' This second appeal is filed against the judgment of the learned VIIIth Additional Sessions Judge, Karachi, in Rent Appeal No, 125/1978, whereby be allowed the appeal of the respondent and set aside the impugned order of the learned Rent Controller passed in Rent Case No, 647/1974.
2. The brief facts are as under :-
3. The appellant has been a monthly tenant of one Mairajuddin Bilgrami, the brother of the respondent, in premises bearing No, 198-T-P. I. B. Colony Karachi. He pleaded himself to be the owner and the landlord on the basis of resolution of transfer of property in his name. The respondent sought an ejectment of the appellant on the grounds of default and personal bona fide requirement of the premises for himself as he is residing in a rented premises. The appellant filed a written statement and averred that there existed no relationship of landlord and tenant between parties, no notice under section 13-A of the Rent Restriction Ordinance was served upon him and also contested the case on merits. The learned Rent Controller by his order, dated 18th February, 1976 decided the preliminary issue against the appellant. The learned Rent Controller settled the issues at the trial. The respondent examined himself as a witness in support of the application and the attorney and husband of the appellant, was examined on her behalf. The learned Rent Controller after recording the evidence and after hearing the learned counsel for the parties, by his order, dated 18th December, 1977 dismissed the Ejectment Application on both the grounds. The respondent filed an appeal being Appeal No, 125 of 1978 in the Court of the District Judge, Karachi, which was ultimately transferred to the Court of the learned VIIIth Additional District Judge, Karachi.
The learned VIIIth Additional District Judge, Karachi, by his impugned judgment, dated 10th July, 1980 allowed the appeal to the extent of findings of the trial Court on issue No, 2 and the appellant was directed to vacate the premises in question, and hand over its vacant possession to the respondent within two months.
4. The appellant above-named, being aggrieved by the impugned judgment, dated 10th July, 1980 of the learned VIIIth Additional District Judge, Karachi, has preferred this Second Appeal, on the grounds mentioned in the memo. Of appeal.
5. In support of the above appeal, I heard Mr. S. H. Fani, learned counsel for the appellant. He contended as follows
(1) That the relationship of landlord and tenant is in dispute.
(ii) That the respondent has not served notice under section 13-A of the Rent Restriction Ordinance as such he is not entitled to any relief, and
(iii) That the respondent failed to prove bona fide requirement.
6. On the other hand, Mr. Sher Afgan, learned counsel for the respondent, contended as follows ' That the findings of the learned Rent Controller, dated 18th February, 1978 to the effect that there existed relationship of landlord and tenant between the parties, have not been challenged in appeal as such the findings are final.
(ii) That the appellant paid the rent to the respondent as such no notice under section 13-A of the Sind Rented Premises Ordinance, is required in this case. The assertion of the respondent in his application and in his statement and his version, has not been shaken in cross-examination by the appellant as such the bona fide requirements have been proved in this case.
7. I have gone through the impugned judgments of the learned lower Courts and perused the record of the case with their assistance.
8. As regards the first contention of the learned counsel for the appellant, it appears that neither this point was taken in memo. Of appeal nor urged before the learned lower appellate Court. In this view of the matter, the appellant is estopped from raising the same point in arguments when he himself has abandoned at the appellate stage. Moreover, the appellant had stated in his cross- examination which is reproduced as under :- "I see Exh.
0. 4 and say that the rent was paid by me upto May, 1973. It was paid to Mairajuddin as the applicant was not present in Karachi. When the applicant came back, I gave him the rent and he issued a receipt upto September, 1973. I produce the said receipt as Exh.
0.
1. The applicant, therefore, demanded the rent from me at higher rate."
9. It may be useful to refer to the principles laid down by the Hon'ble Supreme Court as well as this Court which would the guiding rules in the light of which this case could be decided. In the case of Khuda Bux v. Muhammad Yakoob (1) wherein Mr. Justice Mushtaque Hussain (as he then was) held in para. 7 as follows :- "Be that as it may on page 54 of the paper-book we find that the petitioner admits paying rent to the respondent. The reason for a notice under section 13-A is to inform the tenant that the landlord has sold the property to another person so that rent could thereafter be paid by the tenant to the new landlord. In this case knowledge of the transfer admitted by the petitioner and hence even if a notice had not been served under section 13-A, it would not stand in the way of the Court in granting the relief that it has granted."
' In the case of Muhammad Sharif Ahmad v. Syed Safdar Hussain (2), a Single Judge of this Court held at page 436 :- "As it is, section 13-A of the West Pakistan Urban Rent Restriction Ordinance is a provision, which seeks to believe the tenant of the burden of paying rent to a wrong persons or a person who has ceased to be the owner. It is designed to avoid any surprise that may come to the tenant to find that the old owner having ceased to be the owner, the rent should be paid to a person, who was entitled to it. In the instant case, the position clearly is that the appellant knew that the house had changed hence. He actually entered into an agreement with the new owner and indeed acted on the agreement by tendering rent for the months of August, and September, 1974 in the first instance, and then sending the balance rent by a cheque. It cannot be said that the appellant had no knowledge about change of ownership. Not only he had the knowledge, but he had acted on the changed circumstances in tendering rent. What is more that by his own conduct, be is estopped from raising a case that notice under section 13-A was necessary."
10. In the present case the appellant himself in his own examine.
(1) 1981 SCM R 179 (2) 1982 CLC 434 ' tion-in-chief admitted that he paid the rent to the respondent and the resplendent issued him the rent receipt upto the month of September, 1974.
11. In view of what has gone above I find no force in the plea of the learned counsel for the appellant.
12. As regards the personal bona fide requirement, it is vehemently argued by the learned counsel for the appellant that, the respondent has not proved his bona fide requirement.
13. On the other hand, Mr. Sher Afgan, learned counsel for the respondent, urged that he has been residing in a rented premises, that the respondent has asserted in his application as well as in his statement before the learned Rent Controller that as he has been residing in a rented premises, he is in a personal need of the premises in-question. His version to that effect has not been challenged in his cross-examination by the learned counsel appearing on behalf of the appellant in the Court of the learned Rent Controller. His assertion with regard to his bona fide requirement has not been controverted by Muhammad Siffatullah Khan, the attorney and husband of the appellant, examined on her behalf but in his examination-in-chief stated that he cannot say as to where the respondent at present is residing. There is, therefore, no rebuttal of the assertion of the respondent in respect of the bona fide requirement of the premises in question. There is no cogent evidence produced by the appellant in the respondent.
14. It would be, therefore, clear on the basis of the evidence and the circumstances on the record that the assertion of the respondent to the effect that he is in need of the premises in dispute for his reasonable bona fide requirement is not only supported by the fact that the respondent has been in possession of rented premises but the said assertion has also not been unrebutted by any cogent evidence or reasonable material on record.
15. In these circumstances, the inference now set to be drawn by the learned counsel for the appellant from the evidence is only conjectural in nature. It has been held in the cases of Hassan Khan v. Munawar Begun (I) that in view of the safeguard contained in section 13(4) of the Ordinance the assertion of claim on Oath by the landlord that he requires the premises for his personal use shall be accepted by the learned Rent Controller as bona fide if such claim or assertion although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in his cross-examination or disproved in rebuttal. The above observations in Hasan Khan's case were specifically approved by the Supreme Court in the case of Mst. Tauheed Khanun v. Muhammad Shamshad (4). The evidence of the respondent in the case before me fulfilled the standard laid down in the above cases and after going through it, I am satisfied that the learned first Appellate Court rightly granted ejectment of the appellant on this ground. For these, reasons, therefore, I am clearly of the opinion that in the instant case C the respondent had proved that the requirement for the disputed premises for the personal residence is both genuine and reasonable.
16. In the present case, I have gone through the impugned judgment of the appellate Court and found that the findings of the Appellate
(1) PLD) 1976 Kar. 823 (2) 1980 SC MR 539 ' Court on the point of personal need is well-founded. It is well-settled that there is no jurisdiction to entertain a Second Appeal on the ground of an erroneous finding of fact. No doubt, a Second Appeal does lie when there is no error or defect in procedure, the findings of the appellate Court upon a question of fact is final, if that Court had before it evidence proper for its consideration in support of the findings. The mere fact that the High Court would have upon the evidence placed before the Court of First Appeal come to a different conclusion is no ground for Second Appeal.
17. The question of the personal requirement in good faith being of fact, a decision arrived at by the first appellate Court even though at variance with that of the Rent Controller could not be amenable to interference in Second Appeal as it cannot be said that the findings of the appellate authority is upon no evidence or is perverse to the evidence on the record. Reliance in that respect has been placed on the case of 1979 CLC 29.
18. The learned counsel for the appellant could not point out any such defect as mentioned above in the judgment under appeal.
' I, therefore. Find no justification in the above appeal and it is, therefore, dismissed but I grant four months' time to vacate the premises on the condition that the appellant shall continue to deposit rent in terms of the learned Rent Controller order. However, in case he will make default the respondent shall be entitled to file the execution before the expiry of the above-mentioned four months' time.
' Under the above circumstances, the parties shall bear their own costs.