' ABDUL MAALIK GADDI, J.---Through this constitutional petition, the petitioner has assailed the order dated 27-5-2011 passed by the learned IInd Senior Civil Judge/Rent Controller, Karachi East, whereby the ejectment application filed by respondent No, 1 was allowed and has further assailed the judgment of learned Vth Additional District Judge, Karachi East dated 23-11-2011 in F.R.A.
No,168/2011, whereby the appeal has been dismissed.
2. Brief facts of the case of respondent No, 1 are that the respondent No,1 is owner/landlord and co- owner of House No, C-10671, KDA Scheme No,1, Karachi, whereas the petitioner is the tenant of respondent No,1 in the said premises. The demised premises is owned by the respondent No,1 and his one brother and two sisters jointly, who had executed a General Power of Attorney on 6-1-1971 in favour of respondent No,1 along with Mrs. Muhammad Bibi wife of Mian Muhammad Rafique, mother of present owner since deceased. The respondent No,1 let out the demised premises on rent to the petitioner on 1-3-1976 for a period of two years at the rate of monthly rent of Rs,1200 per month and Rs,300 per month being hire of fixtures, fittings, fans etc. And an advance rent of Rs,18,000 was paid by the petitioner and Rs,4500 was also paid as fixed deposit refundable after expiry of lease period. As per agreement, the rent was to be mutually increased and further it was agreed that the petitioner was liable to pay the amenity bills and share the water and conservancy charges which has been done for amenity bills only whereas, water and conservancy charges have not been paid. On 30-5-1978, the agreement of lease was renewed for one year with increased rent to Rs,3563, which has been paid up to 31-7-2009. It is also the case of the respondent No, 1 that the premises in possession of the petitioner is required to him for his personal use and presently he is residing in a four bed room house built on 250 square yard and has eleven members in his family which is insufficient for him. According to respondent No,1, he requested the petitioner to vacate the premises in question but she kept him on false hopes and has not vacated the premises in question hence he has filed the ejectment application.
3. The petitioner filed written statement denying the averments made in the ejectment application with a plea that the respondent No,1 neither the sole owner of the premises in question nor the other co-owner has given any right to him to file an ejectment application on the ground of personal need.
4. On the basis of pleadings of the parties, the following issues were framed by the trial Court:
(1) Whether the opponent requires demised premises in good faith for his personal bona fide need?
(2) What should the order be?
5. From the perusal of record, it appears that the respondent No,1 in support of his case has filed his own Affidavit-in-Evidence along with General Power of Attorney given to him by other co-sharer and so also lease agreement in between petitioner and the respondent No,
1. Respondent No, 1 in his Affidavit-in-Evidence has reiterated the same facts and ground which he has urged in his ejectment application. Respondent No,1 was cross-examined by the learned counsel for the petitioner.
6. On the other hand, although the petitioner has filed her affidavit in evidence but despite of sufficient opportunities given to her has failed to appear in Court for the purpose of cross examination, therefore, her side for evidence was closed vide order dated 11-3-2011.
7. Perusal of record further shows that on account of nonappearance of the counsel for the petitioner and after hearing the counsel for respondent No,1, the learned Rent Controller vide his order dated 27-5-2011 allowed the ejectment application.
8. The petitioner challenged the ejectment order through F.R.A. No,168/2011, which was too dismissed by the learned Vth Additional District Judge, Karachi East vide impugned judgment dated 23-11-2011.
9. I have heard the learned counsel for the parties perused the record with their able assistance.
10. It is contended by the learned counsel for the petitioner that the impugned orders of the two Courts below are against the facts and law and they have not appreciated the evidence and documents on record. He has further submitted that respondent No,1 has neither joined the co- owners of the rented premises as parties to the proceedings nor has produced any authority from them to either initiate eviction proceedings for his alleged personal need nor has produced any authority allowing him to occupy the entire rented premises without having any ownership right therein. According to him, two Courts below have completely disregarded this fundamental defect in respondent No,1 's ease. He has further submitted that petitioner has not been given fair opportunity to contest the case and the side of the petitioner for the evidence was closed without any legal justification. He next argued that respondent No,1 has failed to make out any case for his personal bona fide need, therefore, the learned counsel for petitioner while only producing the case law viz. Hafiz Ferozeuddin and 2 others v. Arshad Begum and 6 others 2010 CLC 365 before me has prayed for allowing petition filed by him.
11. On the other hand, learned counsel for the respondent No,1 fully supported the impugned orders of two Courts below and stated that since there are concurrent findings of two Courts below, it has not been shown that any findings is against the evidence on record. Learned counsel further submitted that the petitioner in support of her claim as stated in her written statement and Affidavit-in-Evidence did not appear for the purpose of cross examination therefore, according to him nonappearance of the petitioner for the purpose of cross examination would not be considered as evidence. He has further submitted that the respondent No,1 through oral and documentary evidence available on record has successfully proved his claim and he has prayed for dismissal of present petition. In support of his argument, he has relied upon the following case law:---
(i) Mst. Sarwari Begum v. Ata-ur-Rehman (1997 CLC 1500)
(ii) Muhammad Farrukh Siddiqui v. Riaz Ahmed Khan and another (2000 SCM R 1356)
(iii) Mehdi Nasir Rizvi v. Muhammad Usman. Siddiqui (2000 SCM R 1613)
(iv) Muhammad Arif v. Mrs. Anwar Jehan (2000 SCM R 1960)
(v) Jehangir Rustam Kakalia through legal heirs v. Messrs Hashwani Sales and Services (Pvt.)
Limited (2002 SCM R 241)
(vi) Mst. Sas Bano and 3 others v. Mst. Mahmooda Sabir (2002 SCM R 412)
(vii) Mst. Fehmida Alam v. Mst. Zaibun Nisa Shaikh and 6 others (2002 SCM R 333)
(viii)Mst. Jehan Ara through Attorney v. Raja Zafarullah Janjua (PLD 2003 SC 277)
(ix) Nafisuddin and another v. Saghir Ahmed and another (PLD 2003 SC 280).
12. From perusal of record it appears that respondent No,1 filed ejectment application against the petitioner claiming to be the owner of demised premises i,e, House No,C-10611, K.D.A. Scheme No,1, Karachi. Along with his ejectment application he has also annexed photocopy of Lease Agreement executed by the petitioner and the respondent No,1 duly signed by the parties in which it is mentioned that the respondent No,1 being the co-owner with other heirs of the property in question let-out the premises in question to the petitioner. This Lease Agreement has not been challenged, thus, it appears that there exists relationship of landlord and tenant in between the parties.
13. In the ejectment application, the respondent No,1 has claimed that premises in question is required to him for his personal bona fide need, as according to him, the accommodation in his possession is insufficient for him and his family members. In support of his claim, he has filed his affidavit-in-evidence along with General Power of Attorney and Lease Agreement show that the respondent No,1 is co-owner of the premises in question. In his affidavit-in-evidence, he has reiterated the same facts and grounds which he has urged in his ejectment application. Learned counsel for the petitioner cross-examined the respondent No,1 but he did not shake in his assertions.
14. The petitioner contested the ejectment application and has taken the plea that respondent. No,1 has neither joined the co-owners of the rented premises as parties to the proceedings nor has produced any authority from them to either initiate ejectment proceedings for his alleged personal need nor has produced any authority allowing him to occupy the entire rented premises without having any ownership rights therein.
15. It is pertinent to mention here that although the petitioner has filed her written statement as well as affidavit-in-evidence denying the averments made in the ejectment application filed by respondent No,1 but surprisingly despite of sufficient opportunities were given to her, she did not appear before the Rent Controller for the purpose of cross-examination, therefore, in my humble opinion written statement cannot be treated as evidence.
16. As observed above, since the petitioner did not appear before the trial Court for cross- examination, therefore, non-appearance of the deponent would not be considered as evidence. In this connection, I am fortified with the case-law reported as Muhammad Bashir and others v. Mst.
Latifa Bibi (2010 SCM R 1915), Muhammad Bashir and others v. Iftikhar Ali and others (PLD 2004 SC 465) and Barkat Ali v. Muhammad Nawqz (PLD 2004 SC 489).
17. Learned counsel for the petitioner has contended that since none of the other co-sharers have been joined as parties to the ejectment application, therefore, according to him this is a fatal defect and on such score alone the ejectment application should have been dismissed. A short answer to this objection is that as per settled law a co-sharer is perfectly entitled to file ejectment proceeding without impleading the others. Reference in this connection can be made in the case of Abdul Ghani v. Abrar Hussain (1999 SCM R 348) and on this point I am again supported with case-law reported as Saifullah and others v. Ch. Ghulam Ghous (2000 CLC 1841).
18. I have perused the documents and evidence whatever available on record. It appears that the ejectment has only been sought on the ground of personal bona fide need for the respondent No,1 and his family members. The respondent No,1 in his affidavit-in-evidence has mentioned that the premises in possession of the petitioner is required to him for his family members for personal bona fide need. This 'witness has been cross-examined by the petitioner's advocate at length but this witness has not shaken in cross- examination. No circumstances are available on record to show that desire of landlord to use his own property for himself or his family members was tainted with malice or any evil design. The statement of respondent No,1 being consistent with the case pleaded by him must have been accepted on its face value and giving due weight. In this case, the conclusion drawn by Rent Controller as well as Appellate Court to the effect that landlord's' need was bona fide, could not be dislodged in the absence of any strong evidence to rebut the presumption of truth in the statement of landlord. In my view the landlord has the absolute right to acquire and deal with the property in the manner best suited to him and tenant has no right to dis entitle the landlord of his valuable rights to acquire, deal and possess his property, which right was guaranteed by Article 23 of the Constitution of Islamic Republic of Pakistan, 1973- therefore, the findings of the two Courts below on the point of personal need appear to be justified and in accordance with law. Learned counsel for the petitioner has failed to point out any illegality or infirmity in the impugned orders. The case law cited by the learned counsel for the petitioner has been perused and considered by me but did not find applicable to the facts of the present case, therefore, the said case-law is not helpful for petitioner.
19. For the foregoing reasons, I am of the considered opinion that it is not a fit case for interference in exercise of constitutional jurisdiction, with the result this petition stands dismissed along with listed application. However, the petitioner is allowed thirty (30) days' time from today to vacate the premises and hand over its vacant possession thereof to the respondent No, 1.