' This First Rent Appeal under section 21 of Sind Rented Premises Ordinance 1979 (hereinafter referred to as Ordinance) has been filed against the order, dated 16th January, 1983 of Ilnd Senior Civil Judge/ Rent Controller, Karachi whereby he directed the appellant to hand over the vacant possession of the premises to respondent.
2. The facts of this case are that on 24th September, 1981 Begum Sultana Ahmed filed Rent Case against her tenant Shah Nasir Rizvi. She stated in her application under section 15(vii) of the Ordinance that she is landlady of premises bearing No, 154-R Khush Hall Road, Block-2, P. E. C. H. S. Karachi and appellant is her tenant on ground floor She is living in Lahore where her youngest son was studying and now after completing his studies has joined service. She now wants to shift to Karachi, where her daughter is also living with her family, therefore, she requires the premises for her personal bona fide use.
3. Appellant filed written statement in which relationship of tenant and landlord is admitted. The exchange of correspondence and notices have not been denied. He has alleged that respondent/landlady wants to hand over the premises that some other person on enhanced rent and she has no intention to live in the premises. She is not living at Karachi for the last 15 years and her married daughter is living in Karachi for the last several years. He has further alleged that respondent filed application under M. L.
0. 20 for his ejectment and on 21st September, 1977, Summary Military Court passed an eviction order but in Revision the order was set aside. His contention is that Rent Case has been filed just to harass him.
4. Before the Rent Controller the respondent filed her affidavit and examined her son-in-law Jawed Akhtar. Whereas appellant examined himself and produced lease agreement and other documents. Respondent Begum Sultana Ahmed Exh. A, has stated in her evidence before the Rent Controller that she is presently residing at 42/1, Street No, 24 of Kbayabab-e-Majahid Phase V- Defence Housing Society, Karachi and she had been living Lahore as her son was studying and now he has joined job and want to shift to Karachi permanenly. She has deposed all other facts as mentioned in her rent application. She has stated that she requires the premises for her personal bona fide use. She has not been cross-examined. Her statement on oath stands unrebutted and unchallenged.
5. Jawed Anwar Exh. 1-A, is son-in-law of respondent. He has fully corroborated the version of Begum Sultana Ahmed on all the points raised in Rent Application. He has deposed in his affidavit- in-evidence that she wants to shift Karachi and requires the premises for her personal use. He had denied the suggestion of demanding the enhancement rent.
6. Appellant in his evidence has stated that respondent does not require the premises as she has no intention of coming to Karachi and that she has demanded enhance rent of Rs, 2,000 and on his refusal, she filed this Rent Case. He has further stated that respondent in 1977, filed an application before the Martial Law Authorities under M. L 0. 20 and Summary Military Court ordered ejectment but that order was set aside in Revision. He has admitted that lease was not renewed since 1976, and respondent was demanding vacant possession since then. He has further admitted in cross- examination that rate of Rent from 1975, till today is the same. The appellant had not examined any witness in his support.
7. Mr. Munawar Abbas, Advocate for the appellant has raised the following contentions : -
(1) That rent application is not maintainable.
(2) Personal bona fide is not proved as respondent has asked for enhancement of rent which appellant has refused to pay, therefore, rent application has been filed.
So far first contention is concerned, it is contended that respondent. Earlier filed rent application under M. L.
0. 20 which was accepted but subsequently in revision the eviction order passed by Summary Military Court was set aside. Therefore fresh application is barred by section 11, C. P. C. Res judicata.
He has relied upon a case Mst. Khurshid Anwar and another v. Muhammad Hussain (1) wherein it has been held that decision of a Tribunal of special jurisdiction operates as res judicata only with regard to matters pertaining to its special jurisdiction and the order of Rent Controller under Punjab Urban Rent Restriction Act, not res judicata in subsequent civil suit on question of title. In my view the present case is distinguishable from the case cited by the learneJ counsel. On the other hand Mr. Raja Qureshi, learned counsel for the respondent has cited the case Pakistan International Airlines Corporation v. Mst. Safooran Khanum (2) wherein it was held that subsequent ejectment application on the same ground not barred because requirement for personal need may not have arisen formerly but may arise subsequently, even though previous application of tenant on personal grounds was decided against the landlord. He has also relied upon the case Hidayatullah v. Deputy
(1) PLD 1956 Lab. 134 (2) 1981 CLC (Kar.) 1036 ' Commissioner/ Additional Settlement Commissioner (Land) and 2 others (1) and Ghulam Bahauddin Kureshi v. Mrs. Hawa Bai (2) wherein it has been held that the requirement of the same landlord at different times also could be different. Mere fact of requirement being of same property and for a similar purpose does not make two issues substantially similar 8 due to requirement in each case being of different persons having different needs, and in this it has been decided that principle of res judicata does not apply.
8. It has also been submitted on behalf of the appellant that respondent has got only 1/8 share in the premises therefore she cannot file rent case. This contention was not raised in the pleadings before the Rent Controller, however, it is a legal point and I agree with the learned counsel that it could be raised at the appellant stage as has been held in 1982 CLC 4. However, reliance is being placed by the appellant on the statement of Jawed Anwar who is son-in-law of the respondent who has stated in his statement that respondent has 1/8 share in the property.
9. Mr. Munawar Abbas has relied upon Fazalur Rehman v. Ghulam Habib and 2 others (3) wherein it has been held that where there are more than one landlords and they agree to use of the property by one of them, the tenant occupying same can be ordered to put the landlord in possession. The case is distinguishable. Rent case was filed by the landlady/ respondent in which it is stated that she is the sole owner of the property. In written statement this point has not been denied. The respondent was receiving rent of the premises from appellant since last 9 years. She was examined before the Rent Controller where she has stated that she is the owner. She was not cross-examined and her statement stands unchallenged. The appellant has not produced any other evidence an failed to furnish list of co-sharers. Witness Jawed Anwar by stating that she has 1/8 share in the property may have presumed that she being a widow might have a 1/8 share after the death of her husband. He has not been asked about the names of other co-sharers. Had she been cross-examined she could have explained this position. The contention is raised first time.
The appellant has all along been considering the respondent as her landlady. The point raised has got no fore'.
10. So far personal bona fide is concerned, the evidence of the landlady/respondent has gone unchallenged. It is now well-settle law that in these circumstances evidence should be accepted as correct for reference I may cite Syed Akhtar Hussain v. Wall Bahadur and others (4) wherein it has been held that statement of landlord on oath that he requires rented premises for his own use, held, sufficient to prove E his bona fides and a case of Ghulan All and 4 others v. Muhammad Hanif
(5) wherein it has been held that portion of testimony of witness not subjected to cross- examination held, to be taken as correct. As stated above the landlady has not been cross- examined, therefore, I have no hesitation in accepting her entire statement on her personal requirement and being the landlady of the property.
(1) 1976 SCMR 243 (2) PLD 1979 Kar. 597
(3) 1980 CLC 887 (4) PLD 1981 Lah. 326
(5) 1980 CLC 1611
11. The last contention of the appellant is that the responden wants to enhance the rent therefore, she has filed the rent application On this I refer the case of Peerzada Rafiq Ahmed v. Chaudhry Abdul Rehman (1), wherein it has been held that demand of higher rent by landlord does not by itself cast any doubt about personal bona fide requirement of premises by landlord if factum of bona fide requirement independently proved. Also there are so many decided rent cases on this point. The Rent Controller in his order has discussed the entire evidence led by the parties and the case law as well. He has come to the conclusion that respondent has proved her personal bona fide.
12. The respondent/landlady was demanding the premises since 1976, for her personal use. Her son-in-law Jawed Anwar is also living at Karachi with his family which also proves that she wants to live at Karachi with her daughter therefore her bona fide cannot be doubted.
' In view of the above facts and circumstances the appeal is dismissed and consequently the order of the Rent Controller is maintained.
(1) 1980 SCMR 772