KARIMUDDIN SHAD Versus FATIMA MIAN AHMED

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is directed against the order dated 4‑5‑1987, passed by IIIrd Senior Civil Judge and Rent Controller (East) Karachi, whereby he allowed the application for ejectment filed by the respondent against the appellant and directed his ejectment from the demised premises within a period of two months.

2. The appellant is the tenant of respondent in respect of residential premises situated on first floor of building No.273/C and 274/C situated in Block II, Central Commercial Area, P.E.C.H. Society, Karachi, on a monthly rent of Rs.415. The respondent was residing in premises situated on the ground floor at 139/C, Block II, Kashmir Road, P.E.C.H. Society, Karachi, on lease with her brother Ghulam Muhammad. The landlord of the aforesaid premises filed ejectment proceedings against Ghulam Muhammad being Rent Case No.3560/77, which was dismissed by the Rent Controller, Karachi. The appeal preferred against this order before the High Court of Sind, being F.R ANo.435/81 was, however, allowed and the said Ghulam Muhammad was directed to vacate the premises. The time allowed by the High Court to vacate the said premises was subsequently extended up to 30‑4‑1985. The respondent, therefore, after exchange of notices filed the present rent case on the sole ground of personal requirement.

3. The appellant contested the bona fides of the respondent. According to him the respondent was living with her brother Muhammad Yousaf who is residing in his own house. The case of the appellant in main is that the present attempt of the respondent to seek his eviction was nothing but a device to get the rent enhanced.

4. On the basis of the evidence, both oral as well as documentary, the learned Rent Controller decided the application against the appellant and consequently directed his ejectment from the demised premises. It is in these circumstances that this appeal has been filed.

5. I have heard Mr. Akbar Khan Ghory, learned counsel for the appellant and Mr. H.A. Rahmani, learned counsel for the respondent.

6. Clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, requires satisfaction of the Rent Controller as to landlady having required premises in 'good faith' for her own use and occupation. The' respondent has examined herself (P.W.1), her brothers Ghulam Muhammad (P.W.2) and Muhammad Yousuf (P.W.3) in support of the case. It is clear from the evidence of all these witnesses that the respondent was residing previously in a rented house on lease with her brother Ghulam Muhammad, who was ejected from the said premises and consequently the respondent had to hire an apartment situated in Gulshan‑e‑Iqbal, Karachi. The lease deed is on record (ExhA/1) which shows that Muhammad Yousuf had taken lease of this house for his two sisters, namely, Mst. Fatima, the respondent and Mst. Zulekha and both of them are residing there. Muhammad Yousuf (P.W.3) has given explanation in this behalf by stating that he executed the tenancy agreement on behalf of his sisters as the landlord wanted to execute such agreement with a sound party and not with ladies. The respondent has stated on oath that these premises where she is presently residing arc not suitable for the reasons given below:‑‑ '

. "That the aforesaid Gulshan‑e‑lqbal premises are nut suitable to needs and requirements for a variety of good and valid reasons, some of them being that these premises are located in the locality which is far away from the house of my other relatives, including my aforesaid brothers. My aforesaid sister and myself cannot and do not live peacefully and comfortably in the present Gulshan‑e‑Iqbal premises, which are not suitable to my needs. Due to environment and situation of these premises we feel greatly insecure to live therein. Secondly, the area and accommodation of the flat‑premises in the' above case is larger than ‑the area of Gulshan‑e‑Iqbal premises. Thirdly, I shall have to pay much higher rent for Gulshan‑e‑Iqbal premises than what I am receiving from the flat premises of my said building. This will be a continuous and heavy monetary loss to me beside the discomfort and inconvenience which 1 undergo while living in Gulshan‑e‑Iqbal rented premises."

7. This evidence has not been challenged by the appellant in cross examination. Where the facts deposed to examination chief are not questioned in cross‑examination, the presumption will be that such evidence is deemed to have been accepted by the party against whom it was given. The cases of Qasim and others v. The State reported in P L D 1967 Kar. 233 and Qamaruddin v. Hakim Mahmood Khan reported in 1988 S C M R 819 are relevant in this regard.

8. Where assertion or claim made on oath by the landlady that she requires premises for her personal use are found to be consistent with her averments in the application for ejectment and are not shaken in cross‑examination or disproved in rebuttal then the same are to be accepted by the Rent Controller as bona fide (P L D 1976 Kar. 832). Good faith and reasonableness are such matters which relate to the state of mind of the landlady and are to be inferred from the circumstances of each case. The evidence which has come on record clearly shows 1 that the respondent is residing in rented house paying Rs.2,200 per month as rent. L She has got her own house which is more suitable to her requirements and she is getting only Rs.415 per month as rent from this house. The premises where she was residing were got vacated under the orders of this Court. The respondent has got no other suitable house to reside and is forced to live in a rented house. She is an old, divorced and issueless lady. All these factors when combined together clearly make out a case of bona fide requirement. The cases of Muhammad Hanif v. Mst. Sara reported in P L D 1982 Kar. 182 and Mushtaq Ali Jomani v. Mst. Amina Khatun reported in P L D 1986 Kar. 94 are also relevant in this context. Ordinarily the Rent Controller and the High Court should accept the requirement of landlord/landlady, if reasonably proved on record, without imputing bad faith, unless strong circumstances to the contrary exist. The appellant has failed to rebut this strong evidence which has come on record. He has also failed to prove through the receipts that the rent was initially fixed at Rs.200 per month, which was increased unilaterally by the respondent and was ultimately fixed at Rs.415 per month. The assertion. that the respondent had been residing with her brother Muhammad Yousuf is also not borne out from the record. The notice (Exh.0/1) in no way indicates that the respondent was residing with her brother Muhammad Yousuf.

9. It is also the case of the appellant that the respondent has got more than. one house and she has selected the house in his occupation with mala fide intention. The respondent in her evidence has explained this position also. Even otherwise it is the prerogative of the landlady to select any house suitable for her requirement. The law does not give to the tenant the power to determine where the landlady should presently reside.

10: On overall appraisement of the evidence available on record and on considering the surrounding circumstances, I am of the view that there could not be a more appropriate case for the satisfaction of the Rent Controller than the one under consideration. The Rent Controller has, therefore, rightly allowed the application for ejectment. The appeal has got no merit and is dismissed with costs. The appellant is, however, allowed two months' time to vacate the demised premises.

H.B.T./K‑127/K Appeal dismissed.