1. ' Dr. RANA MUHAMMAD SHAMIM, J.----Appellant has preferred this First Rent Appeal against judgment dated 13-2-2007 passed by learned Additional Rent Controller Karachi Cantonment whereby ejectment application filed by respondent No,1 was allowed and the appellant was directed to hand over the vacant and physical possession of the tenement in question to respondent No, 1.
2. ' The facts out of which this appeal has arisen are that respondent No,1 rented out the demised premises to the appellant in the year 1991 under a tenancy agreement and last such agreement was executed on 2-5-1997 in which the rate of rent was Rs,8,500 which was to be paid in advance and so also the utility/conservancy charges to the concerned department with copy to the respondent. In addition to the tenancy agreement a hire agreement was also executed between the parties for the furniture and fixture provided by the respondent to the appellant and last such agreement was executed on the same date at Rs,3,500 per month. Both the agreements were initially for 11 months and renewable for another three years. After completion of three years i.e, in the year 2000, the respondent No,1, landlady through various letters asked the appellant to vacate the demised premises on the ground of her personal need and so also for use of her husband and grown up children as the present accommodation is neither suitable nor sufficient for them and the respondent had no any other property in any other vicinity at Karachi but the appellant did not pay any heed. The respondent No,1 also took other grounds i.e, that the appellant has failed to pay water conservancy charges and changed the use of flat from residential to commercial without consent of the landlady. Hence she filed ejectment application.
3. ' The appellant refuted the claim of respondent No,1 in his reply to ejectment application as to any amount outstanding, change of use, subletting and the personal need of respondent No,1. He however, further alleged that the respondent No,1 has failed to maintain the demised premises and he has invested huge amounts towards the same and that no furniture and fixture were provided despite the fact that the appellant was paying the hire charges. In addition to the same, the appellant had also raised preliminary legal objection that the application as framed is not maintainable; that the applicant/respondent has not invoked the proper forum for the hire agreement as such the same is liable to be returned under Order VII, rule 10, C.P.C.; that no cause of action had accrued to file the ejectment application as there is no default in payment of water charges; more than one relief in the prayer clause cannot be sought.
4. ' In order to prove their claim the applicant examined her attorney/husband while the opponent examined their authorized officer and in the light of which the learned Rent Controller framed the issues as to the default in payment of water and other charges, personal need, change the use of the demised premises and subletting. The learned trial Court after hearing the learned counsel for the parties and going through the material available on record, allowed the ejectment application, hence this appeal.
5. ' Since learned counsel for respondent No,1 has narrowed down the controversy by saying that he does not press the points except that of the personal need, hence I, with the consent of the learned counsel for the parties, propose to dispose of this appeal at Katcha Peshi stage and confine this judgment to the extent of personal need only.
6. ' Learned counsel for the appellant has firstly that the rent application is not maintainable being time barred. In support of this he contended that the cause of action accrued in the year 1997 when vide letter dated 27-2-1997 respondent No,1 had shown her willingness to occupy the demised premises for her own personal use on expiry of three years agreement and had asked the appellant to vacate the same whereas the application was filed in November, 2004. He further contended that from examination of the evidence of respondent No,1, no case of personal need was made out as she has another accommodation in her name in the same vicinity. Respondent No,1 has sought more than one relief in the prayer clause of her ejectment application which is bad in law. He contended that respondent No,1 has admitted in his pleadings/evidence that the demised premises is required for her own use and for her sons but neither she has examined herself nor her sons have appeared in witness-box. He further contended that the learned Rent Controller has failed to consider the facts and grounds agitated by the appellant and so also the written arguments and hence the impugned judgment is liable to be set aside. In support of his contention he has placed reliance on the cases of Haji Mal and another v. Devi Ditta Mal and others AIR 1924 Lahore 107; Kamran Butt v. Lt. Col. Syed Iftikhar Ahmad PLD 1991 Karachi 417; Muhammad Yousuf v. Nisar Ahmad 2002 CLC 526; Ghulam Haider v. Abdul Hafeez Khan 1991 MLD 1477 Lahore; and Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489.
7. ' On the other hand learned counsel for respondent No,1 in rebuttal to the arguments advanced by learned counsel for the appellant, contended that the learned Rent Controller has passed the impugned judgment after evaluating the evidence available on record. He contended that the ejectment application is not time barred as by letter dated 27-2-1997 respondent No,1 had informed that after three years period she will no longer wish to keep the demised premises on rent and thereafter, tenancy agreement was executed on 2-5-1997 for three years and about two months before completion of three years tenancy by letter dated 10-3-2000 respondent No,1 asked the appellant to vacate the demised premises. According to learned counsel in such circumstances the ejectment application is not time barred as the cause of action arose on 10-3- 2000. As regards more than one prayers, learned counsel contended that respondent No,1 has prayed for ejectment, possession and recovery of utility bills, which is in line with the provisions of rent laws. He further contended that the landlady/respondent No,1 was confined to bed and hence her attorney has deposed on her behalf who has specifically stated that the demised premises is required for personal use of respondent No,1 and her sons. Learned counsel contended that respondent No,1 has three sons out of which two are married and the marriage of third is held up due to non-availability of accommodation hence the present accommodation is insufficient for them. Learned counsel contended that such assertions were made in the affidavit-inevidence which have gone unchallenged as not a single question has been put to the witness. He further contended that the landlady is in fragile health and does not own any other premises in the vicinity. He further contended that no resolution was passed nor any Power of Attorney was filed authorizing Sheikh Muhammad Shafi to depose on behalf of the appellant. The person who signed the written statement has not appeared in Court. In support of his contention he has placed reliance on the cases of Mst. Khair-ul-Nisa v. Malik Muhammad Ishaque PLD 1972 SC 25.
8. ' I have heard the learned counsel for the parties and perused the material available on record. As regards the ejectment application being time barred, I have very carefully examined the reply to ejectment application and deposition of opponents witness. Nowhere the opponent's witnesses has stated that the application is time barred. Even otherwise no a single word has been said by the opponent either in his reply or evidence about the letter dated 27-2-1997 on the basis of which the opponent has calculated the limitation period. Hence the inference can be drawn that such plea is afterthought and unproved being not supported by material available on record. The plea that more than one prayers have been sought by the applicant/respondents No,1 is also not proved as the impugned judgment only covers the issues on the basis of tenancy agreement, reference of hire agreement is discussed in the impugned judgment only as a fact disclosed by the applicant/respondent No,1 in her application. As regards the plea taken by learned counsel for the appellant that the learned Rent Controller has not considered the written synopses the same does not find support of law. In my humble view, if the Court is of the opinion that the averments stated in the written synopses are not relevant, the same may not necessarily be discussed. If whatever, written in the synopses are taken as a must to discuss, I am afraid the litigant will use it as a tool to complicate the matter which will result in a protracted litigation.
9. ' Coming to the factual aspect of the matter i.e, the personal need of the applicant/respondent No,1, which is the only issue in the matter after skipping the remaining issues by learned counsel for respondent No,1, I have examined the evidence of both the sides. The applicant/respondent No,1 is admittedly bedridden hence her attorney/husband was competent to plead personal need of the applicant. He has stated in his examination hat they have no other property in the city except the demised premises; he has three sons out of which two are married and the marriage of third one is held up for want of accommodation. These assertions are found to be consistent and have gone unchallenged as the appellant could not shake the same. On the other hand perusal of evidence of opponent/appellant is inconsistent and not reliable. The appellant's witness has admitted in his cross-examination that he had neither any board resolution in his favour nor the Power of Attorney.
10. Furthermore, he has admitted that in the year 2000 the landlady requested the opponent to vacate the demised premises for personal need while about the crucial questions as to whether the present accommodation in possession of the landlady and whether she owns any other property in any vicinity the said witness has stated that he has no knowledge.
11. ' In view of the above, I am of the view that the appellant has failed to establish a case calling for setting aside the impugned judgment. The case-law cited by the learned counsel in view of the above discussion are not relevant in the circumstances as existing in the present case.
12. Consequently, this First Rent Appeal was dismissed along with listed application by short order dated 26-5-2008 with direction to the appellant to hand over the vacant physical possession of the tenement in question to the respondent No,1 within sixty days so also to pay monthly rent and utility bills regularly. Above are the reasons for the same.