1. ' This judgment would dispose of the above RFA as well as CMA 912/93 moved by the respondents seeking the consideration of facts with regard to the fresh subletting of the premises by the appellant in favour of one Ahmad Kuli Khan Khatak in respect whereof the respondent No,2 has filed Suit No, 951/93 for injunction against the appellant as well as the said Ahmad Kuli Khan Khattak.
2. ' This appeal under section 21 of the Sindh Rented Premises Ordinance arises out of the judgment dated 7-3-1991 passed by the learned Controller, Karachi South, directing the ejectment of the appellant from Flat No, 5, Khuhro Flats, situated on main Clifton Road, Karachi, rented out to the appellant at Rs,2,800 per month by late Muhammad Ayub, father of the respondents.
3. ' Ejectment was sought on the ground of bona fide requirement of the premises for the use and occupation of respondent No,2 and subletting. It was urged in the ejectment application that the appellant resided abroad permanently and visited Pakistan occasionally and that he had handed over possession of the premises to some other person. On several occasions appellant was requested to vacate the premises but he refused to do so. Requirement of the respondent No,2 was urged on the ground that he was putting up in a building belonging to his father-in-law and since the said building had been sold out the new owner had been pressing for vacant possession and the respondent was thus in dire need of the premises in occupation of the appellant ' Appellant denied the case of the respondents and contested the ejectment application.
4. ' On the pleadings of the parties, learned Rent Controller determined following points: "(1) Whether opponent has sublet the premises to someone else?
(2) Whether applicant requires the premises for his personal use?
(3) What should the order be?"
5. ' In support of their case respondents led to the evidence of Khalid Mehmood while the appellant appeared as his own witness. On assessment of evidence, learned Rent Controller held that subletting was not proved that the disputed premises were required by respondent for his bona fide personal use and in the result allowed ejectment application directing appellant's eviction which order has been impugned in this appeal.
6. ' At the hearing of the appeal, it was noticed that C.M.A. 912/93 filed by respondents had been adjourned from time to time with the regular hearing of the appeal mostly on account of absence of the appellant's counsel. Lastly, the appeal was dismissed for non-prosecution on 20-9-1994 which was readmitted to its original number on 30-10-1994. With the re-admission of the appeal, C.MA. 912/93 also stood revived and the same is being disposed of with the main appeal.
7. ' Upon hearing learned counsel for the parties, I am of the view that the facts disclosed in C.M.A.
8. 912/93 with regard to the fresh subletting in favour of Ahmad Kuli Khan Khatak during the pendency of the appeal, cannot be considered or disposed of on the basis of affidavits and arguments.
9. Suffice to say, the respondents having already filed a suit for permanent injunction before the Civil Court, these facts might be adjudicated in that suit and need not be considered at final hearing of the appeal. The application accordingly stands disposed of.
10. ' Adverting now to the merits of appeal, while learned counsel for the appellant has assailed the finding of the lower Court on the issue of personal requirement for the use and occupation of respondent No,2, learned counsel for the respondents has impugned the finding on issue No,1 with regard to the subletting. Taking the issue of personal requirement in the first instance learned Rent Controller dealt with the evidence of the parties at length and in the light of the case-law on the point, came to the conclusion that there was no substance in the stand taken by appellant that this case had been filed in order to enhance the monthly rent. On perusal of evidence, I find that respondent No,2 stated that he had been residing in the building belonging to his father-in-law which having been sold out, the new owner had demanded vacant possession thereof and he had to shift to rented premises, namely, Bungalow No,15, B-1\ Street, Off Knayaban-e-Ghazi, Defence Housing Authority, Karachi, at a monthly rent of Rs,16,000, and therefore, he was in dire need of the demised premises for his own use and for the use and occupation of his wife and son. During his cross-examination, he stated that this house belonged to Mian Harmed and was hired on Rs,16,000 per month rent payable with one year advance. He conceded that he had not filed the tenancy agreement with his affidavit in evidence but it is interesting to note that the version with regard to the sale of his father in-law's Bungalow, vacating the same, and hiring the present Bungalow at a monthly rent of Rs,16,000 were neither challenged nor disputed by appellant. By not disputing the version of the landlord on this material point, by legal implication appellant would be deemed to have admitted the truth of respondent's statement. In the lengthy cross-examination of the witnesses as attempt had been made to show that there were other flats in Khuhro building which were rented out. Even if so, it is settled law that it is A the prerogative of the landlord to select or choose, which premises would suit him better. As regards the bona fide requirement of the respondents, it has come through the evidence of Khalid Mehmood who holds a valid power of attorney for all other co-sharers, that there are eight members of the family which would certainly advance his case for bona fide requirement of the premises in good faith.
11. Learned counsel for the appellant pointed out to the increase of rent from Rs,1,000 to Rs,2,800 as admitted by respondent No,2, however, he did not consider the circumstances that the tenancy in favour of appellant is as old as 1970 and there has been tremendous escalation in the cost of living ever since. In any case, mere increase in the amount of monthly rent, would not be a circumstance to doubt the bona fides of the landlord, who seeks tenant's eviction on the ground of personal requirement.
12. ' In his evidence appellant introduced a new fact by stating that initially there were six flats in the building; that the landlords in the recent past have constructed three more flats and these flats have been given on rent. In the first instance, I am not impressed by this evidence which is beyond the pleadings of the appellant and the case set up by him in his written statement.
13. ' Secondly, no such question was put to the respondent-landlord in his cross-examination and thirdly it is not stated as to when these flats were rented out. At any rate, the landlord having chosen to occupy the flat given on rent to the appellant sometimes in 1970 cannot be deprived of his legal right. On his part, it appears that the appellant has been living mostly out of the country in London and has been occasionally visiting Pakistan. This circumstance is borne out by the written statement filed on his behalf by his general attorney. No doubt, he appeared before the Court at the stage of evidence in January, 1991, the trend of his cross-examination and his replies thereto, give an impression that he has been living abroad for most of the time and his servants are looking after the demised premises. In view of the circumstances, discussed above, and the case-law relied upon by the Controller in support of the conclusion, I uphold the finding which is fully supported by sufficient and satisfactory evidence on record.
14. ' As regards subletting of the premises to someone else, as pleaded by the respondents, the evidence on record is not sufficient to hold that the appellant had sublet the premises without landlord's consent. In the ejectment application there is a general allegation that the appellant was residing abroad and in his absence he had handed over possession of the premises to some other person. Same version has been reiterated in the affidavit-in-evidence of respondent Khalid Mehmood Khuhro without specifying as to whom and on what dates the premises were sublet. On his part appellant has denied the allegation and stated that he had gone abroad only for his operation and the treatment of his wife who had undergone major surgery. He added that he had been going abroad only in connection with treatment and that in his absence his servants maintained his residence in excellent condition and he had not used the premises for any other purpose except his residence.
15. ' It is my considered view that these admissions on the part of the appellant do not make out a case of subletting. It has all along been appellant's case that his servants look after the flat in his absence and one of them resides with him as his servant. In this view of the matter, I am inclined to uphold the finding of the lower Court on this issue.
16. ' Learned counsel for respondents relied upon 1982 CLC 1042, 1984 M LD 557, 1986 M LD 401, 1986 CLC 2016 and 1987 CLC 901, but all these cases are distinguishable on facts and do not advance his case.
17. ' In the result, the appeal is dismissed with no order as to costs. Appellant is allowed 30 days period to vacate the premises and hand over possession to the respondents.