SULEMAN MOTALA Versus TURAB ALI
The appellant rented out the house bearing No. B/21-1720, 1st Floor, Akal Bhonga Lane, Hyderabad in May, 1972 to the respondent on a monthly rent of Rs.135 which was, by consent increased to Rs.150. The appellant filed ejectment application on the ground of personal requirement. The defence put by the respondent was that the appellant had demanded increase in the rent and on refusal ejectment application has been filed. The learned Controller dismissed the ejectment application. This appeal came up for hearing on 1-12-1983 when the respondent and his Advocate were absent. I, therefore, heard the appellant and allowed it. The respondent went in appeal before the Supreme Court which was allowed on the ground that as the respondent's Advocate was not served with the notice of hearing he was unable to attend the Court. I have again heard the appellant's and respondent's Advocates at length. I have maintained the earlier judgment and by a short order dismissed the appeal for the following reasons:--
2. As the appellant claims the premises for his bona fide personal use the burden is upon him to establish it. It has not been disputed at any stage that the appellant is not living in a house with his son. This son has his own family members, and has accommodated the appellant, his wife and four children. The statement of the appellant that his wife, and four children are residing in the same house at Karachi, is fully established. His wife is the stepmother of his son and it seems that the relationship between the stepmother and her children and the appellant's son are not cordial. They are not amicably living in the house and, therefore, the appellant wants to shift from Karachi to Hyderabad with his wife and four children. Even if the relations between the family members would have been cordial as the appellant is living in a house taken on rent by his son, on proof of his bona fide requirement he would be entitled to seek relief of ejectment. In the present case the appellant has established that he requires the premises for his own use and for the use of his family members. While rejecting the- applications the learned Controller seems to be impressed by the fact that the wife of the appellant has not been examined, nor any of his children were examined. In cases where the disputed house is required for the residence of the landlord his wife and dependent children it is not necessary to examine the wife and children. If the case is established by the evidence of the landlord and other witnesses if any, the mere fact that the wife or dependent children have not been examined will not adversely effect the case. The examination of such family members would be necessary only if any special requirement of such family members is pleaded.
3. Mr. Naqvi the learned counsel has contended that as the appellant after his retirement continued to reside with his son from 1972 onward there is no reason why he cannot continue to live with him. The appellant after retirement from service in 1970 resided in the disputed house upto 1972 when the premises was rented to the respondent. There is no dispute that from 1972 till the filing of the ejectment application in 1979, the appellant lived at Karachi with his son who is residing in a small rented house. During this period of 7 years the need of the family members of the appellant and his son would have grown with the age. Further, due to strained relationship between stepmother and stepson, the appellant does not like to live jointly with his son. Therefore, the reason for requiring the disputed premises for his personal use is neither false nor incorrect. The element of bona fide in a case of personal requirement is an important factor which affects the discretion of the Controller. If the personal requirement is made a pretext for increasing the rent then certainly no importance can be attached to the personal requirement, as it is tainted with mala fide. In the present case the learned Controller has relied on the evidence of the respondent and his brother Haider Ali and come to the conclusion that the appellant wanted to enhance the rent and as the respondent refused, he filed the ejectment application. How far this conclusion is correct and is borne out by the evidence? Sufficient reliance has been placed by the learned Controller on the appellant's letter, dated 17-1-1979 Exh.14/A to conclude that the appellant had visited Hyderabad and talked to the respondent in the presence of his brother Haider Ali. In this letter no mention has been made about the enhancement of rent.
4. Mr. Aziz Dastgir the learned counsel for the appellant has contended that the statement of Haider Ali cannot be accepted as he has given an obliging statement merely to assist his brother. It seems from Exh.14/A that the appellant had been pressing the respondent to vacate the house as far back as from October, 1978, but no steps were taken by him as the respondent was promising to vacate it. When he failed to fulfil the promise the appellant visited Hyderabad and asked him to vacate the house. The appellant's statement seems to be consistent and well supported by the letters written by him. The respondent has examined his brother about whom the appellant in his letter Exh. 14/A had mentioned that he had opposed his request for vacating the premises. This shows, that from the very beginning he had adopted a hostile attitude. In these circumstances. it is not safe to rely on his testimony.
5. Mr. Dastgir has contended that where the landlord proves his bona fide needs independently mere demand for enhanced rent will not affect his bona fides. He has referred to P L D 1983 Kar. 606. In this judgment reliance has been placed on Peerzada Rafiq Ahmed v. Ch Abdul Rehman 1980 S C M R 772 where while approving the rule laid down in Badruddin Hasan Faruqui and others v. Manghi Industrial Home P L D 1976 Kar. 620 the following dictum was laid down:-- "a demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirement is independently proved."
6. The landlord has to establish his requirement independently but where the requirement is merely a colourable device and raised to conceal the real object of enhancing the rent, the bona fide requirement can hardly be established.
7. Mr. Naqvi further contended that the appellant has taken shifting stand and has nowhere stated that he is residing with his son who has taken the house on rent. For argument sake if it is taken to be correct that the appellant's son is the owner of the house in which the appellant is living it does not make any difference, because the house is not owned by the appellant. In the facts and circumstances of the case the appellant has made out a reasonable case for his bona fide requirement.
8. Mr. Naqvi the learned counsel for the respondent contended that the disputed house is too small to accommodate the appellant's family and, therefore, the bona fide need is not established. In raising this contention the learned counsel seems to have completely ignored the fact that after his retirement from service in 1970 the appellant had resided in this house for about two years with his family members.
9. The appellant has established his bona fide need and in fact on the statement of the respondent and his brother it cannot be concluded that the appellant has filed this application for the purpose of enhancing the rent. In the face of the evidence establishing the bona fide need of the appellant, the respondent's evidence to displace it is sufficiently weak. The learned Controller was impressed by the fact that the respondent is living in a house of one room, and it is not possible that the appellant can stay there with his wife and four children. While considering the bona fide need of the landlord one has to first see whether the accommodation where he is living is sufficient and proper for his requirement. If it is not sufficient, then the landlord can ask for ejectment, although the disputed house is small. In the present case, the appellant is residing in a house of his son and he wants to get the disputed house vacated in order to have a better and cordial atmosphere. This he can achieve by living separately in a smaller one-roomed house. Mr. Dastgir stated that the respondent is living in a house which consists of two rooms and a Verandah. There is no evidence to that effect and the finding of the Controller that there is only one room in the house is based on Exh.20/J which is a letter written by the respondent's Advocate. Whatever may be the accommodation the fact remains that the appellant is not living in a house owned by him and wants to live in his house where he can reside more comfortably and properly than in the house of his son. The disputed house may be small but in the circumstances it is more suitable and will satisfy the requirement of the appellant. He has, therefore, established his bona fide requirement. For these reasons the impugned order of the learned Rent Controller is set aside and the appeal is allowed. There will be no order as to costs. Four months time is allowed to the respondent to vacate the disputed premises.
A.A. Appeal accepted.