' This is an appeal against the order dated 3rd May, 1983, passed by the learned VIth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No, 4366/81, ordering the ejectment of the appellant on two grounds namely, default and personal requirement. The brief facts leading to the filing of the above appeal are that the respondent purchased the bungalow in question on 11-4- 1981 under a registered sale deed of the above date. After purchasing the above bungalow, the respondent sent a notice dated 11-5-1981 under section 18 of the Sind Rented Premises Ordinance, 1979, informing the appellant about the above purchase and also requesting him to vacate the premises on the ground of her personal requirement. The above notice was replied to by the appellant through his Advocate letter dated 4-10-1981. It seems that thereafter the respondent filed the above rent application on 4-10-1981 on two grounds, namely, default for the period commencing from 11th March, 1981 till the filing of the rent application on 4th October, 1981 and also on the ground of personal requirement. The above application was resisted by the present appellant and inter alia it was pleaded that in Rent Case No, 2643/75, which was filed by the previous landlady, Mst. Razia Begum wife of Nawabdin, the appellant had been depositing monthly rent in terms of the learned Rent. Controller's order.
' As regards the personal requirement it was pleaded that the house in possession of the respondent was suitable for her requirement. It was also pleaded that after purchasing the house, the respondent's husband approached the appellant for enhancement of rent on the plea that in the locality the rent of similar accommodation is between Rs, 1,500 to Rs 2,000 per month, whereas, bungalow in question was let out at the rate of Rs, 500 per month. The learned Rent Controller on the basis of the pleadings of the parties framed the following 3 issues :- (1)"Whether the opponent is defaulter in payment of rent ?
(2)Whether the applicant requires the house in good faith for her personal use ?
(3)What should the order be" ?
' The respondent in support of the above rent application, filed an affidavit in evidence of her husband, who also is the attorney. Whereas the respondent also filed an affidavit of his attorney (his father namely, Abba Ali). It may be observed that according to Mr. Somjee, the appellant's father does not hold any power-of-attorney. Be that as it may the learned Rent Controller allowed the rent application on both the above grounds. The appellant being aggrieved by the above order has filed the present appeal.
2. (a) In support of the above appeal, Mr. K. A. Wahab, learned counsel for the appellant has urged as follows :-
(i) That the learned Rent Controller could not have granted the rent application on the ground of default as admittedly the appellant had been depositing rent regulary in the aforesaid Rent Application No, 2643/75 filed by the previous landlady, in compliance with the order of learned Rent Controller.
(ii) That even the finding of the learned Rent Controller on the ground of personal requirement cannot be sustained.
(iii) That the learned Rent Controller erred in rejecting the appellant's application for producing some evidence to show that factually respondent had purchased the house in which she was residing.
(b) On the other hand Mr. Soomji, learned counsel for the respondent has contended as follows :-
(i) That the above appeal has not been filed competently as there is no power-of-attorney in favour of the alleged attorney of the appellant.
(ii) That since in terms of the tenancy agreement, the appellant had to pay the water and conservancy charges as well and as there was default in payment of the above charges, which were part of rent, there was default in payment of rent.
(iii) That there is no evidence on record to conclude that the respondent is in occupation of any other house owned by her within the same urban area suitable to her personal requirement.
(iv) That the learned Rent Controller was justified in rejecting the appellant's application for producing evidence on the record on a ground which was not even pleaded in the written statement..
3. In support of his first contention Mr. Wahab, learned counsel for the appellant, has produced a certified copy of the previous rent application, namely, R. C. No, 2643/75, para. 1 of which indicates that the previous landlady had averred that the rent for the above bungalow was Rs, 500 per month. It was not pleaded by the previous landlady that the appellant was liable to pay water and conservancy charges. In this view of the matter the plea of the appellant that he was only paying Rs, 500 per month including of water and conservancy charges seems to be true. It may be observed that since the respondent is claiming through the previous landlady, the above pleading is binding on the respondent. The above rent application is still pending. The contention of Mr. Wahab that the appellant was only paying Rs, 500 per month and no amount towards water and conservancy charges is also fortified inter alia by the additional facts/circumstances, namely, (i) it has been proved that in the previous aforesaid rent application, the Rent Controller had ordered depositing of monthly rent at the rate of Rs, 50) per month and not any additional amount on account of water and conservancy charges, (ii) in the present rent application the respondent had filed an application under section 16 of the Sind Rented Premises Ordinance, 1979 for directing the appellant to deposit arrears of rent and current rent. The above application was not pressed by the respondent when it was shown that factually the appellant was depositing rent at the rate of Rs, 500 per months.
It may be observed that the tenancy agreement relied upon by the learned Rent Controller and by the respondent has no evidential value after the expiry of 11 months in 1972, as the appellant had become a statutory tenant. The rights and obligations of the parties were to be governed by the provisions of the late West Pakistan Urban Rent Restriction Ordinance, 1959 and not by the terms and conditions contained in the expired tenancy agreement in view of the latest pronouncement of the Hon'ble Supreme Court in the case of Muhammad Yousuf v. Abdullah (1). I am, therefore, not inclined to concur with the finding of the learned Rent Controller on the question of default. It is, therefore, hereby reversed.
4. Reverting to the question of personal requirement, it may be observed that Mr. Wahab has vehemently urged that since the respondent is in possession of a house which is more suitable to her requirement as compared to the house in dispute, the respondent had no justification to, file the ejectment case on the ground of her personal requirement. It has been further urged by him that factually the respondent has entered into an agreement to purchase the said house, and, therefore, the above fact would also adversely reflect on the personal requirement of the respondent. In my view, the fact that the house which is in her possession on rent is more suitable from the point of view of accommodation or otherwise is not a factor which can disentitle the respondent from pressing into service the ground of personal requirement. However, a landlord is not entitled to file an ejectment application on the ground of personal requirement, if he is in possession of another suitable house owned by him. There is nothing on record to prove that factually the house in possession of respondent was owned by her at the time of filing of the rent case. It has been proved that factually the respondent alongwith her husband and daughters is putting up in a rented house.
' Reverting to the second limb of the argument that factually the respondent has entered into an agreement to purchase the house, which is in her possession after filing of the above rent application it may be pointed out that no such plea was raised in the written statement. However, an application before the learned Rent Controller for summoning previous landlady for proving the aforesaid alleged agreement was filed after the respondent's side was closed, which was declined.
A similar application (C. M. A. No, 1706/ 83) has been filed before this Court on 13-9-1983, on which notice was not
(1) PLD 1980 SC 298 ' ordered. Even in the present application no particulars as to the date of purchase or the price have been furnished. In my view the Rent Controller was justified in declining the above application, which was filed after the respondent's evidence was closed. I am also not inclined to entertain the above application for summoning the previous landlady. A party cannot be allowed to fish out a plea which was not raised in the written statement on the basis of vague allegation. If the appellant would have produced a copy of sale agreement or of sale-deed, alongwith the application, I might have allowed the appellant's application notwithstanding the absence of any expenses plea, as it would have direct bearing on the point in issue.
' I am, therefore, inclined to concur with the finding of the learned Rent Controller on the question of personal requirement. The appeal is, therefore, dismissed with no order as to costs, as I have maintained the finding of the learned Rent Controller on the question of personal requirement.
Since the above appeal is of 1983 and even rent application was filed in October, 1981 and as it is difficult to get a suitable alternate accommodation in Karachi, I grant one year time to the appellant to hand over the vacant possession from today with the consent of the learned counsel for the respondent Mr. Soomji on the condition that the appellant shall continue to deposit rent in terms of the learned Rent Controller's order, failing which the respondent shall be at liberty to file an execution application before the expiry of the above period of one year. Furthermore, if the appellant fails to hand over the vacant possession of the premises in question on the expiry of the above period of one year, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellant.
' The various applications filed by the respondent have become infructuous, and, therefore, the same are dismissed as having become infructuous.