HAROON KASSAM and anothers vs AZAM SULEMAN MADHA

' S.A. NUSRAT, J.--This appeal is the outcome of rent proceedings initiated by the respondent/landlord for eviction of the appellant from a portion of the building known as Madha Villa situated in Jamshed Quarter, Karachi. The respondent filed application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 on 26-1-1965 seeking eviction of the appellant on the ground of wilful default in payment of rent as also on the ground that the premises were required in good faith for his personal use and occupation. On the pleadings of the parties two issues on the question of default and requirement of the premises by the respondent in good faith and for his bona fide personal use, were framed by the Rent Controller. Both the issues were, however, decided against the respondent and the eviction applicaation was dismissed on 31-7-1984. The matter was then taken up by the respondent in appeal before the High Court, which was allowed as per impugned judgment dated 19-5-1987 on the finding that the respondent had satisfactorily proved that the disputed premises were required by him bona fide for his occupation.

2. Leave to appeal was granted to examine the plea raised on behalf of the appellant that the respondent, during the pendency of the ejectment proceedings, had let out 20 flats in a building owned by him which had fallen vacant from time to time and had failed to occupy any accommodation which was so made available to him. This circumstance, according to the learned counsel, reflected adversely upon the plea of bona fide requirement raised in the application for evict ion.

3. We heard the learned counsel and have gone through the two decisions of the Rent Controller and the learned High Court and have also carefully examined evidence of the parties brought on the record. At the very outset, it was conceded, rather frankly, by the learned counsel for the appellant that the case in hand was governed by the provisions contained in section 15 of the Sindh Rented Premises Ordinance 1979 upon the repeal of the former Rent Restriction Ordinance, 1959 on and from 21-11-1979. The provision contained in clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979 reads as follows:- "The landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children."

' In order to highlight the distinction in the language and phraseology used in the above-quoted section, the parallel provision contained in section 13(3)(a)(i) of the repealed Ordinance, is also reproduced hereunder:- "A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-

(i) in the case of a residential building, if-

(a) he requires it in good faith for his own occupation or for the occupation of any of his children;

(b) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated; and

(c) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area."

' A bare reading of the two sections will make it clear that the provision of eviction in the present Ordinance, where the premises are required by the landlord for his use, is different and less cumbersome in comparison to what was contained in the repealed Ordinance inasmuch as, the landlord is not called upon to show that:-

(a) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated; and

(b) he has not vacated such a building without sufficient cause after the commencement of the Ordinance namely West Pakistan Urban Rent Restriction Ordinance, 1959 (in the said urban area).

' In the present law, therefore, all that is required by the landlord is to prove that the premises are required by him "in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children." The intention of the legislature in bringing about this change is meaningful and is to be given effect accordingly.

4. Now coming to the facts of the case, the respondent/landlord in his application through his attorney, had stated that he was resident of Burma and due to the political change in the country and complete nationalization of property and business establishments owned by persons of Indo- Pakistan region, he and his family were forced to return to Pakistan and first having gone to Chittagong, had decided to settle down permanently in Karachi. In the circumstances, the disputed premises were required by the respondent for his bona fide use. By the time the evidence came to be recorded in the case, it was stated by Moosa Suleman, the respondent's attorney that the family of the respondent was in Karachi and residing with him. The respondent was stated to have five children. In the written statement, para. 4 of the respondent's application, which contained the statement that the diputed premises were required by the respondent, was denied "for want of knowledge ". It was, however, alleged that the respondent or his attorney with ulterior and mala fide motive, prior to the institution of the application, had got vacated several residential premises in several buildings and re-let them to other tenants for valuable consideration. Had the need of the respondent, according to the appellant, been genuine, such premises should not have been rented out to others. The learned counsel for the appellant invited our attention to the cross-examination of Moosa Suleman wherein he had admitted that the respondent was the owner of another building known as Pak Mansion consisting of 50 to 60 tenements situated in Karachi which had been sold 2 or 3 months back. It was also admitted by this witness that after filing of application about 20 tenements had fallen vacant in tilt' Pak Mansion and were let out on Pagri and were not occupied by the landlord. In re-examination, it was denied that the 20 tenements were let out by this witness, but he had only changed the receipts in the names of the new tenants and vacant possession of the said 20 tenements was not delivered to him. The respondent's wife Mst.

Memoona had also stepped into the witness box and was cross-examined. She stated that the disputed premises were required for the respondent and their family comprising of five children.

She had also denied the suggestion that the respondent had any intention of selling away the disputed property. Much emphasis was laid by the learned counsel for the appellant on the alleged fact with regard to the respondent having let out flats to various persons in the other building known as Pak Mansion. Had the legal requirement, as contained in the repealed Ordinance not undergone any change as discussed above, the argument of the learned counsel would certainly have some merit calling for close examination of the evidence on record. The sole question, therefore, for consideration in this case is whether the disputed premises are required bona fide by the respondent. In this connection, there is the statement of the respondent's attorney and also that of his wife, who had the courage to go into the witness box in spite of the fact that the respondent's brother and attorney had filed his affidavit in evidence and was cross-examined at length. It was pointed out by the learned counsel for the respondent that the other building known as Pak Mansion was situated in densely populated area of Burns Road and not suitable for the purpose of residence of the respondent and his family. The disputed premises, on the other hand, is situated in the residential area of Jamshed Quarters and eminently suitable for the purpose of residence. As discussed above, the appellant had failed to deny that the requirement of the respondent was not bona fide. The question, therefore, falls within the short campus of the argument that the respondent should have instead gone and occupied any one of the flats in Pak Mansion as and when the same (if at all) became available for occupation to him. We need not discuss here as to whether in the course of change of tenancies, a landlord is deemed to have been put in possession of the premises, even for a fraction of a minute, when the landlord, at the request of the autgoing tenant, becomes a willing party to the change of tenancy by issuing a fresh receipt to the new tenant, which is a common practice to he taken judicial notice of in Karachi. It is by now the settled law that if the landlord possesses more than one house in the same urban area the choice, as to the house in which he would like to live in, is surely a matter within his prerogative and discretion and the law does not give either to the tenant or the Rent Controller the power to determine where the landlord should personally reside (Sabu Mal v. Kika Ram alias Heman Das, 1973 SCM R 185). Earlier in the case of Nooruddin and others v. Asghar Ali and others (1968 SCMR 1087) a somewhat similar situation was noted inasmuch as another flat in the same building had fallen vacant, which the landlords had let out to another tenant and failed to utilize it for themselves. In the circumstances, it was held that the question as to which portion of the building would suit the landlords better must be left to their discretion and there was nothing unreasonable in the landlords insisting that a particular portion of the building should be made available to them. This view has consistently been followed by us as pointed out by the learned counsel for the respondent, the latest authority being the one reported as Sardar Khan v. Riaz Ahmad and others (1986 SCMR 1981).

' The learned Judge in the High Court had, therefore, rightly reversed the finding of the Rent Controller and directed the eviction of the appellant on the 'finding that the respondent had successfully proved that the premises were bona fide required by him.

5. As a result of the above discussion, we find no merit in this appeal which is dismissed with no order as to costs. However, by consent of the learned counsel for the respondent, four months' time is allowed to the appellant to vacate the disputed premises and deliver possession on a clear undertaking that this will be done without recourse to execution proceedings and on payment of rent on usual terms for the period.