The appellant above-named, being aggrieved by Judgment dated 9-8-1980 of the learned VIth Additional District Judge, Karachi, by which appellant's Appeal No. 5/8 of 1979, preferred against the ejectment order dated 28-7-1979 of the learned VIth Rent Controller, Karachi, was dismissed, has preferred the above second appeal on the following facts and grounds, against both the said order and judgment:-
2. On 15-8-1975 respondent filed ejectment application against the appellant, alleging therein, that the appellant had defaulted in payment of rent from February, 1974, up to July, 1975, at the rate of Rs. 60 per month. She further alleged that the property in question is required for the use and occupation of the respondent as she has a large family residing with her and her present accommodation is not sufficient for their needs. The application was contested by appellant, who denied the conten--tions of respondent and submitted that Rs. 500 were deposited with the respondent as fixed deposit and electric charges were Rs. 3 and not Rs. 7.
Appellant further denied that any default has been committed by him, submitting that it was respondent who never issued any receipts of rent. Since month of April, when respondent refused to accept the rent, he is depositing the rent in Court. He had further submitted, that the property in question is not required by the respondent in good faith. From the pleadings of the parties following issues were framed by the learned Lower Court.
(1) Whether the electric charges are at Rs. 7 p. m. Or at Rs. 3 p. m.?
(2) Whether the opponent has committed default in payment of rent?
(3) Whether the applicant requires the premises for reasonably and in good faith for the personal use?
(4) What should the order be ?
3. Respondent examined her son and attorney Abdul Wahid, who had produced his power of attorney and copy of the notice issued to the appellant. She has also examined her husband Abdul Latif in support of her case, whereas the appellant had examined himself and his brother-in-law Moinuddin, in support of his case.
4. The learned Rent Controller taking into consideration evidence adduced by the parties, granted the said ejectment application and directed appellant to vacate the premises in his occupation and hand over its vacant possession to the respondent, vide his order dated 28-7-1979 for the reasons given in the said order. The appellant being aggrieved by the said order, preferred Second Appeal No. 518/79, before VIth Additional District Judge, Karachi, who also rejected the said appeal and upheld order dated 28-7-1979 of the learned Rent Controller vide his judgment dated 9-8- 1980.
5. The appellant above-named, being aggrieved by the above two concurrent decisions of both the learned lower Courts, has preferred this Second Appeal on the grounds mentioned in the memo. Of appeal.
6. The first contention that has been urged before me by the learned Advocate for the appellant was that both the learned lower Courts have misread the evidence on record and as such have erred in coming to conclu--sions that appellant was defaulter in payment of rents, as alleged by the respondent. The learned Advocate for the appellant further submitted, that even in respect of ground of personal and bona fide use, both the learned lower Courts have failed to take into consideration evidence on record and/or misread the same and arrived at erroneous conclusion, which are not warranted by evidence adduced by both the parties. The learned Advocate for the appellant further submitted that both the learned lower Courts have failed to take into consideration the inspection note of the premises and as such have fallen into erroneous conclusions and as such the aid orders are based on misreading and mis-appreciation of evidence on record and consequently are liable to be set aside. The learned Advocate for the appellant relied upon cases reported in PLD 1979 Lah. 135 and PLD 1975 Lah.
23. The learned counsel for the appellant in support of his first contention, has invited my attention to the evidence of P. W. 1 Abdul Waheed and P. W. Abdul Latif, as well as to the contents of the written statement filed by the appellant and his statement and that of his witness recorded in the Court of learned Rent Controller. Learned counsel further submitted, that respondent has sold the property in question, pending disposal of the above appeal and as such the ground of personal and bona fide use of the premises in occupation of the appellant, by the respondent, has ceased to exist and in this connection the learned Advocate for the appellant relied on case reported in PLD 1971 SC 494.
Learned counsel further submitted that P. W. Abdul Waheed, the son of the respondent in his statement on oath before the learned Rent Controller in his cross-examination has admitted, that he has been dealing with the property in question as attorney of the respondent, since the date of the power of attorney produced by him, which is dated 19th April, 1976, and as such his statement regarding alleged non-payment rents for the months of February and March, 1975, cannot be believed, specially as the respondent herself did not so into 111~a box, to corroborate the said statement. Besides this, the appellant's averment that he had paid Rs. 5C0, as deposit to the respondent, when he was inducted into premises by the respondent stands unrebutted, as respondent did not go into the box and mere denial on the part of P. W. 1 Abdul Waheed respondent's son in this connection, in the face of his admission in cross-examination, that he started dealing with the property in question after his appointment as the attorney of the respondent vide power of attorney dated 19th April, 1976, has no force at all as such the statement of the appellant in this connection has remained unchallenged. Learned counsel for the appellant further submitted that P. W, 1 in his cross-examination has admitted, that appellant has deposited rents since April, 1975, in the Miscellaneous Rent Application, in the Court of Rent Controller and as such non-production of the receipts of such deposits on lie basis of which the learned Rent Con-- troller has presumed default on the part of the appellant is unwarranted and amounts to misreading and/or mis-appreciation of the evidence on record.
7. .The learned Advocate for respondent on the other hand submitted, that concurrent findings of facts of both the learned lower Courts, which are based or cogent reasons given in their respective orders cannot be interfered in Second Appeal, as there is no misreading and/or mis-appreci-- ation of evidence by learned lower Courts. However the learned counsel for the respondent was not in position to deny the contention of the learned counsel for appellant; that respondent has disposed of her property, after filing of above appeal.
8. I have carefully considered the above arguments advanced by both the learned Advocates and have gone through record and proceedings of the learned Rent Controller and have also gone through the Judgment and order in question and have perused the authorities cited before me.
9. I have personally gone through the evidence adduced by the parties before the learned Rent Controller and I find that P. W. 1 Abdul Waheed in his cross-examination has admitted, that the appellant has been depositing rents in the Court of learned Rent Controller in a Miscellaneous Application, which was filed on 20th March, 1975, and as such the question of default, if any, in the face of this admission, which requires Consideration relates to the period from 1st February, 1975, to 31st March, 1975, only. In respect of these two months. There is a statement on oath of the appellant, l., that he had paid rents for these two months to the respondent up to 31st March, 1975, and thereafter .Respondent refused to accept rent for the -month of April, 1975, and as such he moved Miscellaneous Application No. 934/75 for deposit of rent in the Court of the Rent Controller. The appellant furthers in his statement on oath stated that he had paid Rs. 500 as security deposit to the respondent, at the time he was inducted as tenant in the premise e in question. These two averments of the appellant have been denied by P. W. 1 Abdul Waheed, respondent's son, but in view of this witness admission in cross-examination, that he started dealing with the property in question since April, 1976, only when he was appointed as an attorney, the said denial has no force, in the absence of respondent having come into the witness-box to deny these assertions, which were made also in the written statement filed by the appellant. Furthermore, conclusions of both the learned lower Courts that P. W. 2, has supported P. W. 1 are also not correct, as P. W. 2 in his examination-in-chief has stated categorically that he does not know since when the appellant has not paid the rent and further he has stated that he cannot say who was collecting rent from the appellant. It may be noted that P. W. 2 is the husband of respondent. In view of these statements of the witnesses produced on behalf of the respondent, I agree with the contention of the learned counsel for the appellant, but both the learned lower Courts have misread and misappreciated the evidence on record and arrived at the conclusions, which are not warranted by the said evidence, on this issue of default.
10. The ground of personal and bona fide use on the basis of which both the learned lower Courts have also ordered ejectment of the appellant, has ceased to exist, in view of the statement of the learned counsel for the appellant, that the respondent, pending disposal of the above appeal ha sold her property in question, as this fact has not been denied by the learned counsel for the respondent, in view of the law laid down by Honourable Supreme Court in case reported in PLD 1971 SC 494. Furthermore, there an ample evidence on record to show, that the 'first floor of the property, which consists of two rooms with attachments are in possession of the respondent, which were formally occupied by some other tenant but are now used as store rooms. I-n view of this, in my opinion, the respondent has also otherwise failed to prove, that the premises in occupation of the appellant are required by her bona fide and in good faith for her use and the use of her family.
11. Therefore, in view of my above conclusions and observations, I allow the above appeal and set aside the order dated 20th July, 1979 of the learned VIth Rent Controller, Karachi and judgment dated 9th August, 1980, of the learned VIth Additional District Judge, Karachi; with costs.