1. ' This appeal is directed against the order dated 8-6-1983 passed by the VIllth Rent Controller, Karachi, whereby the ejectment Application filed by the appellant was dismissed.
2. ' The facts which gave rise to this appeal are that the appellants are legal heirs of deceased/landlord Ruknuddin who was transferred a residential premises bearing No. 632/J.M.
3. 3/1/1 consisting of first floor and garage/room on the ground floor together with a room over such garage/room situated at Clayton Road, Karachi. The respondent is tenant in a portion of the said premises, that is in the garage/room and the room consisting over it with temporary bath-room at a monthly rental of Rs.
10. It seems that the said Ruknuddin filed ejectment application No. 462/64 on the ground of default and personal requirement, however, this case was dismissed due to period of six years not having expired then. On expiry of the statutory period of six years, the deceased landlord again filed ejectment application No. 1624/72 on the ground of personal requirement of the said tenement in good faith for his own use and occupation and that of his children as the available accommodation in his occupation was very much insufficient, inadequate and unsuitable.
4. It was also averred that the respondent had already parted with the possession of the said tenement and he was not living there for so many years. The respondent in his written statement denied all the allegations .
5. ' That on the basis of the pleadings of above parties, the learned Rent Controller framed the following issues on 24-7-1974.
(a) Whether the applicant is the owner/landlord of the premises in the case, if so, its effect?
(b) What is the legal effect on the above case, of the order dated 21-2-1969 of VII Civil Judge/Rent Controller, Karachi passed in Rent Case No. 462/64?
(c) Whether the applicant requires the premises in the above case, bona fide and in good faith for his own use and occupation and that of his children? If so, its effect?
(d) Whether the opponent is still in possession of the premises in the above case and he is residing therein, if so, its effect?
(e) Whether this Court has no jurisdiction?
(f) What should the order be?
6. ' The deceased landlord in support of the case examined himself while the respondent examined himself in defence. During the pendency of the eviction application, the landlord died and his legal representatives were brought on record.
7. ' The learned Rent Controller on the basis of the 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 issue No. 2 as above and decided issues 3, 4 and 5 in the negative and dismissed the application vide his order dated 8-6-1983.
8. ' The appellants above named, being aggrieved by order dated 8-6-1983, of the learned Rent Controller have preferred this first appeal, on the grounds mentioned in the memo. of appeal.
9. ' In support of the above appeal, Mr. Abdul Aziz Khan, learned counsel for the appellants, has urged that the learned Rent Controller has drawn wrong and unwarranted inferences from the evidence on record, and in so doing has overlooked material evidence determining vital aspects of the case.
10. ' On the other hand Mr. Fashiullah Qureshi, learned counsel for the respondent, has contended that the appellants have not established that they need the premises for their own use. He has also submitted that burden lay on the appellants to show that the premises in their occupation is insufficient for their requirements and it was not discharged by them.
11. ' As regards the contention of the learned counsel for the parties, it may be observed that the predecessor of the appellants averred in his application that" the applicant required the demised premises bona fide need in good faith for his own use and occupation and that of his children. The present accommodation in occupation of the applicant and his family is highly insufficient, inadequate and unsuitable for his needs and that of his children. Even on grounds of health, the applicant is in bona fide need of the demised premises which consist of ground floor as well. He stated in his deposition that the present premises which is in my occupation is not sufficient for us."
12. To a suggestion in cross-examination he deposed "my premises consists of 3 rooms and there is one room over the garage and one covered verandah used as a passage. The respondent to a question in cross-examination stated that the garage is residential. To another question he denied that two sons of the deceased landlord live and study in the above-said rooms above the garage.
13. ' The learned Rent Controller observed that the appellants are in possession of 3 rooms and one room over the garage and a verandah. He further observed that the applicant has not disclosed the number of his family members to show that this accommodation is insufficient. So mere statement of the applicant that accommodation available with him is insufficient without disclosing the number of family members is not sufficient to hold that premises are required by the use of his children and the accommodation available with him is insufficient."
14. ' It may be observed that in cross-examination the deceased landlord admitted that the premises in his occupation consists of-4 rooms and there is one room over the garage and one covered verandah used as $ passage. To a question in cross-examination the deceased landlord denied that the covered verandah never used it as bedroom. Out of three rooms one room is drawing room. The room over the garage his son used as study room and bedroom. The landlord died leaving the present appellants. Out of them one is widow and three sons and four daughters. Out of four daughters two were married. The present accommodation in occupation of the appellants, namely three rooms plus one drawing room is insufficient to accommodate six members of the family. The finding of the learned Rent Controller on the question of personal requirement seems to be not in consonance with the evidence on record. I would, therefore, reverse the finding of the learned Rent Controller on the question of personal requirement.
15. ' It has been averred in the ejectment application that the deceased landlord required the disputed premises in good faith for his use and also for the use of his children. As against all the aforesaid evidence there is only word of this respondent that the appellants had not established his need.
16. ' It is apparent that the appellants' predecessor required the disputed premises in good faith for his use and also for the use of his children. As against all the aforesaid evidence there is only word of the respondent that late Ruknuddin always demanded increased rent without any rhyme and reason he refused to raise rent on which account the said Ruknuddin filed ejectment application.
17. ' It is apparent that the averment in the application about requirement of the predecessor of appellants for his use and for the use of his children has been fully supported in his deposition and nothing has been brought out in cross-examination which could show that claim of personal use for himself and his children's use to be false or is based on wrong statement.
18. ' 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 consistent with his averment in his application and not shaken in cross-examination or disproved in rebuttal. The evidence of the appellant in the instant case fulfilled the standard laid down in the case of Husain Khan v. Mst. Munawar Begum PLD 1976 Kar.
19. 832.
20. ' The appellants have established their bona fide need and in fact on the statement of the respondent it cannot be concluded that the appellants have filed this application for the purpose of enhancement of the rent. If it is not sufficient, then the landlord can ask for ejectment, although the disputed house is small. In the present case, the appellants are residing in a house and want to get the disputed house vacated in order to have a better accommodation. He has, therefore, established his bona fide requirement.
21. ' In the face of the evidence establishing the bona fide need of the appellants the respondent's evidence to displace it is sufficiently weak. The learned Rent Controller was impressed by the fact that the predecessor of the appellants has not disclosed the number of his family members in his evidence and has also failed to produce satisfactory evidence on record that accommodation available with him is insufficient while considering the bona fide requirement of the landlord, one has to first see whether the accommodation where he is living is sufficient and proper for his requirement.
22. ' The learned Rent Controller was also impressed by the fact that the respondent in his deposition stated that the appellants have in their possession six rooms and the learned counsel for the appellants did not cross-examine on this point. It is pertinent to note that the respondent in his deposition that he did not see the accommodation in possession of the landlord as such it cannot be assumed that the landlord has six rooms in his possession.
23. ' Adverting to the last contention of the learned counsel for the appellants that the respondent is not residing in the disputed premises for last so many years and has parted with the possession, the respondent in his written statement denied that he has parted with the possession of the premises. The original landlord in his deposition stated that the respondent at present is not in occupation of the disputed premises. The respondent in his cross-examination stated that it is incorrect that at present he is living in P E C H Society Ltd., address by registered post. I have perused this record of the lower Court as well as record of this Court. It seems that the respondent was not served at the disputed premises in this appeal but at Bungalow No. 33/B/2, P E C H Society Ltd., Karachi.
24. It seems that the predecessor of the appellants has established that the respondent is not residing in the disputed premises and has actually parted with the possession.. The original landlord stated in his deposition that the respondent is not residing in the disputed premises. He was not cross- examined on this point by the learned counsel for the respondent. It seems that the respondent has failed to establish that he is in actual occupation of the disputed premises. I am inclined to hold that the appellants have, therefore, established that the respondent has parted with the possession of the disputed premises.
25. ' For these reasons the impugned order of the learned Rent Controller is set aside and the appeal is allowed and the respondent is allowed two months time to vacate the disputed premises. There will be no order as to costs.