GHULAM RASOOL Versus NAZIM HUSSAIN SHAIKH

1. This First Rent Appeal is directed against the order dated 20‑5‑1984 passed by the XVIIth Senior Civil Judge/Rent Controller, Karachi, thereby ordering the appellant to vacate and hand over vacant possession of the premises within sixty days from the date of this order.

2. The facts leading to the filing of the above appeal are that the respondent is the owner/landlord of Shirazi House on Plot No.110/D/2, P.E.C.H.S. Ltd., Karachi and the appellant is the tenant in respect of Flat No.l on the ground floor of the said building at the monthly rental of the Rs.600. The respondent filed eviction application No.1710/78 against the appellant on the ground of personal requirement. The appellant resisted the eviction application. The respondent filed his own affidavit‑in‑evidence besides affidavit‑in -evidence of Noor Mohammad and Syed Baqar Hussain in support of the eviction application. The appellant filed his own affidavit‑in- evidence besides the affidavit‑in‑evidence of one Ehteshamuddin Rajput in rebuttal. They were cross‑examined by the learned counsel for the respective parties.

3. 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 vide order dated 20‑5‑1984.

4. The appellant being aggrieved against the order dated 20‑5‑1984 of the XVIIth Senior Civil Judge/ Rent Controller, Karachi has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

5. I have taken into consideration the arguments advanced by the learned counsel for both the parties and have gone through the impugned order. I have also perused the R and P of the case with the assistance of the parties. It is an admitted position that the respondent is owner of three storeyed building. It is also an admitted position that the Flat No.l (half portion of ground floor) was let out to the appellant vide tenancy agreement dated 31‑3‑1975. The respondent averred in para. 3 of the eviction application that "the Flat No.2 of the ground floor is in occupation of applicant which has now become insufficient to meet with the requirement of the expanding family and the applicant requires the flat in question bona fide and in good faith for his own occupation and for the occupation of his children". The respondent averred that he repeatedly requested the appellant to vacate the said flat but the appellant did not pay heed to the request. The respondent also served notice dated 5‑3‑1978. The respondent further averred that "the applicant occupies no other building in the same urban area and the premises in dispute is suitable for the applicant". The appellant denied contents of para 3 in his written statement. The appellant contended that (1) one flat at the top floor is lying, vacant, (2) the respondent owns another building in P . E. C . H . S . which consists of 4 flats and shops on the ground floor, (3) the respondent's two sons are in England and (4) the respondent had sufficient space for the convenient accommodation of his family. The appellant denied contents of para 6 of the eviction application.

6. The respondent described ground floor as one house divided in two parts in his affidavit‑in‑evidence. The respondent also described his family consisted of 12 members i.e. himself, his wife, 10 children. Three daughters and two sons are major and remaining five ranging between 16 to 5 years. The respondent stated therein that "it is essential for me to arrange such residence for them where my major sons and daughters can maintain their independent privacy and purdah necessary for the grown up girls and boys". The respondent stated that "the present three rooms in his and his family's occupation are insufficient and quite inadequate to meet the just and bona fide requirement of my family". The respondent admitted in his cross-examination that the tenement on the first floor is in his occupation. The respondent also admitted in his cross‑examination the first floor consists of six rooms and the same was occupied by him in 1981 after the ejectment of the tenant. The respondent also admitted he owns a house in Mahmoodabad and that was got vacated from the tenant through eviction proceedings. The respondent admitted in his cross‑examination that he owns a building in P . E. C . H . S. which is in occupation of four tenants. The respondent denied the suggestion that one of the flats after its vacation was re‑let on the monthly rent of Rs.1000. The respondent denied the suggestion in cross‑examination that he filed the present proceedings after his demand for the increase in rent was not fulfilled.

7. P.W. Noor Mohammad stated in his affidavit that the family of the respondent consists of twelve family members and the respondent required the premises in dispute for his bona fide requirement. This witness admitted in his cross‑examination that there are other rooms on the second floor and the first floor consists of six rooms.

8. P.W. Syed Baqar Hussain stated in his affidavit‑in‑evidence that the family of the respondent consists of 12 members. This witness admitted .in his cross‑examination that there are four rooms on the second floor. This witness denied suggestion in corss‑examination that the entire first floor is in occupation of the respondent.

9. As against the above evidence, the appellant stated in his affidavit‑in‑evidence that the first floor consists of 6 bed rooms and the second floor consists of three rooms plus kitchen and bathroom. The ground floor consists of two portions and such portion consists of three rooms plus bathroom and kitchen.

10. The appellant admitted in his cross‑examination that house in Mahmoodabad was demolished. The appellant denied the suggestion in cross‑examination that the present accommodation in occupation of the respondent is insufficient. The appellant admitted in his cross‑examination that on first floor there is one tenant. The appellant denied the suggestion that the present accommodation in occupation of the respondent is insufficient.

11. D.W. Ehtashamuddin stated in his affidavit‑in‑evidence that he has seen the entire house and he wanted to have on rent the second floor which consists of three rooms plus bathroom and kitchen but he could not take it on rent because of exorbitant demand of rent. In his cross‑examination, he showed his ignorance about asbestos roof. This witness also showed his ignorance about water connection, gas etc. on the top floor.

12. The facts which emerged from the evidence are that the respondent's family consists of twelve members. They are respondent and his wife, seven sons and three daughters. The respondent is in occupation of (1) one flat on the ground floor which consists of two bed rooms, one drawing, one dining room and other amenities, (2) first floor consists of four bed rooms and (3) three rooms on second floor. Accordingly to the respondent, three rooms on second floor are temporary with asbestos sheets. According to the appellant the rooms are not temporary but have all the amenities. The witness produced by the appellant did not support him as he was not aware about water connection, gas and about Pakka roof or asbestos roof.

13. There is another controversy about two elder sons who according to the respondent had gone to England but came back after completing their education. But according to the appellant they are still in England. It is also not in dispute that the other daughters are not yet married.

14. The learned counsel for the appellant has contended that the respondent has suppressed the facts in his application and affidavit in‑evidence and did not disclose that there are two other floors in his possession at the time of the institution of the case.

15. On the other hand Mr. Rehaul Hassan Farooqi has submitted that if a landlord is in possession of more than one flat in the same building or in the same area, it is not for the Controller to determine as to which of the premises should be occupied by him.

16. In his case the Controller has allowed the eviction application merely on the choice of the landlord. It is no doubt that it is well established legal position that the choice is with the landlord to choose any of his premises and the Controller and tenant cannot suggest a landlord to choose any particular premises for his persona requirement.

17. In the instant case, the case as made out in the eviction application is that the ground floor of the building consists of two flats and each flat consists of three rooms and other amenities. The respondent repeated the same facts in his affidavit‑in‑evidence.

18. In the eviction application a vague ground was given that the respondent required the premises in dispute in good faith as the respondent has twelve family members. No details have been given in the application about the rooms on the first floor and second floor. No details have been given as to why his need cannot be satisfied by the flats which are in his possession and whether they are all occupied. It is the landlord who has to make out a case for his requirement of the premises in dispute in good faith. For this purpose he must put before the Controller all the necessary details which are required for allowing his eviction application.

19. The submission of Mr. Rehanul Hassan Farooqi is that the Controller is to act as a matter of course on a landlord merely filing an application on the ground of personal requirement. I think that on such vague allegations as made out in the instant case, the respondent cannot expect to get relief on the ground of personal requirement of the premises in dispute.

20. It seems that the Controller has decided the application only on the ground of choice. I think the view of the Controller is not sound. I am of the view that the Controller has to decide whether the need of the landlord is bona fide and in good faith and he has to take into consideration the circumstances which in the eviction application as well as in affidavit‑in‑evidence the landlord has suppressed the fact that he is in occupation of other flats in the same building and he has not tried to establish that such other flats in the same building are not suitable for his needs. The respondent has given the impression that the building consists of ground floor only. The respondent in this case does not take the Controller into confidence nor approaches him with clean hands and is guilty of suppression of facts. The conduct of the landlord will reflect and recoil on his bona fides and good faith for establishing his personal need and need of his family. A landlord is required to discharge his onus and to satisfy the conscience of the Controller that his requirement is based on good faith and is bona fide.

21. I am of the view that the application is lacking in bona fides and it cannot be said that the respondent has established his requirement for the premises in good faith. Mere ipse dixit of the respondent that he requires the premises in dispute for his personal occupation for the occupation of twelve family members is not enough. It must be supported by valid reasons as to how his requirement is in good faith. The Controller was influenced by the consideration that it is the choice of the landlord to require the premises in dispute and he did not take into consideration the fact that the respondent had not only suppressed the true facts in his eviction application and evidence but he had not proved that the flats on the first floor and second floor which were already in his possession were not suitable for him. There was no material placed on the record that his two sons who were in England had come back.

22. I am afraid this finding is against law and facts of the case. The statement of the appellant in examination‑in‑chief or affidavit‑in- evidence is not to be taken into consideration, but the same has to be considered alongwith the averments as made in the eviction application as well as the statement made by him in cross‑examination. Taking all of them together, it is clear that according to him, the premises in dispute are not required by him. I, therefore, reverse the finding of the Controller on the issue of personal requirement.

23. In the result, the appeal succeeds, the eviction application stands dismissed. In the circumstances of the case the parties will bear their own costs.

24. H.B.T/G‑46/K Appeal accepted.