' This appeal is directed against the order dated 2-1-1983 passed by the learned Senior Civil Judge, Assistant Sessions Judge and Rent Controller, Karachi, whereby the Ejectment Application No, 1729 of 1980 was allowed and the appellant was directed to hand over the vacant possession of the disputed premises to the respondent within one month from the date of the order.
2. The brief facts giving rise to this appeal are that the respondent is landlord of House No, 2/11-5, P.E.C.H.S, Karachi, and the appellant is the tenant in respect of ground floor at the monthly rent of Rs, 400 payable in advance plus water conservancy, electric and gas charges. The said tenancy was commenced w.e.f, 1-3-1976 and was for the period 11 months up to 31-1-1977. Later on the said agreement was renewed for another 11 months commencing w.e.f, 1-2-1977 to 31-12-1978. The Ejectment Application being No, 1729/80 was presented on 28-3-1980 on the ground that the respondent is an old person, retired 'Government servant and suffering from Hypertension, blood pressure and Diabetes while his wife is heart-patient. It was further averred in the application that the respondent is putting up on first floor with his daughter and son-in-law and there is great paucity of accommodation. As the daughter and son-in-law have children and are also residing there. The respondent feels difficulty in climbing the staircase as well as the respondent's wife is heart-patient and advised to live on ground floor.
3. The appellant filed written statement stating therein that the contents of paras. are baseless, fabricated and devoid of any truth and are not admitted and he further averred that the real facts are that the respondent wanted more rent and it is a pretext to get the premises vacated on false and flimsy and afterthoughts grounds. He also denied the allegation of paucity of accommodation and he further averred therein that the premises may be exchanged and the appellant was ready to shift from the ground floor to the first floor. The learned Rent Controller framed the following three Issues:-
(1) "Whether the applicant requires the premises in good faith for his personal bona fide use ?
(2) Whether the opponent has committed such acts which are likely to impair the value and utility of the premises in question ?
(3) What should the order be ?"
(4) The respondent filed his own affidavit-in-evidence and also affidavit of one Salahuddin Khan.
The appellant filed his own affidavit in evidence and also affidavit of Atiqur Rehman son of Jailer Hussain and Muhammad Hafeez son of Ghulam Muhammad in support of his case.
5. The learned Rent Controller after recording the evidence and hearing the arguments of the learned counsel for the parties by his order dated 2-1-1983 allowed the application on the ground of personal requirement and directed the appellant to hand over the vacant possession of the disputed premises to the respondent within one month of the said order. The appellant being aggrieved by the order dated 2-1-1983 has preferred this appeal on the grounds mentioned in the Memo of Appeal.
6. Mr. Abdul Qaddir Channa, the learned counsel for the appellant has contended that the respondent has not proved his bona fide requirement.
7. On the other hand, Mr. Khawaja Mahfooz-ur-Rehman, the learned ounsel for the respondent has contended that the bona fide requirement has been proved by the respondent.
8. The respondent has averred in the application that he is an old person, retired Government servant and is suffering from Hypertension, lood pressure and diabetes while his wife is heart-patient and both re living with their daughter and son-in-law and their children. He also filed his affidavit and in paras. 4 and 5 reiterated the same statement which were stated in the application for ejectment. It is pertinent to produce paras. 4, 5 and 6 of the affidavit in-evacuee hitch are as follows:- Para.
4. That I am putting up on first floor with my daughter and son-in-law. There is great paucity of accommodation. As the daughter and son-in-law and his children are residing there. I feel difficulty in climbing the staircases as well as my wife and myself "both are heart-patients and advised to live on ground floor."
Para.5. That the lease-agreement was not renewed after 31-12-1978, as I need the house for my personal use and occupation in good faith, as I and my wife had to suffer difficulties in day-to-day life for want of proper accommodation on ground floor. Para.6. That I have been persistently pressing the opponent to vacate the premises in his occupation as it is required for personal bona fide use for me and my wife. The opponent although promised to vacate the premises but did not vacate. And all his promises had been proved false and fake."
9. The respondent was cross-examined by the appellant and his cross-examination is reproduced as under:- "It is correct to say that the opponent is residing in the disputed premises in 1972. It is the typical mistake that I have mentioned in my affidavit that opponent is in occupation of the disputed premises since 1976. I have not brought the ration card. It is incorrect to suggest that we are only three family members. It is incorrect to suggest that I want to relent the disputed premises on the higher rent. I have already produced the medical certificate issued by the doctors. My daughter is married and she is residing along with her husband on the first floor of the disputed premises.
' It is incorrect to say that the second floor of the disputed building is occupying my tenant. It is incorrect to suggest "that the disputed premises is not required by me but is required by my daughter. My son-in-law is the technician in a ship. He is permanently settled at Karachi. It is incorrect to say that my son-in-law has been provided with the accommodation by his employer.
It is incorrect to say that the present accommodation is sufficient for us. The present house consist of four rooms. It also consists of one bath-room and one kitchen. These rooms admeasures 10 x 12, 10 x 14 and 10 x 10."
10. The respondent is his cross-examination admitted that the present accommodation consists of four rooms and the family members of the respondent consists of respondent himself, his wife, daughter, son-in-law and their children. As such there is a paucity of accommodation on the first floor. Only suggestion was made about a medical certificate and the respondent has stated that he has already produced medical certificate issued by the doctors. The certificates also produced by him appeared at pages 25 and 27 of the lower Court record. The witness Salahuddin has also supported the respondent and in his cross-examination he stated that there are six members out of them four are major, and two are minor children and to a suggestion in cross-examination that it is not a fact that the accommodation is more than sufficient for the applicant and his family. The appellant in his affidavit-in-evidence denied that the respondent is not suffering from any serious disease at the time of letting out the house on rent and on the contrary he was very healthy and so is his wife and the present accommodation is more than sufficient for him and he wants to let out on the higher rent as now-a-days rent is more exhorbitant in the locality and the respondent did not require the house for his bona fide use. Neither the respondent nor his wife is suffering from any serious disease. It is pertinent to note that the appellant in his own cross-examination admitted that the respondent's daughter is residing with the respondent along with her husband as to the suggestion about illness the appellant gave an evasive reply which is reproduced herein below:- "I cannot say that applicant is a patient of heart, sugar and blood pressure. I also cannot say that his wife is a patient of heart and blood pressure. I do not know that applicant owns any other building."
11. D.W. 2 Atiqur Rehman in his affidavit has also denied that the respondent is not suffering from any disease.
12. The respondent in the ejectment application has averred that he has been suffering from hypertension, blood pressure and diabetes while his wife is heart-patient and also in the affidavit- in-evidence he stated the same facts and his evidence has not been shaken in cross-examination about his illness and that of his wife's illness. It is pertinent to point out that the applicant himself to a suggestion in cross-examination showed his ignorance about the diseases of the respondent and his wife. The respondent produced medical certificate to show that both of them suffer from hypertension and heart trouble.
13. I find that the respondent in his statement before the learned Rent Controller stated that the accommodation in his possession was not sufficient for the entire family. His statement has been fully corroborated by P.W.No,2 Salahuddin, The statement of witness produced by him was not shaken in his cross-examination at all. The appellant in his statement before the learned Rent Controller except for denying assertion of the respondent, that he requires the premises in his occupation for his personal use, did not deny the total number of the family members of the respondent. The witnesses produced by the appellant in their statements before the learned Rent Controller stated that the applicant has sufficient accommodation but wants to eject the appellant to let out the house on heavy rent.
14. As against all the aforesaid evidence, there was only word of the appellant and his witnesses in their affidavit-in-evidence firstly, that the respondent and his wife were keeping good health and were not ill and that son-in-law of the respondent was residing with him on first floor. He asserted that the respondent intended to give the premises on enhanced rent to gain pecuniary benefits.
15. As against the documentary evidence produced by the respondent the appellant has not made any attempt to adduce evidence to prove his mere verbal version about his son-in-law not living with him. Again as against the documentary evidence produced by the respondent with regard to his illness and that of his wife's illness, there is mere word of the respondent to the contrary but to a suggestion in cross-examination he said that he was ignorant of their diseases.
16. It is apparent that the assertion in the application about personal requirement of the respondent and his wife has been fully supported in his deposition and nothing has been brought out in cross-examination which could show the claim to be false or based on wrong statements.
17. It is well-settled legal position that the assertions of the landlord on oath as to requirement of the premises for his personal use have to be accepted if consistent with his averments in his application and not shaken in cross-examination or disproved in rebuttal. The evidence of the respondent in the instant case followed the standard laid down in the case of Badruddin Hassan Farooqi v. Manghi Industrial Home PLD 1976 Kar.
620. The views of T. Mahmood, J., were approved by the Hon'ble Supreme Court of Pakistan in the case of Pirzada Rafiq Ahmad v. Chaudhri Abdul Rehman 1980 SCMR 772 and also in the case of Mst4Tauheed Khanum v. Muhammad Shamshad 1980 SCMR 593 and after going through the record with the assistance of the learned counsel for the parties, I am satisfied that the learned Rent Controller rightly granted ejectment of the appellant on the personal use. For these reasons, therefore, I am clearly of the opinion that in the instant case the respondent had proved that the requirement for the ground floor for his personal residence and that of his family members is genuine. With regard to the allegation of the mala fides to the affect that the respondent wants to enhance rent for the premises, the respondent had totally denied the same in his deposition and even if it had been proved that the respondent desired to have enhanced rent, the fact would not per se be sufficient to cast a doubt about his personal bona fide requirement of premises if the factum of bona fide requirement is independently proved.
18. Moreover, the safeguard against letting out the premises to someone else after getting tenant evicted has been provided in section 15-A of the Sind Rented Premises Ordinance, 1979. It provides that the landlord shall be punishable with fine which shall not exceed one year's rent of the premises and payable immediately before the possession was so behind.
19. 1, therefore, find no justification in the above appeal and it is, therefore, dismissed but I grant two months' time to vacate the premises on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order. However, in case he will make default the respondent shall be entitled to file the Execution Application before the expiry of the above-mentioned two months.
In the circumstances, there will be no order as to costs.