' This is second appeal under section 14(4) of Sind Urban Rent Restriction Ordinance, 1959 from the order of learned Second Additional District Judge, Hyderabad dated 13th November, 1979 whereby the learned Judge has set aside the order of the IInd Exra Joint Civil Judge, and Rent Controller, Hyderabad in Rent Application No, 107/76.
2. The facts of the case are that Abdul Latif, since deceased, rented out his house bearing City Survey No, 87/Soldier Bazar, Hyderabad at Rs, 100 per month to appellant Mohan Lal. Abdul Latif himself was residing in a rented house and as his landlord wanted possession of his own house, therefore, Abdul Latif filed the ejectment application in the Court of Rent Controller, Hyderabad on the ground that he wanted the above premises for his own personal use. During the proceedings Abdul Latif died and his L/Rs, i,e, the present respondents were brought on record.
3. Appellant Mohan Lal alleged in his written statement before the trial Court that the respondents have two other houses and that they are not in need of any other house for their personal use.
4. After recording evidence of the parties the learned Rent Controller came to the conclusion that the respondents have failed to prove their bona fide requirement as no document regarding ejectment proceedings filed against the respondents by their landlord has been produced. It may be stated that Abdul Latif, during his lifetime and the respondents thereafter, had been living in a rented house belonging to one Ibrahim situated in Cantonment Area, Hyderabad. This Ibrahim had started ejectment proceedings against the respondents and obtained an ejectment order against them. As the record of these proceedings was not produced before the learned Rent Controller, hence he came to the conclusion that the respondents have failed to prove their bona fide requirement and on this view be rejected their application.
5. The respondents then filed First Rent Appeal before the IInd Additional District Judge, Hyderabad.
During the appeal, order of the Rent Controller of the Cantonment Area passed against Abdul Latif was produced by the respondents. However, the respondents had filed appeal against the order of the Cantonment Rent Controller which order was set aside on 13th November, 1979. However, it is stated at the bar by the learned counsel for the respondents that the said Ibrahim, landlord of the respondents, has challenged the said order in High Court by way of Writ Petition being C. P. No, 799/79.
6. The learned First Appellate Court in view of the above documents came to the conclusion that as the respondents/landlord s were living in a rented house and as their landlord was persistently attempting to oust them from that house, hence the bona fide requirement of the respondents in respect of the house in question for their personal use was established beyond any doubt.
7. The appellant has challenged the above order of the First Appellate Court on the ground that the respondents have got two other houses, that they have been living in a rented house already whose landlord has failed to evict them from that house and that the respondents have got sufficient alternate accommodation besides the premises in dispute.
8. The learned counsel for the appellant raised a preliminary objection that after the death of Abdul Latif the original landlord, L/Rs, were not formally brought on record by amending the title of the ejectment application. This objection is baseless. In the first place no such objection was raised before the First Appellate Court in which appeal was filed by the present respondents in the capacity of L/Rs, of deceased Abdul Latif. Moreover the respondents had made an application under Order XXII. Rules 2 and 4, C. P. C. For bringing on record the L/Rs, of deceased Abdul Latif. This application is marked as Exh. 22 on the Lower Court's record. It also bears order of the learned Rent Controller dated 9th April, 1977 whereby the application was allowed. In pursuance of this order the title of the main application should have been corrected. However, if it was not .Corrected due to the mistake of the office, the omission would not have the effect of vitiating the whole proceedings.
However this objection cannot be allowed to be raised for the first time in) second appeal.
9. The next content' on of the learned counsel for the appellant is that the building which appellant has taken on rent consists of three portions. Only one portion of it is on rent with the appellant while the other two portions are lying vacant and are in possession of the respondents. In support of plea he has referred to the statements of appellant and his witness Nandlal recorded by the Rent Controller. It may be stated that in his written statement the plea of the appellant was that the respondents have got two other houses in the same locality besides the house in question. This plea is quite inconsistent with the evidence of the appellant where it is pleaded that the respondents have got two portions of the same house in their possession. It is nowhere stated by any witness of the appellant that the respondents have got two other houses besides the house in dispute. The plea is unacceptable due to this contradiction. Moreover no question was put to respondent Khuda Bux in cross-examination that he has got two other houses or that two other portions of the same house are lying vacant and are in his possession. In view of this state of evidence the learned First Appellate Court was justified in holding that the respondents have proved their bona fide requirement.
10. It is an admitted fact that the respondents are residing in a rented house. It is also admitted that their landlord has been persistently asking them to vacate that house. Under such circumstances, it is the right of the respondents to claim that they shall reside in their own house instead of living in a rented house. The fact that the landlord of the respondents has so far failed to evict them from his house, is no ground for precluding them from claiming possession of their own house for their personal use. For the above reasons no exception can be taken to the findings of the First Appellate Court. The appeal is, therefore, dismissed with costs. The appellant is however granted two months' time to vacate the premises in dispute.