' ABDUL RASOOL MEMON, J.-- The appellant being aggrieved and dissatisfied with the order dated 21-11-2011 passed by the Additional Controller of Rents, Clifton Cantonment Board, Karachi in Rent Case No,59 of 2010 filed by the respondent No,1 wherein the appellant was directed to vacate the premises within 30 days, the appellant has preferred this appeal.
2. Brief facts of the case are that the respondent No,1 rented out the Premises No,81/1, 24th Street, Phase-VI, Defence Housing Authority, Karachi (hereinafter to be referred as the demised premises) at the monthly rent of Rs,55,000 as per tenancy agreement dated 20-6-2009. The amount of 11 months rent was paid in advance at the time of execution of tenancy agreement by the appellant to the respondent No, 1 . As per agreement 7.5% would be increased after expiry of tenancy period with the consent of the parties' if the tenancy period was further extended.
3. The appellant was requested by the respondent No,1 through notice to vacate the demised premises property as the respondent No,1 required the same for personal bona fide need but no result. It is stated in the application that the applicant is a doctor and has recently joined the Ziauddin Hospital, Clifton, Karachi and the demised property is nearer to his work place and suitable for his residence.
4. It is also the case of the respondent No,1 (landlord) that he is residing on 4th floor with no lift in a rented accommodation which he wants to vacate on account of distance between it and his workplace. Also for the reasons of health condition of his wife and old-age parents-in-law. 'The respondent No, l'has also alleged that the appellant has failed to tender the rent since 20-5-2010 and thereby he has committed wilful default.
5. The appellant filed his written statement wherein he has denied the allegations of the respondent No,1 and has stated that on lapse of tenancy period he has become the statutory tenant of the demised premises: At the time of execution of tenancy the demised premises was in worst condition therefore, he made repairs by incurring sum of Rs,300,000. It is alleged by him that before expiry of tenancy agreement, the respondent No,1 through his Agent demanded rent in advance for entire one year. On 26-5-2010 he provided the applicant's Agent Mr. Sanaullah post- dated cheques with enhancement of 7.5% from the month of June, 2010 to April, 2011 but the Agent returned all the-cheques on 20-7-2010 with the covering letter that the landlord did not accept the cheques and demanded advance rent of one year. Thereafter he sent rent through Money orders from June, 2010. Thereafter he started depositing rent in M.R.C. No,48 of 2000. The Rent Controller framed the following issues:---
(1) Whether the petitioner requires the demised premises for his personal bona fide need?
(2) What should be order be?
6. The appellant filed his affidavit-in-evidence, for respondent No,1 his Attorney namely Shariq Zafar Khan has filed his affidavit-inevidence. They were cross-examined by the respective counsel for the parties.
7. The learned Rent Controller answering the point No,1 in affirmative directed the appellant to vacate the demised premises within 30 days. The said order is impugned in this appeal.
8. Learned counsel for the appellant has argued that this application was mainly filed on two grounds, one personal bona fide need and second default in payment of rent. For default, the appellant has brought sufficient material on record that the respondent No,1 avoided to receive the rent therefore, the same was deposited in M.R.C. No,48 of 2010 which was then transferred to regular rent application, therefore, default was not proved, hence the learned Rent Controller framed only one point for personal bona fide need. He has contended that the order of the Rent Controller is based on misreading and non-reading of the evidence. The learned Rent Controller did not consider that the landlord demanded lump sum rent for one year in advance from the appellant and on his refusal he has initiated the ejectment proceedings. He further added that notice exhibited as 0/3 indicates that the appellant was called upon to either renew the agreement or vacate the said premises which shows the mala fide on the part of the respondent No,1. It is vehemently argued that the respondent No,1 for whose need the demised premises is required had failed to appear in the witness-box and no reason had been advanced for his non-appearance which seriously cause doubt upon contention of personal bona fide need of the respondent No,1. By the dint(???) of above submission it is prayed that the impugned judgment of learned Rent Controller be set aside. In support of his contention, he has placed reliance on the case-law 2002 CLC 526.
9. Conversely learned counsel for the respondent No,1 has argued that learned counsel for the appellant has failed to show any case-law, which precluded the landlord to record his statement through Attorney. He further added that the statement of the Attorney of landlord in support of his bona fide requirement could not be brushed aside when it is in conformity with the statement made in the application. The respondent No,1 in his Power of Attorney executed in favour of Shariq Zafar Khan produced in evidence of Attorney has clearly stated that due to his professional duties he is not in a position to pursue the said case and as such he is desirous to appoint an Attorney in this behalf. He has contended that in cross t the Attorney by the learned counsel for the appellant did not dispute or questioned the plea of respondent No,1, therefore, he has shown sufficient cause for his non-appearance in the witness box and the same cannot be taken adverse to the demand of respondent No,l. In support of the contention he has placed reliance on the case of Javaid Ahmed v. Muhammad Imran Malik (PLD 2011 Islamabad 30), Malik Muhammad Ramzan v. Messrs General Iron Stores and others (1995 SCM R 1125), Muhammad Farrukh Siddiqui v. Riaz Ahmed Khan (2000 SCM R 1356), New Trading Company v. Trustees of Haji Sir Abdullah Haroon Waqf No,1 through General Attorney and Rent Collector (1997 CLC 640), Syed Abdul Rauf v. Abdul Sattar (1998 SCM R 2525).
10. I have considered the arguments and perused the material available on record. Learned counsel for the appellant has laid much emphasis on the point that the landlord did not appear in witness box and has examined his attorney. The other contention of learned counsel for the appellant is that the respondent No,1 (landlord) demanded lump sum advance rent for one year.
11. With regard to the default in payment of rent during the course of arguments both the parties have not agitated this point.
12. I have gone through the contents of notice placed on record dated 22-6-2010 in evidence wherein the appellant was called upon to vacate the demised premises as the same is required in good faith for personal need of the respondent No,l. The other notice dated 19-5-2010 was also addressed to the appellant which is available on record. The respondent No,1 has produced the said letter as Exhibit 0/3 wherein no date is mentioned, even the signature of respondent No,1 is not appearing therein. However, in the said notice at para-4 too, the demand in a good faith for personal need of the demised premises is made from the appellant by the respondent No,l. In affidavit-in-evidence also the respondent No,1 pleaded his personal bona fide need on the grounds mentioned in para No,3 and 4 supra.
13. The case of the appellant is that the respondent No,1 was demanding lump sum amount of rent through Sanaullah but the said Sanaullah has not been examined or summoned by the appellant.
Moreover, the appellant in his cross-examination during trial has admitted that no demand was made by the respondent No,1 landlord in person for lump sum rent of one year. In view of the above admission of the appellant in cross this plea is devoid of force.
14. In cross-examination the appellant Ahmed Naseem in clear terms has admitted that the owner has mentioned about his personal need in his notices. He further admits that landlord is doctor in Ziauddin Hospital, Clifton Karachi. He further admitted that address of residence of the landlord is mentioned as Block-H, North Nazimabad, Karachi.
15. It is worthwhile to note that the landlord in order to prove personal bona fide need can examine his Attorney and there is no compulsion that he must appear in the witness-box. Reliance is placed on the case of Javaid Ahmed supra and also it is held in the case of Syed Abdul Rauf v. Abdul Sattar (1998 SCM R 2525) that non-appearance of the landlord and his representation through Attorney was not fatal for the landlord. Nothing has been brought on record by the appellant that due to appearance of Attorney what injustice has been done to him. The Attorney was cross- examined at length but no question was put by the appellant with regard to any circumstances on account to which the Power of Attorney, has been executed.
16. In the circumstances the contention of the learned counsel for the appellant that the respondent No,1 who required the premises has not appeared in the witness box has no force. The respondent No,1 has examined his Attorney and his evidence is found by the Rent Controller. As trustworthy and consistent to the averments made in the plaint, the landlord has succeeded in leading reliable and sufficient evidence to prove that the demised premises was required in good faith for his personal bona fide need and the claim is based on sincerity and honesty and no flaw has been pointed out by the learned counsel for the appellant. Moreover, if the landlord does not occupy the demised premises got vacated on account of personal bona fide need, the rights of the tenant have been protected under subsection (6) of section 17 of Cantonments Rent Restriction Act, 1963 which reads as under:---
(6) Where the landlord who has obtained possession of building in pursuance of an order made under subsection (5), does not himself, or where possession of the building has been obtained for any member of his family, such member does not occupy the building within one month of the date of obtaining its possession, the tenant who had been evicted may apply to the Controller for an order directing that the possession of such building be restored to him and the Controller may thereon make an order accordingly.
17. In view of above discussion, I do not see any reason to arrive at any different conclusion, therefore, I find no cogent reason to interfere with the order of the learned Rent Controller and by upholding the same the appeal is dismissed.