' ALI SAIN DINO METLO, J.-- After having failed to get the premises viz ground floor House bearing No,26-L, Block No,2, PECH Society, Karachi, vacated, on the grounds of default in the payment of rent and personal need, in the first round of litigation, which ended on 1-9-2001, when the District Judge, Karachi East, allowed the petitioner's appeal, bearing F.R.A. No,451 of 2001, and dismissed landlady's ejectment' application, bearing R.C.No,735 of 1992, the landlady, namely, late Mst. Khatoon Abbas, approached the Controller again on 4-2-2002 and filed fresh .R.C.No,66 of 2002 for the ejectment of the appellant on the ground of personal need contending that her son Javed Abbas had married on 12-1-2002 and, therefore, the house in their occupation had become insufficient for them.
2. The Controller, by his judgment dated 24-5-2005, dismissed the application by holding that neither the late landlady nor after her death her legal representatives, including her son Javed Abbas Bhatti (respondent No,2), required the premises in good faith for their personal use, as they were already living in a capacious double storyed house, constructed on a plot of 300 sq. Yards, which was quite sufficient for them. However, on appeal, filed by Javed Abbas Bhatti, the learned Additional District Judge-IV, Karachi East, by his judgment dated 28-2-2007, directed the petitioner to handover possession of the premises to him by holding that he required it in good faith for his personal use, mainly for the reason that in his affidavits-in-evidence he had stated that he required the premises in good faith for his personal use and that the house he was occupying did not belong to him.
3. Ipse dixit or mere desire of a landlord is not sufficient to eject a tenant. In order to get a tenant ejected on the ground of personal requirement, a landlord must show that he genuinely needed the premises for his personal use and for that he must plead and prove necessary and material facts for establishing his personal requirement. Personal requirement of a landlord, as envisaged by the law, is something more than a mere desire and contains the element of need.
4. While pleading that due to marriage of Javed Abbas, their present accommodation had become insufficient for them, they did disclose what was the accommodation available with them. It was not disclosed even in the affidavits-in-evidence. It was in the cross-examination of Javed Abbas (respondent No,2), when he disclosed for the first time that they were residing in a double stored house constructed on a plot of 300 sq. Yards in the same locality. The two sisters of the respondent No,2, i.e. Respondents 1 and 4 had already married and were living separately with their husbands.
The respondent No,2, while admitting that they were living in a capacious house, further stated that they were worried about the low rate of rent being paid by the petitioner. In such circumstance, the learned Controller rightly held that the accommodation available with the remaining respondents Nos.2 and 3 was quite sufficient for them and they did not require the premises in good faith for their personal use.
5. The argument that the house in which the respondents were living did not belong to them and, therefore, it was their right to get the premises vacated, cannot be accepted, as it was not their case either in the ejectment application or in the affidavits-in-evidence. While admitting that it was not mentioned in the ejectment application as well as in the affidavits-in-evidence as to what was the accommodation available with them and to whom it belonged, the respondent No,2 disclosed, for the first time, in his cross-examination, that it did not belong to them but still did not disclose who was the owner and in what capacity they were occupying it. Suppression of material and necessary facts by a part always goes against its bona fides.
6. It is also not the case of the respondents that the owner of the house in their occupation had asked them to vacate the house or that they wanted to vacate it because it did not belong to them. Their case is that the house in their occupation had become insufficient for them due to respondent No,2's marriage, which is not true. A party cannot deviate from its pleadings nor a Court can set up a different plea for a party and decide the case on that basis.
7. The precedents reported in 2001 SCM R 1197, 1992 SCM R 1296, 2000 SCM R 1613, 1999 SCM R 1796 and 2007 SCM R 1209, cited by the learned counsel for the respondents, at the time of his arguments do not advance their case, as facts of those cases are quite different from the facts of the present case.
8. It is thus very clear that the learned Controller had rightly held that the respondents did not require the premises in good faith for their personal use and the learned Appellate Authority erred in law, which was apparent on the face of the record, in holding that they required the premises in good faith for their personal use. It was for these reasons that, by a short order passed on 15-4- 2008, the petition was allowed and the impugned order dated 28-2-2007 of the Appellate Authority was set aside and the order dated 24-5-2005 of the Controller, dismissing the ejectment application, was restored.