1. ' This F.R.A. is filed against the order dated 10-10-1983 passed by the XI Senior Civil Judge and Rent Controller, Karachi, in Rent Case No,290 of 1980 whereby the ejectment application was allowed and directed the appellant to vacate the disputed premises and to hand over the vacant possession of the premises within 30 days from the date of the order.
2. ' The brief facts of the case are that respondent filed ejectment application on the ground of default from March 1980 onward and also on the ground of personal and bona fide use as also due to marriage of the respondent's son. The appellant filed the written statement and denied various allegations made in the application. He averred that he was paying rent regularly to the respondent but in the month of March, 1980 he went to tender the rent to the respondent which he tried to avoid to issue receipt of the rent and thereby he sent the rent by money order dated 4-5- 1980 and 15-5-1980 which were returned with the remarks "refused" by the postman. He deposited the rent in Miscellaneous Application No, 4369 of 1980. He also denied electric charges payable by him. He also denied that the respondent required the premises on personal ground. He further averred that after his ejectment the respondent will let out the premises on the enhanced rent.
3. ' The learned Rent Controller, framed the following issues:-Issue No,l, "Whether the opponent is defaulter in payment of rent?"
4. Issue No,2. "Whether the premises in question are required to appellant for his personal bona fide use?"
5. Issue No,3. "What should the order be?"
6. ' The respondent filed his own affidavit-in-evidence and submitted himself for cross-examination on 17-3-1982. Besides himself the respondent examined Sikandar Exh.5.
7. ' The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided Issues Nos.1 and 2 in the affirmative and ordered the ejectment of the appellant on the grounds of default and personal requirement vide order dated 10-10-1983.
8. ' The appellant being aggrieved has preferred this appeal on the grounds mentioned in the Memo. of Appeal.
9. ' Mr.S.Safdar Hussain the learned counsel for the appellant has raised the following contentions:-
(1) The learned Rent Controller has erred in holding that the appellant is a defaulter.
(2) The learned Rent Controller has failed to apply his judicial mind in coming to the conclusion that the respondent needs the premises in question for his own personal use.
10. ' On the other hand Mr.M.Saleem Iqbal the learned Advocate for the respondent has contended that the appellant committed default which was duly proved. He has further contended that the personal requirement was also proved by the respondent.
11. ' The respondent stated in his application that the appellant committed default from March, 1980 onwards. The appellants in his written-statement averred that he tried to tender rent for the month of March to the respondent but the respondent tried to avoid to issue receipt of the rent. Thereafter he tendered the same by money orders dated 4-5-1980 and 15-5-1980 which were returned with the mark of postman "Refused". The respondent filed affidavit-in-evidence in which he asserted non-payment of rent from March, 1980 and also electric charges amounting to Rs,,7,000. In the cross-examination a suggestion was made about tendering of the rent in the month of March which was denied by him. He also denied a suggestion that money orders were refused by him.
12. ' The respondent's son also filed his affidavit-in-evidence wherein it was stated that the appellant did not pay rent since March, 1980. To a suggestion he replied that the rent was offered to him which was refused by his father as it was not at the actual rate but less than the actual rate. The appellant filed his affidavit-in-evidence. To a suggestion cross-examination he replied that he paid the rent for the month of March, 1980 to the respondent at that time no one was present at that time. The appellant in his cross-examination admitted that the rent for the months of February, 1980 to April, 1980 tendered by him through money order on 4-5-1980.
13. ' The learned Rent Controller has held that the respondent has produced sufficient evidence regading default in payment of rent by the appellant. As against all the aforesaid evidence, there was only word of the appellant in his affidavit-in-evidence that the respondent did not accept the rent and secondly he did not take steps to tender the rent.
14. ' The respondents also filed the ejectment application on the ground of personal use also due to the marriage of respondent's son. The appellant denied the personal use of the respondent in his written-statement. The respondent filed his affidavit-in-evidence and stated therein that he is an old man of 73 years of age and also a sick person and he cannot go upstairs, It is pertinent to reproduce para 6 of the affidavit-in-evidence.
15. "That I am an old man of 73 years of age and also a sick person and I cannot go to upstairs I have seven sons and six daughters, Out of the them two sons are unmarried. My sons, Salauddin, Saifuddin, Shamsuddin, Sikandar and Jehangir who are adults are living with me on the top floor of the said building. At present we are 10 members of the family who are now living on the top floor, which is not sufficient accommodation for my big family. I require the half portion in possession of the opponent for my personal use and for my sons use."
16. ' The respondent denied a suggestion in cross-examination that he is not in need of the disputed premises. The respondent also examined his son Sikandar Pervaiz who deposed that he has six brothers and six sister's He also stated that on the top floor of the building there is not sufficient accommodation for their family which consist of ten members and marriage of his brother Jehangir and his own marriage have been deferred for want of accommodation. To a suggestion the son of the respondent stated that "I have stated that my father is sick person and it is very difficult for him to go upstairs I have also requested for the ground floor as I intend to marry very soon." It is pertinent to note that no question was put to Sikandar Pervaiz in cross-examination that his father has sufficient accommodation.
17. ' The appellant in his own affidavit-in-evidence stated that the respondent does not require the premises for his personal bona fide or his own use. He also stated that the respondent desired to let out on higher rent. To a suggestion his cross-examination the appellant admitted that the respondent has got five sons and all of them are adult. He also admitted into cross-examination that all the five sons are residing with the respondent. He also stated to a question in cross- examination that "It is incorrect that the applicant is not interested in the high rate of rent but he requires the premises in case for his personal use and occupation.
18. ' As against all the aforesaid evidence there is only word of the appellant in his evidence that the respondent does not require the premises for his own use and he is not a defaulter.
19. ' It is apparent that the averment in the application about personal requirement of the respondent and his sons, has been fully supplied in respondent's deposition and also in the deposition of the respondent's son Sikandar Pervaiz and nettling has been brought out in cross-examination which could show that claim of personal use is to be false or is based on wrong statements.
20. It is well-settled legal position that the assertion of the landlord on oath as to requirement of the premises for his personal use to be accepted if constitute with his averment in his application and not shaken in cross-examination or disproved in rebuttal. The evidence of the respondent in the instant case fulfilled the standard laid down in the case of Hasan Khan v. Mst. Munawar Begum PLD 1976 Kar.
21. 832.
22. ' After going through the record with the assistance of learned counsel for the parties, I am fully satisfied that the Rent Controller rightly granted the ejectment of the appellant. I am clearly of the view that the respondent had proved the requirement for the disputed premises for personal residence and that of his sons is genuine.
23. ' I, therefore, find no justification in above appeal and it is, therefore, dismissed. For these reasons by a short order dated 2-1-1984 the appeal has dismissed in limine but I grant four months' time to vacate the premises from 22-1-1984 on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order. However in case he will commit default in payment of rent the respondent shall be entitled to file the execution application before the expiry of the abovementioned four months.
24. ' In the circumstance of the case there will be no order as to costs.