient and suitable for the requirement for myself and my wife. It is submitted that I am virtually blind and unemployed. The rental income from the said building is the main source of my livelihood. The other tenement on the ground floor of the building is a bigger one and brings in much higher rental (i.e. Rs.1,800 p.m.) as against the rent of Rs.200 p:m. from. the disputed tenement. As such I have chosen the disputed tenement for my personal requirement on account of both my need for accommodation as well as financial expediency, arising out of my old age, unemployment and said sickness of my wife and mine, its entrance being adjacent to the staircase for upper floors of the building, makes it additionally convenient for us."

It was, therefore, for him (the landlord respondent) to have decided as to which of the premises in the building he would like to live in looking to his own circumstances and convenience. If he has chosen to live in the premises occupied by the appellant particularly in above‑noted circumstances he could not be compelled to live in the other premises on the ground floor. It is prerogative or choice of the landlord that matters; and it is what the Honourable Supreme Court has held in the case of 1973 S C M R 185 and 1968 S C M R 1087. The respondent's case gets full support from the above‑cited latter decision of the Supreme Court. In that case also the landlords who resided in a portion of the building of a flat on the second floor had started ejectment proceedings against the tenant on the ground that the flat in the particular tenant's possession was required for their bona fide needs. The Controller upheld the landlords' contention and allowed the application. On appeal, the learned Additional District Judge reversed the Controller's finding that the flat was required in good faith for the accommodation of the respondents' family. In second appeal, a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench held 'that 'there was a genuine need for extra accommodation by the landlords as had been held by both the Controller and the Additional District Judge and that the, further question of good faith, in the circumstances of the case, did not arise for consideration'. The order of the learned Additional District Judge was set aside and that of the Controller restored. When the matter reached the Supreme Court in Special Leave to Appeal, it was argued on behalf of the tenant that under section 13(3) of the West Pakistan Urban Rent Restriction Ordinance, 1959, two things were required to be proved, namely, that the premises in question was required by the landlords for their own needs and, secondly, that the requirement was put forward in good faith. Their Lordships held:

"This is correct so far as it goes. But in the circumstances of this case, it is clear that both the Controller and the Additional District Judge had come to the conclusion that the need of the landlord for extra accommodation was genuine, as two of their members were going to get married and the family was, therefore, expanding. This being so, it must follow that the demand for eviction of the petitioners was made in good faith. "

In that case also it was, argued that since another flat in the premises that had fallen vacant earlier was let out by the landlords to a tenant and was not utilised for themselves, the good faith was wanting. Repelling the contention their Lordships held:

"The question, however, as to. which portion of the building would suit the landlords better, must be left to their discretion and there is nothing unreasonable in the landlords insisting that particular portion of the building should be made available to them."

8. I do not consider it necessary to refer to the other decision cited by the learned counsel for the parties as I am clearly of the opinion that the above‑noted decision of the Supreme Court is squarely applicable to the facts of this case.

9. In the result, the appeal fails and is dismissed hereby. The parties are, however, left to bear their own costs. I would, however, allow four months' time to the appellant to vacate the demised premises and hand over peaceful possession thereof to the respondent subject, however, to her depositing the monthly rent in Court regularly failing which she shall be ejected without notice and so also on her failure to vacate the demised premises after the expiry of 4 months' period as allowed above.

H.B.T./M‑405/K ????????????????????????????????????????????????????????????????????? Appeal dismissed