1. Appellant/landlord filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) in the Court of VIth Rent Controller, Karachi for eviction of respondent/tenant from the demised premises on the grounds of default in the payment of rent and requirement of the premises for personal use. Proceedings were contested by the tenant who filed his written statement in which rate of rent is admitted to be Rs.
2. 200 per month but the grounds of eviction have been controverted. Two issues were framed by the trial Court, one with regard to the default and the other with regard to requirement of premises for personal use. Both landlord and tenant each examined himself. The learned Rent Controller came to the conclusion vide his order dated 31st May, 1978 that the landlord has failed to prove the alleged default but granted ejectment on account of positive finding on the issue of requirement of premises for personal use. Aggrieved against this order the tenant went into appeal, which has been allowed by the learned District Judge, Karachi vide his Judgment dated 3rd May, 1979, in which he has reversed the finding of the learned Rent Controller on the issue of personal use for the reason that the landlord has failed to prove the burden of that issue and in consequence has set aside the order of eviction hence this second appeal.
3. The findings of two Courts below on the issue of personal need are in conflict with each other and it is contended on behalf of the landlord, who is appellant before me that the finding of the learned District Judge is not consistent with the evidence brought on the record. In this context it is submitted by the learned Advocate for the appellant that as it appears from the impugned judgment, that the first appellate Court was unduly impressed by the fact that since the landlord was disbelieved by the trial Court on the issue of default, he could not be believed on the issue of personal need. Reading of the whole impugned Judgment shows that this was not the sole ground inducing the first appellate Court to come to such a conclusion. On the contrary the first appellate Court has given several independent reasons to come to such conclusion. At this stage it will be pertinent to see what is the evidence produced by the parties on this issue. As stated above so far the evidence is concerned, the landlord and the tenant have each examined himself. The burden naturally lies upon the landlord to furnish satisfactory evidence to prove that he needs the demised premises for his personal use. There is no dispute about this fact that burden lies upon the landlord to prove this issue. The landlord in his application for ejectment filed before the Rent Controller has stated that presently he is occupying two room's quarter in National Cement Staff Colony as he is employed in the "National Cement Factory". He resides there with a family of 9 members, from which his 4 children are attending Colleges and Schools. He has two sons, who got married in the month of May, 1974 and are residing with their wives in the quarter with him. He has two unmarried daughters who are also living with him. He has further stated in the said application that he is a heart patient since December, 1974 and on doctor's advice, he must have a separate accommodation according to his present condition. For the circumstances stated above, the landlord has submitted in paragraph 5 of the application that he requires the demised premises in good faith for his own use and occupation and for the occupation of his children as well. In his evidence recorded by the Rent Controller, the landlord has deposed that he has 7 children, one mother-in-law, were, two daughters in --law and three children of his sons residing with him and the total number of his family is 13 including himself. The accommodation available with him is insufficient and he has no other house of his own in Karachi. It is further stated by him that he had let out premises in question to the tenant for four months only and further that he had requested the tenant from time to time to vacate the premises in question but the tenant has failed to do so.
4. In cross-examination the landlord has stated that he is in occupation of the said quarter since 1947 and constructed the demised premises in 1973. The respondent is the first tenant inducted into posses--sion of the premises in question. There is no written agreement of tenancy. Ha has admitted that he had not given any notice to the tenant in, writing after expiry of four months to vacate the premises. He has also admitted that his two sons got married in 1974 and both are in service. He did not give any notice to the tenant in writing during the matrimonial talks of his sons and even after the marriage to the tenant to vacate the premises. As against this the tenant has deposed before the Rent Controller that he was inducted into the possession of the demised premises since 15th June, 1973 at the rent of Rs. 200 per month and he is the first tenant in the premises in question. It is further stated by the tenant in his evidence that the landlord is living in Shanti Nagar in the house allot--ted by the Government, which is sufficient for his personal use. He has denied suggestion that the landlord verbally asked him to vacate the premises in question as he required the same for his personal use. It is further stated by the tenant that the landlord demanded increased rent which he agreed to pay provided the landlord gave additional facilities.
5. It is admitted by the landlord in his evidence in cross-examination that he had filed first ejectment case against the tenant on the ground of non--payment of three months' rent, The tenant had sent a telegram dated 17th September, 1975 to the landlord in which it is stated that there was a discussion between them about increasing the rent provided additional facilities were given to the tenant but subsequently the landlord declined to collect operative rent and also declined to accept money orders hence the tenant shall be entitled to carry out the additions and alterations at the cost of the landlord. This telegram is produced by the landlord in the list of documents furnished by him before the Rent Controller. In his evidence, the landlord has produced this telegram as Exh. 5-A and further admitted his address contained therein to be correct. The tenant has also deposed that he had sent telegram Exh. 5-A when the landlord refused to accept rent and further refused to accept money orders.
6. It is contended on behalf of the respondent that on the issue of per--sonal need, the landlord has only examined himself and there is word against word and the landlord has failed to discharge the burden to prove that he bona fidely needed the premises in question for his personal use or use of his children. It is further submitted in this context that as is manifest from the evidence of the landlord that he has been living in the quarter provided by National Cement Factory since 1947. He has constructed the demised premises which were let out to the tenant after the construction was completed on 15th June, 1973. If the quarter in which the landlord is residing was insufficient for his large family, he should not have let out the premises in question at the very out set. It is further submitted that the case of the landlord is that he let out the premises i.e question to the tenant for four months only in June, 1973 but there is no agreement in writing that the tenancy was for a limited period of four months. It is also admitted by the landlord that he did not give any notice in writing to the tenant after the expiry of four months. It is further pointed out by the learned counsel for the respondent that the landlord has himself admitted that he got his two sons married in May, 1974 and further the landlord has admitted in his evidence that neither before the said marriages nor after any notice in writing was given to the tenant to vacate the premises. Of course it is correct that notice in writing for such purpose is not necessary but if the claim of the landlord is that he had given verbal notice to the tenant after the expiry of four months, for which the tenancy was intended initially or before or after the marriages of his sons he had asked the tenant to vacate the premises, it is incumbent upon the landlord to produce some evidence of satisfactory nature in proof of his assertion. The landlord has given only his own word on this aspect of the matter and there is no further evidence which is just not sufficient.
7. The landlord has also taken the plea that he is suffering from heart trouble and has produced a certificate dated 2nd April, 1975 issued by doctor M. Sharif, which is in the form of letter addressed to Mr. Aziz in which it is stated that Mr. Ilyas (the landlord) is better except for his old complaint of loose-motions. His cordiac condition is satisfactory, though pulse is still rapid and E. C. R. Shows changes of anterio sepral ......... (illegible). He may leave. Below some medicines are prescribed.
8. Alongwith this letter the landlord has produced some other medical reports and cardiogram report but they are of the dates before the date of the discharge letter mentioned above. The final discharge letter shows that he has been cured. In the evidence the landlord has produce this certificate of the doctor as Exh. 5/B and has asserted that he is a -heart patient. This certificate per se shows that the ailment is cured and the landlord has not furnished any other evidence to show that he is still suffering from that ailment or it was medically advised that he should have separate accommodation. The doctor is also not examined. It appears from the evidence of the landlord that he did not seriously contest this point before the Rent Controller.
9. It is contended .On behalf of the appellant that this evidence produced by the landlord was sufficient and he has discharged the burden of proof and it was not necessary for the landlord to produce any further evidence or for that matter examine his children. Reliance was placed on a number of rulings in which it is held that if the evidence of the landlord is sufficient 'it is not necessary for him to examine his children if the premises in question are required for the occupation or the use of the children. There is no quarrel with the proposition that if the evidence of the landlord himself is sufficient there is no further need for him to produce further evidence or examine his children. It is held in the case of Hassan Khan v. Mst. Munawar Begum (PLD 1976 Kar.
10. 832) that it is incumbent upon the Rent Controller to accept the plea of the landlord as bona fide on the question of requirement of premises for personal use if his assertion or claim on oath in that regard is found to be consistent with the averments in the application and is not shaken in cross- examination or disproved in rebuttal. This ruling was cited by the learned counsel for the appellant but is not helpful to him for the reason that even on the application of the guidelines contained therein, it appears that in the instant case the evidence of the landlord is not satisfactory as he has failed to prove the medical ground urged by him and also the fact that he wanted the premises in question for his own occupation or occupation of his children. He has been living in the quarter provided by the National Cement Factory since, 1947, he let out the premises in question in June, 1973 for the first time after the completion of the construction to the present tenant. He has failed to prove that the premises were let out for a limited period of four months only. He got his two sons married in May, 1974 after he had let out the premises. Neither before or after the said marriages he called upon the tenant to vacate the premises, if he needed them for the occupa--tion of his sons, He continued to accept the rent even after the said marriages. He has not denied categorically in his evidence that there were no talks about the increased rent as asserted by the tenant and he has admitted telegram Exh: 5-A, which is to that effect. In these circumstances the evidence of the landlord does not inspire confidence and it cannot be said that he has discharged his burden to prove that he requires the premises bona fidely for his own use and use of his children. The case of Ghulam Hussain v. Mst. Chaman Sultan Shaft (1980 SCMR 9) cited on behalf of the appellant is distinguishable for the reason that facts of that case are different from the facts of the present case. In the reported case the learned Rent Controller found the evidence of the landlady on the ground of requirement of premises for personal use to be satisfactory and con--sequently ordered eviction. This finding was affirmed by the first appel--late Court and also by the High Court in second appeal. The Supreme Court dismissed petition for special leave to appeal for the reason that the same grounds were urged which were already noticed by the High Court such as the requirement was not bona fide for the reason that the accommodation in possession of the landlady was sufficient, the landlady did not mention in the notice under section l3-A, of the said Ordinance served upon tenant that the premises in question were required for personal use, the landlady did not move for ejectment far nearly three years after the purchase of the house and finally that she was motivated by un--fortunate incident in which the landlady's dog had attacked the mother---in-law of the petitioner's son. It is observed in this decision by the Supreme Court that all the points having been noticed by the High Court and there is concurrent finding of fact on the question of bona fide require--ment of the landlady, which does not suffer from any infirmity, legal or otherwise. It is further observed that there was no legal requirement for the respondent to have examined her children in support of her case. The evidence led from her side was enough to prove her bona fides. In the instant case as stated above the facts are different and the evidence of the landlord is not satisfactory and he had not discharged his burden. In the circumstances the order of the learned District Judge is hereby upheld and in the result the appeal is dismissed. There will be no order as to the costs.