1. This First Rent, Appeal is directed against the order, dated 24-11-1983, passed by the Xth Senior Civil Judge/Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to hand over the vacant possession of the premises, in question within three months from the date of order. The facts leading to the filing of the above appeal are that the respondent is the landlady of the premises bearing No.F .N.34/12, situated at Malir Extension Colony, Karachi, and the appellant is tenant in respect of a shop at the monthly rental at Rs.100 excluding of electric charges. The respondent filed eviction application No.3660 of 1977 on the ground of default for the period of commencing from 1-7-1977 till 24-10-1977 and also on the ground of personal requirement for her husband for establishing a 'Matab'. The appellant resisted the eviction application. The respondent filed an affidavit-in-evidence of her husband' and attorney besides affidavit-in-evidence of Muhammad Moin Khan and Irshad Ali. In rebuttal the appellant filed his own affidavit-in-evidence. They were cross-examined by the learned counsel for the respective parties. 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 negative and issue No.2 in the positive and held rate of rents is Rs.
2. 50, vide order, dated 24-11-1983 and allowed the application on the ground of personal requirement. The appellant abovenamed being aggrieved against the above order, dated 24-11- 1983 of the Xth Senior Civil Judge and Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds disclosed in the Memo. Of Appeal.
3. Mr. Asghar Ali the learned counsel for the appellant has contended that the respondent has not proved personal requirement and the three requirements of section 13(3)(a) of the Repealed Ordinance have not been fulfilled in the instant case. The learned counsel has also contended that the rate of rent is -Rs.50 per month and the default is not proved. On the other hand Mr. Shaikh Ejaz Ahmed the learned counsel for the respondent has submitted that the respondent has proved personal requirement and the order is in accord with the law. The learned counsel has further submitted that the rate of rent is Rs 100 and the appellant is a duefaulter. Reverting to the first contention of the learned counsel for the appellant that the respondent has not established personal requirement. It is pertinent to note that the respondent in para. ,3 of the eviction application averred that "the premises are required for the use of the husband, of the applicant who is a 'Hakim' and is an old man and is not keeping good health". Hakim Muhammad Muslim Khan, the husband and attorney filed affidavit-in-evidence on behalf of the respondent and in para.6 thereof stated that the premises are required for my use, I am huband of the applicant and am a Hakim, I am old man not keeping good health. I want shop to do my 'Matab'. It is pertinent to note that the husband of the respondent admitted in his cross-examination that two eviction applications were allowed which were filed on the grounds of default. He also admitted that these two tenants continued on fresh agreement of tenancy. He also admitted that he was running his 'Hakimat' in his house. He also replied to suggestion that these shops which were ordered to be vacated were not suitable for his requirement. He also admitted that personal requirement was not mentioned in notices Exhs. 1 and 1/3. He also admitted in his cross-examination that all the three shops were in the same line. As against the abovp evidence, the appellant filed his own affidavit- in-evidence. He stated therein "it is incorrect that the premises are required by the applicant for self-use. There are other shops on this plot which are let out by the applicant". The appellant admitted in his cross-examination that there are three shops including the shop in question. It appears from the evidence of the parties that there are three shops on the ground floor. It is an admitted position that the respondent filed eviction application in respect of three shops including the shop in question. The eviction application numbers of other two shops are 3661 and 3662 of 1977. It is an admitted position that these two eviction applications were allowed and the tenants were ordered to hand over vacant possession of shops to the respondent. Instead of filing execution application the respondent had entered into fresh agreements at enhanced rent. The onus to show that the two shops, which were ordered to be vacated by the tenants, were not suitable for her requirement lay entirely upon the landlady. Not only that she has to show that th premises in question, for which she is seeking to evict her tenants, would provide her better accommodation, if not entirely suitable than the one already ordered to be vacated. She has not discharged th onus, because she has not been able to show that the shop in questio would provide her, in any way, better accommodation than the shop which were already to be vacated. The law does not lay any convers responsibility on the tenant to show that the two shops got vacated b the respondent in the same urban area are suitable for her husband' requirement. But in spite of that the appellant, through cross-examination shows that the shops in question have similar space and are in th same lane, and the shop in question is not better than the shops already got vacated and which were rented out to 'the same tenants o fresh terms. It is an admitted position that during the pendency of the eviction application the evicti, F Applications Nos.3661 and 3662 of 1977 were granted and the respo. Instead of filing execution application agreed to rent out on the enh., ed rent. In my view the learned Rent Controlle has erred in not tr a into consideration the subsequent event whic had taken place d g the pendency of the eviction application whichB was very material which he was entitled to take into consideration. I is true that it is the prerogative of the landlady to pick up any one the shops for the purpose of her personal requirement but an eviction order was passed and thereafter, relet the same on enhanced rent would adversely reflect on the bona fide of the landlady. Furthermore, I have noticed that the learned Rent Controller has erred in not taking into consideration the factum that her husband is an old man is not keeping good health. The respondent has not brought anything on record to indicate the reason which prompted her the filing of th eviction application on the ground of personal requirement at the above age and not keeping good health. The burden to prove bona fid personal requirement was on the respondent to show her husband's bona fide requirement. In my view, there was not sufficient material before the learned Rent Controller on the basis of which a finding of the question of personal requirement could be recorded. In this view of the matter I set aside the finding of the learned Rent Controller and hold that the respondent has failed to make out a case of personal requirement. The ground on which eviction was sought in terms of section 13(3)(ii) of the Repealed Ordinance. The subsection reads as under:- "(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:-
(i) ........
(ii) in the case of a non-residential building or a scheduled building or rented land, if:-
(a) he requires it in good faith for his own use or for the use of any of his male children;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and
(c) he has not vacated such a building or rented_ land without sufficient cause after the commencement of this "Ordinance, in the said urban area."
4. It is common ground that there are three requirements to mak out a cause of action for eviction under the above provision, and indeed this is apparent from a bare reading of the subsection. In th present case the finding is to the effect that the landlady requires the shop in question for her husband's use. But, the legislation has taken care to insist upon two more conditions, namely (a) that he is notC occupying any other building in the urban area concerned; and (b) that he has not vacated such a building without sufficient cause. Ther is not a scintilla of evidence nor indeed there is any averment I compliance with these latter conditions. The necessary consequent follows that not merely is there inadequacy of pleadings sufficient t make out a cause of action but total absence of proof of two vital requirements. The Statute benignly designed to protect tenants from unreasonable evictions has taken care to put restrictions which must be rigorouslyD construed to fulfil the purpose of the Statute. In these circumstances, I am constrained to allow the appeal. As regards the rate of rent and default, the respondent in her eviction application averred that the rate of rent is Rs.100 and the appellant committed default in payment of rent for the period 1-7-1977 till the filing of the eviction application. The appellant denied the allegations in his written statement and stated therein that the rate of rent is Rs.50 and he had paid the rent upto October, 1977. The respondent filed affidavit-in-evidence of her husband and attorney and also filed affidavit-in-evidence of Muhammad Moin who produced rent receipt Exhs.2/1 to 2/5. As against this, the appellant filed his own affidavit-in-evidence and filed affidavit-in-evidence of lrshad Ali.
5. The respondent reiterated the same facts in his affidavit-inevidence. The husband of the respondent admitted. In his cross-examination that the respondent filed two eviction applications on the ground of default against two other tenants and both the eviction applications were allowed. The husband admitted in his cross-examination that "it is correct to say that after that I continued these tenants on fresh agreements of tenancy". "It is correct to say that the rate of monthly rent with them is Rs.100". He denied the suggestion that the rate of rent as Rs.50 per month in respect of the shop in question. The other witnesses stated that he was tenant of the respondent and was paying Rs.100. He also produced rent receipts. First rent receipt was issued on 1-3-1975 Exh.2/1, the printed serial No. On this receipt is 47. The learned counsel for the respondent has produced counterfoil of 'this receipt book I have perused the same. It was issued on 1-1-1976 and it shows Shafiq Ahmed. The second receipt is, dated 13-11-1975 Exh.212 and the printed serial No. Is 37. I have compared the same with counterfoil produced by the learned counsel for the respondent.
6. The third rent receipt was issued on 1-12-1975 Exh.2/3 it was issued to Muhammad Moin Khan. I have compared the same with counterfoil. The fourth receipt was issued on 2-10-1975 and it was issued to Muhammad Moin Khan. The fifth receipt was issued on 2-4 1975 and it was issued to Moin Khan.
7. The first receipt Exh.2/1 was issued to Muhammad Moin Khan but the counterfoil shows the name of Shafiq Ahmed. It seems that these receipts were subsequently prepared for the purposes of the case. &teems that the learned Rent Controller has rightly determined the rate of rent. The learned counsel for the respondent has not shown any misreading in the order. In this view of the matter, the attorney of the respondent admitted in his cross examination that receipt No.47 was issued on 1-3-1975 but counterfoil shows that it was issued on 8-1-1976. It also shows that it was issued to Shafiq Ahmed. I do not find any substance in this cross-objection. As regards the last contention of the learned counsel for the respondent that the respondent has established default. It is pertinent to note that the respondent in her eviction application averred that the appellant had committed default for the period 1-7-1977 till 24-10-1977. The appellant denied this allegation. It is pertinent to note that before this eviction application the respondent sent notice, dated 22-9-1977. The notice was produced as Exh.1/2. It is pertinent to note that there was no mention about failure to pay rent for the months of July, August and September, 1977. The other notice, dated 15-10-1977 was also produced in evidence, as Exh.1/3. This notice does not mention about default. The respondent's attorney stated that he used to issue rent receipts to the tenants. TheE learned counsel for the respondent has not produced any counterfoil for the period of March, 1976 upto October, 1977.
8. The appellant specifically denied that the respondent and he husband never issued any rent receipt to him or to any other tenant. The burden of this issue lays on the respondent. It seems that th finding of the learned Rent Controller is in accord with evidence on record. It seems that the learned Rent Controller has rightly observed that in the absence of any such proof the appellant was not a defaulter. I do not find any force in cross-objections and the same are dismissed. In the result the appeal is allowed and the eviction application filed by the respondent is dismissed. In the circumstances of the case, the parties will bear their own costs.