' This is a first rent appeal filed by the appellant/tenant. Ejectment Case No,2060 of 1977 was filed on 13th July, 1977 by the respondent/landlord for the ejectment of the appellant from the premises in question namely a portion of the ground floor of the building premises bearing No,12/14, Firdous Co-operative Housing Society, Nazimabad, Karachi, on the following grounds:-
(i) default; (ii) illegal construction and damage to the premises; (iii) subletting; (iv) violations of terms and conditions of tenancy agreement; and (v) personal requirement. Before filing the ejectment application a legal notice dated 12th September,1975 had been given by the respondent which was replied on 26th September,1975 by the appellant. The two parties examined themselves in evidence. No other witness was examined by either party. By order dated 29th March,1981 ejectment application was granted by the Rent Controller on the ground of personal requirement only. Being aggrieved, the appellant has approached this Court in first appeal under S.21 of the 1979 Sind Rented Premises Ordinance. I have heard Mr.S.M.Gharibnawaz, learned counsel for the appellant and Mr. Mohammad Sharif, learned counsel for the respondent.
2. In para. 7 of the ejectment apalication it was mentioned that the premises were "also reasonably and in good faith required by the applicant for his own occupation and for his family members." In the affidavit-inevidence of the respondent dated 25th February, 1980 the only paragraph that is relevant as regards the ground of personal requirement is para. 7 and it mentions that the respondent required the rented premises for his personal use and also for the use of his family members. Although it is not mentioned in the ejectment application that the building owned by the respondent has several flats but it is admitted by the learned counsel for the respondent that the building bearing No,12/14, Firdous Housing Society, Nazimabad, Karachi, has several flats. In the cross-examination conducted on 11th May,1980, it was admitted by the respondent as follows:-"My two near relatives are also residing in the building on the first floor. I had rented out two flats to them recently." In my view on the basis of the evidence which included the clear admission by the respondent in his cross-examination that he rented out two flats to his near relatives on the first floor of the building in question recently, that is, recent in time when he gave evidence on 11th May,1980, no case for personal requirement had been made out by the respondent for the eviction of the appellant. As observed earlier, the ejectment application had been granted only on the ground of personal requirement. The respondent had not set up the case that only that part of the ground floor of the building in question which was in occupation of the appellant would suit his requirement and that the flats on the first floor which must either have been in possession of the respondent or must have fallen vacant as they had been rented out to his relatives were not suitable for his requirement. The respondent should have explained in his evidence that neither of the other two flats were suitable for his requirement. The only statement that he made was that he required the premises for his use and for the use of his family members.
' Under S.13(3)(a) of the 1959 Rent Ordinance under which Ordinance ejectment application was filed by the respondent against the appellant for ejectment, one of the conditions to be satisfied is that the landlord has not vacated such a residential building without sufficient cause after the commencement of 1959 Rent Ordinance. If the two flats on the first floor were in his occupation the ejectment application would have been liable to dismissed as his case was that he was residing in another house belonging to his father, Din Muhammad. Lf the flats were rented out to somebody else they must have fallen vacant and these must have been rented out to his relatives in the recent past and this disentitled him from making out a case under S.13(3)(a) of the 1959 Rent Ordinance unless he had established that these two flats were not suitable for his requirement and for the requirement of his family. As observed earlier, nowhere in the pleadings or in his evidence a case was made out by the respondent that for some special reasons he required only the premises in occupation of the appellant for his use and for the use his of family members.
' It was argued by Mr.Mohammad Sharif, learned counsel for the, respondent, that this appeal has to be decided on the basis of the pleadings and evidence has also to be evaluated in the light of the pleadings of the parties. In my view, the pleadings as well as the entire evidence on record has to be considered and then a decision is to be given by the Rent Controller. The admission of the respondent in his cross-examination that sometime back two flats on the first floor of the building owned by him in which the premises in question are also situated had been given on rent to his relatives is a statement which cannot be ignored. As observed earlier, this statement on the basis of the case set up by the respondent demolishes his case as to personal requirement.
' It was further contended that if in the cross-examination the appellant had asked a question about two other flats having fallen vacant and having been rented out to other persons, the appellant should have amended his written statement. In my view, it was not necessary in the circumstances to amend the written statement.
' It was then pointed out by the learned counsel for the respondent that there is distinction between S.13(3)(a) of the 1959 Rent Ordinance and S.15(2)(vii) of the 1979 Rent Ordinance. It was submitted that the 1979 Rent Ordinance was a repealing and re-enacting law and the provision about personal requirement in the new law only has the first condition mentioned in S.13(3)(a) of the 1959 Rent Ordinance and the other conditions there have been initially omitted in the provision about personal requirement contained in the 1979 Rent Ordinance. In my view, as the ejectment application had been filed under 1959 Rent Ordinance, in view of the provisions of S. 13(3) of the 1959 Rent Ordinance, the ejectment application had to be decided in accordance with the provisions of the 1959 Rent Ordinance. Reference may be made to a decision of a Division Bench of this Court in the case of Abdul Rehman v. Ahmed Khan and another PLD 1982 Kar. 532 which judgment has been upheld by the Supreme Court in the case reported in PLD 1983 SC 21. Even otherwise, under the 1979 Rent Ordinance also a case for ejectment of the appellant on the ground of personal requirement was not made out by the respondent. The provision under S.15(2)(vii) of the 1979 Rent Ordinance is that an eviction of the tenant can be sought by a landlord if he requires the premises, in good faith, for his own occupation or use or for the occupation or use of his spouse or his children. In the instant case it has come on record that the respondent owns several flats in his building and that two of the flats had fallen vacant before his cross-examination had taken place on 11th May,1980 and the same had been rented out by the respondent to other persons and as observed earlier, it was not the case of the respondent that only the premises in occupation of the appellant were suitable for his needs and the two flats which were rented out recently by the respondent or either of them were not suitable for his needs. The respondent, in the circumstances, could not establish his good faith.
3. As a result, First Rent Appeal No,232 of 1981 is allowed and the order dated 29th March,1981 of the Rent Controller ordering ejectment of the appellant is set aside. The appellant will be entitled to costs.