' SALAHUDDIN MIRZA, J.---Appellant Muhammad Akhtar Khan has come in appeal against eviction order, dated 3-8-1991 passed by IInd Senior Civil Judge and Rent Controller, Karachi Central on 3rd August, 1991., The manner in which the tenancy came into existence is very peculiar and requires a detailed description.
2. Respondent Fahimuddin was owner Of Plot No,L-170, Sector 11-C-1, North Karachi Township. He raised an incomplete structure over it but could not complete it for want of funds. He came across appellant Muhammad Akhtar Khan who is a building contractor and it was agreed between them as follows: Alchtar Khan would complete the construction in Rs,35,000 out of which Rs,5,000 would be paid by Fahimuddin and remaining Rs,30,000 would be borne by Akhtar Khan. After the completion of the house, Akhtar Khan would live in it as a tenant, the monthly rent would be Rs,500 which would be adjusted towards the amount spent by Alchtar Khan but only to the extent of Rs,20,000, whereafter Alchtar Khan would start paying rent and the balance of Rs,10,000 would be retained by Fahimuddin as fixed deposit, to be refunded at the time of vacation of the house. Rent agreement and another agreement and two iqrarnamaas were executed between the parties. It appears that tenancy had commenced w.e.f. February 1986. The appellant had opened a beauty parlour in one of the rooms and in March 1986 it was agreed (vide Ex.A/4) that if any additional tax was levied on the house due to the beauty parlour, such additional tax would be paid by the tenant. However, differences cropped up between the parties and in December 1987 the respondent instituted ejectment petition on the following grounds:
(1) that the landlord apprehended that tenant "will commit some act which may cause irreparable loss to the landlord".
(2) that the tenant had committed acts which had impaired the utility and values of the house.
(3) that the landlord requires the premises for his bona fide use as his wife was sick and could not easily live on the fourth floor flat.
' He offered to refund the balance of the amount due to the tenant.
3. In his written statement the appellant claimed that there was no partially constructed house and he was given a vacant plot over which he had built the house. Rest of the averments of the respondent/landlord were admitted. He, however, added that with the consent of the respondent he had undertaken some additional construction and that the total expenditure rose to Rs,85,000 from the original stipulated amount of Rs,35,000 and claimed that the respondent had given consent for the adjustment of this amount as well. He also claimed that he had commenced living in the house since January 1987 and therefore became liable to pay rent or get it adjusted from January 1987. He denied other allegations of the respondent and maintained that he had a right to live in the house until all his amount was adjusted in rent.
4. Learned Rent Controller framed the following issues:
(1) Whether application is not maintainable?
(2) Whether demised premises is required by the applicant for his personal use?
(3) Whether opponent has converted one room of the demised premises in a beauty parlour (commercial shop) and is using the premises for the purpose other than it was obtained?
(4) What should the order be?
' After assessing the evidence of the parties learned Rent Controller decided all these issues in favour of the respondent and passed the impugned order of eviction. Hence this appeal.
5.. Learned counsel of the parties have been heard.
6. The three preliminary things which must be first determined are:
(a) In what condition the premises were handed over to the tenant/appellant, as a vacant plot or as a partially constructed house?
(b) What was the total agreed amount which the appellant was to spend on the premises, Rs,35,000 or Rs,50,000?
(c) Whether the amount spent by the appellant has been adjusted? I shall take up these points seriatim in the following lines. (a) Whether vacant plot was given or partially constructed house?
7. The earliest document executed between the parties is Mukhtarnama executed by the respondent in favour of the appellant on 17-10-1985 (ExhA/3). It gives an impression that the respondent had handed over partially constructed house and not a vacant plot to the appellant. I get this impression from the words. {{URDU TEXT}} ' The amount stipulated (Rs,35,000) is so small that it also suggests that the structure of the house was complete and only the finishing touches and the provisions of amenities like gas, electricity and water supply were left. In any case this controversy is not material for the decision of this appeal.
(b) What was the total agreed amount which the appellant was authorised to spend and which was liable to adjustment?
8. The same document ExhA/3, which is titled as Mukhtarnama but which in reality is an undertaking given by the respondent, gives the amount as Rs,35,000 out of which Rs,5,000 was paid by the respondent and thus the effective amount is only Rs,30,000. Then there is rent agreement Exh.A/2, dated 6-3-1986 which indirectly refers to Rs,30,000 when it stipulated that Akhtar Khan would continue to remain in possession until the amount of Rs,20,000 is adjusted in rent and that the remaining amount of Rs,10,000 shall remain with Fahimuddin as advance deposit refundable at the time of the vacation of the premises. To this extent the appellant admits in his written statement but then adds that after this phase of construction was over, the parties agreed that the appellant would put up further construction and thus in all he spent Rs,85,000, that is, Rs,50,000 over and above the amount incorporated in the agreement (Mukhtarnama) Exh.A/3 and Rent Agreement ExhA/2. However, this further agreement is said to be oral and is sought to be proved through R.W. 2 Mian Ghulam Mujtaba. However, Article 103 of Qanun-e-Shahadat bars all oral evidence for purposes of varying the terms and conditions of a written agreement. Even otherwise, the evidence of R.W. 2 Mian Ghulam Mujtaba is not sufficient to discharge the onus placed upon the appellant to prove this claim. I would therefore discard the claim of the appellant that by mutual agreement the investment in the construction was enhanced from Rs,30,000 to Rs,85,000. Even otherwise, such an agreement looks ludicrous because the respondent cannot be expected to bind himself to keep the appellant in the house for 15 years, and that too without any enhancement of rent during all these years. If the appellant spent anything over and above Rs,35,000 he did so at his own risk and the respondent is under no obligation to take a note of it.
(c) Whether the amount has been adjusted?
9. Out of Rs,30,000 only Rs,20,000 were to be adjusted in rent and the remaining Rs,10,000 were to remain with the respondent as fixed deposit. Now, vide para. 5 of the written statement the appellant concedes that rent became payable since January 1987 and accordingly adjustment commenced from this month. This is also proved from an "Iqrarnama" ExhA/1, dated 1-1-1987 executed by both the parties. Thus the deductions were over by the end of April, 1990 leaving the fixed deposit of Rs,10,000. Even this amount now stands adjusted in the rent of the next 20 months from May, 1990 to December, 1991.
10. Thus, the entire amount spent by the appellant as per agreement between the parties stands adjusted by December, 1991.
11. I would now advert to the two grounds on which eviction was sought and granted.
(i) Personal bona fide use.
12. Learned counsel of the appellant rightly pointed out that this ground was not taken by the respondent in the entire ejectment application and was mentioned only in the prayer clause. Even here he says that his wife generally remains sick and cannot bear the strain of using the fourth floor and her condition is deteriorating day by day. In his affidavit-in-evidence the respondent said that his wife was suffering from hypertension and blood pressure. There is however nothing on record to suggest that the respondent even had a wife, not to speak of her sickness. Her name is not disclosed and she did not appear before the Court to plead her requirement. Even copy of her National Identity Card has not been produced. As for her sickness a medical certificate dated 20- 3-1989 ExhA/5 has been produced. It is in respect of one "Mrs. Fahim" who was said to be suffering from hypertension and blood-pressure. But the identity of this lady has not been established. There may be more than a score "Mrs. Fahim" in the city. Moreover, the doctor has not been examined and without him the certificate is just a trash of paper devoid of any evidentiary value.
13. Learned counsel of the respondent then claimed that the landlord was living in Government accommodation (that is, rented premises) and therefore had a right to shift to his house and in this regard reliance was placed on the case of Syed Muhammad Hasan v. Raza K. Minhas 1991 CLC 2039 but he had not pleaded this ground in his ejectment application and even what he stated in para. 6 of his affidavit-in-evidence does not amount to saying this. In short, the respondent failed to plead this ground in the ejectment petition and its inclusion in the prayer clause is not enough, the respondent failed to A establish the existence of his wife and, on top of it all, he did not examine the doctor to prove his medical certificate which is not admissible in evidence per se and therefore he has failed to establish the ground of personal requirement of his wife and thus he is not entitled to seek eviction on this ground.
' Conversion of one room into beauty parlour.
14. The Iqrarnama executed by the appellant on 14-3-1986 (ExhA/4) is an admitted document. It, in fact, shows that the beauty parlour, even if it had been established by the appellant without the consent of the respondent, was later on regularised and the respondent had agreed to its continuance. I do not agree with learned counsel of the respondent that ExhA/4 does not amount to giving permission. In my view it clearly amounts to just this. This is evident even from para. 5 of the ejectment petition. As such eviction cannot be sought on this ground.
15. As for the apprehended acts of the appellant which may cause irreparable loss to the respondent (para. 8 of ejectment petition) or the acts which have impaired the utility and value of the house (para. 9 of ejectment application) there is no mention of them in the evidence and these grounds appear to have been given up.
16. In view of what has been stated above, the appeal must succeed and it is allowed and the impugned judgment of learned Rent Controller is set aside with the result that the ejectment application stands dismissed.
17. Before parting with the case, I may observe that as held in this judgment, the entire investment of the appellant stands adjusted in the rent for the period ending December, 1991. So, if the appellant is not paying rent since January, 1992, he becomes a defaulter and liable to be evicted on that ground for which purpose the respondent must bring a separate ejectment petition.