ZAINAB Versus YOUSUF IBRAHIM

ORDER

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is Filed against the order dated 20‑9‑1988 passed by IIIrd Sr. Civil judge and Rent Controller (West) Karachi, whereby he directed the ejectment of the appellant from the disputed premises.

2. Appellant is a tenant of respondent in respect of residential premises situated on plot No. 323, Sector 1728, Muhajir Camp, Karachi, at a monthly rent of Rs.40. On 10‑12‑1986, the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, before the Rent Controller seeking ejectment of appellant on the ground of default in payment of rent from March 1985, and personal requirement. The appellant resisted the application for ejectment by controverting the allegations for ejectment by controverting the allegations based on facts. It was pleaded on her behalf that the respondent wanted to demolish the disputed premises which necessiated her to file a suit for injunction. It was thereafter that the respondent refused to accept rent from her. She, therefore, tendered rent through money orders which were refused. Consequently she started depositing the same in the office of Rent Controller. The appellant also disputed the plea of personal requirement raised by the respondent by stating that it was nothing but a smoke‑screen designed purposely as a sort of intimidation with a view to compel her to accede to the unreasonable demand in the matter of increase of rent.

3. On the pleadings of the parties the Rent Controller framed the following issues:

(1) Whether the opponent is wilful defaulter in the payment of rent?

(2) Whether the appellant requires the premises in good faith for personal bona fide need?

(3) What should the order be?

4. The respondent has examined himself (P.W.1) and his son Dildar Ali (P.W.2), while the appellant examined her son/attorney Qasim (D.W.1).

5. On the assessment of evidence both oral as well as documentary, the learned Rent Controller decided both the issues against the appellant, giving rise to this appeal.

6. Admittedly there is no written agreement of tenancy. It is alleged that the appellant committed default from March, 1985. Both Yousuf Ibrahim (P.W:1) and his son Dildar Ali (P.W.2) have testified about the default committed by appellant. Qasim (D.W.1) who is son and attorney of the appellant has seriously contested this assertion. He has given the circumstances leading to this litigation in para No. 3 of his affidavit‑in‑evidence. He also speaks of tender of rent to respondent who did not accept the same and thereafter the rent was sent to him through money orders on the following dates:‑‑

Date

Period

Amount

21‑4‑1985

March and April, 1985.

Rs.80

20‑7‑1985

May and June, 1985

Rs.80

2‑8‑1985

July and August, 1985

Rs.80

11‑11‑1985

Sept. and Oct. 1985

Rs.80

All these money orders which were, however, refused, Annexures A' to E' to the affidavit of Qasim (D.W.1) are self‑explanatory. Since the respondent has himself admitted about the remittance of rent by money orders, no incumbent duty lay upon the appellant to examine the postman.

7. Section 10 of the Sindh Rented Premises Ordinance, 1979, lays down the procedure for the tender of rent when the landlord refuses to accept the same. The rent of the aforesaid period commencing from March, 1985, was thus tendered in terms of subsection (3) of section 10 of the Sindh Rented Premises Ordinance, 1979. The finding of Rent Controller on issue No.l is, therefore, set aside and the issue of default is decided in favour of appellant.

8. To prove his "good faith" in getting the premises vacated, the landlord has examined himself (P.W.1) and his son Dildar Ali (P.W.2). It is stated by the landlord/respondent that he is an employee of Karachi Port Trust and is at the verge of retirement. He is presently occupying a two rooms quarter which is not sufficient to accommodate his nine members of family, viz.

1. Yousuf

Applicant

55 years

2. Rehmat Bi

Wife

45 years

3. Dildar

Son

23 years

4. Shireen

Daughter

20 years

5. Afroze

Daughter

18 years

6. Kausar

Daughter

16 years

7. Shakil

Son

13 years

8. Waqar

Son

9 years

9.Adrian

Son

7 years

It is also stated by the respondent that the marriages of his sons who are of marriageable age are held up for want of accommodation. The appellant has not questioned the number of family members of respondent. It is an established position of law that while determining the question of "requirement", the Controller should not overlook the new requirements of landlord and his desire for better accommodation. The case reported as Fazal‑ur‑Rehman v. Nayeema Khatoon (P L D 1963 Dacca 84) is an important authority on this subject. At page 85, we find:‑‑

"It can hardly be disputed that the premises in question is the property of the opposite party and that as such she had got a right to use it for her purposes in accordance with law. It is not unreasonable to think that a landlord or an owner of a house may have family members or other dependants who might grow in number and might also require more accommodation from time to time. It is difficult to think that a person, though an owner of a house or otherwise capable of occupying the entire house for his or her own use and personal needs should be refused to enjoy that property in that way just for the sake of accommodating a person who might have been inducted into the premises as a tenant at a time for consideration which may not be appropriate at a later stage when such owner of the house might require the same for his or her own use and occupation."

9. Judged in the light of the above interpretation it is to be seen whether the requirement of the respondent for the disputed premises is bona fide. Admittedly the appellant is in occupation of the disputed premises since 1976. Only one room is constructed on the plot which is 161 sq.yds. in area. The respondent wants this premises to accommodate his grown up sons who may live there independently after their marriage. The respondent also wants to utilise the entire plot which is presently lying vacant. He has also in his view his retirement which is approaching fast and to meet that situation he sincerely wishes to occupy his own premises. The number of members of the family of landlord and their ages are most material factors while deciding adequacy and suitability of the accommodation already with him. The landlord may require in good faith the premises either in the existing form or after demolition and new construction for occupation like the one under consideration. The finding of Rent Controller on issue No.2 is, therefore, not open to exception.

10. In the result the appeal fails and is dismissed with no order as to costs. The appellant is, however, allowed two months time to vacate the demised premises.

H.B.T./Z‑121/K Appeal dismissed.