1. MUHAMMAD AFZAL SOOMRO, C.J. By this order I intend to dispose the above First Rent Appeal.
2. Through the instant appeal the appellant challenged the .Order dated 23.6.2007 passed by the Court of Additional Controller of Rents, Clifton Cantonment Karachi whereby he allowed Rent Case No 4 of 2007 (Re. Asif lqbal Siddiqui & another v. Azizur Rehman Rajput) directing the appellant to vacate the demised premises i.e. Bungalow No. 114/2, Khayaban-e-Ghazi Phase-VI, Defence Housing Authority, Karachi and handover its vacant possession to the respondents within 30 days.
3. Brief facts of the case as per ejectment petition are that petitioners/respondents rented out the demised premises to the appellant at the monthly rent of Rs. 35,000/-as per Rent Agreement dated 12.4.2002. The rate of rent was subsequently enhanced to Rs. 42,350/- per month, which is the present rate of the rent. In the ejectment petition, the petitioners claimed that they required the demised premises for their personal bona fide use and the use of their families. The petitioners/appellants alleged that the respondent/tenant is defaulter in payment of the monthly rent since April, 2006 onwards. On the basis of such grounds the respondents filed the ejectment rent case before the Court of Additional Controller of Rents Clifton Cantonment, Karachi with the prayer that the appellants be directed to vacate the demised premises and hand over the vacant and peaceful possession to the respondents/landlords and deposit the arrears of rent in Trial Court from April, 2006 till date.
4. Upon service of notice in respect of the rent petition, appellant/tenant filed his affidavit in evidence, denied the personal need of respondents/landlords as well as default in payment of rent.
5. On the basis of-the pleadings of the parties following issues were framed by the Trial Court:-
(1) Whether the petitioners required the demised premises for bona fide personal use and use of their families?
(2) Whether the respondent committed willful default in the payment of rent from March, 2006 onwards?
(3) What should the order be?
6. The petitioner/respondent No. 1 Asif lqbal Siddiqui filed affidavit-in-evidence of himself and attorney Syed Tahir Hussain Zaidi and the appellant's counsel cross-examined them and thereafter the counsel for petitioners/respondents closed the side. Similarly appellant/tenant Aziz-ur-Rehman Rajput filed his affidavit in evidence and he was cross-examined by the respondents/landlords counsel and closed the side of appellant/tenant.
7. The Trial Court after hearing the learned counsel for the respective parties allowed the ejectment petition vide impugned order mentioned above on the ground of personal bona fide use. Whereas the ground of default in payment of rent was not proved. Hence the appellant filed the present first rent appeal before this Court.
8. It has been contended by the learned counsel for the appellant that impugned order passed by the learned Trial Court is erroneous and based on conjectures and surmises and has been passed in haste. It has further been contended that the learned Trial Court while passing the impugned order has not applied its mind and has passed the impugned order without considering the contents of the application without realizing the facts of the case and without going through the evidence led by the parties. It has also been contended that the learned Trial Court has also not allowed the appellant to file his written statement. Learned counsel for the appellant argued that the learned Trial Court while passing the impugned order has failed to incorporate the arguments and citations given by him but only has written the facts of the case without applying its mind and has failed to give the findings on the issue of personal bona fide need. It has also been argued that the learned Trial Court while shifting the burden of proof on the appellant has failed to consider that the respondents who has not come with clean hands has filed ejectment application on a ground of personal use which prima facie is not genuine and' seems to be illogical. Learned counsel for the appellant stressed upon his arguments that the learned Trial Court has to consider that the cross-examination of the respondent N' and his witness are contrary to each other and ha, consistency with each other. Learned counsel k appellant has averred that the learned Trial Court.. ignored that the cross-examination of respondent which is quite inconsistence with that of his attorney/witness. He has again said that the learned Trial Court has also failed to consider the evidence of the appellant and cross-examination wherein the appellant stated that the demised premises is not required for the personal need of family of respondents as no material question regarding personal bona fide need and paucity of accommodation was put' to appellant.
9. On the other hand Mr. Mehmood-ul-Hassan, Advocate for the respondents argued that appellant has himself failed to file the written statement though several chances were given to the appellant by the Trial Court. Learned counsel argued that the demised premises is required by the respondents their personal bona fide use as well as use of their families. He has filed statement wherein it has been stated that the tenant/appellant has admitted that he has purchased a House No. 122/11, admeasuring 1000 square yards (Ground+1) which is situated at Khayaban-eMohafiz Phase-VI, Defence Housing Authority, Karachi. He has enclosed with the statement a photo copy of Sale-Deed in respect of the subject property which is in the name of Aziz-ur-Rehman (appellant/tenant). Learned counsel further argued that the tenant has also admitted in his cross examination that he is a landlord of this property which is evident from page No. 4 of the order passed by learned Trial Court. Learned counsel for the respondents has relied upon the cases reported as Zarina Ayaz v. Khadim A.I Shah (2003 SCM R 1398), Messrs F.K Irani & Co v. Begum Feroze (1996 SCM R 1178), Asghar Hussain v. Mst. Tausheed Begum and 2 others (2005 CLC 633), Mrs. Yasmeen Malik and others v. Mrs. Safia Begum and others (PLD 2005 S.C, 27) and Fakhruddin Khan Syed and others v. Mst, Surryia Sultana and others ( 2005 YLR 349) in support of his contentions.
10. I have heard the learned counsel for the respective parties, examined the record made available before me and perused the case-law.
11. From perusal of record it reveals that the cross-examination of respondent No. 1/landlord -before the Trial Court remained unshaken as during cross-examination the petitioner No. I/landlord deposed that "it is incorrect to say that after March, 2006 the term of tenancy was extended and it will expire in March, 2008. Voluntarily says that we are requesting since 2005 to vacate the demised premises on expiry of two years period in March, 2006". The petitioner No.1/landlord further said that "it is incorrect to say that I came to Pakistan just to sell the demised premises. In the case of Messrs F.K. Irani & Co (supra) the Hon'ble Apex Court has observed as under:--- "Bona fide personal need of landlord, statement of landlord on oath, if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that requirement of landlord is bona fide."
12. The contention of learned counsel appellant that the demised premises is not required for the personal need of family of respondents as no material question regarding personal bona fide need and paucity of accommodation was put to appellant. This contention of the appellant has no force. In this regard reliance may be placed to the case of Zarina Ayaz (supra) wherein the Hon'ble Supreme Court has observed as follows:--- "Bona fide personal need of landlord. Landlord having many premises in the vicinity. Landlord's own subjective approach, choice and decision as to which of them in particular he wanted to occupy.
13. No one else had a right to interpret circumstances from his own point of view by making allusion to different attending circumstances of the case."
14. It is pertinent to mention here that the appellant has admitted that he has purchased a House No.122/11, admeasuring 1000 Square Yards (Ground+1) situated at Khayaban-e-Mohafiz, Phase-VI, Defence Housing Authority Karachi and the learned counsel for respondents has also produced the copy of such sale-deed in respect of purchasing of property by the appellant, which reveals the appellant has his own property. The respondents requires the demised premises for personal bona fide use. Sub-Section
(g) of Section 2 of Sindh Rented Premises Ordinance defines the personal use as under:---
(g) "Personal use" means the use of premises by the owner thereof or his wife (or husband) son or daughter."
15. The upshot of what has been discussed above is that the present First Rent Appeal having no force is dismissed. The impugned order dated 23.4.2007 of the Trial Court is maintained. The appellant is directed to vacate the demised premises within a period of thirty days, failing which writ of possession be issued without any further notice.
16. F.R.A. No. 15 of 2007 stands disposed, of alongwith the listed applications. .