' This appeal is directed against the order of the Controller granting application for ejectment of the appellant. The respondents are the landlords of house bearing No, 451, 462, Block B, Shershah Colony, Karachi in which the appellant's father was a tenant and on his death the appellant became their tenant. The respondents filed ejectment application on two grounds, namely, default is payment of monthly rent and for their own personal use and occupation. The appellant in his written statement denied the allegations and stated that in 1972-73 the appellant had vacated half portion of the house which has been rented out by the respondents and further that they have other houses in their occupation and their alleged requirement is neither bona fide nor correct. On 18-4-1974 the Controller framed two issues :
(1) What is the rate of rent ?
(2) Whether the Opponent has committed default? If so, what period?
(3) Order.
' On 2-74974 the respondents examined Muhammad Riaz and closed his side. However, on 18-7- 1974 the respondents made an application under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance which was ultimately granted on 21-3-1975 and the appellant was ordered to vacate the premises within one month. The appellant filed an appeal before the Additional District Judge which was allowed on 29-7-1976. On 7-1-1976 the statement of the appellant Muhammad Yasin and his witness Muhammad Ramzan was recorded. On 11-5-1976 an additional issue, namely "Whether the premises in dispute are bona fide required by the applicant" ? Was framed and numbered as Issue No, I. A. The parties were allowed to lead further evidence and on 2-8-1977.
Muhammad Riaz and Muhammad Razman were again examined on behalf of the respondents. In the impugned order the Controller has not reproduced all the Issues which were framed and has only mentioned two Issues. While dealing with the Issues he seems to have mentioned them merely by stating as issues Nos. 1, 2 and 3. By the impugned order the Controller held that the appellant has not committed default but granted ejectment on the ground that the premises is required by the respondents for their bona fide use and occupation. The respondents have not filed any cross-appeal against the finding that no default has been committed by the appellants. The enquiry, therefore, is restricted to whether the respondents require the premises for their own bona fide use and occupation.
2. Mr. Muhammad Qaiser Qureshi the learned counsel for the appellant has referred to the statement of respondent Muhammad Riaz who was examined twice as stated above. From the statement of Muhammad Riaz it seems that in the year 1972-73 the respondents had obtained the vacant possession of half portion of the disputed house which consist of two rooms. Riaz has stated that the house in occupation of the respondents is about 40 sq. Yds. Which is not sufficient for the respondents as it consists of only one room. However, after the respondents had obtained the vacant possession of half of the premises they have admitted to have kept it vacant which is still available to them. He has also stated that he has constructed a new house near his shop which is on 100 yds. And consists of one room only. In another plot measuring 200 sq. Yds. There are six tenements which have already been rented out, From the evidence recorded on 2-7-1974 it crystalises that the respondents have 3 houses is their occupation. However, again when be was examined on 2-8-1977 Riaz stated that he is in occupation of another house consisting of two rooms and 3 shops which he has constructed on 200 sq. Yards. It seems that this accommodation on 200 sq. Yds. Was acquired by him after he had made his statement earlier on 2-7-1974.
It, therefore, follows that the respondents have been in occupation of 4 houses which includes half portion of the disputed premises. Now coming to the requirement Riaz has stated that he has two brothers who are married' having six children, one mother, one brother is unmarried and Riaz has also six children. All the brothers and mother were applicants and had prayed for ejectment. The respondent has given the details of the accommodation available to them. He has orally stated that there are about 17 persons as enumerated above who require accommodation.
3. The learned counsel for the appellant has contended that the respondents have failed to establish that they require the premises for their bona fide use and occupation. He has further contended that the persons who require the premises for their own bona fide use and occupation should have been examined and as none of them except Riaz has been examined the respondents have failed to prove their case. The learned counsel has relied upon PLD 1976 Kar. 1231 and PLD 1977 Lab.
1094. It is true that the respondents have examined one of them, namely, Muhammad Riaz and have examined one Muhammad Ramzan who has deposed that 17 persons are residing to the house which is in possession of the respondents and that they are short of accommodation. This, however, does not specifically prove that the respondents require the premises for their bona fide use and occupation. When a landlord applies for ejectment on the ground of his bona fide use and occupation the onus is upon him to establish his case with cogent and convincing evidence. If the evidence is brought on record to show that the landlord has in occupation houses other than the disputed house then it becomes more necessary for the landlord to establish that the accommodation in his possession is insufficient for his existing need. As stated earlier Muhammad Riaz has given details of the accommodation available to the respondents from the date of the filing of the case till he was examined in the year 1977. The respondents have, however, not given full particulars nor proved the number of persons for whom the disputed premises is required. Mere statement of one of the respondents is not sufficient C to establish the large number of persons for whom the disputed premises is required. In PLD 1977 Lah. 1094 it was held that "the landlord of the property should show reasonable cause for occupying the particular property for personal need. If he himself fails to make out a case for bona fide personal need then other evidence produced by him in his behalf would be of no use. In this state of affairs it is always the statement of the landlord as well as of the persons for whose benefit premises are sought to be vacated which is most relevant to determine the point in issue." This case related to a shop and not a residential premises and therefore more emphasis was laid on the fact that the person for whose benefit the premises was required should have been examined. I may observe that this cannot be made an established rule of evidence that all those persons for whose benefit the premises is required should personally be examined in the case. No doubt it may be a useful procedure to prove the bona fide need but in the absence of such evidence the court cannot close its eyes and ignore other evidence on record which proves landlord's bona fide need. The court has to take into consideration the entire evidence on record and then assess it and give its finding on the issue.
4. In the present case it was necessary that at least the respondent who is said to have six children should have been examined or necessary documentary evidence relating to the members of the family of the respondents should have been produced. This could have been done by producing Ration Cards, the school certificates or birth certificate of the children. The respondent have not produced any evidence except the statement of two witnesses. In view of the fact that sufficient accommodation is available to the respondents, they have failed to prove their bona fide need for the disputed premises.
5. Mr. Moosa Soomro the learned counsel for the respondents faced with this situation feebly endeavoured to support the impugned order but was unable to establish from the evidence on record. The respondents' bona fide need for the disputed premises. The evidence of the respondents seems to be sketchy and shaky. Taking the entire evidence into consideration it is difficult to give a definite finding in their favour. In the circumstances where the landlord has not been able to establish his bona fide need and further the evidence does not warrant a clear finding in his favour the court has no option but to dismiss the application.
6. I, therefore, allow the appeal and set aside the order of ejectment passed by the Controller with no order as to costs.