1. ' This F.R.A. is filed against the order, dated 26-11-1983 passed by the IXth Rent Controller, Karachi, in Rent Case No. 3659 of 1980 whereby the learned Rent Controller allowed the ejectment of the respondent and directed the appellant to vacate and hand over the vacant possession of Flat No. 64 situated on 3rd Floor, Block J, Al-Azam Square, Karachi within sixty days from the date of order.
2. ' The brief facts of the case are that the respondent filed ejectment application on the ground of personal use for herself and her sons. The appellant filed written-statement and denied that the respondent required the premises for her personal use. The appellant averred therein that the respondent had agreed to sell the premises to him for Rs.55,000 and she had taken Rs.14,000 as part payment and she refused to execute the sale-deed and then he demanded his money. The respondent served notice to the appellant and thereafter instituted ejectment application.
3. ' The learned Rent Controller framed the following issues.
4. "Issue No. 1.--Whether the disputed premises is needed by the applicant for her personal bona fide use?
5. Issue No. 2.--What should the order be?"
6. ' Syed Muzaffar Ali husband and attorney of the respondent filed affidavit in evidence on behalf of the respondent. The appellant filed his own affidavit-in-evidence. He also filed affidavit-in- evidence of Aftab Ansari in support of his case.
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 allowed the ejectment application on the ground of personal use vide his order, dated 26-11-1983.
8. ' The appellant abovenamed being aggrieved by the order, dated 26-11-1983 has preferred this F.R.A., on the ground mentioned in the memo of Appeal.
9. ' Mr. Rasheed Rizvi has contended that the respondent had agreed to sell the disputed premises to the appellant and had received sum of Rs.14,000 as part payment as such the question of eviction does not arise.
10. ' Mr. Wajihuddin Ahmad for the respondent in response to pre-admission notice has contended that the sale was not proved and the learned Rent Controller has not misread the evidence and the order is in accord with law.
11. ' I have taken into consideration the arguments advanced by the learned counsel of both the parties and have also gone through the order of the learned Rent Controller and also perused the record of the case.
12. ' Mr. Rasheed Rizvi, the learned counsel for the appellant, contended that the oral sale agreement was duly proved and the respondent has not proved the personal requirement. It is pertinent to reproduce para 3 of the ejectment application which reads as under:-- "That the applicant requires the premises for her bona fide and her married sons use as such she served a notice through her Advocate on 5th February, 1980 to the opponent to vacate the said premises."
13. ' The appellant filed his written statement on 26-7-1981 and averred in pares III and IX as follows:-- "It is denied as false and incorrect that the property is required for personal use of the applicant or for personal use of applicant's son. It is admitted that notice was served."
14. "The opponent begs to submit that the applicant had agreed to sell the premises to the opponent at Rs.55,000 and she had taken Rs.14,000 from the applicant and promised to execute the sale- deed and receive the balance amount but subsequently she refused to execute the sale-deed and then the opponent demanded his money the applicant served notice to the opponent. That the applicant wants to eject the opponent and give the premises to some "other persons on higher rent."
15. ' The husband and attorney of the respondent filed affidavit-in evidence and stated in para 3 of the affidavit that the respondent requires the said premises for her own personal bona fide use and for the use of her own married sons and grown up children. He further stated that the respondent's needs are genuine and bona fide. To a suggestion he stated that he has three sons, two are in Pakistan. To a suggestion in cross-examination he also denied that the respondent does not require the premises for her personal use. He also denied a suggestion that the respondent owns other premises. It is pertinent to note that no question was put to him in cross-examination that his son owns a house.
16. ' The appellant in his own' affidavit-in-evidence stated that the respondent does not require the premises for her personal bona fide or her family use. He also stated that the respondent has other sufficient accommodation at Karachi and she does not require any premises as her attorney entered into a sale agreement and received an advance of Rs.14,000 from him. The witness of the respondent also stated that the respondent does not require the premises as the same has been sold to the appellant.
17. ' The appellant claimed that the respondent had agreed to sell the premises to the appellant for a sum of Rs.55,000 out of which he paid Rs.14,000 and promised to execute the sale-deed but subsequently refused to execute the sale-deed. The husband and attorney of the respondent in his cross-examination denied the suggestion that he as her attorney had agreed to sell the premises in question to the appellant for Rs.55,000. He also denied the suggestion that he received Rs.14,000 as earnest money. He also denied the suggestion that the talk of sale was made in the premises of Aftab Ajmeri, Javed and Mukhtar Ahmed. The appellant in his affidavit stated that the respondent had agreed to sell the premises through her husband for Rs.55,000 in front of Mukhtar Ahmed Alvi, Aftab Ajmeri and Javed and also received Rs.14,000 in front of these persons. The appellant in the cross-examination stated that the respondent and her husband both had come to him for the sale of the disputed premises on 25-12-1978. The transaction was oral. He also paid Rs.14,000 in cash but he admitted that he pays rent by cheque. The witness of appellant in his affidavit-in-evidence stated that in the month of December, 1978 the attorney of the respondent agreed to sell the premises to the appellant before him in the presence of Mukhtar Ahmed and Javed. The witness stated in his cross-examination that "I do not know Mr. Muzaffar All by name. I know Mr. Muzaffar All by face. I will not be able to recognize the applicant because I have never met her. In my presence and in my house the agreement of sale was concluded between these parties with the applicant."
18. 'This agreement was denied by the respondent and therefore, the only question involved in the case was whether the respondent had agreed to sell the disputed premises to the appellant. The controversy between the parties was reflected in Issue No. 1 framed by the learned Rent Controller.
19. After reading the evidence of both the parties, the learned Rent Controller, vide his order, dated 26- 11-1980 came to the conclusion that there was no agreement for sale of the disputed premises.
20. ' The learned Rent Controller disbelieved the contentions of the appellant about the sale transaction. The contradictions, in the written statement, the affidavit-in-evidence and depositions of the appellant and that of his witness Aftab Ajmeri were also duly taken note of; the appellant did not file any suit for specific performance of the contract.
21. ' As against all the aforesaid evidence, there was only word of the appellant and his witness in their affidavit-in-evidence firstly, that the respondent does not require the premises for her own use. Her son owns a house. He asserted that the respondent agreed to sell the disputed premises to him.
22. ' It is apparent that the averment in the application about personal requirement of the respondent and her sons, has been fully supplied in attorney's deposition and nothing has been brought out in cross-examination which could show that claim to be false or based on wrong statements.
23. 'It is well settled legal position that assertion of the landlady on oath as to requirement of the premises for her personal use has to be accepted if it conforms with her averments in her 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.
24. Munawar Begum PLD 1976 Kar.
25. 832.
26. ' After going through the record with the assistance of the 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 opinion that the respondent had proved the requirement for the disputed premises for her personal use and that of her married sons.
27. ' I, therefore, find no justification in the above appeal and it is, therefore, dismissed in limine but I grant 4 (four) months time to vacate the premises.
28. ' In the circumstances of the case there will be no order as to costs.