' This appeal is directed against the order dated 18th February, 1982 passed in Rent Application No, 1 of 1978 by the Rent Controller Larkana whereby he ordered ejectment of the appellant.
1. The brief facts of the case are. That the property in question occupied by the appellant as the tenant of the respondent was originally owned by the father of the respondent who sold the same to the respondent on 29th June, 1977. Application for ejectment was filed under section 13 of the then West Pakistan Urban Rent Restriction Ordinance of 1959 on the ground that the appellant committed default in payment of rent from August, 1976, that he damaged the house whereby its utility has been materially diminished and that after the death of his father the respondent intends to live with his family at Larkana and requires the house for his personal and bona fide use.
' The application was filed before the Court of the Rent Controller on 7th January, 1978 and was signed and verified by the respondent/landlord himself.
' The above application was contested by the appellant who challenged the allegations made by respondent.
2. On the pleadings of the parties the following issues were framed :-
(1) Whether opponent is wilful defaulter in payment of rent ?
(2) Whether the opponent has damaged the house in question and thus value and utility of the house has been materially diminished ?
(3) Whether the applicant requires the house in question for his personal bona fide use ?
(4) Whether the applicant has given notice to the opponent under section 13-A of Rent Restriction Ordinance ? If not what is its effect ?
(5) What should the order be ?
3. At the trial on behalf of the landlord was examined his brother Ali Ahmed (Exh. 25) and the appellant examined himself on his own behalf. The learned Rent Controller after recording the evidence and hearing the advocates for the parties answered issues Nos. 1 and 4 in the negative and held that no default was committed by the tenant. Under issue No, 2 it was held, that the tenant had damaged the roof of the disputed house and thus answered the said issue in the affirmative, while as regards issue No, 3 it was held that the disputed premises is required by the landlord in good faith and for his personal bona fide use. In view of the findings on issues Nos. 2 and 3 the ejectment of the appellant was ordered and he was directed to hand over vacant possession of the house in dispute to the respondent.
4. The present appellant has challenged the above findings of the Rent Controller given against him by filing this appeal under section 21 of the Sind Rented Premises Ordinance of 1979.
5. As regards the alleged default in payment of rent, the findings given by the Rent Controller have not been challenged by the respondent by filing any appeal or cross-objections and accordingly the said findings have attained finality.
6. On the question as to the alleged damage caused to the property, the learned counsel for the appellant in the first instance pointed out that in the application the plea was raised in para. 5 of the application wherein it was stated as follows :- "That the tenant has severely damaged the house and the value and utility of the house has been materially diminished."
' It was submitted by the learned counsel that no particulars of the alleged damage was given and it was not even pleaded as to how and of what kind and extent the alleged damage was caused or in what manner the utility of the house was materially diminished. The learned Counsel then proceeded to argue t''t the landlord did not examine himself. His only witness All Ahmad in his deposition tried to improve the case by alleging in para. 5 of the affidavit that the tenant had caused damage to the house by using excessive water on the roof in the latrine and that the beam of the roof had been broken and the house is in ruinous condition and that such a notice was given to the tenant as well as the landlord by the Executive Engineer Municipality on 22nd September, 1977 of which a photo copy was produced. In the cross-examination the witness stated that he did not know if the said notice dated 22nd September, 1977 was issued by the Municipal Committee suo motu or on any application of his brother (the landlord). Suggestion was made in the cross- examination to this witness that no damage was caused to the house and that the same could be used as human dwelling. The witness however denied these suggestions. Question was also put to the witness that the notice referred to above from the Municipal Committee had been arranged by the landlord.
' Mr. Kasmi the learned counsel for the appellant argued that in the absence of any particulars having been given as to what damage was caused to the property and/or any plea in the application filed against the tenant giving any specific particulars as to how and what extent and in what manner the damage was caused to the demised premises or its value and utility was materially reduced it was not open to the alleged attorney of the landlord to set up a new case by alleging that the damage was caused by excessive use of water on the roof in latrine and that the beam of the roof had been broken and the house is in ruinous condition.
' I find force in the argument of the learned counsel that in the absence of any plea in the application the improvement attempted to be made in the case in the evidence given by Mr. Ali Ahmad Attorney of the landlord would not be permissible, particularly when the landlord who signed and verified the application did not care to step in the witness box and submit to cross- examination. Reliance however on the other hand was placed by the learned counsel for the respondent that the damage caused to the property is proved from the fact that Executive Engineer of the Municipal Committee, Larkana had given notice dated 22nd September, 1977 wherein it is stated that the house occupied by the tenant is in ruinous condition and the building is likely to fall in a way dangerous to the occupants of the building and the neighbouring building. It would however be seen that the appellant had challenged this notice as having been arranged and issued at the instance of the landlord to make out a ground for seeking ejectment of the tenant. The applicants witness was expressly cross-examined and suggestion was made to that effect but neither the landlord chose to give evidence himself and submit to cross-examination nor the Executive Engineer was produced in the Court, to prove the contents of the notice dated 22nd September, 1977, ' Reference may here be made to the case of Muhammad Yusuf Khan v. S. M. Ayub where the Honourable Supreme Court observed that :- "Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them though such documents are brought on record and exhibited without objections."
7. The discussion as above shows that the respondent landlord failed to prove that any damage was caused to the property by the tenant or that A the value and utility of the house could be said to have been materially diminished. The finding given by the learned Rent Controller on this issue' is not supported by any evidence on record.
8. As regards Issue No, 3, reference was first made by the learned counsel to para. 6 of the application wherein it was pleased by the landlord :- "That after the death of his father he intends to live at Larkana with family. The applicant has no house in his occupation at Larkana and the applicant requires the house for his personal bona fide use."
' It is admitted fact on record that the landlord is employed in Government service and is posted at Karachi where he is living with his family. The only allegation on which the ejectment was sought was that after the death of his father he intends to live at Larkana with his family but this allegation according to the learned counsel for appellant was not even supported by the applicant himself inasmuch as he did not come forward to give evidence to prove his own alleged requirement.
Mr. Kasmi the learned counsel for the appellant relied upon the case reported as PLD 1979 Head Notes 39 where Mr. Justice Fakhruddin G. Ebrahim (as he then was) held that in ejectment proceedings filed through attorney if premises are required for landlord's personal use and not for the male children, in that case personal examination of the applicant may arise. In the present case the ejectment was sought on the ground that "the applicant intends to live at Larkana with his family". It is not possible to understand (in the absence of any evidence/explanation) how the applicant would live at Larkana when he is employed in Government service at Karachi. Obviously an attempt was made to improve the case in the affidavit filed by Ali Ahmed attorney of the landlord. He set up a new case in his affidavit by alleging that the landlord applicant has completed 25 years of service and that he is likely to retire from service. The new case sought to be made out in the evidence cannot advance the case of the respondent as a mere desire or intention to reside at Larkana or likelihood of retirement from service in the absence of any plea or notice of retirement having been issued, would not be a valid ground to order the ejectment of the tenant from the premises in question. The learned counsel for the appellant rightly relied upon the case reported in PLD 1975 Lahore 200 wherein Honourable Mr. Justice Muhammad Afzal Zullah (as he then was) observed that the mode of proof of reasonableness and/or good faith/bona fides is dependent upon various factors and it cannot be ignored that one of the material items of evidence for consideration, of course would be the statement on oath of the landlord himself and that unless he makes a statement on his behalf asserting his requirement it will not be possible to visualise from circumstances alone that he has a bona fide personal need.1 ' Reference may here be also made to the case of Mst. Khair-ul-Nisa v. Malik Muhammad Ishaque where the Honourable Supreme Court cited with approval the following observations of the learned Peshawar High Court :- "It is a settled law that it is the bounden Aunty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case."
9. Mr. Shaikh Abdul Rehman however argued that the landlord wants to send his family to Larkana on account of the death of his father so that they may look after the affairs of the family. I am afraid that this argument cannot succeed as no such plea has been raised either in the application or in the evidence produced on record.
10. The upshot of the above discussion is that this appeal succeeds and the impugned order is set aside. There shall however be no order as to costs. PLD 1973 SC 160 PLD 1972 SC 25