ZARINA AYAZ vs KHADIM ALI SHAH

' SARDAR MUHAMMAD RAZA, J.---Mrs. Zairna Ayaz, by leave of Court, has filed this appeal against the judgment, dated 11-11-1999 passed by a learned Single Judge of High Court of Sindh at Karachi, dismissing the Regular First Appeal No,582 of 1991 filed by the appellant against the order, dated 10- 9-1991 of the Additional Controller of Rent, Clifton, Karachi.

2. Mrs. Zarina Ayaz is the owner of Bungalow No,54/A-1, Defence Housing Authority, Karachi, which through an agreement of tenancy, dated 15-5-1983 was rented out to Khadim Ali Shah at the rate of Rs,6,000 as rent per month. The landlady brought an ejectment petition in May 1989, for the eviction of tenant on ground of bona fide personal need of herself, her husband, two sons and three daughters. The landlady who was residing at Islamabad wanted to shift to Karachi for educating her children there and for getting her ailing husband treated.

3. After a close contest, the Rent Controller dismissed the petition for the reasons that it lacked bona fides, that the lady is already residing at Islamabad and that a bungalow of her husband in the vicinity of premises in question had been vacated somewhat earlier to the present petition but rented out to another tenant. That had the intention of landlady to shift from Islamabad to Karachi been bona fide, she alongwith her family could have occupied the vacated premises aforesaid.

The High Court, with almost similar reasons agreed with the findings of the Rent Controller.

4. The learned counsel for the appellant challenged the concurrent finding by saying that the landlady wanted to reside in her own bungalow, that she bona fide intends to shift from Islamabad to Karachi and that even if she had another bungalow of her own or of her husband already available or already vacated, it was her sweet will and discretion to occupy any of them whichever is best suited to her practical, physical and psychological requirements. That, to say that better educational facilities are available at Islamabad, is altogether flimsy because the educational facilities are not only much better at Karachi but again it is a matter of the will and discretion of a person as to where he or she wants to reside or proposes to educate the children. That the two forums have not properly appreciated the law on the subject.

5. Learned counsel for the respondent out rightly challenged the bona fides of the landlady by referring to the ejectment proceedings as a mere effort to enhance the rent. Rest of his submissions were confined to upholding the reasons advanced by the two forums.

6. The relationship of landlady and tenant, the factum of tenancy and the rate of rent, are all admitted in the instant case. The only question that requires to be determined is as to whether, in the given circumstances, the personal need of the landlady is bona fide or not. It appears that different verdicts of this Court on the subject rendered from time to time have escaped the notice of the Rent Controller as well as the High Court. In Muhammad Abdul Rauf v. Mst. Mahmooda Begum (1985 SCM R 1960) a landlady though living with her husband in a better house and yet sought ejectment of her tenant on ground of personal need. The inference drawn by the Rent Controller that in the circumstances her plea was mala fide, was held by this Court to be palpably erroneous and unsustainable, for, a wife could independently hold property and had a right to live in her own house.

7. The repeated verdicts of superior Courts in general and the Supreme Court in particular have almost become absolute on the point that even if a landlord has many premises in a vicinity, it is his own subjective approach, choice and decision as to which one in particular is desired to be occupied. No one else has a right to interpret the circumstances from his own point of view and by making allusions to different attending circumstances of the case. In the instant case, the other bungalow stated to have been vacated and not occupied by the appellant, is one that belongs to her husband and not to herself. If she in her own discretion intends to take up residence in her own house, the intention could never be doubted for the reason that the husband's house was not occupied. In law, the two ownerships are altogether different as well as independent from each other. We are of the view that the factual background in the instant case was not properly taken to its logical and legal consequence by the two forums.

8. The upshot of what has been discussed above is that the impugned judgment, dated 11-11-1999 of the High Court is set aside, the appeal is hereby accepted and Khadim Ali Shah, the tenant, is allowed a period of six months from today to vacate the premises and to hand over vacant possession of the bungalow to the landlady. The tenant shall keep on paying the monthly rent due in accordance with law, failing which he shall be liable to ejectment forthwith. No costs.