1. ' The appellant filed an ejectment application on .6-4-1978 against the respondent alleging that he has purchased the disputed property on 29-3-1973 from one Muhammad Usman. He is a medical practitioner and having his full-fledged clinic in Shops Nos. 27 and 28 at Al-Siraj Square Block No, 14, Federal 'B' Area, Karachi. In the disputed house he is occupying three rooms with all amenities on the ground floor and two rooms on the ground floor has been let out to the respondent. The first floor structure was not till then complete. The appellant alleged that he requires the premises in good faith for his own occupation and occupation of his children. The other ground for ejectment was that the respondent has infringed the condition of tenure and without written consent of the appellant using the building in his occupation for a purposes other than for which it was leased out and that the respondent has committed such acts which are likely to impair the value and utility of the building. The, respondent denied these allegations and pleaded that the appellant had filed similar application which was dismissed as withdrawn. He further pleaded that he has been using the disputed premises for commercial purposes from the time he had taken the premises from the previous landlord. He denied all other allegations made by the appellant. The learned Controller dismissed the application. The appellant has not pressed the ground that damage has been caused to the property but on other two grounds the learned counsel has argued the matter.
2. ' Mr. Mahmood the learned counsel for the appellant has mainly contended that in terms of agreement between the respondent and the previous owner, the premises was rented out for residential purpose but it is being used by the respondent for commercial purposes without the written consent of the landlord. In this regard the learned counsel has relied on Exh.A/6 which is an agreement, dated 15-3-1974 for 11 months commencing from 1-1-1974 between the respondent and the previous owner Muhammad Usman. The respondent has however, denied his signature on this agreement which provided that the respondent has taken the premises for residential purposes.
3. The respondent has not examined Muhammad Usman who is one of the executant of this agreement but he has produced the attesting witness namely Mubarak An who has stated that the respondent and Usman had executed the agreement. On the other hand the respondent has produced a copy of the agreement Exh.O.3, dated 15-3-1974 executed by him and Muhammad Usman witnessed by Mehboob Elahi only. The respondent has also not examined Muhammad Usman and the attesting witness has been examined who has stated that he had signed this agreement Exh.O.3 and it was executed by Muhammad Usman and the respondent. Therefore, there are two agreements Exh.A.6 and Exh.O.3 produced by the parties alleged to have been executed between the respondent and Muhammad Usman. To substantiate the claim that Exh.A.6 was executed by the respondent Mr. Mahmoodi referred to the written statement (Exh.O.5) filed by Muhammad Usman in a suit instituted by appellant against him which was produced by the appellant through the respondent. Mr. Mahmoodi the learned counsel for the appellant has heavily relied upon paragraph 1 of the written statement in which it was alleged that in paragraph 1 of the agreement the appellant had cleverly and wrongly added that "in two rooms office of the Estate Agency is situated." Therefore, in that suit the agreement relied upon by the appellant was not denied but the only objection of Usman was that the appellant had cleverly inserted the foretasted facts which were not correct. In view of this written statement the learned counsel for the appellant contended that the premises were never rented out to the respondent for commercial purposes.
4. This very statement in the written statement completely destroys the appellant's contention that agreement Exh.A.6 is genuine. If Exh.A.6 is the same agreement referred in the written statement then it should contain such objectionable statement as quoted above. There is no such statement in clause 1 of Exh.A.6. On the other hand it is stated that two rooms will be used by the appellant for residential purposes. It, therefore, clearly establishes that Exh. A.6 is not a genuine agreement as it does not contain that objectionable material. The question, therefore, arises whether the agreement Exh.O.3 is a genuine agreement by which the respondent was allowed to use the disputed premises for commercial purpose. The respondent has not produced Muhammad Usman in support of his case and I do not feel it safe to entirely rely upon the evidence of Mahboob Elahi.
5. However, Mr. Qureshi the learned counsel for the respondent has pointed out that the respondent had produced two agreements one was photo copy Of the agreement Exh.O.2, dated 13-9-1972 and the other was Exh.O.3, dated 15-3-1974. So far Egh.0.3 is concerned there does not seem to be any doubt about its genuineness. The agreement Exh.O.2 between the respondent and Muhammad Usman was for a period of 11 months from 1-10-1972 and was produced in evidence by the respondent. It provided that the respondent would open an office of estate agency in these two rooms. The respondent was not cross-examined on this statement. This fact has remained unchallenged and, therefore, it is established that when the premises was let out by Exh.O.2 the respondent was allowed to use it for commercial purposes. it seems strange and unconvincing that in the subsequent agreement while extending the tenancy period the user of the demised premises would have been converted to residential use.
6. ' Mr. Qureshi the learned counsel for the respondent contended that the appellant had first filed an ejectment case No,206 of 1976 against the respondent on the ground that the respondent has converted the premises for commercial use without the consent of the landlord. This case was withdrawn on 23-8-1977 and after about less than 8 months on 6-4-1978 the ejectment application from which the appeal arises, was filed inter alia on the same ground of unauthorized conversion of user. The learned counsel contended that after the withdrawal of the first application and there being no factual or legal development during the intervening period, the appellant was not entitled to file an ejectment case. In view of section 14 of Sind Urban Rent Restriction Ordinance as the first case was not decided on merits fresh application will be maintainable. The appellant has failed to establish that the respondent has committed breach of agreement and is using the premises for commercial purpose without the consent of the landlord.
7. ' The next ground pressed by the appellant is that the disputed premises. is required for his bona fide use and occupation and for his children. The admitted position is that besides himself and housewife the appellant has three children. He is in possession of two bedrooms and drawing, dining room with attached baths. Mr. Mahmoodi has frankly stated that during the pendency of this litigation the appellant has constructed two rooms on the first floor and the need of his children stands satisfied. Mr. Mahmoodi has however, pressed the claim on the ground that the appellant is a medical practitioner and as he has to attend patients on emergency basis during night as well, he needs the disputed premises for treating such patients. As stated above the ejectment application filed earlier on the same ground was withdrawn.
8. ' In the present application the appellant has set out the plea that the premises is required for residential purposes and for the use of his children. In fact in the application he has highlighted the nature of requirement as residential and not commercial. With this fact in view he has pleaded that he does not own any other residential building suitable for his need. Therefore, in a very specific manner the appellant has pleaded that he requires the premises for residential purposes. The appellant, therefore, cannot be allowed to shift his stand by pressing a ground which has not been even pleaded. Even in the evidence the statement regarding the user for clinic purposes is very scanty and vague. The main emphasis of the appellant in his evidence has been that he requires the premises for residential use of his family. It was held in PLD 1974 SC 322 that a party cannot be allowed to prove a case which he hear not pleaded. If a party pleads a specific need he cannot be allowed to change his plea in evidence or in argument. The appellant having pleaded one specific need cannot be allowed to plead another requirement. Even otherwise the appellant on his own showing in the ejectment application has an established clinic. He has not stated to what manner he would establish another clinic at his residence. He has not given details of his timing and working in the clinic. The appellant has failed to establish his plea of bona fide requirement.
9. The appeal is dismissed.