MUHAMMAD ASGHER Versus ABDUL HUSSAIN
This appeal is directed against the judgment dated 3‑8‑1991 whereby the eviction application of the appellant was dismissed by the learned Ist Senior Civil Judge and Rent Controller, Karachi (Central). Appellant Haji Muhammad Asghar had filed eviction application on 1‑8‑1988 under section 15 of the Sindh Rented Premises Ordinance, 1979 in respect of the residential premises located on the first floor of Houpe No.l/F, ,10/11 Nazimabad, Karachi. According to the averments made in‑the eviction application, the appellant/landlord who is also living on the ground floor of the same premises was facing acute accommodation problem. He had grown up children and the marriage of his son Muhammad Anwar was being delayed due to shortage of accommodation. (He was married shortly after the filing of eviction application). It was also the case of the appellant that the respondent had made additions and alterations in the premises by converting the gallery into a store room without permission of the appellant and had thus impaired the value and utility of the premises.
2. In his written statement the respondent/tenant denied that the appellant/landlord was short of accommodation. According to him, the family of the appellant consisted of only his wife and 3 sons (five persons in all) and the accommodation in 'their possession. consisted of 6 rooms on ground floor and 6 rooms on first floor (12 rooms in all) which was sufficient to their requirement. It was also stated that applicant had also previously fled an eviction application on the same ground (being Rent Application No.1760/1981 which, was dismissed on 13‑2‑1985. It was also claimed that the appellant had recently purchased another house bearing Noa‑B, 1/14 Nazimabad, Karachi but had let out the frst floor consisting 5 rooms and second floor consisting of 2 rooms and had installed a Hosiery Factory on the ground floor, the implication being that if he required more accommodation he would not have let out first and second floors of the house recently purchased by him. On the basis of their pleadings learned Rent Controller framed the following issues:‑‑ '
(1) W4ether the applicant requires the demised premises for his personal use and use of his son Muhammad Anwar.?
(2) Whether the opponent has made addition and alteration without permission and thereby impaired the value and utility of the demised premises?
(3) What should the order be?
3. On 'the basis of the evidence brought on record by the parties the learned Rent Controller has come to the conclusion that none of the issues had been proved by the appellant and as a result eviction application was dismissed. The appellant has now come in appeal. Learned counsel of the parties have been heard and the various reported judgments relied upon by them have been perused.
4. It may be stated at the outset that learned counsel of the appellant, while addressing the Court had not dilated upon issue No.2 and, as such, the ground of impairing the value of property was virtually given up. I would therefore not refer to this aspect of the case.
5. As stated in the earlier portion of the judgment the respondent has stated in his written statement that the family of the appellant/landlord consisted of his wife and 3 sons (five persons in all) and the accommodation in his possession consisted of 6 rooms on ground floor and 6 rooms on first floor (12 rooms in all). However in para. 5 of his affidavit‑in‑evidence the respondent conceded that total accommodation in possession of‑the appellant consisted of 6 rooms. This was the position taken by the appellant himself in para. 4 of affidavit‑in‑evidence where he had stated that he was in possession of 4 rooms on ground floor and 2 rooms on first floor out of which 4 rooms were being used as bed‑rooms and drawing room and the remaining one room was being used for multiple purposes by way of store room and dining room and occasionally as guest room when out station guests came on visit. There is thus no dispute as to the accommodation in possession of the appellant. Now the extent 6f the family of appellant is to be determined. In para. 3 of his affidavit in‑evidence the appellant stated that his family consisted of 11 members, i.e. he himself, his wife, 2 married sons Muhammad Anwar and Muhammad Akram with their five children between them, and his two daughters. In para. 5 of his affidavit‑in‑evidence, the respondent stated that the family. of the, appellant consisted of 9 members only and not 11 members as claimed by him. \This was a concession from the averments made in para. 2 of written statement where the family of appellant was stated to consist only of himself, his wife and 3 sons (five persons in all). However, the respondent seems to have gone down all the way to conceding that the family of the appellant consisted of 11 persons when he stated in cross‑examination that the family of appellant consisted of the appellant, his wife, his son Akram, Akram's wife and their 3 children, and other son Anwar, Anwar's wife and one child of Anwar and one daughter of the appellant. So it is also now an admitted position that family of the appellant is a joint family which includes the families of 2 married sons and the whole lot consisted of 11 persons and it is an established position at law that the terms "own occupation" or "for himself' cover a case of a landlord requiring more accommodation for a joint family as held in 1989 CLC 662 Tajammul Hussain Shah v. Mst. Taj Aslant.
6. In view of the admitted position as to the extent of family of the appellant and accommodation in his possession it is obvious that the appellant is short of accommodation. It is natural to aspect that appellant and his wife would require one bed‑room and his unmarried daughter would require a separate bed‑room and his two sons would require 2 bed‑rooms each, one for themselves and one for their children. Thus the appellant requires 6 bed‑rooms for his family. The appellant also has two married daughters who must be occasionally visiting him and therefore requirement of a guest‑room is also legitimate. Apart from this, it being a large and joint family a separate dining room is also a basic requirement and it goes without saying that appellant must also have a drawing room to entertain guests. There must also be an additional room to be used as a store. It would mean that appellant would require ten rooms for his requirement as against the 6 rooms in his possession at present. In coming to this conclusion I am fortified by the judgments in the cases of Mst. Idris Begum v. Fahimul Hasan PLD 1988 Kar. 452 wherein a minor son of the landlady had attained majority during the pendency of appeal and had married and was living with the landlady and the requirements of his son were considered bona fide. Here also appellant's son Muhammad Anwar has attained majority after the dismissal of appellant's earlier ejectment application and must require additional accommodation for his family. Cases of Shahzada Sultan Humayoon v. Mst. Zainab Bai 1989 CLC 1338, Manzoor Ahmed v. Razya Khatoon 1992 CLC 1331 and Mukhtar Hussain v. Mehar Elahi 1992 MLD 318 are also virtually on identical facts and support the case of the appellant. Learned counsel of the respondent had claimed that there was discrepancy between the pleadings and evidence of the appellant and, relying on the case of Mack Industries v. Haji Abdul Karim 1986 MLD 1595, had argued that such evidence could not be believed. However, I do not find any discrepancy between the two.
7. The respondent had alleged in para. 2 of his written statement that the appellant had purchased building bearing No.l‑B/14 Nazimabad, Karachi and he had rented out its first and second floors and he was running a Hosiery Factory on its ground floor. The appellant denied this in para. 7 of his affidavit in‑evidence and the respondent could not place on record any evidence in support of his claim. In fact in cross‑examination he admitted that Haji Muhammad Akbar, brother of the appellant, was residing in the said house since prior to the commencement of the tenancy. The tenaney had commenced, according to the respondent himself, 22 years prior to the filing of written statement (per para. 4 of written statement). Now, this I‑Iaji Muhammad Akbar is living in this house for more than 22 years prior to filing of the written statement in September, 1988, and there is no evidence whatsoever to show that this house belongs to the appellant. As such the allegation of the '' respondent in this regard is evidently without any substance. ‑
8. It may also be noted that respondent does not appear to be trust worthy person as he has given contradictory statement on points of fact. For example, in para. 7 of written statement he has stated that the appellant had constructed a mazanine floor which was also in his possession but in his cross -examination he conceded that "it is a fact that there is no mazanine floor in the building". There is one more example of his untrustworthiness. The appellant has served him with a notice dated 14=7‑1988 (Exh.2‑A). The respondent had admitted in para. 4 of written statement that he had been served with that notice. To quote the exact words, of para. 4 of the written statement "It is further stated that legal notice 'was properly replied by the opponent". However, in his cross‑examination he falsely stated that "I had not received any notice from the applicant. It is incorrect to suggest that I have not replied the notice as the same was not received by me therefore the question of reply does not arise". It is thus evident that whereas in his written statement he had not only admitted the service of the notice I but had even stated that same was properly replied, but in cross‑examination he totally denied the whole thing. ' '
9. Learned counsel of the respondent shad also argued that the appellant in his notice dated 4‑7‑19$8 (Exh. A/2) has not stated anything about his personal requirement and therefore eviction application in furtherance of the said notice and on the ground of personal requirement could not be maintained. It appears that the learned counsel had not, properly gone through the said notice because para. 3 thereof clearly states that the appellant was facing acute accommodation problem because of his large family.
10. Learned counsel of the respondent argued that, notwithstanding the large family of the appellant, he did not bona fidely require the demised premises and had only put forwarded this ground for ulterior motives, Circumstances of ‑the case do not bear out the contention of learned counsel of the appellant. Merely because a previous rent case filed by the appellant was dismissed is not sufficient to hold that the present ground of personal requirement is not bona fide. The respondent had admitted in cross‑examination that in the past few years the family of the appellant has expanded. It is also an admitted position that one son of the appellant had married i July 1988. The requirements of the appellant have therefore further increased since the dismissal of his earlier application. As held in the case of Mst. Toheed Khanam v. Muhammad Shamshad (1980 A SCMR 593), a landlord is within his right to file a fresh application for ejectment of his tenant on the ground of personal requirement after 3 years of dismissal of hr's previous application and that no stigma attaches to his filing a subsequent application merely because his 'earlier application had been dismissed.
11. In view of what has been' stated above I am of the view that the appellant has sufficiently established the bona fades of his .personal requirements. I would therefore accept this appeal, set aside the impugned judgment and direct the respondent to put the appellant into vacant possession of the premises. He is allowed two months' time from today. Partiets are left to bear their own costs.
H.B.T./M‑1939/K Appeal accepted.