1. ' The present appeal has been filed by the appellant to challenge the order of the XII Senior Civil Judge and Rent Controller, Karachi dated 10-8-1983, in Rent Case No. 407 of 1977, whereby the ejectment application was allowed and the appellant was directed to vacate the disputed premises within 60 days from the date of order.
2. ' The brief facts of the case are that the respondent filed an ejectment case, against the appellant inter alia alleging therein that the respondent is the Landlord of House No. A/848, Malir Colony, Karachi, and appellant is a tenant in respect of the shop in the said house at a monthly rent of Rs.
3. 100 by an agreement dated 8-5-1971. The rate of rent was fixed for a period of two years from 15-5- 1971 to 14-5-1973 after which the rent of the said shop should have been increased and the agreement to be renewed but the appellant failed to comply with the terms and conditions of the said agreement. It has been stated that the respondent's son Aijaz Ahmed is a Radio and Watch mechanic and was carrying on his business in a rented shop at present sitting idle at home without any job for want of commercial shop. It has further been stated that the respondent is being retired from the service from December, 1977 and will join the business of his son Aijaz Ahmed to earn for his livelihood. The appellant filed his written-statement wherein he has denied the allegations of personal requirement.
4. ' On the pleadings of the parties following issues were framed:- (1 ) Whether the applicant bona fidely requires the premises in case in good faith for personal use.
(2) What should the order be?
5. The respondent examined himself as his only witness and the appellant examined himself and one witness, namely, Ismail.
6. ' 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 Issue No. 1, in the affirmative and allowed the rent application on the ground of bona fide requirement vide his order dated 10-8-1983.
7. ' The appellant abovenamed, being aggrieved by the order dated 10-8-1983, of the XIIth Senior Civil Judge and Rent Controller, Karachi has preferred this appeal on the grounds mentioned in the memo. of appeal.
8. ' Mr. Sadiq, the learned counsel for the appellant has raised the following contentions:-
1. The learned Rent Controller has failed to appreciate as the respondent had not been retired at the time when the said application was filed.
(ii) The learned Rent Controller has failed to take into consideration evidence that has come on the record.
(iii) The learned Rent Controller has failed to appreciate that the son for whose use the premises in case had been required has not been examined and as such the findings are not proper.
9. ' On the other hand Mr. Shaukat Mahmood the learned counsel for the respondent has contended that the rent application was not premature. The Rent Controller has taken into consideration evidence that has come on the record. Non-examination of the son is not fatal.
10. ' As regards content No. 1, the respondent averred in his application that he was to retire from service in the month of December, 1977. It is pertinent to note that the ejectment application was filed on 26-1-1977. He also annexed certificate dated 10-1-1977, from his employer. Ln his deposition recorded on 22-2-1978, he stated that he retired in December, 1977. The appellant examined Ismail Beg, Office Assistant Engineering Department P.I.A., who deposed that the respondent was retired on 1-8-1978, and not in the month of December, 1977. The learned counsel for the appellant has contended that the ejectment application was premature. The contention is devoid of force. The respondent filed ejectment application on the ground of personal requirement and it was averred in the application that after his retirement he would run business of Watch and Radio repairing with his son in the disputed shop. Therefore, per se on this averment the application laid under section 13 of the repealed Ordinance for the ejectment of the appellant and the same was competent and could not be held premature. The respondent filed ejectment on the ground of personal requirement as he was likely to retire from the service and in anticipation thereof he filed the application. It is an admitted position that the respondent was retired during the pendency of application.
11. ' As regards the second contention of the learned counsel for the appellant that the learned Rent Controller has not taken into consideration evidence that has come on the record.
12. ' The sole consideration for determining in the case is whether the respondent has satisfied the legal requirement that the premises in question is needed by him for his own use and the use of his son. In the present case the respondent stated in his application for his ejectment that the applicant is being retired from his service from December, 1977 and will join the business of his son Ejaz Ahmed to earn for his livelihood. The respondent, thus in good faith is in need of the said premises for own use and the use of his son. He appeared himself, in the witness box and stated that he retired from service and will run business of watch and radio repairing with his son in the disputed premises. He was cross-examined. In his cross-examination the respondent denied the suggestion that he filed ejectment application as the appellant refused to enhance the rent.
13. ' On the other hand the respondent examined himself and also examined Ismail Beg. The only evidence adduced by the appellant in rebuttal was that the respondent demanded Rs. 1,000 as rent of the disputed shop but he did not agree to pay Rs. 1,000 as rent of the shop as such he filed the ejectment application as a counter-blast.
14. ' It was averred in the ejectment application that the respondent required the disputed premises in good faith for his use and also for the use of his son. As against all the aforesaid evidence there is only word of the appellant that the respondent demanded Rs. 1,000 as rent for the disputed shop.
15. ' It is apparent that the averment in the application about requirement of the respondent for his use and for the use of his son has been fully supported in respondent's deposition and nothing has been brought out in cross-examination which could show that claim of the presonal use for himself and his son's use is to be false or is based on wrong statements.
16. 'It is well-settled legal position that the assertion of the landlord on oath as to requirement of the premises for his personal use is to be accepted if constitute with his averment in his application and nothing has been brought out 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 Hassan Khan v.
17. Mst. Munawar Begum PLD 1976 Kar.
18. 832.
19. ' After going through the record with the assistance of the learned counsel for the parties and after perusing the order of the learned Rent Controller, I find that the learned Rent Controller has rightly granted ejectment application. The reasoning given by the learned Rent Controller for holding that the respondent requires the premises for his use is quite logical and convincing and is in accord with the evidence on record.
20. 'As regards the last contention the learned counsel for the appellant has contended that the Rent Controller has failed to appreciate that the son for whose use the premises in case had been required has not been examined and as such the findings are not proper. In my view, this contention is devoid of any force. In my view, in the instant case, there is a plausible reason for the son of the respondent for not coming forward as a witness in support of the application, as the appellant did not suggest any question to this effect in cross-examination of the respondent. The respondent in his application averred that the applicant's son Ejaz Ahmed, aged 22 years is a Radio mechanic was doing his business in a rented shop (now evicted) at present sitting idle at home without any job for want of commercial shop. The appellant in his written statement averred that the son being major is employed and has got his own independent living. The respondent appeared in witness box and deposed that he has got son named Ejaz Ahmed. He is 23 years old. He had one shop for radio and watch repairing but he was ejected from the shop. He was jobless. In the case of M. Mu .ammad Sherif v. M.S. Sultan 1981 SC MR 844 the Hon'ble Supreme Court observed as follows:- "There is no requirement of law that the person for whose benefit the premises are required to be vacated must be produced in support of the ejectment application. All that has to be seen in the present case is whether enough evidence has been brought on record by the applicant to sustain a finding of the requirement of the premises for the personal use of his son. The learned Rent Controller as well as the appellate Court below have found the requirement in question to have been proved."
21. ' The above dictum is applicable to the facts in the instant case. No good ground has been urged to warrant interference with that finding.
22. ' Mr. Sadiq has contended that the son of the respondent has joined P.I.A. during the pendency of eviction proceedings as such the eviction application is liable to be dismissed. In the case of Fazal Azim and others v. Tariq Mahmood and another PLD 1982 SC 218 the Hon'ble Supreme Court observed as follows:- "The admitted fact that respondent No. 1, went abroad cannot by itself be considered as showing lack of bona fides. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time during the pendency of eviction proceedings. If during such a period he employs himself in a gainful occupation that as a general proposition, would not negate the assertion of bona fide on his part. In this case, the learned Courts below it seems misinterpreted the law, when raising a presumption in this behalf, against the landlord."
23. ' The above dictum is applicable to the facts of this case and the fact that son of the respondent joined P.I.A. during the pendency of eviction proceedings, that could not negate the assertion of bona fide on the part of the respondent landlord.
24. ' In these circumstances, I am not persuaded to differ with the finding of the learned Rent Controller that the respondent has not proved bona fide requirement in the instant case. I am of the view that the order of the learned Rent Controller is not opened to question and there is no force in the present appeal, which is hereby dismissed with no order as to costs. The appellant shall deliver the vacant possession of the premises to the respondent within four months from the date of the judgment.