MUHAMMAD AKRAM Versus THE STATE
Appellant Ayoub Muhammad Khan is tenant of Mst. Shama Khalid in respect of House bearing No. 1‑834, Sector 11‑E, North Karachi, Karachi, at the monthly rental of Rs.375 per month. The house in question was purchased by the respondent and initially dispute arose between the parties over the security deposit. Later on the respondent filed an application for eviction of the appellant in the Court of IInd Rent Controller, Karachi (Central) on the grounds of wilful default in payment of rent, subletting the premises to someone else without consent of respondent and personal bona fide requirement of the respondent. The appellant contested the eviction proceedings and filed ‑his written reply wherein he denied the allegations of default in payment of rent and subletting and further explained that his ejectment was being sought with mala fide intention to rent out the premises in question on higher rent coupled with handsome advance money. Learned Rent Controller on the pleadings of the parties, framed the following issues on which the parties led evidence:‑‑
(1) Whether opponent is defaulter in payment of rent?
(2) Whether opponent had sub‑let the premises to someone else?
(3) Whether applicant requires the premises for her bona fide need?
(4). What should the order be?
2. On assessment of evidence‑on‑record, learned Rent Controller decided the point of default in payment of rent and subletting in favour of the appellant, but on the point of personal requirement she gave finding in favour of the respondent and allowed the application directing the appellant to hand over the vacant possession of the premises in question to the respondent.
Learned counsel for the parties stated at the outset that they would not assail the findings on the points of default in payment of rent and subletting and would confine their arguments to the point of personal bona fide requirement which led to passing of eviction order against the appellant.
4. Learned counsel for the appellant submitted that evidence has come on record that the respondent is in occupation of entire first floor of House No.II‑K‑15.4, North Nazimabad, Karachi which consists of 4 rooms with other amenities, while rented premises which is situated in North Karachi is built on a plot of 83 square yards and consists of 2 rooms which is much below the accommodation presently occupied by the respondent and as such it is proved that her requirement is not bona fide. He also contended that admittedly the rented premises being situated in New Karachi is suitable only for a person of lower middle class, whereas the husband of respondent was an officer of Bank at the relevant time and they were living in Nazimabad, therefore, it cannot be conceived that the respondent would require the premises for the occupation. He relied on authorities Vector Joseph v. Muhammad Amin 1999 CLC 676, Mst. Safia Hassan v. Ishrat Hussain 1986 CLC 1751 and Manzoor Ahmed v. Karim Bux PLD 1986 Kar. 637.
5. Learned counsel for respondent submitted that the respondent has denied that the present accommodation occupied by her is of 4 rooms and in this regard reliance cannot be placed by the appellant on the evidence of the appellant and his witnesses who are in fact strangers and are not supposed to visit and inspect the entire house occupied by the respondent at the time of making payment of rent. He stated that admittedly the respondent has a large family and it is prerogative of the landlord to select the premises for his occupation. He stated that the respondent has fully brought out her case and given the number of family members which fact has gone unshaken, therefore, learned Rent Controller had rendered a correct finding on this point. He relied on Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178, Mst. Sara Bai v. Godhra Muslim Association 1993 Kar. 496; S.M. Zaffar Pervez v. Syed Nasiruddin K. Kamal Shah 1995 CLC 1719 in support of his case.
6. The respondent while putting up her case in her affidavit‑in -evidence, filed on 31‑3‑1994, stated at paras. 12 and 13 that she was living with her husband and three children with her in‑laws in a house constructed on 216 sq. yards which, after the death of her father‑in‑law is a property inherited by her husband and his two brothers and two sisters. The house consists of in all 4 bedrooms, 1 common dining room and 1 common drawing room which is insufficient for their entire family consisting of three brothers and two sisters out of whom two brothers are married and have six children while one brother and two sisters are yet to be married, thus, the accommodation is insufficient for them. As against this, the appellant stated in para.5 of his affidavit‑in‑evidence that the house presently occupied by the respondent is a double storeyed building and entire first floor consisting of 4 rooms with amenities in occupation of respondent is quite sufficient for them while the ground floor also consists of 4 rooms with amenities The witnesses Habib Ahmed and Imran Ahmed gave almost a similar version in their affidavit‑in‑evidence regarding the accommodation.
7. The controversy, in substance; has been confined by the parties to a comparison of two accommodations, one in occupation of the respondent and the other rented out to the appellant, but it seems, this approach by passes the most crucial point involved in such matters that what is really the requirement or need of the landlord and not his/her spouse. In fact, what is to be pointed out essentially, is that the respondent, who is admittedly the landlady, is neither owner nor co‑sharer of the building where she is residing with her children. Admittedly, the respondent her husband and her children whose ages as on the date of her cross‑examination i.e. on 14‑5‑1994 were 13, 9, and 5 years respectively, reside in a house of 216 sq. yards which was owned by father‑in‑law of the respondent after whose death the property has been inherited by the husband of respondent and his two brothers and two sisters. This is a double‑storeyed house and the husband of respondent will get his share in accordance with law. Whether the entire first floor of the said house will fall to the share of respondent's husband is a different question, but irrespective of this aspect of the case it would be the property of husband of the respondent and not of the respondent, while the rented premises in occupation of the appellant is the property of respondent herself. She has opted to reside there with her children, therefore, learned counsel for respondent was correct in contending that it was prerogative of the landlord to select a particular accommodation for her residence/occupation.
8. Much stress was laid on behalf of the appellant on the point that the first floor of the building presently occupied by the respondent alongwith her husband and children consists of 4 rooms, therefore, it is sufficient for her needs but iii the circumstances stated above the aforementioned accommodation is not that of the respondent herself nor she may be compelled to confine herself to the anticipated share of her husband in the said building which may fall much below the present accommodation. No doubt, it has been admitted by the respondent that rented premises consists of 2 rooms only and person, of. lower .middle class may reside there but as rightly pointed out by learned counsel for respondent it is the choice. of landlord to select a particular accommodation for her residence irrespective of the suitability of the area, which is a personal affair of the person selecting such area. After all, nothing has come on record to suggest that respondent owns other accommodation/tenement that 'could be suitable for her occupation, therefore, it can be inferred that rented premises is the only house owned by the respondent.
9. Learned counsel for appellant, however, stressed that respondent's requirement was not a need in legal sense but only a desire. He relied on the judgment of Peshawar High Court in Vector Joseph's case 1999 CLC 1676 and emphasised that ejectment cannot be ordered on the basis of desire alone if need is not proved. In the cited case it was held that a mere "desire" cannot be considered a "need" because need implies want of something without which one cannot do well and element of compulsion is embodied therein. He also sought support from Mst. Safia Hassan's case 1986 CLC 1751 wherein this Court observed that mere "wish" was not enough and the need was to be specified in clear terms and further some evidence was to be produced to show reasonableness of that need. He also referred to Manzoor Ahmed's case PLD 1986 Kar. 637 on the point that burden to prove requirement in good faith primarily‑lay upon landlord and good faith could be ascertained from the circumstances of the case. On the other hand learned counsel for respondent submitted that rule laid down by Honourable Supreme Court in F.K. Irani's case 1996 SCMR 1178 was fully attracted to this case wherein it was held that the "mere fact that respondent's husband had 62 shops in one area and 21 shops in another would not disentitle her to apply for ejectment on the ground of personal requirement of her son as it is for a landlord/landlady to select "as to which of the buildings he/she wishes to use personally or to provide the same to his/her children". Learned counsel also relied on Mst. Sara Bai v. Godhra Muslim Association PLD 1993 Kar. 496 where one of the grounds was that the marriages of two sons of landlord were held up for want of accommodation. This authority would not help the respondent as the point of fact that marriages of the children of respondent was held up for want of accommodation has not at all been pleaded in this case. In S.M. Zaffar Pervez's case 1995 CLC 1719 one of the factors considered in favour of landlord was that two children of the landlord were of marriageable ages and two were medical students at the time of filing of ejectment application. This factor is also missing in the case of respondent.
10. The legal position as applicable to a instant case is clearly spelt out in case of F.K. Irani where Honourable Supreme Court rendered the finding in favour of landlord, despite the fact that husband of landlord had a large number of shops at his disposal. In the instant matter the case of respondent is outstandingly on better footing, she has no other house of her own to live and the mere fact that her husband owns a share in the house where she is presently residing alongwith her, husband would not defeat the plea of respondent nor would make the bona fides of her requirement questionable. No oblique motive is discernable in the case of respondent, the inevitable conclusion would, therefore, be that she needs the rented premises in occupation of the appellant in good faith. The eviction order passed by the learned Rent Controller is accordingly upheld.
11. Consequently, the appeal being without merits is dismissed. The appellant shall vacate the premises in question within 60 days hereof subject to payment of due rent.
H.B.T./A‑144/K Appeal dismissed.