' SHAHID ANWAR BAJWA, J.--- The facts giving rise to this: petition are that respondents are landlords and the petitioners are tenants. The demised premises is B-10/24 Bazar Area, Madinabad, Clifton Cantonment, Karachi. Tenancy commenced in 1973. On or about 31-5-2004 Rent Application No.44/2004 was filed by the respondent against the appellant. It was stated in the ejectment application that tenant paid rent till December 2001 and thereafter refused to pay rent despite repeated demands. It was also alleged that the demised premises had been sublet without permission of the landlord. It was further pleaded that the applicants were homeless and thus required the demised premises for bona fide need and personal occupation. Rent case was allowed by the Rent Controller on the ground of bona fide personal need and default Ground of subletting was rejected. Consequently vide order dated 28-4-2007 rent application was allowed and the present appellants were directed to handover vacant physical possession to the present respondent within 30 days.
2. Being aggrieved by the order this First Appeal has been filed. Learned counsel for the appellants made the following submissions
(1) In 1973 when the premises were taken on rent rate of rent was fixed at Rs.50 per month. There was a settlement between the tenant and landlady, predecessor-in-interest of the respondents that rent will be increased by Rs.50 per annum and monthly rate of rent came to Rs.1,000 in November, 2002. The landlady received rent till November 2002. She expired in December, 2002 and thereafter the present respondents refused to receive rent.
(2) There was an oral agreement between the landlady and the tenant. In pursuance of this agreement an amount of Rs.50,000 was paid to the landlady/predecessor-in-interest of the respondent and it was agreed that there would be no further increase in rent. The legal heirs therefore estopped from demanding increase of rent.
(3) No notice of death of the predecessor-in-interest was given. It was incumbent upon the respondent to give such notice, However, in January 2003 one of the legal heirs called the tenant and asked him not to pay rent as there was some dispute going on between the legal heirs as to who will receive rent. Consequently tenant stopped paying rent. However, with effect on 16-10-2003, the tenant deposited arrears of rent in MRC and continued doing so thereafter at the rate of Rs.1,000 per month.
(4) Learned counsel referred to rent accounts submitted by the present respondent in Court below where they had stated increase of Rs.50 per year. Learned counsel contended that in terms of oral agreement they were not liable to increase rent after having paid Rs.50,000 to the predecessor-in- interest of the present respondents.
(5) Personal bona fide need has not been established in the Court below. Moreover, the premises is about in an area of 61 Sq.Yds, and how can a well-to-do person like the respondent stay in such a small cubby hole. Learned counsel for the appellant relied upon PLD 1981 Kar. 170, PLD 1996 SC 724, PLD 2006 Lah. 684 and 2005 CLC 564.
3. Learned counsel for the respondents made the following submissions:---
(1) There was no verbal agreement by their mother/predecessor-in-interest and neither she received payment of Rs.50,000.
(2) Appellant himself has stated that the present respondent informed him about the death of the mother. However, statement by the present appellant that he was directed not to pay rent is false and baseless.
(3) Learned counsel referred to written agreement dated 23-12-1990 by which it was agreed that the rent shall be increased by Rs.50 per annum. He submitted that in presence of written agreement no oral assertion can be allowed to be advanced or believed.
4. I have considered the submissions made by the learned counsel. I have gone through the case law referred as well as record and proceedings of the rent case.
' Learned trial Court framed the following issues:- "(1) Whether the petitioner required the demised premises for his personal bona fide need?
(2) Whether the respondent committed wilful default in tendering the monthly rent w.e.f. January 2002, onwards?
(3) What is rate of rent?
(4) Whether the respondent No.1 sublet the demised premises to the respondent No.2, if so, its effect?
(5) Relief?"
5. On personal bona fide need the landlord in his ejectment application in para.7 stated that he was homeless and required demised premises for his bona fide personal use and occupation. In his affidavitin-evidence, he repeated the same. When he came up for cross-examination on this particular aspect he stated that he was residing at Dehli Mercantile Society and that house belongs to his maternal uncle. He further stated that the house situated in Karachi Administrative Employees Cooperative Housing Society, was inherited by him from his mother and he was running his shop of artificial, jewelry. The petitioner has not been able to point out as to whether the respondent was in occupation of any premises owned by him. Respondent had clearly stated that he was living with his maternal uncle and needed the demised premises for his personal bona fide need,. Emphasis of the petitioner was that area of the plot on which the particular flat is only 61 sq.Yds, which cannot be sufficient for need of a person of the status of the respondent.
6. It is not for the Court or for the opponent to decide as to what should be the premises suitable for need of the landlord. It is sole exclusive and absolute discretion of the landlord to decide whether which premises or which part of the premiers would be suitable to his requirements. In this regard neither the Court nor the opponent can be allowed to supplant the opinion of the landlord. In this case the landlord had clearly stated that he is living with his uncle. No one can be denied the right to live in his owned premises. Therefore on this score the conclusion reached by the learned Court below cannot be disturbed.
7. The second issue related to default and rate of rent. Written agreement dated 23-12-1990 was produced which stated that rent from January to December 1997 shall be at Rs.900 per month and thereafter there will be increase of Rs.50 per month per annum. This agreement has not been denied. What has been stated by the appellant is that there was another oral agreement with his mother and predecessor-in-interest of the landlords and she was paid Rs.50,000. In cross- examination the appellant petitioner stated that he had no written receipt of payment of Rs.50,000 nor any written proof to show cancellation of agreement dated 23-12-1990. In the absence of any proof with him regarding payment of Rs.50,000 to deceased Mst. Najma Saleem or any agreement with her, mere word of the opponent cannot be taken as proof. Rent accounts were filed and in terms of the agreement dated 23-12-1990 the rate of rent for the period from January, 2003 to December, 2003 came to Rs.1,200 per month and thereafter from January to May, 2004 rate would be Rs.1,250 per month. It is not the case of the appellant that he paid at this rate. The Appellant's sole reliance is that the deceased landlady had received Rs.50,000 and entered into an oral agreement for maintaining rent at Rs.1,000 per month. Learned counsel for the petitioner relied upon Ali Muhammad Khan's case where it was held that it is not necessary to constitute a void contract that every agreement be in writing. Even oral agreement can also be as valid and as legal and as binding as a written agreement. However, in the same judgment the learned Court has held that an oral agreement in order to be valid required to be proved and such an agreement for proof requires clearest and most satisfactory evidence. Not a single witness has been produced to state that the Rs.50,000 was paid to the predecessor-in-interest of the respondents. In fact co-tenant clearly stated that payment was made by the first tenant. The first tenant stated that he had no written documents with him and no proof to establish that Rs.50,000 was paid by him. Same is the position of the alleged oral agreement with the deceased lady. In Malik Nazar Hussain's case it was held that contract of tenancy does not abate or expire with death of the party. Arfan Hameed's case is on the point of promissory estoppel. None of these cases help case of the appellant. In the present case, very existence of the oral agreement and very existence of payment of Rs.50,000 has not been proved. Therefore, rate of rent would be governed by agreement dated 23-12-1990.
Default is established on both scores: in terms of rate as well as by first deposit having been made in MRC in October 2003. The order passed by the trial Court is in consonance with the evidence produced before the Court.
Consequently, this appeal is dismissed with no order as to costs.