1. ' This second appeal is directed against the orders dated 20-9-74 and 5th January, 1978, passed by the 19th Civil Judge and Rent Controller at Karachi and IInd Additional District Judge at Karachi respectively, in Rent Case No, 2681/71 and Rent Appeal No, 544/74, respectively.
2. ' The brief facts leading to the filing of the above appeal are that the appellant No. 1 is a tenant of Shop No. 1 belonging to the respondent at Rs, 55, per month since about 1954. It seems that the respondent filed an ejectment case on the ground of default in payment of rent namely, Rent Application No, 1359/69, which was granted against the above order the first appeal was also dismissed and at present a second appeal namely, IInd Appeal No, 33/73 is pending in this Court.
3. The respondent filed a second ejectment application on 3-11-71 on the following two grounds:-
(i) Subletting.
(ii) Personal requirement.
4. ' The above application was resisted by the present appellant. However, the learned Rent Controller granted the above application by his aforesaid order dated 20-9-74 on both the grounds, against the above order the appellant filed the aforesaid first rent appeal, namely, Rent Appeal No, 544/74, which has also been dismissed by the learned IInd Additional District Judge, Karachi by his aforesaid order dated 3rd January, 1978. The appellant in order to assail the above two orders has filed the present second appeal.
2. (a) In support of the above appeal Mr. Zafar Alam, learned counsel for the appellant has urged the following contentions-
(a) That the concurrent finding of the two Courts below on the question of subletting is against the evidence on the record.
(ii) That since the respondent's rent application in respect of another shop, namely, shop No, 2 against one Dr. Umar was dismissed and it was held that the respondent failed to prove his personal requirement, the two Courts below could not have granted the respondent's present application on the same ground. It was also pointed out by him that the above dismissal order was maintained by the first Appellate Court as well as by this Court in Second Appeal No, 292/74 by a judgment dated 30-11-80 given by me.
(b) In support of his first contention Mr. Zafar Alam has invited my attention to the ocular evidence on the record produced by the parties. It has been vehemently urged by him that since the appellant No, l's statement that the appellant No, 2 was his father-in-law and was carrying on business in the name of the appellant No, l's son was not challenged in the cross-examination, it amounted to an admission on the part of the respondent as to the correctness of the above statement. It may be pertinent to observe that it has been proved that in fact the appellant No, 2 has been carrying on practice as a Homoeopath in the shop rented out by the respondent to the appellant No. 1 without the permission of the respondent. In my view once a landlord proves that somebody else is using the rented premises either exclusively or jointly with the tenant, the burden of proof shifts on the tenant to explain the relationship between him and the person using the A tenement. The fact that the appellant No, 2 is the father-in-law of the appellant No. 1 does not make any difference, it is the nature of the use which determines the point of the relationship with reference to a premises and not the personal relationship. 'As it was admitted by the appellant No, I that he had permitted the appellant No, 2 to carry on his practice as a Homoeopath in the shop in question the burden was shifted on him to show that the above permission in fact did not constitute subletting or sharing of the tenancy rights, which burden the appellants have failed to discharge. Even the appellant No, 2 did not appear before the learned Controller in order to corroborate the averment of the appellant No. 1. In any case there is a concurrent finding of the two Courts below on the question of subletting and in my view from the state of evidence on the record, it cannot be urged that the above finding is perverse or contrary to the record. It may be pertinent to observe that in a second appeal this Court cannot interfere with the concurrent finding of fact even if such finding seems to be erroneous. If any authority is needed in support of the above proposition, I may refer to the case of Abdul Moja and others v. Khalil Ahmed (1). In this view of the matter the above contention of the learned counsel for the appellants is devoid of any force.
(c) Reverting to the learned counsel for the appellant's second contention that as the rent application filed by the respondent in respect of the shop No, 2 against one Dr. Umar on the ground of personal requirement was dismissed by the Rent Controller (which order has been up held by the first Appellate Court and by this Court in IInd Appeal No, 292/74) the present rent application could not have been granted by the Rent Controller, it may be observed that it is true that the respondent had also filed an ejectment application against the tenant of Shop No, 2, Exh. Dr. Umar, which application was dismissed by the Rent Controller, and the First Appeal filed against the above order was also dismissed. Against the above two orders the second appeal namely, IInd Appeal No, 292/74 was also dismissed by me on 30-11-80. It has been vehemently urged by Mr. Zafar Alam, learned counsel for the appellant that the evidence given by the respondent in the aforesaid rent case against Dr. Umar can be looked into for the purpose of determining the question of the respondent's personal bona fide requirement in the instant case, particularly in view of the fact that it was ordered {{FOOT NOTE}}
(1) PLD 1955 FC 38 {{FOOT NOTE}} ' by this Court that both the appeals were to be fixed for hearing together. In my view I cannot look into the record of another case for the purpose of deciding the present case because the above two cases were neither consolidated nor it was ordered that the evidence recorded in one case was to be read as a part of the evidence in the other case and vice versa.
5. ' In this view of the matter the question which requires consideration is, as to whether on the state of the evidence on the record the concurrent finding of the two Courts below on the question of personal requirement can be sustained. It has been urged by Mr. Zafar Alam learned counsel for the appellant that both the Courts below proceeded on the assumption that the three shops were to be amalgamated by the respondent and since the) second appeal filed by the respondent in respect of the shop No, 2 has been dismissed by this Court, there cannot be any amalgamation of the three shops for the reason that the shop in favour of Dr. Umar is situated in the centre of two shops. Whereas it has been urged by Mr. Ismail Padhiar learned counsel for the respondent that even if the respondent were not able to obtain the possession of Shop No, 2 at least he could use the two shops for the purpose of installing lathe machine and ancillary machinery thereto. It may be pertinent to observe that the appellant had obtained possession of shop No, 3 on 10-5-73 from his tenant, Afaq. The above shop is still lying vacant as according to the respondent, the above shop is not sufficient for his above purpose. The respondent before the learned Rent Controller had deposed that he had retired from the Government service in 1969, and since then had been drawing pension at Rs, 85 per month and that in order to supplement his income, he needed the three shops for his personal requirement. The factum that the respondent had retired from the Government service or that he was drawing Rs, 85, only were not disputed by the appellants before the trial Court. In this view of the matter it cannot be urged that the above averment of the respondent was false. Furthermore, there is a concurrent finding of the two Courts below that the .Respondent has proved his personal requirement. In my view the above finding cannot be interfered with by this Court in a IInd appeal unless it is shown to be perverse or contrary to the record.
6. ' I am unable to agree with the learned counsel for the appellants that merely the fact that the respondent's another application filed against Dr. Umar was dismissed by the Rent Controller (which order was maintained by the 1st Appellate Court and by this Court), would disprove the present case even if there is evidence on the record to support the respondent's case. It may be observed that there is some evidence on the record to support the conclusion arrived at by the two Court below. It may also be pointed out that the present appeal cannot be equated with the above Second Appeal No, 292/74 for the reason that in the present appeal there is a concurrent finding on the question of personal requirement in favour of the present respondent, and whereas in the former appeal there was a concurrent finding against the present respondent on the above issue.
7. ' In view of the above discussion the above appeal does not merit, hence the same is dismissed with no order as to costs. However, I grant 8 months time to the appellant from today to vacate the shop in question with the consent of the learned counsel for the respondent on the condition that the appellant No. 1 shall continue to deposit monthly rent in terms of the learned Rent Controller's order, failing which the -respondent shall be entitled to file an execution application. I also order that upon the expiry of 8 months the learned Rent Controller shall issue writ of possession without further notice to the appellants.