' This second appeal has been brought to challenge the order dated 15th November, 1974 passed by the learned Additional District Judge, Karachi, whereby the first appeal preferred by the appellant against the order of the Rent Controller dated 20th July, 1974 was dismissed.
' The brief facts of the case are as under : The appellant has been a tenant of the respondent in respect of Bungalow No. 21-D, Block 6, P. E. C. H. S., Karachi ever since 1968 on monthly rent of Rs.
1,500. The respondent, who is a retired military officer, made an application to the Civil Judge & Rent Controller, Karachi on 18th April 1973 seeking the ejectment of the appellant on the ground that the bungalow in question was required by him in good faith for his personal use and occupation as well as for his family members. The said application was resisted by the appellant, who, in their written statement dated 15th November, 1973, firstly denied the ownership of the property by the respondent for want of knowledge stating that the lease agreement was signed by the deceased brother of the respondent claiming himself to be the landlord. The allegation that the respondent had retired from service of the Services Club, which job he had taken after retirement from Pakistan Army Service was also denied together with the allegation of the respondent that the latter had required the appellant to vacate the premises through the respondent 'examined himself in support of his case and also examined one witness while three witnesses were examined on behalf of the appellant. It appears that the appellant had later given up the objection with regard to the ownership of the property by the respondent and consequently a tentative rent order was passed and issues were framed by the learned Rent Controller on 18th December 1973.
' It may be mentioned that the respondent's application for ejectment and the application under section 12 of the Rent Ordinance filed by the appellant on 10th July, 1973 were consolidated by the Rent Controller and the above-mentioned issues were framed on the said basis. On assessment of the evidence brought on record by the parties, the learned Rent Controller decided the issue with regard to bona fide requirement of the premises by the respondent in the affirmative. As regards issue No, 2, the learned Rent Controller found it unnecessary to decide the same in view of her finding on Issue No. 1. The order of the Rent Controller was challenged in appeal by the appellant which came to be dismissed as per present order, which is subject matter of this appeal. Thus the issue with regard to bona fide requirement of the premises by the respondents stands covered by two concurrent findings of fact and the question, therefore, arises as to whether the same can be interfered with at this stage in this second appeal.
' Mr. Nasim Faruqui, learned counsel for the appellant, challenged the findings of the Courts below on two-fold ground ; firstly, that the respondent had filed the application for ejectment as a counter-blast to the appellant's persistent demand for carrying out repairs and renovation to the disputed premises and, secondly, the application was otherwise mala fide and the respondent had failed to prove that the premises was required bona fide because he had admittedly rented out his other house in the Defence Society to a tenant after its completion in 1972 and the explanation offered by the respondent in this behalf was not liable to be accepted.
' The entire defence of the appellant was same before the Lower Court as was stated in his submissions, mentioned above, by their learned counsel. In the first place, the case of the appellant on the issue of bona fide requirement was mainly one of denial simpliciter vide paragraph 4 of the written statement. This denial was re-inforced with the contention that the respondent bad brought the ejectment application as counter-blast to the demand for repairs to the premises, and the fact with regard to the respondent having rented out his other bungalow in the Defence Society after its completion in 1972. The respondent's case was that since his retirement from service he was living with the family of his late brother as a guest under great inconvenience, to which he was not used and he required the premises for his personal use as well as for his family members.
Asserting the said facts, the respondent further stated that earlier he had asked the appellant to vacate the premises through his brother Abdul Jabbar Khan as per letter dated 16th December, 1970 which was produced as Exh.
7. This letter clearly informed the' appellant that the respondent had come back to Karachi on his retirement from Pakistan Army and the appellant was asked to vacate the bungalow and hand over its possession by 31st January, 1971. This letter was replied by the appellant on 31st December, 1970 vide Exh. 8 stating that the request of Abdul Jabbar Khan for vacating the bungalow was untenable because the appellant had no concern with Major Nisar Ahmad Khan (the respondent herein) and, significantly enough, the appellant did not make any grievance in this letter with regard to any want of repairs to the property. Abdul Jabbar Khan, the brother of the respondent wrote a further letter in reply to Exh. 8 on 12th January, 1971 (Exh. 9) stating that the bungalow was owned by the respondent and he held a power of attorney on his behalf to transact all business in respect of the property and the bungalow was let out by him in this capacity. The request for vacating the bungalow was reasserted as final and it was further alleged that the appellant had made certain unauthorised changes in the bath rooms. This letter too was met with another reply by the appellant vide Exh. 10 dated 16th January, 1971. The appellant reiterated the contents of their letter dated 31st December, 1970 and the allegations contained in the letter of Abdul Jabbar Khan were denied and he was asked to withdraw his letter being frivolous. He was also asked to arrange for carrying out internal and external paintings and other items of renovation of the bungalow which were stated to be due for the last 12 months. Finally, the respondent himself served the appellant with a notice dated 4th October 1972 (Exh. 11) asking them to vacate the premises which were required for his personal use and occupation. It was stated that in the circumstances the question of any renovation or repairs did not arise. This was then followed by the ejectment application which was lodged in the Court of the Rent Controller on 18th April, 1973. The respondent was cross-examined first on the question of repairs and he stated that the time of letting out the premises to the appellant the bungalow had been renovated by his brother spending Rs, 10,000 on the same. He further stated that after the receipt of a letter addressed to the appellant dated 6th January, 1973 the latter had started sending rent to him in his name through cheques. The respondent admitted that the Defence Society bungalow was constructed by him in 1971 and was xented out by him in the same year on monthly rent of Rs, 1,800. The respondent was asked as to whether he was seeking ejectment of the appellant only for the purpose of letting it or on higher rent which was denied by him. The
(5) Whether the plaintiffs are estopped to file the suit ?
(6) Relief.
4. The learned trial Court decided Issues Nos. 1 and 2 in favour of the appellants holding that the property was ancestral and was governed by custom. Issues Nos. 3 to 5 were taken together by the learned Senior Civil Judge who came to the conclusion that the father of , the appellants had consented to the sale in question with the result that the appellants were debarred from bringing the present suit. Upon an examination of the sale deed Exh. D-I, he came to the conclusion that the transfer was made to get some other land and observed that it is in evidence of the parties that the grandfather and father of the appellants had migrated from the village where the disputed land is situated and came to the conclusion that the alienation was an act of good management and would be deemed to be for legal necessity and consideration and accordingly decided these issues against the appellants.
5. Before me the learned counsel for the appellants sought to attack the judgment, and decrees of the Courts below on the only ground that they have failed to take note of the important fact that the payment of the consideration was not established. He has drawn my attention to Exh. D-1 which shows that the total consideration for the sale in favour of the respondents was a sum of Rs, 22,000.
They were entitled to retain with them a sum of Rs, 9,000 for redemption of the mortgage to which the aforesaid property was subject. Likewise the mortgagee rights in respect of certain other land were transferred as a part of the consideration, the value whereof is mentioned at Rs, 7,400. The sale deed further shows that a sum of Rs, 2,000 had been received by the predecessor-in-interest of the appellants as an advance under "agreement to sell" executed on 21st September, 1967 and the balance of Rs, 3,600 was to be paid before the Registrar in cash. The learned counsel for the appellants vehemently argued that the whole transaction was a fraud inasmnch as the sale deed Exh. D-1 does not give the particulars of the land in respect of which the mortgagee rights were to be transferred in favour of the predecessor-ininterest of the appellants. He has also drawn my attention to the fact that in his statement before the trial Court Jahana D. W. 1 admitted that only a sum of Rs, 1,600 were paid before the Registrar while Rs, 2,600 were received by way of earnest money.
6. On the contrary Exh. D-1 shows that only a sum of Rs, 2,000 was paid in cash before the Registrar.
It is difficult to reconcile the figures. If the version given by Jahana D. W. 1 is admitted as correct, then the total consideration would work out to Rs, 20,000 only. However, if we go by the figures as mentioned in Exh. D-I, the sum of Rs, 1,600 was not paid before the Registrar and the payment was short by that amount,
7. Faced with these facts the learned counsel for the respondents made an application under Order XLI, rule 27, C. P. C. Requesting permission to bring on record certain documents to establish the identity of the land, the mortgagee rights whereof were subject matter of transfer in terms of Exh. D-1.
8. Having given the matter my anxious consideration I am of the view that the Courts below have not applied their mind to this aspect of A the case and have assumed that the consideration was duly paid without examining the figures which prima facie do not work up to a figure of Rs, 22,000 which was the consideration fixed in this case. Under the circumstances I set aside the judgment, and decrees of the two Courts below and remit the case to the learned Senior Civil Judge who shall afford the respondents an opportunity of establishing the identity of the land in respect of which the mortgagee rights were transferred in terms of Exh. D-1 and examining and admitting in evidence the documents comprising of the revenue record sought to be supplied to me by the learned counsel for the respondents with his applications dated 25th November, 1979 and 2nd December, 1979 and proceed to decide the bona fides of the transaction and the question of payment of the consideration afresh. However, under the circumstances of the case there shall be no order as to costs.