MUHAMMAD SANAULLAH vs ALLAH DIN

' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is directed against the order dated 29-3-1988, passed by Mr. Khaliq Dino Dal, III Senior Civil Judge and Rent Controller

(West) Karachi, by which he dismissed the application filed by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the eviction of the respondent from the disputed premises.

2. The appellant is the owner/landlord of residential tenement No.'B' situated on the ground floor of the building constructed on Plot No.1/1-III-D, Nazimabad, Karachi, which is on lease with the respondent at a monthly rent of Rs.100. On 9-8-1981 the appellant filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, before the Rent Controller seeking the eviction of the respondent on the following grounds:--

(1) Default in payment of rent;

(ii) Requirement of the premises for the purpose of reconstruction; and

(iii) Requirement of the premises in good faith for the occupation of his children.

3. The respondent resisted his eviction on various grounds. His defence in main is that the appellant has got sufficient accommodation in his control, possession and occupation and plea of personal need raised by him is nothing but a smoke screen designed purposely as a sort of intimidation with a view to compel him to accede to the unreasonable demands in the matter of increase of rent. It was also pleaded that the appellant had filed an ejectment application previously on almost same grounds and the ejectment application out of which this appeal has arisen was barred by doctrine of res judicata.

4. The parties went to trial on the following issues:--

(i) Whether the opponent defaulted in payment of rent since 1-3-1981?

(ii) Whether the applicant required the premises bona fide, for demolition and reconstruction?

(iii) Whether the applicant required the premises, bona fide, for his family?

5. The appellant examined himself (P.W.1), Syed Maqsood All (P.W.2) and Qazi Muhammad Hussain (P.W3). To rebut this evidence the respondent examined himself (D.W.1), and Maqbool-ur-Rehman (D.W.2)

6. On the assessm ent of evidence available on record the learned Rent Controller decided all the issues against the appellant, giving rise to this appeal.

7. I have heard Mr.Abdul Wajid Wyne, learned counsel for the appellant and Mr. Akbar Khan Ghoury, learned counsel for the respondent. During the course of arguments, learned counsel for the appellant did not press issue Nos.(i) and (ii) and has confined his arguments to issue No. (iii) only.

8. Before I proceed to deal with issue No.(iii) on merits, it is necessary to examine an important point of law about the plea of res judicata raised on behalf of the respondent. Admittedly the appellant had filed an earlier ejectment case against the respondent seeking ejectment on the ground of his personal need and that issue was decided against him. The ejectment case out of which this appeal has arisen was, however, filed on the ground of personal need of some of his family members. Clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, wheretinder the ejectment is sought provides as follows:-- "15.--(1)...................................

(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that-- (i).......................................

(ii)......................................

(iii).....................................

(iv)..........................

(v)...........................

(vi)..........................

(vii) 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."

9. The use of word 'or' signifies a disjunctive sense and it cannot be read as 'and', unless of course the context provides so. It, therefore, follows that the needs Of 'spouse' or 'children' could be independent from the needs of appellant. The cases of Amir Bux v. Nawab Mukhtar Ahmed, reported in 1985 CLC 13, and Atoomal v. Allah Bux, reported in PLD 1985 Kar. 650, appear to lend some colour to the contention raised on behalf of respondent. The facts of both the reported cases are not on all fours with the facts of the present case. The case of Muhammad Ishaque v. Asghar All and others, reported in 1989 SCM R 1315, is the nearest parallel to: "No period of limitation or time limit can be prescribed for change of circumstances nor for personal need, circumstances may change abruptly or may not change at all. It depends upon the facts of each case-------

11. As indicated above the appellant has filed the application for ejectment not for his own needs, but for the needs of his children. One of the compelling neens to seek ejectment of the respondent was the marriage of one of the sons of the appellant which took place on 15-6-1981, and such Nikahnama is available on record. The preliminary objection about the maintainability of the ejectment application raised on behalf of the respondent is thus avoid of any force.

12. I now proceed to examine the case on merits. The appellant as his own witness (P-1) has testified about the circumstances leading to this litigation. His evidence shows that there are sixteen members of his family who are presently living together in extreme hardships and discomforts and are seriously cramped for want of adequate and suitable living accommodation, huddled together in a small house measuring 33 sq. yards in all. Syed Maqsood All (P.W.2) who appears to be an independent person has thrown light about the miserable condition of the family members of the appellant. Para. 3 of the affidavit-in-evidence filed by Syed Maqsood Ali (P.W.2) is self-explanatory and is reproduced below:-- "I have often visited the applicant's house in which he is living with large family comprises of himself, his wife, five sons, two of whom are married and one of whom has three children, another son who has been recently married and his wife and 'the rest are grown up and ripe for marriage and four unmarried daughters. I have been seeing and observing that the applicant and his family are considerably hard pressed for want of adequate living space. They are huddled together in a small space where they are passing their days in severe discomforts."

12. The respondent has trued to meet with this demand of the appellant by stating that the appellant has got ample accomodation in his control, possession and ocupation and although he has more or less admitted about the large number of family members of the appellant, it is his case that the appellant has got a spacious bunglow in Muallimabad Jamaluddin Afghani Road, Karachi besides the premises which he claims to be in his occupation, viz. plot No.19-20-21, EMI, Commercial Area, Nazimababd, Karachi. The perusal of the record shows that the bungalow situated in Muallimabad, Karachi, originally belonged to Pirzada Muhammad Saidullah, father of the appellant and after his death it was transferred to Muhammad Zakaullah Pirzada, brother of appellant who is presently residing in the United States of America. Qazi Muhammad Hussain (P.W3) who is Secretary of the Society has supported the case of the appellant in this respect.

Paras. Nos.3 and 4 of his affidavit-in-evidence are self-explanatory,which are reproduced below-- "I say that Muhammad Zakaullah Pirzada son of late Pirzada Saidullah is the absolute owner and landlord of the building bearing No.3/36 situated in Moullimabad M.S.G.P. (School) Cooperative Housing Society, Jamaluddin Afghani Road, Karachi.

' I further say that Muhammad Sanaullah son of Pirzada Saidullah is not the owner of immovable property bearing No3/36 with building thereon situated in Moallimabad Jamaluddin Afghani Road, Karachi."

13. Thus, even if it is accepted that the appellant was staying in this bungalow for some time, his stay was that of a licencee of his brother and that too out of courtesy of his brother. The appellant has testified that he has been residing in his own house constructed on a plot, measuring 33 sq.yards. The extra accommodation which the appellant got during the pendency of this case after M/s. Mehran Feed Industries Ltd., the previous tenant vacated the premises also does not cater his needs. After all it is the landlord who is the sole judge about the suitability and sufficiency of the accommodation and the law has not given this discretion to the tenant or to a Rent Controller.

14. The premises occupied by the respondent was rented out to him long back when the family members of the appellant were few in number. Those who were infants or were not even born have now grown up. Few of them are married and the marriages of others are held up for want of accommodation. In such a situation the reasoning adopted by learned Rent Controller in turning down the personal requirement of the appellant for part of his family members is pedantic and illogical. In a case of this nature the landlord has only to prove that he needed the premises for his children in 'good faith', viz. honestly.

15. The respondent has alleged mala fides against the appellant by stating that he was interested to get the rent increased to an unreasonable extent and he had been adopting such tactics to get more rent and earn huge Pugree. There is, however, nothing on record to prove this allegation.

Nobody is expected to involve himself in the litigation unless he is a Court 'bird' or is compelled to do so. It appears to me that the needs of the family members of the appellant are so compelling which has necessitated him to enter this second round of litigation spreading over a period of about 15 long years.

16. In the circumstances stated above, the impugned order does not seem to be justifiable, which is accordingly set aside. The appeal is allowed and the E respondent is directed to vacate the demised premises within a period of two months. The parties are, however, left to bear their own costs.