' This appeal was dismissed by me earlier for reasons to be recorded. I now proceed to record the reasons for dismissal of this appeal.
2. The appellant is the owner of a double-storeyed house situated on Plot No,27, Block No,7/8 of Karachi Memon Cooperative Housing Society, Karachi-29 and the respondent is a tenant in respect of a portion of the house situated on the ground floor. The tenancy agreement had been executed between the appellant and a proprietary concern named Al-Bario Trading Corporation. The agreement was executed on behalf of the latter by the respondent who also had styled himself as Manager of the same. The rent for the premises was payable at quarterly intervals and in advance before the 10th of the month from which it became payable. According to the terms of the tenancy agreement, the premises had been let out only for residential purposes and were to be used by the respondent for the said purpose only.
3. In December,1986 the appellant filed an eviction application before the learned Fifth Rent Controller (East), Karachi seeking the respondent's ejectment from the demised premises on the grounds of: (1) default in payment of rent, (2) change of use from residential to commercial, and
(3) personal requirment of the appellant, as according to her, her family was large. The application was resisted by the respondent. Thereafter, evidence was led on behalf of the parties. The learned Controller was, however, not satisfied with the evidence led on behalf of the appellant and dismissed the appellant's application, as according to him, none of the grounds taken by the appellant could be established by her. On the point of default, he held that as per the admission made by the appellant's attorney during his cross-examination, he had refused to accept rent from the respondent from October, 1986 and thereafter the latter started depositing rent in the Court and the entire amount so deposited was withdrawn by the appellant after three yeaRs, Consequently, according to the learned Controller, no wilful default had been committed by the respondent. The learned Controller was also not impressed by the evidence led on behalf of the appellant on the point of change of use of the premises although an admission had been made by the respondent that the premises had also been utilized by him for office work as well. Since there was no controversy on the point that the respondent had been residing in the said premises alongwith his other family members for more than 17 years prior to the filing of the eviction application, such admission was held to be of very little significance. The learned Controller was also not satisfied with the evidence led on behalf of the appellant on the point of personal use as the evidence produced in this regard was not sufficient to satisfy the requirements of law. Apart from the merits of the case, the learned Controller was also of the view that since admittedly the property in question had been let out to a firm and not to the respondent in his individual capacity, the ejectment application was not maintainable without joining the firm as a party.
4. So far as the issue in regard to the maintainability of the eviction application is concerned, it may be pointed out at the very outset that I have no hesitation in agreeing with Mr. Iqbal Kazi, learned counsel for the appellant, that the view taken by the learned Controller is not correct because it appears that the respondent had throughout been dealing directly with the appellant and it never appeared at any time that the respondent had acted on behalf of any other party. The mere fact that the agreement was executed in the name of Al-Bario Trading Corporation does not make it a necessary party under the circumstances just enumerated above and therefore, I fully agree with Mr. Kazi that eviction application was maintainable against the respondent, who according to his own admission, had himself been residing in the demised premises, had been paying rent for the same, and had been directly dealing with the appellant. However, on the other issues, I find myself in full agreement with the findings arrived at by the learned Controller.
5. On the point of default, Mr. Iqbal Kazi has argued that rent which had fallen due from October, 1986 was payable, according to the agreement, by the 10th October and according to the Sindh Rented Premises Ordinance, by the 25th October, 1986. Since such rent amounting to Rs,10,867.43 had been deposited by the respondent in the Court on 19-11-1986, the respondent had clearly committed default in payment thereof. No doubt, rent was payable for the quarter of the year beginning from October, 1986 as just pointed out in this judgment but at the same time there is nothing to indicate that the respondent was himself responsible for any default. If it is shown that the landlord was himself instrumental in causing default, the tenant cannot be penalized for such default. Since there is a clear cut admission made by the landlady's witness that from October, 1986, the landlady had herself refused to accept rent, the Rent Controller, in my opinion, has rightly held that there was no wilful default on the part of the respondent in the case. I, therefore, find no force in the first contention of Mr. Iqbal Kazi.
6. So far as the second contention of the learned counsel is concerned, the learned counsel has laid too much of stress upon the admission made by the respondent that some office work was also done by him at the demised premises. It is pertinent to point out that no substantial evidence had been led on behalf of the appellant on the point of change of use. So far as the said admission made by the respondent is concerned, the same was not sufficient to make him liable for ejectment on the ground of change of use. There was sufficient evidence to show that the premises had been used by the respondent for residential purposes and the mere fact that some office work was also done by the respondent in the premises was hardly sufficient to bring the case within the purview of section 15(2)(b) or (c) of the Sindh Rented Premises Ordinance and to render the respondent liable for eviction from the demised premises. Mr. Kazi has also laid too much emphasis upon the letter-head of Al-Bario Trading Corporation showing its address as the premises in question but although the same may be a relevant fact but in absence of any substantial evidence in this regard the same cannot be relied upon as a conclusive proof on the point. It is pertinent to piont out that the letter-head which had been produced in evidence by the respondent himself only indicates that the premises in question had been shown as office of the respondent but the question whether the demised premises had actually been put to such use is a different question which had to be established by positive evidence. There being no such evidence produced before the learned Controller, in my opinion, the findings arrived at by the learned Controller on the point are not open to exception.
7. Turning to the third argument of Mr. Iqbal Kazi, the learned counsel has argued that since the contention of the appellant raised in her eviction application that she had a large family and she required the premises for her personal need had not been rebutted by the respondent either in his written statement or by the evidence produced on his behalf, no further proof was required. No doubt, the appellant had stated in para. No,7 of her eviction application that she had a large family but in absence of any evidence as to the number of her family members and their requirement, the appellant had only expressed her opinion by stating that she had a large family. No other substantial evidence was produced on behalf of the appellant in this regard, although during the cross-examination of the appellant's attorney it transpired that the appellant had a duel nationality and she had been residing in Canada for about 15 years prior to the filing of the eviction application. It also transpired that the premises in possession of the respondent were situated on the ground floor whereas similar accommodation on the first floor was in possession of the appellant's cousin who was a medical student. The learned Controller on the basis of such evidence held that the first floor of the building was under the control of the appellant. No doubt, the finding arrived at by the learned Controller in this regard is too far-fetched but apart from this the appellant was under clear obligation to establish bona fides of her claim. No doubt, good faith or bona fides are to be established by preponderance of evidence if both the sides have led evidence on the point but nevertheless the same must be established from the evidence, it being immaterial from which side such evidence has been led. Mr. Iqbal Kazi in spite of his best efforts has been unable to point out any evidence worth consideration from which the requirements of law in regard to personal need of the landlord can be satisfied. Consequently, I once again cannot but agree with the findings arrived at by the learned Controller that the appellant had failed to establish her bona fides in regard to her claim of personal requirement. Consequently, none of the grounds upon which ejectment was sought could be established by the appellant before the learned Controller. Therefore, in my opinion the ejectment application was rightly dismissed by the learned Controller.
8. In the end, Mr. Iqbal Kazi pressed C.MA. No,1191/91 into service in order to produce certain documents in evidence which had not been produced earlier before the learned Controller. The documents sought to be produced mainly consist of the following:
(1) An original certificate issued by one Dr. Bashira Shaikh in respect of the appellant and her husband showing that both the appellant and her husband were suffering from usual old age problems such as arthritis of knees and back and pain in the legs etc. Such conditions, according to the Doctor, are worse in cold weather, and
(2) Photo copies of the Passport and Identity Cards of the appellant and her family membeRs,
9. It may be pointed out in this regard that it is not the case of the appellant that these documents were not available with the appellant or her Advocate at the time when evidence was being recorded by the learned Rent Controller. Although recording of additional evidence is permissible under certain circumstances but additional evidence cannot be permitted to fill lacuna in the case.
Even otherwise the documents sought to be produced by themselves cannot be considered as evidence unless they have been properly proved or, as the case may be, their author has been examined as a witness in the case. Consequently, in any case, no purpose would be served by granting the miscellaneous application. The application is, therefore, rejected.
10. In view of my findings just arrived at in this judgment, the appeal is dismissed and the order passed by the learned Rent Controller is sustained. The parties are left to bear their own costs in view of the questions raised.