1. ' This appeal has been filed, challenging order dated 9-1-1992 passed by the IIIrd Senior Civil Judge and Rent Controller Karachi (East) in Rent Case No, 547 of 1988 filed by the respondent against the appellant for his eviction from the tenement situated on second floor of the building, constructed on Plot No, 366-368-C, Central Commecial Area, P.E.C.H.S., Karachi.
2. ' The learned Rent Controller had ordered eviction of the appellant on the grounds that the premises were required in good faith by the respondent for her and her children's use and occupation, subletting of the premises and that the appellant was guilty of materially impairing the utility and value of the premises.
3. ' In respect of the first ground the stand taken by the appellant in the written statement was that the respondent was already in possession of bigger portion of the first floor consisting of three rooms and courtyard with all amenities of life. According to him the appellant had two daughters and one son. Her husband resided out of Karachi and rarely visited her and further alleged that he used to reside with his another wife in a big Bunglow in Federal B. Area, Karachi.
4. ' The respondent had examined her husband Abdul Sattar in support of her case. He had deposed that the respondent had four children out of whom two, Saifullah and Anila are grown up. He further deposed that the respondent was in possession of half portion of the first floor consisting of two rooms with kitchen, bath and W.S. And she was facing great hardships. It was scifically stated that the marriage of his son Saifullah was held up for want of accommodation. He frankly stated that the second portion of the first floor in possession of a tenant was vacated, which has been given to his daughter Khalida Jabeen who is residing therein alongwith her family. In cross-examination it was deposed by him that Mst. Khalida was from his first wife, but denied the suggestion that she was residing in a flat in Federal B. Area, alongwith her husband.
5. ' The learned Advocate for the appellant urged that the first floor consisted of two flats. The respondent was already in possession of three rooms and during pendency of the Rent Case the other tenement on the first floor also had fallen vacant and is in her possession and therefore she does not need the demised premises.
6. ' It is established fact that the appellant is in possession of three rooms, she has four children out of whom one son and one daughter are grown up and marriage of her son Saifullah is being delayed for want of accommodation. It is self-evident that three rooms will not be sufficient for the respondent, her husband and four children and she is in need of additional accommodation.
7. ' The case of the appellant is that two rooms are also in possession of the respondent and that Mst.
8. Khalida is residing in a flat situated in Federal B. Area which has been provided to her husband by the Bank where he is in service. The above factual position was controverted by the husband of the respondent in his evidence. No evidence was brought on record to show that Abdul Majeed husband of Mst. Khalida was allocated any flat by his employer and she was residing there. In the evidence the appellant did not give any particulars with regard to the location of the aforesaid flat which has been allegedly provided by the Bank. In the absence of such evidence which was not difficult to bring on record the version of the appellant is discarded. The contention raised by the learned counsel for the appellant that the husband of the appellant is not residing with her is also devoid of force.
9. ' In the totality of the evidence the only inference possible is that the respondent is residing with her four children and husband in three rooms which accommodation as already observed is not sufficient for such a big family particularly when one son and one daughter of the respondent are grown up and the marriage of the son is being postponed for want of accommodation.
10. ' The Rent Controller has rightly held that the premises in dispute is required in good faith by the respondent for use and occupation by her and her children.
11. ' With regard to second ground the case of the respondent is that the appellant has sublet the premises to such persons who use the same on commercial basis, which allegation was denied by the appellant in his written statement. It is stated by him that the premises was being used by his family members from the very beginning and that the premises was never sublet. He specifically pleaded that the premises is in use of his family member Nasim.
12. ' The Attorney of the applicant in his affidavit-in-evidence deposed that the appellant has handed over the possession to one Nasim Khan, who has allowed other persons namely Matin Khan, Salim Khan, Haider, Shafqat Taj Muhammad, Muhammad Sajjad Khan, Aslam Khan to reside there as paying guests. It was also stated that wife of Matin Khan prepared food for above persons on payment basis. When Nasim Khan was asked by the respondent to vacate the premises he lodged false and fictitious report under section 430/334/512, P.P.C. Against her and her daughter. Photo copy of the F.I.R. Has been placed on record. Muhammad Nsim Khan was examined by the Magistrate in the aforesaid case and he admitted that he was in possession of the demised premises and paying Rs,750 per month as rent. It was also specifically deposed by the said Attorney that the appellant had purchased house bearing No,C-607 P.E.C.H.C. Block-2, under Registered sale-deed copy whereof is on record. The appellant in the aforesaid sale-deed has described himself as resident of the property which has been purchased by him. The respondent's said Attorney having come to know that the appellant had vacated the demised premises and shifted to the aforesaid house, served him with notice dated 5-3-1988. The Attorney was cross- examined at length but nothing was brought on record, except that originally Muhammad Farooq was the tenant and subsequently appellant was accepted as tenant.
13. ' The respondent in his affidavit-in-evidence deposed that he and Muhammad Nasim who is brother of the aforesaid Muhammad Farooq were residing in the said tenement right from the beginning. He further stated that his brother Matin was also residing with him. In essence the case projected is that the said Nasim and his brother Matin were residing there at the time of fresh tenancy agreement which according to him was executed under pressure to pay the enhanced rent at the rate of Rs,700 per month.
14. ' It was denied by him that the persons named by the witness of the respondent were residing with him. He though denied the subletting, but did not deny specifically the fact that he had shifted from the demised premises. He also did not deny the fact that the said Nasim was paying Rs,750 per month as rent. He also did not deny specifically that the wife of Matin used to prepare meals on payment for the aforesaid persons. On the contrary he admitted that he was residing in the house purchased by him.
15. ' The learned Rent Controller on assessment of the above evidence concluded that the respondent had parted with possession and it was sublet by him to the aforesaid Nasim who was paying rent at the rate of Rs,750 per month and the respondent was depositing Rs, 700 per month in the Court.
16. The learned Advocate for the appellant contended that the aforesaid persons have been residing with the appellant even before the teanancy agreement executed between the parties but objection was never raised by the respondent in this regard. According to him the above conduct constituted waiver in respect of subletting and the respondent cannot seek ejectment on the said ground. Waiver is a mixed question of fact and law and is to be raised specifically. No such plea was raised in the written statement. Even if the above contention is accepted the question arises as to what is the effect of the fact that the appellant had parted with possession of the demised premises and handed over the same to said Nasim who is paying rent at the rate of Rs,750 per month to him. Section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance, 1979, provides that the Controller shall make an order directing the tenant to put the landlord in possession of the premises, if the tenant without the written permission of the landlord has handed over the possession of the premises to other person. It is established on record that the appellant sometime before D institution of the case had handed over possession of the demised premises to the said Nasim and is realizing rent from him. The appellant before execution of the sale-deed in respect of the property purchased by him had shifted in the said property which is evident from the fact he has shown himself as resident of the said property. Before that he was also residing in the demised property alongwith Nasim etc. By shifting to his own property, he handed over the demised property exclusively to the said Nasim etc. This was new development and recent occurrence.
17. Therefore the question of waiver is foreign to the above facts. In such circumstances I see no reason to interfere with with the findings of the learned Rent Controller, on the said issue.
18. ' On the third ground the respondent's witness has given meticulous details of the changes in and damages caused to the demised premises. The appellant in his evidence denied to have committed any ,act materially impairing the value and utility of the premises in dispute. The burden of proof of the aforesaid issue was on the respondent. If the value and utility of the premises had been materially impaired, this could have been proved by producing independent evidence. In the absence of such evidence the word of the respondent which has been rebutted cannot be accepted as conclusive. The finding of the learned Rent Controller on the said issue is therefore reversed.
19. ' The above are the reasons for the short order dated 22-5-1993, whereby the appeal was dismissed and the appellant was granted two months' time to hand over the vacant possession of the premises to the respondent.