This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is directed against the order dated 31-1-1987, passed by Mr. Zafar Ahmed Khan Sherwani, Vth Senior Civil Judge and Rent Controller, Karachi, whereby he has dismissed the application for ejectment filed by the appellant against the respondent.
2. The respondent is a tenant of appellant in respect of Flat No. 12/2, Wahid Market, Nazimabad, Karachi, at a monthly rent of Rs. 400. On 24-12-1985, the appellant filed an application for ejectment against the respondent on the following grounds:- (i)Personal requirement.
(ii)Default in payment of rent.
(iii)Impairing the utility of the premises.
(iv)Causing nuisance to neighbours.
3. The respondent has disputed the allegations in his written statement filed on 23-11-1986.
According to him the appellant is residing in a bungalow situated in North Nazimabad, Karachi, and he does not require the premises in dispute for his own occupation.
4. On the pleadings of the parties the learned Rent Controller formulated the following points for determination:- (1)Whether the flat in question is required by the applicant for his own occupation, in good faith?
(2)Whether the opponent has committed wilful default in payment of rent.
(3)Whether the opponent has damaged the flat in question which is likely impair its material value and utility:'
(4)Whether the opponent has indulged in such activities which are causing nuisance to the neighbours?
(5)What should the order be?
5. The appellant has examined himself (P.W. 1), while the respondent has examined himself (D.W. 1), and then closed the side. On the assessment of the evidence adduced by the parties, the learned Rent Controller decided all the issues against the appellant and consequently dismissed the application for ejectment filed by the appellant.
6. The appellant has sought the ejectment of the respondent for personal requirement, in para. 4 of the application for ejectment in the following words:-
4. That the said premises are required by the applicant for his personal use and occupation as he is himself residing with his relatives.
7. In his affidavit-in-evidence, the appellant goes a step further by stating:- "That I am living alonwith my brother Dr. Shahzad Hussain on the above-mentioned address and I require the premises in question for my personal bona fide need. It should be mentioned here that my children and children of my brother are grown up and they used to quarrel each other, and as such, it is not possible to live together."
8. The record as it stands shows that there are 35 flats in all for residential purpose in the building where the disputed flat is situated, and out of those various flats were lying vacant when the application for ejectment was filed. The appellant has not assigned any reason in his application for ejectment and affidavit-in-evidence for selecting this particular flat. No doubt it is a matter within the discretion of the landlord to determine where he should reside, but on the face of the above position when other flats were lying vacant, the landlord in order to prove his good faith must satisfy the Rent Controller that there is an element of genuine requirement of that particular flat.
9. The expression "good faith", means' honestly as distinguished from had) faith, or without fraud or deception: The requirement of premises in good faith, 13 therefore, involves present genuine need which is be proved through convincing and tangible evidence: A casual statement by the appellant that he requires the premises in good faith, would not be enough to satisfy their requirements of law.
10. The state of mind of the appellant is, further reflected from the averments made by him in Para. 5 of the application for ejectment in the following words:- "5. That another tenant in the game building having 2 rooms accommodation is pay, rent at Rs. 500 of Rs. 600 per month. Further there is one other tenant adjoining tot with morns and paying Rs. 700 per month."
11. When examined in juxtaposition to the allegation made by the respondent that the appellant was interested in getting the rent enhanced, it seems to .Me as clear as day light that the appellant has come to Court with unclean hands.
12. Lastly it was half-heartedly suggested on behalf of the appellant that the documents (Annexures A to G) produced before this Court alongwith application made under Order 41, Rule 27 C.P.C., lead support to the case advanced by the appellant in his affidavit-in-evidence. This argument, however, is effectively answered in Islamic Republic of Pakistan and others v. Ata Hussain, reported in PLD 1988 SC 13, in the following wards: "The Deputy Attorney-general has by an application dated 24-2-1986 sought permission to place on record certain additional documents not earlier brought to the notice of the Service Tribunal.
Not only there is inordinate delay in filing of these documents it amounts to setting up of a new case, different than the one set out before the Tribunal. There is no reason given for earlier omission to plead and place on record these documents for consideration. Hence that application is rejected:'
13. This-application was allowed by consent on 31-5-1987 by the Hon'ble Chief Justice, subject, however, to admissibility and relevancy of these documents. These documents, by themselves lead us nowhere. They are again not meant to patch up the work parts to the case and- fill up the omission in the Appellate Court. The appellant had not pleaded the case of his stay with his brother in his application for ejectment which he now wants to establish before this Court, through the additional evidence. These documents, therefore, cannot be considered at this stage.
14. Having regard to the above factual position, I see no reason to differ with the view taken by the learned Rent Controller on the issue of personal requirement:
15. The evidence on rest of the issues is sketchy and vague. There is no default in payment of rent.
The period of default was not even mentioned in application for ejectment. Likewise placing of few flowerpots in the terrace) cannot be said to be an act likely to impair the utility of the building or to cause nuisance to the neighbours. No supporting evidence was adduced on these issues. The finding of the learned Rent Controller on these issues is, therefore, not open to any exception.
16. In the result the appeal fails and is dismissed Ah no order as to costs.