1. ' This is an appeal against the Judgment of 5th Rent Controller, Karachi, dated 24th November, 1982 whereby he held that the premises on the first floor of House No, D-10, Block 18, Federal "B" Area, Karachi were required by the respondent Mst. Faridun Nisa for her own use and for the use of her daughter and the family of that daughter. The issue of nuisance created by the family of the appellant was decided against the respondent and the issue of damage to the premises and impairing value and utility of the premises was also decided against the respondent.
2. ' The ejectment application in this case had been filed on 3.1-1977 on the ground of default in the payment of rent, personal and bona fide requirements, damage to the property and nuisance created by the family of the appellant. After having recorded the evidence of the respondent and the appellant the application for ejectment was dismissed. The respondent preferred an appeal to the District Judge but the same was also dismissed. Thereafter the respondent moved the High Court in Hnd Appeal No, 363 of 1980 which was disposed of on 24-8-1981 and the case was remanded back to the Rent Controller for deciding three issues, one issue was requirement of personal use of the applicant based on the requirement of the premises by her married daughter which had been ignored by the Rent Controller. The other two issues were in respect of damage to the property and nuisance created by the family of the appellant. It may be mentioned here that the issue of the default in the payment of rent had been decided against the respondent by the Rent Controller as well as by the District Judge and that finding was upheld in the High Court. The High Court had directed that the parties may be given opportunity to lead any further evidence..
3. ' The present appellant had filed a Special Leave to Appeal before the Supreme Court against the Judgment of the High Court which was disposed of on 23-2-1982 with the observation that the Rent Controller did not determine the question whether the premises for the use of respondent's daughter alongwith her children is bona fide or not. It was further observed that the words "Own occupation" cannot be confined to the personal requirement of the individual landloid alone. The grievance of the present appellant that there was no justification for the High Court to give opportunity to the respondent with the additional evidence before the Rent Controller was accepted by the Supreme Court on the basis of concession made by the counsel of the respondent before the Supreme Court and, therefore, directed that no party will be entitled to lead any additional evidence in the remand.
4. ' The learned Rent Controller has given his findings and has come to the conclusion that the premises are required by the applicant/respondent for the use of her daughter Mst. Akhtar Iqbal Bibi who is living with the respondent and with her husband, her grown up sons and her mother-in- law and further on the ground that the applicant/respondent is an old, infirm and sick lady and, therefore, she requires separate accommodation. The issues of damages to the property and nuisance created by the appellant's family have been decided against the respondent.
5. ' The position that has been finally reached is that out of the four issues of the default, personal requirement, damage to the property and nuisance created by the family of the appellant, three issues have been decided in favour of the appellant and only the issue of personal and bona-fide need has been decided against the appellant.
6. ' The appellant's counsel has submitted that the respondent had been changing its stand in respect of personal need to different reasons. On 9-2-1976 by letter Annexure 0/4, the attorney of the respondent namely Manzoor Alain had requested the appellant to vacate the premises because younger brother of Manzoor Alam was going to be married and another was expected to come from abroad. At that tune no personal need of the then existing family was shown. On 19-12- 1976 vide letter Annexure 0/3, the same Manzoor Alam requested the appellant that under extreme necessity and compationate ground he required the house for his personal need and, therefore, the appellant was requested to vacate. On 3-1-1977 the application for eviction was filed and in para. 4 of the said application it was pleaded that ground floor accommodation was not sufficient for the applicant, her daughter Mst. Akhtar Iqbal Bibi, her husband and their three grown up sons and old mother-in-law of the daughter specially the need of the daughter Mst. Akhtar Iqbal Bibi was stressed but in this application there was no mention made of the personal need of the applicant on account of any ailment or sickness. However, in the evidence of respondent's attorney Manzoor Alam recorded on 12-3-1978 the ailment of the applicant/respondent was deposed to and it was deposed by Manzoor Alam that the applicant had been advised that she should have separate accommodation and that she should employ nurse to look after her.
7. ' The learned counsel for the appellant, therefore, contended that since the applicant had been making different stand, therefore, the requirement of the premises was not bona fide. The appellant strongly urged that the sickness and ailment of the respondent should have been completely excluded from consideration by the Rent Controller in view of the fact that it was not even pleaded in the application no such requirement was shown in the notice, dated 19-12-1976 Exh. 0/3 which had been issued only 15 days before the filing of the application. He further submitted that the allment of the applicant/respondent was not even substantiated by any medical certificate and hence the same should have been ignored. The counsel relied upon NLR 1978 Civil 644 where it was observed that a party cannot be allowed to prove the fact which he had never pleaded. Reliance was also placed upon PLD 1963 SC 533.
8. The counsel for the respondent however, submitted that Manzoor Alam, his son Masood Alam and their witness Abdul Majeed had all stated that the applicant was an old, infirm and sick lady, therefore, the Rent Controller was justified in his finding. I am of the view that the Rent Controller should have excluded the ailment and sickness of the applicant from consideration as the same had not been either pleaded by the applicant in spite of the fact that it was old sickness as deposed by Abdul Majeed, nor it had been stated in the notice dated 19-12-1976 nor it was supported by any doctor and, therefore, to this extent the order of the Rent Controller was not justified. Moreover, the remand of the case by the High Court was only for considering the needs of the daughter and her family and not the need of the appellant on account of her sickness.
9. ' The learned counsel for the appellant submitted that the Rent Controller had omitted to consider the application made by the appellant on 22-2-1979 where it was alleged that Mst. Akhtar Iqbal Bibi was owner of another house. I do not find any justification in this submission because no evidence had been produced by the appellant in support of the same. Mere pleading is not evidence. It was next contended by the appellant's counsel that even after considering the need of the family of the daughter of the applicant/ respondent the bona fide and reasonable need have not been established. He submitted that Manzoor Alam had clearly admitted that there had been no change in the number of family members since 1974 and that different positions taken by the applicant/respondent for vacating the appellant's house militated against the bona fides of the applicant. He also submitted that the Rent Controller had misread the evidence inasmuch as Manzoor Alain had only mentioned seven members of the family, but the Rent Controller based its decision on the number of family being ten persons. The last contention of the learned counsel is certainly right because I find from the statement of Manzoor Alam as well as para. 4 of the application that only seven members of the family had been shown while the Rent Controller has relied upon the statement of Masood Alam who stated that ten persons were living. The statement of Masood Alam was merely vague and should not have been relied upon as applicant's attorney Manzoor Alam had given clear details of the number of family and, therefore, the Rent Controller committed a clear mistake by considering that ten persons were living in three bedrooms. I would now consider whether the present accommodation of the three bedrooms and one drawing room is sufficient for the respondent/applicant or not. The applicant had been living in the same premises in 197 with the same members of the family when she let out the disputed premises to the appellant and till February, 1976 there was no shortage of accommodation felt by the applicant or her daughter Mst. Akhtar Iqbal Bibi otherwise demand for the same should have been made in Exh.
10. 0/4 dated 9-2-1976. Even in Exh. 0/3 dated 19-12-1976, a personal need is shown by the applicant but it is not shown as to what change has come in the situation which necessitates more accommodation. There had been no change in the situation between February, 1 )76 to 3rd January, 1977 when the present application was filed. At least no particular change in the situation is deposed by Manzoor Alam or Masood Alam or Abdul Majeed. If the applicant with her daughter and the family and her daughter could comfortably live in the same premises of three bedrooms in 1974 then the applicant has to show as to how the accommodation has suddenly run short. It is correct that the applicant is entitled to live comfortably but if she was comfortable in 1974 then why she has become uncomfortable in 1976 or 1977 without there being any special change in the situation. I may point out again that I have already held that the position of ailment and sickness of the respondent had wrongly been taken into consideration by the Rent Controller and the same had to be excluded from consideration particularly when it was old ailment. Apart from that old ailment there was no other change sought to be proved by the respondent and, therefore, there was hardly any justification for the grant of that application. The Rent Controller had also committed a mistake by considering ten members of the family of the applicant while in fact there were only seven persons who had been living in the same premises since 1974 uptil December, 1976 without any particular difficulty. Moreover, the applicant had stated on 9th February, 1976 that more accommodation was needed for the two brothers of the attorney of the applicant and this letter thus clearly establishes that if those two brothers of Manzoor were not coming then the applicant did not need any further accommodation on 9-2-1976. This, therefore, militates against the requirement of further accommodation for the applicant in February, 1976 and even in December, 1976 or January, 1977 as no change in the situation had been shown. Mr. Ali Abmad Tariq has submitted that it was choice of the landlord to live in a comfortable manner and that the statement of the landlord should be accepted in respect of the requirement. The learned counsel has cited 1980 CLC 984, 1981 CLC 327 and 1979 CLC 660 on the point. But the difficulty is that in the case before me the landlord has not been able to take up consistent position and in fact the deposition of Manzoor Alam is not in conformity with the application to the extent of ailmentof the respondent and that no particular change in the situation has been proved on the record between 1974 till 1976 which could justify the grant of the application. Mr. Tariq has however, submitted that every one of the children of Mst. Akhtar Iqbal Bibi needed a separate room as they were college- going boys. We do not know as to when these boys became of college going age whether it was in 1974 or 1976. And till February, 1976 no separate accommodation for Mst. Akhtar Iqbal Bibi was ever demanded and, therefore, the said demand in 1977 cannot be deemed to be bona fide unless proper foundation for the same had been laid before the Court in the form of evidence. Even no discomfort has been particularized.
11. ' The counsel for the respondent also submitted that by now the san of Mst. Akhtar Iqbal Bibi had become of marriageable age and the same should be kept in the view. I have failed to understand as to how the learned counsel can make such a submission when no evidence had been led by any person to that effect. Even Masood one of the sons who was 22 years of age at the time of deposition did not make such a statement and, therefore, I cannot assume such a situation and if that situation arises then the respondent can make a claim on that basis which could be considered on its own merit.
12. The upshot of the discussion is that the Rent Controller was not justified in considering that separate accommodation was needed for the respondent on account of her ailment and sickness and further the Rent Controller had committed a mistake by considering 10 members of the family of the respondent instead of number as 7 persons and thus the order of the Rent Controller was based on incorrect findings. Moreover, no particular change having been shown in the structure of family by the respondent between February, 1974 to February, 1976 and no such change having been specificatly pleadad either in the application or proved on the record, the order of eviction was not justified and it is, therefore, hereby set aside and appeal is allowed.