1. ' This First Rent Appeal is directed against the order dated 25-4-1988 passed by the VIth Senior Civil Judge and Rent Controller, Karachi South whereby allowing the eviction application filed by the respondent and directing the appellants to hand over the vacant possession of premises in question to the respondent within 60 days of the order.
2. ' The facts leading to the filing of the above appeal are that the respondent is a landlord/owner of the building known as Andaleeb Mansion situated on Plot No,RB-11/47, Rambagh Quarters, Abdul Hakim Khan Road, Ratan Talao, Karachi and the tenement No, 13 on the 3rd Floor of the said building was given on rent to late Adamji son of Haji Qasim. The said Adamji son of Haji Qasim died leaving behind Mst. Khatu Bai was widow and the present appellants as the legal heirs and as such Mst. Khatu Bai and other legal heirs became the tenants. Mst. Khatu Bai expired leaving behind the appellants as the only legal heiRs, ' It is the case of the respondent that rent of the premises in question is Rs,170 and is payable on or before 10th of each English calendar month. It is the further case of the respondent that the premises in question was rented out to late Adamjee but the appellants unauthorisedly and without his consent closed the staircase and raised unauthorized construction on the said roof contrary to the terms of tenancy and contrary to the approved plan of the K.M.C. The staircase leading to the roof of the building was closed by Mst. Khatu Bai and the present appellants with the result that access to the roof is closed. These acts are not only impair the value and utility of the building but also the breach of the terms of the tenancy and contrary to the plan approved by the K.M.C. And the Rules and Regulations of the Building Control Authority. The appellant caused damage to the building due to the additional load put up by the constructions on the roof.
3. ' The appellant paid the rent up to February 1983 and thereafter failed to pay rent since 1983 in spite of repeated demands aid requests. As such the appellants have committed default. The respondent has also claimed premises for his personal need and for the need of his three unmarried daughters, minor son and the wife as the respondent wanted in good faith to live in his own house.
4. ' The appellants filed written statement wherein they denied the allegations of closure of roof, impairing the value and utility of the building. The appellants have also denied the allegation of personal requirement and default in payment of rent.
5. ' The respondent filed his own affidavit-in-evidence alongwith affidavitin-evidence of Hafiz Manzoor Ahmed. The appellant No,1 filed his own affidavit in rebuttal alongwith the affidavit-in- evidence of All Muhammad. They were cross-examined by the learned counsel for the respective parties.
6. ' The learned Controller, on assessment of the evidence, has decided issues Nos, 1 and 2 in the affirmative and issues No,3 and 4 in the negative. Eviction application was allowed on the ground of impairing utility and value of the building and also on the ground of personal requirement. The appellants being aggrieved against the impugned order, have filed the present appeal.
7. ' I have heard Mr. Haroon Ishaque Jangda, learned counsel appearing for the appellants and Mr. Rahmat Elahi, learned counsel appearing for the respondent. I have perused the impugned order and have gone through the pleadings of the parties and evidence led by the parties.
8. ' The learned counsel for the appellants contended that the respondent has not proved damage to the property and have not established personal requirement. On the other hand, Mr. Rahmat Elahi, learned counsel for the respondent has supported the impugned order. He submitted that the appellants have damaged the property and the respondent has established personal requirement.
9. ' The respondent has averred in para. 5 of the eviction application that the tenement No,13 on the 3rd floor was rented out to late Adamji but appellants and deceased Mst. Khatu Bai unauthorisedly and without his consent closed the staircase and raised unauthorised construction on the roof of the building contrary to the terms of the tenancy and contrary to the approved plan of K.M.C. In para. 6 of the eviction application, it is averred that the staircase leading to the roof of the building was closed by the appellants and Mst. Khatu Bai with the result that access to the roof is closed. In para. 7, it is averred that these acts of the appellants have not only impaired the value and utility of the building but are also the breach of the terms of the tenancy and contrary to the plan approved by the K.M.C. And the Rules and Regulations of the Building Control Authority. In para. No,8, it is averred that the appellants caused damage to the building due to the additional load put up by the constructions on the roof. The appellants filed written statement and denied the contents of paras. 6, 7 and 8 of the application. The appellants contended that from the very beginning of the tenancy i,e, 1951 the roof of the building (open to sky) which is a part of tenment in possession of the appellants and they are using the same since 1951. The appellants pleaded that on taking over by the respondent, he himself attempted to construct an additional floor on the existing structure for which the appellants filed a suit for permanent injunction being Suit No,1365 of 1983 (New No, 306/85) which is pending adjudication before the learned XIth Civil Judge at Karachi South. The respondent in his affidavit-in-evidence has stated that the roof of the building is not part of tenancy. He noticed the said closer of the staircase and unauthorised construction on the roof asked them and Mst. Khatu to stop using the roof and remove the unauthorised construction but at once Mst.Khatu Bai in order to get the protection of the Court, filed a Civil Suit No, 1365/83 and obtained the order of injunction and in the said civil suit, the appellants claimed the right of easement open to sky space. In para. 8 of the affidavit-in-evidence, the respondent stated that the value and utility of the building has been impaired. The unauthorised construction is contrary to the approved plan of K.M.C. And move-over due to unauthorised construction and additional load has been put up which caused damage to the building. He further stated that by closure of the staircase the utility of the building has also been impaired. As such the appellants are liable to be ejected from the premises. To a question in cross-examination,-respondent replied that he never tried to build an additional storey over the building. To a suggestion, he replied that it is not correct that the appellants have not made any additional construction. The appellant No,1 stated in his affidavit that tenement No,13 is situated on 3rd floor and at the time of letting out in 1951 the said flat was in the same condition and staircase leading to the top floor was already closed by previous landlords prior to partition. He further contended that no alteration or construction whatever, as alleged by the respondent, has ever been carried out by the appellants. He stated that from the very beginning of tenancy, the roof of the building which is a part of tenement in question is in possession of the appellants and appellants are using the same since 1951. To a question in cross-examination, he has submitted that tenement No,13 is on 3rd floor. There is only this one flat on-3rd floor and tenement No,13 is on rent with them alongwith roof. To a question he replied that there was no construction on the roof. He has further stated that they have constructed kitchen and store on the roof after the tenancy. He has admitted that there is tank on the roof. He denied the suggestion that there is any partition inside the tank. He has also denied that he has closed the door and no one can go upstaiRs, He has also denied the suggestion that in the year 1981 when the present landlord purchased the said building, there was no construction of kitchen and storeroom over the roof. On the basis of the evidence, learned Controller has come to the conclusion that the appellants have constructed kitchen and store-room on the roof. The roof should be common to all the tenants and they have closed the staircase and they have thereby impaired the material value and the utility of the building.
10. ' Mr. Rahmat Elahi has invited my attention to a decision in the case of Charaghdin v. Mushtaq Muhammad reported in PLD 1975 Karachi 1025 wherein it was held that roof does not form part of tenement. The point for consideration for that case was that the roof is not part of the tenement.
11. ' Mr. Zakaullah Lodhi, J. (as he then was) held that it is admitted fact that every landlord is allowed to construct a second storey on the roof of the premises and lease it out to a person of his choice. It would, therefore, mean that particularly the upper portion of the premises does not form part of the tenement unless otherwise provided. It has come on record that the building consists of three floors and has 13 tenements. It has also come on record that tenement No,13 was rented out to Adamjee, the father of the present appellants. There is nothing on record to show that the roof of the building was let out to late Adamjee as alleged by the appellants. There is nothing on record to show that the kitchen, store-room and upper tank was operative prior to the partition.
12. ' The case of the respondent, as set out, is that by closure of staircase the appellants have impaired the material value and utility of the building. Prima facie it is for the respondent to have examined the architect or engineer to show that the additional construction on roof and/or by closure of the staircase the material value and utility has been impaired, this has not been done. In this view of the matter, the finding on issue No,1 is set aside.
13. ' The respondent averred in para. 10 of the application that he is residing in a house bearing No, D- 3, Block 11, Federal 'B' Area, Karachi which belongs to his 4 sons. These four sons are independent in the business as well. In para. 11 of the eviction application, the respondent averred that he required the premises for his personal need and for the need of his three unmarried daughters, minor son and the wife as the respondent wanted in good faith to live in his own house. He further averred that moroever the differences have arisen in the family between the wife of 2 sons and the wife of the respondent. Such differences amount to mental torture to the applicant/respondent and his family membeRs, The appellants stated in para. 6 of the written statement that the respondent is residing in a very luxurious bungalow, besides he owned many other properties in his own name and in the name of his sons and other relatives and also enjoying a very high standard of living, as such he did not require the demised premises for the own use in good faith or for the use of his unmarried daughters and minor son but the present case is the counterblast of appellants' suit against him. The appellants further stated in para. 6 of the written statement that had he required the premises for his own use, as stated above, he should not allow to convert the entire ground floor (6 flats) to occupy by commercializing it to other people after obtaining huge amount in consideration thereto. The respondent reiterated the same facts in his affidavitin-evidence. In para. 12 of his affidavit, he has stated that soon after the marriage of his two sons, the differences between their wives as his wife have arisen and this became unpleasant life in the family. He required the premises in possession of the appellants for his personal need and for the need of this unmarried daughters and minor son. It is pertinent to note that the respondent was cross- examined at length but no question was put to him about differences between his wife and wives of his sons. To a suggestion in cross-examination, the respondent replied that bungalow in F.B. Area belongs to his four sons. Hafiz Mansoor Ahmed son of the respondent has filed his own affidavit- inevidence and has fully supported the case of the respondent.
14. ' The appellants have not been able to shake the testimony of respondent on this point either by cross-examination or otherwise. They have also not been able to rebut the evidence led by the respondent on this point. By now it is settled law that the contention of the landlord regarding his personal bona fide use, if it is consistent with his pleadings and is supported by his evidence on oath and remains unshaken and disproved in rebuttal, the same shall be accepted as correct.
15. ' Mr. Jangda has lastly contended that section 15 of the Sindh Rented Presmises Ordinance, 1979 is repugnant to the injunctions of Islam and it was declared that this provision shall cease to have effect on the expiry of six months from 1-10-1991. On the other hand, Mr. Rahmat Elahi has submitted at the Bar that appeal has been preferred against this decision. In that view of the matter, the contention of Mr. Jangda is repelled.
16. ' I, therefore, do not find any justification for interfering with the finding of the Controller on this point. Consequently I uphold the same. The learned counsel to the parties have cited a number of decisions in support of their respective contentions. It is not necessary to discuss the same in the instant case, as the principles of law are well settled.
17. ' For the aforesaid reasons, the appeal has no merit which is, therefore, dismissed with no order as to costs. The appellants will deliver the vacant possession of the tenements in their occupation to the respondent within six months of this order.