1. ' GHULAM DASTAGIR A. SHAHANI, J.--- This first Rent Appeal has been directed against the order dated 17-7-2007 passed by the learned Additional Controller of Rents Clifton Cantonment Karachi in a Rent Case No,47 of 2006, whereby appellant was directed to vacate the premises i,e, Bungalow No,66/II, 24th Lane, Phase VII, Defence Housing Authority, Karachi.
2. ' Brief facts are that respondent Mrs. Sanjida Kidwai rented out the demised premises to the appellant as per tenancy agreement dated 1-8-1994 at monthly rent of Rs,20,000 p.m.
3. Subsequently, tenancy agreement renewed periodically and accordingly the rate of rent was enhanced and fixed Rs,24,000 p.m. Respondent filed ejectment application on the ground of personal bona fide use and occupation which was allowed whereby appellant was directed to vacate the demised premises and handover its vacant and peaceful possession to the respondent within a period of thirty days, hence this appeal.
4. ' Mr. Iftikhar Javed Qazi learned counsel for the appellant states that impugned order dated 17-7- 2007 is bad in law, illegal, unlawful, perverse, erroneous, ultra virus and nullity in the eye of law and against all norms of justice, equity and good conscience and is not based on judicial application of mind. He states that learned Additional Controller of Rents has completely ignored this fact that for acquiring a residential premises on the ground of personal need, the statutory provisions of law, as well as precedent of the superior Courts on ambit, scope and requirements of sections 17/4(ai-ii-iii) of the C.R.R. Act, 1963. He further states that learned trial Court ought to have held that neither the respondent has proved herself as the owner of the bungalow nor she proved that adjoining Bungalow No,66/1 where she is living, is owned by her brother namely Mustaghees Khan or is owned by herself and for reason that element of good faith is clearly missing which is the condition for eviction of a tenant on ground of personal need. He also states that trial Court has completely ignored the evidence of the appellant and of his two witnesses and proved that respondent intends to sell the property in question and took a false ground for eviction. He also states that impugned order is based on misreading and non-reading of evidence and impugned order has no legal base and has in fact caused serious miscarriage of justice, denying valuable legal right of the appellant and has been passed on the basis of presumptions and assumptions, contrary to the codified law and procedure. Reliance is placed on the cases of Muhammad Roshan Khan v. Ishtiaq Ali 1995 CLC 702, Mrs. Nadira Farooqui v. District and Sessions Judge, Karachi South and another 1987 M LD 616, Raja Shahbaz Khan v. Muhammad Fazal Kiani 1988 CLC 811, Director, Industries, Government of N.-W.F.P. Peshawar v. Messrs Nowshera Engineering Company Limited and 4 others 2002 SCM R 1747, Dr. Tariq Nawaz and another v. Government of Pakistan and another 2000 SCM R 1956 and Ghulam Mustafa Ansari and 48 others v. Government of Punjab and others 2004 SCM R 1903.
5. ' On the other hand respondent in person states that a copy of "B" leased in respect of property No,66/I, 24th Lane, Phase VII, Defence Housing Authority has been filed by the counsel for appellant to show her the owner of adjacent premises, which could not prove that she is a greedy woman, if so rent of the premises would have not been Rs,24,000 as same is admittedly increased by Rs,4,000 during the period, of 14 years. Respondent further states that appellant has failed to produce any substantial proof that respondent wants to sell the premises. She states that order passed by Additional Rent Controller is legal, proper and in accordance with law and passed on merits, based upon material available on record, therefore, appellant is liable to be ejected and appeal may be dismissed.
6. ' Heard learned counsel for the appellant as well as to the respondent in person and with their assistance perused the material available on record.
7. ' As per record relationship and rate of rent is not in disputed nor denied the payment depositing in the name of respondent nor produced the documents to show that respondent owned and in possession of an other residential premises in her name in Pakistan nor produced any evidence against the respondent that she wants eviction with mala fide intention or to sell out the property in question though burden of proof legally lies upon the tenant not upon the landlord. Moreover brother of the respondent has his own family consists of four sons and eldest one is of 30 years, so also a wife having no property in Pakistan who intends to return/shift to Pakistan. As per record, appellant never disputed or raised any objection that amount deposited with the Rent Controller may not be paid to the respondent. In proof evidence in the shape of e-mail is available on record, that brother of the respondent intends to return back, who has no other accommodation for residential purpose. Moreover, during the cross-examination respondent has denied that her brother Mustaghees was born in India and migrated overseas from there and has a French Passport, but she voluntarily states that he has dual nationality. She has also denied that nationality of children of Mustaghees is French only but they have a proof of dual nationality. Even otherwise property in question is required to the respondent/ landlady for her personal bona fide use, as her brother is shifting to Pakistan and will reside in his house with his family and denied that e-mail dated 14-4-2004 managed by her in order to file Rent Application No,72 of 2004. She has also denied that enhanced rent was demanded by her and on refusal filed a rent.Application. So far the law relied upon by the learned counsel appearing for the appellant is not similar and identical to the case in hand and will not help to the appellant, on the contrary will help to the respondent, as she is not occupying any other residential building and has not got vacated and her requirement for personal bona fide use is in good faith and established that premises in question required to her in good faith and nothing is mala fide on her part. Requirement is bona fide and trial Court has also not acted against the law on the contrary followed a settled principle of law in respect of personal bona fide use and no hardship and inconvenience is caused nor violation of constitutional provision including fundamental rights have been made. However reliance is placed on the cases of Late Mahboob Saghri through Legal Representatives v. Mst.
8. Zubeda Begum 1999 M LD 2070, Haji Abdul Majid through Legal Heirs v. Khawaja Kamaluddin 1994 M LD 958, Amjad Khan v. Mst. Mariam 1993 CLC 175, Ch. Nazir Ahmad v. Mrs. Mariam Salauddin Khawaja PLD 1994 252, Muhammad Roshan Khan v. Ishtiaq Ali 1995 CLC 702, Mrs. Nadira Farooqui v.
9. District and Sessions Judge Karachi South and another 1987 M LD 616 and Raja Shahbaz Khan v.
10. Muhammad Fazal Kiani 1988 CLC 811 respectively were personal bona tide need of the landlord has been considered by observing that landlady had prerogative choice for property of her personal use, which would include for use of her husband and no exception could be taken to the findings of Rent Controller in the circumstances and observed that landlord is a judge of suitability of premises for her requirement and tenant could not have option to chose which premises would be suitable for landlord, though in the present matter respondent has no other residential premises in Pakistan and required to her for her personal bona fide use which is a fundamental right and could not be snatched from her, as property was rented out to the appellant in the year 1994.
11. ' In view of above facts, evidence and law appellant failed to prove his case and not able to point out any illegality, material irregularity, misreading and non-reading of evidence, which requires indulgence by this Court at this stage and that was the reason that by a short order dated 9-10- 2008 order passed by the trial Court were maintained being proper, legal and in accordance to law and dismissed the appeal along with listed applications with direction to vacate the premises in question within a period of 60 days from the date of the order. These are the reasons for the same.