1. MUKHTAR AHMAD JUNEJO, J.---Petitioner Abdul Wahid has sought leave to appeal against a judgment of the High Court of Baluchistan dated 21-9-1995, by which his First Appeal from Order No.43 of 1995, challenging order of eviction, dated 31-5-1995 by the Rent Controller, was dismissed.
2. Admittedly the petitioner is occupying the premises in litigation bearing Khasra No. 1209 at Sariab Road, Quetta, as a tenant on monthly rent of Rs.300.
3. The petitioner was let out the premises by Arbab Muhammad Nawaz, who is survived by the respondents.
4. On 6-12-1992 the respondents filed Eviction Application No.104 of 1992 in Court of a Rent Controller at Quetta, for eviction of the petitioner and three others said to be sub-lessees, on the grounds of default in payment of rent from January, 1992, subletting by the petitioner to three others and for bona fide personal requirement after reconstruction. The case was contested by the petitioner, who in his written statement raised certain legal objections, about lack of jurisdiction in the trial Court, non-maintainability of the ejectment case, absence of cause of action and inequitable filing of the case. The respondents controverted the allegations. After settlement of issues and recording of evidence, learned Rent Controller under his judgment dated 31-6-1995, accepted the eviction application after finding the issues of subletting, change of structure, personal requirement and reconstruction in the affirmative while the issue of default was not pressed and was found in the negative. .
5. The petitioner took the matter in appeal to the High Court under First Appeal from Order No.43 of 1995, which was dismissed under the impugned judgment. Hence this petition.
6. Mr. Ayyaz Zahoor, learned counsel for the petitioner argued that Ali Nawaz for whose bona fide personal requirement the premises were sought to be vacated, was not examined and his attorney Arbab Mir Nawaz did not produce any power of attorney. Arbab Mir Nawaz is himself respondent No. l and is real brother of Arbab Ali Nawaz respondent No.2 and such strictly technical view cannot be taken in rent proceedings. In the case of Dilshad Muhammad v. Mst. Zubaida Begum (1981 SCMR 895), it was held by a learned Bench of this Court that in rent proceedings, non-appearance of son of landlady in the witness-box, was not fatal to claim of such landlady, as to her requirement of the shop for her son's use.
7. It was next argued on behalf of the petitioner that the evidence on record was not properly appreciated by the High Court and that the rent case was filed on 6-12-1992 while approval of the plan for reconstruction was obtained on 28-2-1994. On this point Mr. M.K.N. Kohli, learned counsel for the respondents cited the case of Dr. Hassan v. Additional District Judge (1983 CLC 2446) where plan for reconstruction was approved during pendency of the ejectment proceedings and such irregularity, in view of a learned Single Judge of Lahore High Court, stood removed and was not available at the the of decision of the ejectment application by the Rent Controller. There is, however, force in contention of learned counsel for the petitioner that the respondents had no cause of action to seek eviction on the ground of reconstruction of the premises before 28-2-1994.
8. However, there is sufficient evidence on the question of personal requirement. In rebuttal the petitioner led evidence by examining himself and R.Ws. Muhammad Rahim, Izzat Khan and Abdul Zahir, who deposed that the respondents wanted to get the rent of the premises in question enhanced and hence they had filed the ejectment case. This evidence cannot rebut evidence of Mir Nawaz, who deposed that his father Arbab Mulianunad Nawaz died on 22-4-1992 and thereafter he approached the petitioner to vacate the premises in question, which Were required by him for personal use. Mir Nawaz added that his brothers Ali Nawaz and Rab Nawaz were unemployed and that he wanted to have a service station in the premises in litigation because his tubewell and water pool were also very close. In his cross-examination Mir Nawaz said that he had three brothers and one sister with mother alive, and that all his property was joint except that there was private partition. Mir Nawaz added that he was also unemployed. Mir Nawaz was subjected to a lengthy cross-examination in which he stated that there was a garrage adjacent to the disputed premises with larger size, but it was on rent with Gul Jan. Mir Nawaz further stated in his cross--- examination that he was given power of attorney by his brothers. There is observation by the trial Court that such power of attorney was given to Ali Nawaz. Besides Mir Nawaz, the respondents also examined Noor Ahmed and Muhammad Qasim on the point of personal requirement. All this evidence was accepted not only by the trial Court but also by the High Court.
9. Learned counsel for the respondents referred to the case of Muhammad Tufail v. Kh. Muhammad Sadiq (1981 SCMR 161) where the ground of personal requirement was accepted by the three Courts below and the counsel for the tenant could not make out that the case suffered from violation of any principle of law and in the circumstances the concurrent finding on the question of personal requirement, was not disturbed.
10. It is a settled position of law that assertion of a landlord on oath as to, requirement of the premises for his personal use, is to be accepted as bona fie, if consistent with his averments in his eviction application and not shaken in cross-examination or disproved in rebuttal. Similar view was taken in the case of Hasan Khan v. Mrs. Munawar (PLD 1976 Karachi 832). In the case of Qamruddin v. Hakim Mahmood Khan (1988 SCMR 819) the statement of the landlord was not challenged in cross- examination and was not rebutted by any evidence produced by the tenant and the eviction was ordered.
11. For the foregoing reasons, we are of the view that the petitioner has not been able to make out a case for grant of leave to appeal and this petition stands dismissed.
12. The petitioner is given a period of one year, subject to due payment of rent, to vacate the disputed premises. In case he fails to surrender possession of the disputed property to the respondents at the conclusion of one year, he would be evicted from there without prior notice and with aid of police.