' This appeal is against the order dated 5th July, 1982 of the Tenth Senior Civil Judge and Controller, Karachi in Rent Case No, 2895 of 1978 whereby he allowed the ejectment application filed by the respondent and directed the appellant to vacate the demised premises within two months and hand over possession of the same to the respondent.
' The facts briefly stated are as under :-
1. That respondent who is the owner/landlord of residential house bearing No 171/2-A/111 measuring 2,000 sq. Yds. Situated in P. E. C. H. Society, Karachi on Tariq Road, by tenancy agreement, dated 23rd June, 1972 leased out the premises to the appellant on monthly rent of Rs, 1,000 payable in advance of each calendar month for a period of five years only solely for residential purposes in accordance with by-laws of the Society. The appellant was according to the respondent irregular in payment of rent and had converted the residential premises into commercial ones by using the same for running an advertising agency by name `Kay/S/Kay." The respondent apprehended the Management of P. E. C. H. S. And Ministry of Works, Government of Pakistan would cancel the plot as he had received a number of notices etc. The respondent also genuinely needed the rented premises for his personal use on medical advice and for use and occupation of members of his family as he had no other place of abode in Karachi 'other than the rented premises. It was also his case that the appellant had carried out additions and alterations in the premises without consent of the respondent and K. M. C. Had served notice, dated 4th June, 1978 in respect of the same. The appellant ignored verbal requests and finally notice, dated 16th August, 1977 and, therefore, application, dated 1st July, 1978 under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 was tiled before the Controller.
2. The appellant filed written statement, on 12th February, 1979 admitting the tenancy and the rate of rent. He also admitted the execution of lease agreement on 23rd June, 1972 but took the plea that he was inducted into possession of the premises earlier after be had managed with approval of the respondent, to get the premises vacated by the previous occupants. He denied the allegation about irregular payment of rent and stated that he made payment some times even in advance and under instructions of the respondent who was residing in Rawalpindi. He denied the allegations regarding conversion of premises for commercial purposes stating that the lease was for residential-cum-commercial purposes and had been used as such for seven years without any protest by the respondent. He raised the plea that the respondent had been trying by mala fide conduct to contrive and fabricate grounds for ejectment due to extraordinary appreciation in the value of the property. He denied the allegations about apprehension that the authorities might cancel the plot. He also totally denied the ground with regard to personal requirement of the premises by the landlord and his family stating that the respondent's permanently settled and owns residential property in Rawalpindi. He alleged that the conduct of the respondent is not only dishonest but plainly and demonstrably avaricious.
3. On the pleadings of the parties the learned Controller framed the following issues
(1) Whether the applicant requires the premises in question for his personal bona .Fide use ?
(2) Whether the opponent has committed default in the payment of rent?
(3) Whether the opponent has converted the residential premises into commercial ?
(4) What should the decree be ?
4. The learned Controller arrived at the finding that the landlord required the premises for his personal bona fide use but found that no default in payment of rent had been committed and held that alleged conversion had not been proved. He allowed the application on his finding with regard to the issue No, 1.
5. Mr. Kbalid Latif, the learned counsel for the appellant has raised the following contentions, namely,
(1) that the Controller did not give the appellant a reasonable opportunity of showing cause against the ejectment application,
(2) that the ground regarding requirement of the premises by the landlord in good faith for his own occupation of abode or use and occupation of his family was mala fide as all sorts of grounds were also raised but were disallowed,
(3) that the learned Controller allowed production of documents in contravention of the provisions of the Evidence Act which is applicable.
6. With regard to contention No, 1 section 13 of the Urban Rent Restriction Ordinance, '1959 in subsection (2) thereof does provide that the Controller after giving the tenant a reasonable opportunity of showing cause against the application should be satisfied with regard to the grounds mentioned for eviction of the tenant. Similarly section 19 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) provides for the procedure to be adopted by the Controller Which inter alia is to the effect that where the respondent has tiled written reply the Controller shall proceed to receive the evidence first of the applicant and his witnesses and then of the respondent and his witnesses. In the instant case after filing of the written statement by the appellant the learned Controller framed issues on 3rd of May, 1979 and in the order of that date required the parties to submit list of witnesses within 15 days and the documents at the time of evidence on 25th July, 1979. The contention that the tenant/appellant did not get the proper opportunity of adducing evidence, is based on the fact that application for summoning witnesses was partially rejected in respect of certain witnesses by the learned Controller on 6th May, 1982. The application which was made under section 20 of the Ordinance mentioned, names of five witnesses who were sought to be summoned by the Court. This very belated application by the appellant was objected to by the respondent on the grounds that it was mischievous application in order to put brakes and delay the proceedings and that the Advocate for the appellant/tenant had taken under instructions of the appellant, three years in completing the cross-examination of the respondent/applicant, and that the first cross-examination was started on 27th March, 1980 and was left without concluding and thereafter several dates were taken on one pretext or the other. It was further pointed out in the objections that witnesses 1, 2 and 3 who were sought to be summoned were residents of Karachi and Rawalpindi and happened to be previous employers of the son of the applicant who had left their employment long time before.
The aforesaid three witnesses were A.D.A. Al-Hussaini of K. D. A. For producing service record of the respondent's son, the National Construction Co. Institution of Engineers for producing service record of the applicant's son, and the Adjutant-General, Pakistan Army Headquarter, Rawalpindi for producing service record of the applicant's son.
7. The fourth witness named in the application was a Principal of American Method Public School, Karachi and the fifth witness was Mukhtar Ahmed, son of late Shaikh Tajuddin. It may here be observed that the first four witnesses were obviously sought to be summoned at the very late stage after years of delay only to prove that at certain times the son of the respondent had accommodation provided and, therefore, did not need the accommodation in the demised premises. This was comparatively a minor matter which had nothing to do with the personal requirement of the landlord and obviously the parties named as witnesses were being summoned in order to protract the proceedings. With regard to witness No, 5, the learned Controller did summon and examine him. Even otherwise the Controller acts in quasi-judicial capacity and not as Court. In Khadim Mohy ud-Din and another v. Ch. Rehmat Ali Nagra and another (1) (a decision of the Supreme Court), it was observed as under:- 'From the provisions of the Ordinance it appears that though under section 16 the 'Controller' has been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence he is not bound in every case to follow the procedure as laid down' in the Code of Civil Procedure. He has been given power under sections 4, 10 (3) and 12 to make orders after bolding such enquiry as he thinks fit. In such cases the question of nature of enquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban Area the landlord may not convert a residential building into a non-residential building. The power thus conferred on the Controller would appear to a purely executive. Then subsection (3) of section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be `satisfied that the claim of the landlord is bona fide'.- But there is no express mention of any enquiry by the Controller. If the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure.
' We. Therefore, conclude from the foregoing examination of the relevant provisions of Ordinance that though some of the functions of the Controller are judicial in character, by yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that, he acts in a quasi-judicial. Capacity."
' It is surprising that the Contention that the appellant had no proper opportunity has at all been taken inasmuch as the rent proceedings were filed, on 2nd July, 1978 and a very long time was taken before the appellant could be served and it was only when an application for substituted service by means of publication was made and date for written of publication was fixed that on 10th January, 1979 power was filed on his behalf. As already stated the issues were settled and the proceedings were fixed for evidence on 25th September, 1979. After that as stated in the counter- affidavit filed by the respondent, a number of hearings were fixed and the cross-examination of the respondent which started on 27th March, 1980 was resumed and concluded only on 16th March, 1982 and on most of the dates it has been verified that the appellant/tenant had been taken adjournments. As explained by the respondent in his counter-affidavit for these hearings lasting years he had to come from Islamabad to Karachi in order to attend the case. The fact that the respondent is 80 years of age is sufficient to show what trouble and expenses he had been put to.
8. With regard to contention No, 2, there is firstly the statement in the application for eviction in para. 8 thereof that the respondent genuinely requires the rented premises for his personal use, on medical advice and further he has no place of abode in Karachi other than the aforesaid rented preinises. In the application the respondent had also no doubt stated that be also requires the premises for use and occupation of his family members. In his affidavit of evidence he reiterated that the rented premises are required for him for personal use he being a retired person and also, wants his son to stay in the premises. He further stated that he wanted permanently to shift to his own house in Karachi as he had been advised by doctor to live in moderate climates like Karachi.
He had produced certificate of Dr. M. Aslam Khan Niazi, Associate Physician/Civil Surgeon, Central Government Poly Clinic, Islamabad, The genuineness of the certificate was never challenged by the appellant. Ere was further mention in the aforesaid medical certificate that the areas such as northern zones (Islamabad) was considered bad for the health of the respondent. The aforesaid evidence was not shaken in cross-examination and the only contention of the appellant was that the respondent 6 permanently settled in Rawalpindi. The respondent never envied that he was living in Rawalpindi but he prefers to live in Karachi fret his house is vacated. He had further asserted that he had no other accommodation in the urban area of Karachi where he wanted to stay. The fact that he possessed accommodation in Islamabad would not be relevant for doubting his bona fide use of the property at Karachi, as the Sind Rented Premises Ordinance, 1979 is applicable only in the province of Sind. The learned Controller in his detailed order has discussed the evidence on record with regard to bona fide requirement of the \landlord and his family.
9. The further contention on behalf of the appellant is that since in the ejectment application the grounds of default in the payment of rent and the conversion of residential into commercial premises had been taken and those grounds were not found against the appellant, therefore, the learned Controller should have considered the ground for personal bona fide requirement to be mala fide. The finding that the landlord bona fide requires the premises for his personal use has been c arrived at by the learned Controller after discussing the evidence on record, and the fact the on some other grounds the finding was against the landlord cannot be considered to prove mala fides. In Muhammad Saleem and others v. Begum Musarrat Bashirul Hassan and another (I), (a decision of the Supreme Court) where similar contention was raised, it was observed as under :- "The second contention raised by the petitioner's counsel was that the landlady had filed the ejectment petition on the ground of default, subletting, causing damage to the building and personal use, therefore, she should not have been permitted 'subsequently, to urge the ground of illegal conversion of the property by the tenant (petitioner) to a different use. This contention, too, has no force. In the first place, as would be dear from a reading of the judgment of the learned Additional District Judge and the High Court, as well as the leave granting order, it is the petitioner who took up the plea that since a press had been installed in the premises in question, it had been converted into non-residential building, and could not be got vacated by the landlady for personal use as a residential that gave rise to the question as to whether such conversion was permissible under the law. It does not, therefore, lie in his mouth to object, Secondly, since the issue of bona fide requirement for personal use has been decided by all the Courts below in favour of the landlady and the order of ejectment by the Rent Controller was primarily based on that finding, therefore, even if it be said that the petitioner had illegally converted the building by using it for a commercial purpose, could not be made a ground for eviction of the petitioner, the ground of requirement for personal use is by itself sufficient to oust the Petitioner."
10. In Muhammad Younus v. Dr. S. Muzammil Ali (2) (a decision of this Court), the principles regarding ejectment upon determination of person] requirement of landlord in good faith came for consideration and it was inter alia considered as one of the principles called out from -certain decisions that landlord's statement on oath in conformity with averments in rent application if not shaken in cross-examination and if not disproved by evidence in rebuttal shall be sufficient to record finding in favour of landlord. In Haji Majid v. Haji Imamuddin (1) (another decision of this Court), it was held that demand for higher rent does not per se cast any doubt about personal bona fide requirement, if independently proved. For the proposition reliance was placed on Supreme Court decision in Rafiq Ahmed v. Ch. Abdul Rehman (2). It is, therefore, clear that even if on the evidence on record the landlord could not prove conversion of the premises from residential to commercial, or default in the payment of rent, his ground of bona fide requirement is not to be considered mala fide on that account.
11. In any case since the ejectment has been ordered by the learned Controller the tenant is protected by provisions of section 15-A of the Ordinance which provides penalty for use of premises other than personal use as if the premises got vacated on the ground of personal use or put to use other than personal use within one year of such possession the landlord shall be punishable with fine not exceeding one year's rent of the building payable immediately before the possession was so obtained.
12. Mr. Khalid Latif, the learned counsel for the appellant has relied on the decisions of this Court in Abdul Hameed v. Mst. Amino Begum (3), Mst. Qamar Jehan v. Mukaramali (4), in support of his contention that since the finding on other issues were against the respondent, mala fides stood proved with regard to even the ground of requirement for personal use. The facts of Abdul Hameed v. Mst. Amina Begum were totally different as even the agreed rent of the premises was found by the Controller to be Rs, 175 per month and not Rs, 360 per month as alleged by the respondent and also according to the statement of her husband the first floor was constructed in 1976 when there was no personal and bona fide need for its occupation as the respondent's sons were minors, and therefore, the Controller rightly held that soon after that is, in May, 1977 the position remained same and, therefore, the ejectment application was mala fide.
13. Similarly in Mst. Qamar Jehan v. Mukaramali, totally different and there was evidence on record looking Controller found that the appellant failed to establish that premises in question for her personal and bona fide need. In the Instant Case as already stated the personal need of the landlord perly established and the necessity for changing his Rawalpindi to Karachi has also been brought out.
14. With regard to contention No, 3, it is well-settled position that the Rent Controller acts in quasi- judicial capacity and not as a Court. It was inter alia so held in Khadim Mohy-ud-Din and Mrs. S. Mahmud v. Ch. Rahmat Ali Nagra and Mst. Aziz Begum, a decision of the Supreme Court already referred to above. Lit Muhammad Yousuf v. Muhammad Hassan and 7 others (1), a decision of the Lahore High Court, after reviewing the case law on the point it was observed as under : "It has also been ruled in the case of Javaid Iqbal, cited by the learned counsel for the respondent, that the Code of Civil Procedure `and the Evidence Act are not applicable to proceedings before the learned Rent Controller. It is, therefore, not possible to stretch the provisions of the High Court Rules and Orders to such an extent as to make the Code of Civil Procedure and the Evidence Act binding on the Rent Controller, I would, therefore, with respect, relying on the opinion delivered in the case of Javaid Iqbal, hold that the learned Rent Controller was not obliged to strictly comply with the requirements of the Evidence Act in the matter of receiving copy of the sale-deed in dispute in evidence."
Reference in the decision of the Lahore High Court is to the decision of the Supreme Court iu Javaid Iqbal v. Rana Muzaffar Khan (2).
15. Mr. Habibur Rehman, the learned counsel for the respondent has further pointed out that the authenticity of medical certificate of Dr. M. Aslam Khan Niazi was never disputed throughout the proceedings and the same is corroborative of the affidavit filed by the respondent and is not a certificate of a dismissed which may require proof.
Under the circumstances stated I find that there is no weight in this' appeal which is dismissed however, with no order as to costs. The appellant is hereby directed to hand ever vacant possession of the premises to the respondent within two months of the date of this order.