AKHTAR QURESHI Versus NISAR AHMAD

MUHAMMAD BASHIR JEHANGIRI, J.--- This appeal with the leave of the Court is directed against the order dated 16-2-1998 of the High Court of Sindh in First Regular Appeal No.275 of 1997 whereby the impugned order of eviction passed by the learned Rent Controller against the tenant on the ground of the personal need of the appellant was reversed and the eviction application was dismissed.

2. Brief facts noted in the leave granting order are that the appellant is an unmarried lady. She wanted to live separately in her own Flat in dispute in Maymar Square, Gulshan-e-Iqbal, Karachi which was occupied by the respondent-tenant. She had sought eviction of the tenant-respondent on two fold grounds: firstly, that the respondent has defaulted in payment of rent from July, 1993, till the filing of her eviction application on 4-1-1994 and; secondly, that she bona fide required it for her personal use and occupation. This application was contested by the tenant-respondent. After recording the evidence, the Rent Controller accepted the application, allowed the eviction application upholding the plea of the appellant-landlady that she bona fide required it for her own occupation. The ground of default in payment of rent was, however, not found established. Resultantly, the respondent-tenant was ordered to vacate the premises in dispute within 40 days and put the appellant in vacant possession thereof. On appeal to the High Court of Sindh, a learned Single Judge by his order dated 16-2-1998, took a different view on the plea of bona .fide requirement of the demised premises raised by the appellant ` landlady and held that she had not approached the Rent Controller for eviction of the tenant-respondent "with clean hands and in good faith". In this context, it was observed that the owner had no doubt prerogative to get the premises vacated provided that it is required in good faith. In this regard, a reference was made to the case of Mst. Ashraf Aiia (1991 CLC 53) wherein the principle was enunciated that one of the essentials in a case of personal requirement is the existence of good faith. The order of eviction passed by the Rent Controller was set aside recounting in the judgment, the circumstances apparent on the face of the record by-the learned Judge for reaching the conclusion that the application for eviction was not bona fide.

3. Leave to appeal has been granted by this Court to consider whether the appellant, who is grown up and unmarried, and desires after her marriage to live independently, is not enough of a reason to spell out a bona fide requirement of the appellant to seek the eviction of the tenant-respondent' A from the demised premises.

4. Mr. Akhlaq Ali mad Siddiqui, learned Advocate-on-Record, appearing on behalf of the respondent-landlady contended that the High Court has seriously erred in law and facts-in holding that the appellant has not brought on record any material to establish that the appellant's requirement was based on mala fide. .

5. The respondent-tenant did not enter appearance, therefore, we were constrained to decide the case ourselves .after perusing the record. The learned Single Judge has at the outset made a pointed reference to the so called "false and misstatement" in affidavit filed by her in the Court of the learned Rent Controller to the effect "that she was residing with her brother Tassadaq Hussain in House No 2/129-G PECHS" and that "her relations with her Bhabi were not cordial therefore she required the flat in dispute for her so that she could contract marriage which had been held a because of insufficient accommodation". The learned Single Judge then adverted to her cross-examination wherein she "denied to be the owner of Property No.2/129-G PECH Society wherein she was co-owner in the said property as is evident from the letter of Secretary, PECHS wherein she was co -owner....."(Underling is ours to provide emphasis). From the above statement and admission in cross-examination the learned Single Judge reached the conclusion that the requirement of the appellant-landlady was not bona fide. The inference drawn by the learned Judge, we are afraid, is not correct. What the appellant-landlady had asserted in her examination-in-chief or conceded in her cross-examination is that she was residing jointly with her brother Tassaddaq Hussain in House No.2/129-G, PECHS but her relations with her Bhabi (wife of her brother) were not cordial, or that as per admission of her sister Professor Mubashir that the appellant was residing with her elder sister in Gulshan-e-Igbal. From the statements and cross-examination aforesaid, it only transpires that she was residing with her brother in the latter's house. Conceding for a while that her relations with her Bhabi were not strained; also granted that she owned a share iii the last-mentioned house; further that she was not residing in that house but had taken to living with her elder sister in Gulshan-e-Iqbal. It would be noticed that neither her co-ownership in the house in PECHS nor her taking residence with her elder sister in Gulshan-e-Iqbal militate against her plea that her requirement of her flat was bona fide, because her marriage was held up. There is no such law which tends to turn the requirement of a landlady of her house into mala fide merely because she needed her own accommodation to start her matrimonial life: Who would not like to have one's own abode at the start of one's matrimonial life if there is one. The appellant-landlady luckily owned a flat of her for occupying it for her marriage. A share in house in PECHS which is joint with her brother does not, in any way, debar I her to get the flat vacated of which she was the exclusive owner. In any case, the tenant cannot be given a right to assert that his landlady's co-shareship or her joint living with her sister was in any way valid defence to urge that her requirement of the demised premises was mala fide particularly when the landlady's marriage was going to be solemnized which had been already delayed.

6. The statement of appellant-landlady on oath was thus quite consistent with her averments made in the ejectment application. Neither her statement was shaken nor anything was brought in evidence to contradict the said statement. The Rent Controller was, therefore, fully justified in accepting the evidence of the appellant-landlady and ordering the eviction of the tenant. Reference in this context, may be made to a recent case of Juma Sher v. Sabz Ali (1997 SCMR 1062).

7. It would thus be noticed that none of the grounds mentioned in the impugned judgment of. the learned Judge in Chambers justifying interference with the well-reasoned order of the Rent Controller passed in the above case are sound. The assertion or claim on oath by the landlady/landlord that she/he required the premises for her/his personal use, should be accepted by the Rent Controller as bona fide, if such claim, or assertion although by itself may not be sufficient, yet is consistent with his/her averments made in the application and are neither shaken in the cross-examination nor are disproved in rebuttal. The evidence in this case fully justified the claim of the landlady that she required the premises bona fide for her own use as she had no other accommodation of her own; that due to her impending marriage she is entitled to settle in a separate accommodation of her own; that additionally her relations with her sister-in-law were so strained that there was no possibility of her residing together with the family of her brother and sisters after getting married. We are, therefore, of the considered view that the findings on this issue by the learned Judge in Chambers are not in consonance with law laid down on this aspect by this Court.

8. We, accordingly, allow this appeal, set aside the order of the High Court and restore that of the Rent Controller.

9. The respondent-tenant is, therefore, directed to vacate the demised premises within six months from today and ,deliver the vacant possession thereof to the appellant-landlady without resort to .execution application in the Court of the Rent Controller arid with the help of the police, if need be. The parties are, however; left to bearing their own costs.

M.B.A./A-32/S Appeal allowed.