1. ' This appeal is filed against the impugned order, dated 14-2-1983 of learned XII Senior Civil Judge/Rent Controller, Karachi whereby application for ejectment of appellant/landlords has been dismissed.
2. ' Briefly stated the relevant facts giving rise to this appeal are that respondent before me is tenant of a shop on Plot No, 14/72 in Phool Chowk, Juna Market, Karachi at a monthly rent of Rs,35.
3. Landlords who are in all thirteen are widow and sons and daughters of Abdul Nabi who dies before the filing of application for ejectment. Ejectment application was filed on 6-4-1981 on the grounds firstly that the shop in question was required for personal use of landlord No, 2 namely Bashir Ahmad, who deal in Carpet business and has no shop of his own, secondly that tenant failed to pay rent since March, 1981. Before the learned Rent Controller preliminary objections and paradise comments were filed by the tenant disclosing therein that the landlords who had applied for ejectment were not the owners of the property in question in which the shop was situated for the reason that the property still stood in the name of Abdul Jabbar father of Abdul Nabi. It was further stated by the answering tenant that he was tenant of Abdul Jabber and was paying rent to him.
4. Landlords, who had filed ejectment application, had never served statutory notice of change of ownership in their names, neither had they received rent from the tenant on any occasion in the past. In para wise comments it was stated that tenant was paying rent to Abdul Jabber and subsequently at his instance to his Rent Controller.
5. ' In the Court of the Rent Controller ejectment application was filed under section 15 of the Sind Rented Premises Ordinance, 1979 and keeping in view pleadings of the parties three issues were framed to the effect firstly whether there exists relationship of landlord and tenant between the parties, secondly whether notice under section 18 of the Sind Rented Premises Ordinance, 1979 was served upon the tenant and thirdly whether landlords required premises in case in good faith for the use of landlord No, 2 namely Bashir Ahmed. In the evidence on behalf of landlords Bashir Ahmed filed his affidavit in evidence and was cross-examined. He produced conveyance-deed in respect of property in question executed on 20-3-1945 between Seth Rahim All and Abdul Jabbar, entry from death register of K.M.C. showing death of Abdul Nab! having taken place and reported on 19-7-1968 and Photostat copies of rent receipts. On the other hand tenant Muhammad Ishaque filed his affidavit of evidence and was cross-examined. He has produced some old receipts showing payment of rent accepted by Haji Abdul Ghaffar brother of Abdul Jabbar and extract from the property register of Karachi showing property in question still standing in the name of Abdul Jabbar. Tenant has also examined Bakhtiar son of Chulam Murtaza, who has supported the tenant.
6. ' The learned Rent Controller after assessing the evidence came to the conclusion that relationship of landlords and tenant between the parties was not established nor notice under section 18 of the Sind Rented Premises Ordinance, 1979 was served nor landlord Bashir Ahmed required premises for his personal need.
7. ' Before me the scope of controversy became very narrow for the reason that there were several points about which rva dispute could be made, It was admitted that property in question is still in the name of Abdul Jabber grand-father of landlords from No, 2 to No, 13 and it is admitted that mutation in the name of late Abdul Nabi and present landlords have not taken place as yet. Bashir Ahmed stated before the Rent Controller that the property in question was purchased on 20-3- 1945 by his grand-father Abdul Jabber, who died in Karachi in 1962 leaving behind his son Abdul Nabi who also died on 19-7-1968. Late Abdul Nabi left behind widow, sons and daughters who had applied for ejectment as landlords. According to Bashir Ahmed sefter the death of his grand father, his father Abdul Nabi inherited the property in question and after his death property was inherited by the widow and sons and daughters of Abdul Nabi who are present landlords. Bashir Ahmed further stated before the Rent Controller that tenants used to pay rent to his grand-father during his lifetime and after his death to his father and then to the present landlords. He has further stated that the present landlords authorized Haji Abdul Ghaffar to collect rent on behalf of them from the tenant in the capacity of the Rent Controller. Haji Abdul Chaffer was real brother of Abdul Jabber and died in 1975 after which the rent was being collected sometimes through Bashir Ahmad and sometimes through Ghulam Muhammad and sometimes through Aijaz Ahmed. About receipt books Bashir Ahmed has slated that they were prepared' in large number during the lifetime of his father, which were being used after his death. It has been categorically admitted by {{PAGE BLUR}}Bashir Ahmad that since relat no intimation in writing by tenant about the acquisition question by way of inheritan, Now since it is admi under section 19 of the Sint served upon the tenant then has willingly and voluntaril: that they have become owner a plea that Abdul Jabber wl wives and children from bott who directed him to pay r4 Controller. Late Abdul Jab shifted to another house fai by Abdul Ghaffar brother of became ill and proceeded t rent to his place to Abdul further stated that the pro the name of present landlord rent. Tenant has further being collected on behalf authorised by them. As a have produced no evidence still stands in the name of knowledge of death of Abd copies of printed receipts h show rent being accepted Nabi son of Jabbar. Signs not clearly legible, no att those receipts, Bashir Ahrr evidence that after 1975 re Ghulam Muhammad and som and sometimes through hiir evidence before the Rent rent till the time he had ' he died. He further dent Ghaffar told the tenant, t admitted that his father A showing property in the tenant in the cross-examir to who had signed those whether these receipts rel.; In any case the property and not in the name of A Bashir Ahmed that it is c in the names of Abdul Ja after the death of Abdul regarding the transfer of of Abdul Jabber. It is al: rent on behalf of Abdul Ordinance, 1979 very c ownership, the new owne way of Sale, Gift, inheri an intimation of such tr ,tenant and the tenant s parties were very cordial, ,y notice was sent to the rights in the property in 3ry notice as contemplated s Ordinance, 1979 was not 11 arise whether the tenant the new landlords knowing eritance. Tenant has taken n* of the property had two :o pay rent to Abdul Jabber ler Abdul Ghaffar as Rent ie same building and then it rent used to be collected fter sometime Abdul Ghaffar d instructed tenant to pay iammad Ramzan. Tenant has In has not been mutated, in are not entitled to recovery the position that rent was landlords by any person ence the present landlords s in disputable that mutation enant claims that he had no )ehalf of landlords photostat ed from C.1 to C.24, which Abdul Nabi Building for A. who received the rent are to show as who had signed a the Rent Controller in his ollected through his brother another brother Aijaz Ahmed has himself admitted in his tbdul Ghaffar used to collect nt away to Hyderabad where eying for Hyderabad, Abdul the brothers' of Bashir. He died after sometime. Receipts Nabi were never put to the attempt was made to show as ng rent. It is also not clear , hop in question of the tenant. in the name of Abdul Jabber his context it is admitted by today property in question is imitted that it is correct that ice was issued to the tenant name of legal representatives Abdul Ghaffar used to collect 18 of Sind Rented Premises that in case of change of ssion has been transferred by such other mode, shall send g by .registered post to the -lied to have defaulted in the 19841 Fetid Als payment of rent if the r4 when the intimation in nc instant case since statutoi is admittedly not served and the property still record-of-rights and furs any satisfactory evidencE knowingly by the tenets( Rent Controller has give issues. So far the plea o landlord is concerned, question is required by business. Bashir Ahmad has no shop of his own. of material available in Ahmad is a landlord or before the Rent Contrt Carpet business from h Carpet to be at the rat Rs,40,000 to Rs,50,000 produce any receipts of Tax and he did not file whether there was any Market where the shop explanation as to how long time since his ch shop, evidence produce and unsatisfactory. In stated above no excepti hereby maintained and as to costs. M.Y.H.
8. Kifayatunnisa 1091 J)
9. 3 within 30 days from the date reached to the tenant. In the ,ection 18 of the said Ordinanc egarding change of ownership name of Abdul Jabber in the ndlords have failed to produce e Court that the rent was paid 'ners, it can be said that the ative findings on the first tw f premises for personal need of, of landlords that the shop in :o enable him to set up his own deals in Carpet business but is difficult to say on the basis he Rent Controller that Bashir sdlords. Secondly he has stated dence that he has been doing ie had given the value of one sq. feet and stated that about ,ale for the year. He could not ted that he did not pay Income return. He expressed ignorance shop in the whole area of June situated. He did not offer any on Carpet business for such a using any commercial place or s point is hopelessly insufficient as and for the reasons and facts to the impugned order which is ppeal is dismissed with no order 1091 Akhtar, #TBS FAR Mst.
10. First Rent Application 1984.
(a) Sind Rented Premit ---Ss. 15 & 21--Ejectm Appreciation of evider her son and attorney tenant due to non-exar not examined her bong-Landlady wanted to re #TBE 3A--Respondent 413, decided on 26th September, XVII of 1979)-- ,1 bona fide personal requirement--widow and a Pardahnashin lady, ar behalf--No prejudice caused to ady--Contention that since landlady nt not established without force--premises as her present accommo- dation not sufficient for her living are facts of general nature and /' could be proved through any close relative who was personally aware of same because landlady had not pleaded any special requirement for which her examination was necessary. [p. 1093] A & B{{PAGE BLUR}}
(b) Sind Rented Premises Ordinance (XVII of 1979)-- ---Ss. 15 & 21--Ejectment--Appeal--Appreciation of evidence--Court to appraise evidence objectively and come to conclusion after proper reasoning and consideration of relevant facts, contentions and provisions of law--Finding that Court had examined evidence and contentions of parties and came to conclusion that premises was required bona fide by landlady, not based on appreciation of evidence and not a proper and legal finding--Appellate Court was competent to appraise evidence not only in first appeal but even in second appeal and give its own finding in circumstances. [p. 1094] C
(c) Sind Rented Premises Ordinance (XVII of 1979)-- ---Ss. 15 & 21--Ejectment on ground of bona fides personal require ment--Landlady requiring premises for herself and for her daughter--Present accommodation, occupied by her not sufficient for her living, bona fide of landlady proved by evidence of her son and attorney--Appeal against order of ejectment dismissed in circumstances.
11. [pp. 1093, 1094] A & D PLD 1967 Kar. 233; PLD 1964 Pesh. 198 Muhammad Ali v. Mst. Hameeda Begum; 1983 CLC 3231 and 1982 CLC 491 ref. R. Chagla Joshi for Appellant. H.A. Rahmani for Respondent.
12. Dates of hearing: 25th and 26th September, 1984.
13. ' The respondent filed an ejectment application against the appellant in respect of ground floor tenement of the premises bearing No, 733 Faran Co-operative Housing Society on the ground that she requires it for her bona fide use and occupation. It was pleased that the present accommodation in her possession is not suitable for her need. The appellant denied these allegations. The learned Controller, however, granted the ejectment application.
14. ' Mr. Chagla Joshi the learned counsel for the appellant has contended that the respondent has failed to establish that she requires the premises for' her bona fide use. In this regard the learned counsel contended that the respondent is occupying two rooms with all facilities, and therefore, this accommodation is sufficient for her needs. A perusal of, the evidence will make it clear that the statement of the respondent's son and attorney that the respondent is residing in a temporary room which has been made by covering a Varandah on the ground floor and with improvised temporary bath, latrine, and kitchen has not been challenged in cross-examination. The appellant's attorney on the other hand in his statement stated that the respondent is residing in two rooms. He has not stated anything about the nature of construction and amenities attached to it.
15. ' Mr. Rahmani the learned counsel has referred to PLD 1967 Kar. 233 and,PLD 1969 Pesh. 198 where it was held that failure to cross-examine any witness leads to the presumption that the statement has been accepted. In the face of the unchallenged statement of the respondent's witness it has been established that the respondent is residing in one room which does not have all the amenities and facilities for a proper living. The appellant who is also residing on the ground floor of the same premises could have produced proper evidence of independent nature to establish that the statement made on behalf of the respondent regarding accommodation is not correct. Even such suggestion has not been made to the respondent's witness.
16. ' The learned counsel for the appellant contended that there is a variance in pleading and proof and, therefore, the judgment of the learned Controller cannot be upheld. In this regard the learned counsel has referred to pleadings where it has been stated that the disputed premises is required for the respondent's use and occupation. Her attorney in his evidence has stated that the premises is required for the respondent and her daughter. The learned Controller in her order observed that the respondent is living in a room with her daughter which is also without latrine, bath-room and kitchen etc. It was further observed that it appears that the respondent requires the premises for her use and occupation bona fide and in good faith. Therefore, the finding of learned Controller is that the premises is required by the respondent and not by her daughter. Even if there has been some variance in the statement from the pleading it cannot be termed of such a nature which may disentitle the respondent from seeking relief. The respondent's attorney has not slated that the premises is required for respondent's daughter alone. He has supplemented the requirement of the respondent by adding that her daughter also resides with her and, therefore, additionally the premises is required for her also. The ejectment has not been granted on the ground that the premises is required for the daughter of the respondent.
17. ' The learned counsel for the appellant contended that as the respondent was not examined and only her son was examined, her bona fide requirement has not been established. The respondent is a widow and a Pardahnashin lady. The witness examined on her behalf is her attorney and son. The only fact pleaded and required proof was that she wants to reside in the disputed premises as the present accommodation is not sufficient for her living. These facts of general nature could be proved through the son or attorney or even by any other close relatives who was personally aware of the facts. The respondent has not pleaded any special requirement for which her examination was necessary. Mr. Rahmani has referred to Muhammad Ali v. Mst. Hameeda Begum 1983 CLC 3231, where the landlord being old and Pardahnashin and not used to appear in public was represented by her son, who was a duly constituted attorney and knew full facts of the case, it was held that non-appearance has not caused any prejudice to the tenant and bona fide could be proved by such witness. The learned counsel also referred to 1982 CLC 491 where my learned brother Ajmal Mian, J. has held that in' this sub-continent according to the custom and practice the ladies are usually not accustomed to appear in public or in Court and are represented by their male family members, and in such circumstances if the husband or son is examined on their behalf they can fully prove the case. I do not find any prejudice caused to the appellant due to the non- examination of the respondent. Therefore, this contention of Mr. Joshi has no force.
18. ' The learned counsel then contended that the learned Controller has not properly appraised the evidence and the finding is based on surmises and extraneous considerations. It is correct that the learned Controller has not appraised the evidence in the manner it ought to have been done. The learned Controller has given the gist of evidence in the order and then without analyzing it has given her conclusion. A Judge should properly appraise the evidence objectively and come to conclusion after proper reasoning and consideration of relevant facts, contentions and provisions of law. It is not sufficient to state that "I have examined the evidence and contentions of the parties and come to the conclusion that the premises is bona fide required by the landlord." Such finding is not based on appreciation of evidence and is not proper and legal finding. However, in such circumstances, the appellate Court is competent to appraise the evidence, not only in 1st Appeal, but even in 2nd Appeal and give its own finding. The learned counsel wanted that the matter may be remanded, but this would only amount to increase the litigation and wastage of time. As I have heard the appeal at length and gone through the entire evidence of the parties, I think it proper to decide the matter at this stage and no useful' purpose will be served by remanding the case particularly so as the conclusion of the learned Controller is correct. Even if the conclusion would have been incorrect, after appraising the entire evidence and hearing the Advocates at length it was not necessary to remand the case. For these reasons I see no substance in this appeal which is dismissed. The appellant is allowed three months' time to vacate the premises.