' This appeal is directed against the order dated 20th August, 1980 passed by the learned Vth Rent Controller Karachi in Rent Case No, 3214 of 1978 whereby the appellant was ordered to vacate the premises and hand over its possession to the respondent.
' The brief facts of the case are that the appellant is the tenant in respect of flat No, 20-K Hadi Market Plot No, IV-C-2 Nazimabad Karachi he having obtained the said flat on rent from one Mst.
Khatoon Hadi.
' By a registered sale deed dated 4th February, 1978 the original owner Mst. Khatoon Hadi sold away the said flat to the present respondent for a consideration of Rs, 30,000. After the purchase of the said property as above, Mst. Khatoon Hadi informed the appellant about the sale of the said property to the respondent and notified him to contact the new owner/ the respondent as according to her the tenancy contract between her and the appellant was of no more legal value after the receipt of the said notice from her. In reply to the above-mentioned notice the appellant wrote to the respondent that he had not received any statutory notice as provided under section 13-A of the then West Pakistan Urban Rent Restriction Ordinance of 1959 as regards the change of ownership by way of transfer through the sale-deed. He further called upon the respondent to confirm if the said flat under the tenancy of the appellant had been purchased by him and if so intimate him the date of sale-deed and also supply him a copy of the same. He further wrote that on 14th May, 1978 he had sent a sum of Rs, 175 being the rent for the month of April, 1978 to the respondent through money order at the address provided by the previous landlord and that the rent for the earlier period had been deposited in the Court of the VIth Rent Controller, Karachi. By a separate notice 25th May, 1978 sent by registered post A. D. To the Advocate for the appellant, the respondent informed the appellant that the flat in question had been purchased by him by registered sale deed dated 4th February, 1978 a copy whereof was enclosed with the said notice, that he himself was residing in a rented house the rent of which was more than the rent of the flat in question and that he has purchased the property for his own accommodation and that of his family. Complaint was also made that the appellant had sublet the premises. Finally the respondent called upon the appellant to vacate the premises within a fortnight failing which he was warned that ejectment case would be filed against him. Another notice dated 15th June, 1978 (Exh. 7) was thereafter sent by the respondent repeating the same facts and the warning contained in the notice earlier sent on 25th May, 1978.
' As the appellant refused to vacate the premises, on 8th July, 1978 Rent Case No, 3214 of 1978 was filed in the Court of the Vth Rent Controller, Karachi under section 13 of the Ordinance of 1959 on the grounds that the respondent required the premises for his own bona fide use, that the appellant had committed default in payment of rent and had sublet the premises.
' The said ejectment case was contested by the appellant.
2. On pleadings of the parties the following issues were framed.
(1) Whether the applicant requires the premises for his own bona fide use ?
(2) Whether the opponent has committed default ?
(3) Whether the opponent has sublet the premises ?
(4) What should the order be ?
3. The respondent landlord examined himself. On the other hand on behalf of the appellant one Syed Shahid Ahmad brother-in-law and attorney of the appellant was examined. The Rent Controller by order passed on 20th August, 1980 allowed the application and directed the appellant (tenant) to vacate the premises.
4. In this Court during the hearing the learned counsel for the parties have restricted their arguments to the Issue No, 1 which relates to the requirement of the landlord of the premises in dispute for his personal and bona fide use and occupation. This appeal, therefore, is disposed of on consideration of findings on Issue No, 1.
5. The respondent in his evidence had deposed that he purchased the property in question vide the sale-deed dated 4th February, 1978 (Exh. 2) and that after the purchase of the property previous owner by her notice dated 13th April, 1978 (Exh. 3) informed the appellant about the transfer, The correspondence which followed has already been referred above and need not be repeated, suffice it would be to mention that the transferee/respondent also made a demand upon the appellant to vacate the premises as he/ the new landlord is residing in a rented house and he has purchased the property for his own personal use. Similar demand was again made vide notice sent on 15th June, 1978 (Exh. 7) addressed to the appellant. In the cross-examination attempt was made by the appellant to challenge the said sale-deed but a reading of the evidence shows that except making certain suggestions the appellant was unable to show that the sale transaction was collusive or was a bogus transaction intended to be used as a weapon to enable the respondent to seek ejectment of the appellant on the ground of personal bona fide use and occupation by the new landlord/the respondent. It is significant to note here that in the written statement filed by the appellant in para. 3 the only allegation on which the sale transaction was challenged was that during the pendency of a previous ejectment case (filed by Mst. Khatoon Hadi) she surreptitiously transferred the ownership of the premises in the name of the respondent of which fact the appellant acquired knowledge subsequently. According to the plea in the written statement the respondent is a close relation of the previous landlady and the object of this ostensible transfer of the subject premises is to make an attempt in collusion with each other to throw out the appellant and thus get the premises vacated so that the same may be let out on an enhanced rent and substantial amount of `pugree'. This written statement was signed and verified by the appellant himself. However at the trial, the appellant chose to remain absent though he was present in Karachi. Instead of examining himself and stepping into witness-box and submit to the cross-examination, the appellant sent his brother-in-law Syed Shahid Ahmed to give evidence. The said witness Shahid Ahmed was thus examined on behalf of the appellant. In his affidavit of evidence he stated that the transaction of sale in favour of the respondent was mala fide in collusion with the husband of the previous landlady for inadequate consideration. It was further stated that the appellant had not purchased the property for self-occupation and proceeded to state that the applicant had been set up by the previous owner whose main object by these proceedings is to make pecuniary gains by throwing out the opponent. It was further stated that the flat in question is a small flat in a commercial building and is much inferior to the status of the respondent who is an Executive Sales Manager of two international firms drawing salary of Rs, 5,000 per month besides fringe benefits.
' The perusal of the evidence given by the respondent Syed Shahid Ahmad examined on behalf of the appellant, proves beyond any controversy that the respondent is residing in rented house. The plea of the respondent that he has purchased the flat in question for his personal use and occupation bona fide and reasonably, is corroborated and fully supported by statement on oath made by him in the Court which is consistent with the pleas taken in the ejectment case filed by him.
6. The learned counsel for the appellant however argued that the rented house where the respondent is residing has more accommodation and is otherwise in accordance with his status and, therefore, in the circumstances, the requirement of the respondent to occupy the flat in question situated in commercial area could not be termed as genuine or bona fide. The submission of the learned counsel however cannot be accepted as it is the prerogative of the landlord to choose any of the premises owned by him where he would reside and that it is not the option of the tenant to tail him where he ought to reside. Reference in this connection may be made if necessary to the case of Sabu Mal v. Kika Ram.
' Reliance may also be placed upon Abdul Salam Akhtar v. Dr. Najam Parvez. The facts of the case were that the landlord was residing in a rented house and had applied for occupation of his own building for personal requirement. The Honourable Supreme Court while repelling the contention that since the landlord was residing in rented premises he was in occupation of another house suitable for his needs in the same urban area and, therefore, not entitled to evict the petitioner, observed as follows :- "The requitement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view extend to cover rented premises, for, otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation, which the landlord is occupying at the time, Must be shown to be his own and not merely rented premises."
7. As regards the plea that the respondent in collusion with the previous landlady wanted to dispose of the property on pugree and higher rent it would be seen that there is sufficient safeguard provided against such eventualities by the law itself. The Honourable Supreme Court referring to the safeguard so provided, in the case of Sabu Ma! v. Kika Ram observed as follows :- "The law, however, provides an adequate safeguard by stipulating in subsection (4) of section 13 of the Ordinance, that the tenant may be put back in possession if the landlord does not occupy the premises himself after getting them vacacted on the ground of personal need."
' Thus, the pleas taken on behalf of the appellant that the premises in dispute are not required for personal and bona fide use or that the findings arrived at by the learned lower Court on Issue No, 1 is erroneous, do not succeed.1 2
8. Lastly it was argued by the learned counsel on behalf of the appellant, that the transaction of sale between Mst. Khatoon Hadi and the present respondent was collusive and bogus transaction, manipulated for the purposes of getting eviction of the appellant. It was contended that the respondent is a relation of Mst. Khatoon Hadi and that no consideration or any part thereof was paid before the Sub-Registrar. The inference which the learned counsel sought to draw was that the respondent is not the landlord (transferee) and application for eviction filed by him for his personal requirement, cannot therefore, succeed. This submission of the learned counsel cannot succeed firstly for the reason that the sale transaction for the property has been made by registered sale-deed which has been produced as Exh. 4 wherein the payment of sale consideration is admitted. Immediately after sale transaction the previous owner Mst. Khatoon Hadi sent a letter by registered post A. D. Addressed the appellant on 13th April, 1978 (Exh. 3) whereby he was informed of he conveyance of the property in favour of the respondent and termination of the relationship of landlord and tenant between her and the appellant. The appellant was further directed to contact the respondent/ new owner. In reply to the said notice the appellant by letter sent through his counsel on 14th May, 1978 (Exh. 4) requested for photo copy of the sale-deed and the confirmation of the fact that flat had been purchased by him. He also sent Rs, 175 being rent for the month of April, 1978 through money order to the respondent. It is not denied that the photo copy of the sale-deed was provided to the appellant. It is significant to note that in para. 11 the affidavit of evidence filed in the Court of Rent Controller by Shahid Ahmad, brother-in-law and attorney of the appellant, he deposed that after the receipt of notice dated 15th June, 1978 under section 13-A of Ordinance of 1959 from the Advocate of the respondent the appellant sent rent for the month of July, 1978 which however was not accepted by the respondent. The said witness further stated in his evidence that rent for the months of August, September and December. 1978 were also sent to the respondent by money orders by the appellant but the same were refused. In view of the above statement on behalf of the appellant that he had sent rent by money orders for the months of April to December, 1978 coupled with the registered sale deed conveying the property in favour of the respondent by Mst. Khatoon Hadi who herself had intimated the appellant about the sale transaction and also of termination of relationship of landlord and tenant between her and the appellant followed by the voluntary act on the part of the appellant to send rent for the month of April, 1978 and for period thereafter by money orders to the respondent, it hardly lies in the mouth of the appellant to contend that the sale transaction in favour of the respondent was not a genuine transaction. The plea raised by the appellant is also not worth consideration as no issue was pressed by the appellant in the trial Court to the effect that the sale deed was a bogus or ineffective transaction. Worthnoting is the fact that in the correspondence which followed after the sale transaction referred to above the appellant at no stage took the plea that the said sale transaction was bogus or ineffective. In fact he had voluntarily sent rent for the month of April, 1978 to the respondent and continued to send him rent by money orders for the subsequent month also by money orders.
' It may also be pointed out here that though the allegation has been made in support of the plea of alleged collusive nature of the sale transaction that Mst. Khatoon Hadi is a relation of the respondent, but the fact has emerged from cross-examination that the appellant is also a relation of Mst. Khatoon Hadi.
The serious plea taken by the appellant that the sale transaction was a bogus transaction also does not merit consideration for the reason that they appellant though present in Karachi did not step in the witness-box and submit to cross-examination. Reference may here be made to the principles laid down in the case of Mst. Khair-un-Nisa v. Malik Muhammad Ishaque wherein the Honourable Supreme Court with approval cited the following observations made by the learned Peshawar High Court in the case of Haji Abdullah Khan v. Nisar Muhammad Khan :3 "It is a settled law that it is the bounden duty 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 circumstance going to discredit the truth of his case."
9. The upshot of the above discussion is that the appellant has failed to establish that the findings of the learned Rent Controller on Issue No, 1 are erroneous in fact or law. I accordingly hold that the respondent requires the premises bona fide and reasonably for his own personal use and occupation. The appeal accordingly is dismissed being without any merits.
' The appellant is granted time upto 31st October, 1982 to vacate the premises. In case of his failure to vacate the premises on or before 31st October, 1982 writ of ejectment would be issued without any notice to him. 1973 SCM R 185 1976 SCM R 52 PLD 1972 SC 25