1. ' This First Rent Appeal has been filed by the appellant/tenant against judgment, dated 18-11-1997 passed in Rent Case No,640 of 1995, whereby the learned Rent Controller allowed the eviction application filed by the respondent/landlord and directed the appellant to vacate the rented premises within sixty days and put the respondent in vacant and peaceful possession.
2. ' The brief facts leading to the filing of this Appeal are that the respondent is the owner/landlord of House bearing B-152, Block, 13, F.B. Area, Karachi, while the appellant is his- tenant occupying the back portion of the said house on a monthly rent of Rs,1,700 w,e,f, August, 1990. The tenant has also paid a sum of Rs,7,800 as security deposit. According to the respondent, he requested the appellant/tenant to vacate the rented premises as the same were required by him for his personal bona fide use and the tenant promised to vacate the same. However, the tenant did not fulfil his promises on one pretext or the other, The respondent, on 8-10-1995, delivered a registered legal notice to the appellant and requested him for vacating the rented premises but he flatly refused to do so. Therefore, the respondent/landlord filed Rent Case No,640 of 1995 on the grounds that (i) the tenant, without permission of the landlord, installed Air-conditioner on the back-side wall of the rented premises, thus, violated the terms and conditions of the Tenancy Agreement, and (ii) the rented premises were required by the landlord for his personal bona fide use due to his large family and insufficiency of the accommodation presently in his use.
3. ' Notices were issued to the appellant/tenant in response to which he filed his written statement and denied all the allegations and averments made by the respondent in the eviction application.
4. The appellant stated that the Air-conditioner was installed in the window with the consent and approval of the respondent and the same has not materially affected the utility or impared the value of the premises. He also stated that he has not violated any terms and conditions of the Tenancy Agreement. He also denied maintainability of the application.
5. ' In order to prove their respective cases the respondent and the appellant filed their respective affidavits-in-evidence and they were cross-examined.
6. ' On the basis of the pleadings of the parties, the following issues were framed:-- "(1) Whether the application is not maintainable under law?
(2) Whether the opponent has carried out addition and alteration by fixation of air-conditioner in the rented premises and, thus, impaired the value and utility of the rented premises?
(3) Whether the premises is required by the applicant for his personal bona fide need in good faith ?
(4) What should the order be ?"
7. ' After hearing the learned counsel for the parties, the learned Rent Controller, vide his order, dated 18-11-1997, allowed the eviction application filed by the respondent, by answering Issue No,1 in negative and Issues Nos.2 and 3 in the affirmative.
8. ' 1 have heard Mr. Zahid Hamid, Advocate for the appellant and Mr. Adnan Ahmed, Advocate for the respondent and have gone through the record and have perused the case-law cited before me.
9. ' The contention of the learned counsel for the appellant is that the landlord was inconsistent in his statements as he denied the averments made in the written statement of the appellant and, as such, his testimony was shaken. He relied on the case of Lateef Ahmed v. Mst. Farrah Sultana 1996 SCM R 1233.
10. ' His next contention was that the learned Rent Controller failed to appreciate that the respondent admittedly wanted to sell the property and the rent case was filed with the sole purpose to acquire the property for sale.
11. ' On the other hand the counsel for the respondent had urged that the learned Rent Controller was right in allowing the rent application as the testimony of the respondent/landlord remained unshattered throughout. According to him even if sometimes in the past, the respondent/landlord wanted to sell the property, his right to use the same for bona fide personal use cannot be taken away.
12. As regards to issue No,1 that the application was not maintainable, the learned Rent Controller has taken a correct view that once the tenancy agreement is admitted by the parties and acted upon, they were estopped from raising objections as to its legality. The learned Rent Controller further held that since there is no penalty provided in case of violation of the law in regard to the agreement to be countersigned by the respective Rent Controller or the Area Magistrate, the same at the most can be called irregular but not illegal.
13. ' Under the circumstances, the finding on the said issues is correct and does not call for any interference by this Court.
14. ' Coming to the second issue, that is question of installation of air-conditioner in the rented premises, the Rent Controller has discussed the evidence of the opponent/tenant wherein he has taken different grounds. At one place he has stated that the air-conditioner was installed with the oral permission and approval of the applicant/landlord while in cross-examination he has taken the plea that since it is not against the terms of the tenancy agreement, the landlord cannot object to the installation of the same. No question was put to the landlord during cross-examination in regard to any damage or material impairment to the value or utility of the rented premises. The landlord remained consistent that the air-conditioner was installed without his prior consent and approval and, as such, he discharged his burden. As his statement is on oath, the leaned Rent Controller, considering the statements, rightly held that the air-conditioner was installed without the prior approval/consent of the landlord.
15. ' The third issue relates to the personal bona fide need of the landlord, which has been denied by the tenant. The landlord has stated that he has a big family with school/college going children and, according to the family status they need proper accommodation. Admittedly, the applicant/landlord is a principal of an educational institution and has got part of the portion of the house at the back while the front portion is in the possession of the tenant. The tenant has taken the plea that the second floor of the house is lying vacant which consists of two bed rooms and one big hall which should be sufficient for the need of the applicant/landlord. It is pertinent to mention that the fact that the applicant/landlord has grown up college/school going children has not been denied. It is further not denied that one of the daughters of the landlord is a handicapped girl. The applicant/landlord denied that there is a third room on the Second Floor but admitted that there is incomplete kitchen and bath room in the open space and further that the second floor is in his possession and is lying vacant. He further stated that the two tenants, namely, Farrukh Jamal and Muzaffar Alam, are occupying the entire first floor and admitted that when he vacated the premises the same were rented out to the other tenant. The reason for shifting from the disputed premises has been given as insufficiency of the accommodation. He also stated that his old father is also residing with him and, as such, even for him he need extra accommodation. His cross- examination he admitted that his wife had obtained loan from House Building Finance Corporation for construction of another house but the same was disposed off and vehemently denied that there is any other property in his name in Karachi. He denied the suggestion that the premises are not needed by him for the use of his family.
16. The learned Rent Controller, after going through the evidence of both the parties, has observed that the tenant has failed to prove that there are any other properties in the name of the landlord and that the case of personal bona fide need of the applicant/landlord was established beyond any doubt. He relied on the case of Mrs. J.C. Rehman v. Mrs. Sultana Fatima NLR 1995 Civil 720 wherein it was held that It is well-established legal proposition that the assertion of the landlady on oath as to requirement of the disputed premises for her personal use is to be accepted if consonant with her averments in her eviction application and not shaken in cross-examination or disproved in rebuttal".
17. In the present case, the applicant/landlord stated in his application as well as in his affidavit-in- evidence that the needs the premises for his own use as well as for the use of the his family member. He has given the details of his family, including his daughters and father and the circumstances that they being school/college going students, need a separate room for each of them. He has also explained the circumstances as to why he had given half portion of the first floor to another tenant when he vacated the disputed premises and moved to a rented place.
18. In the circumstances, and relying on the judgments wherein it has been held that the landlord has the prerogative to have the premises of his choice and the tenant has no right to challenge the above right, in my opinion, the learned Rent Controller has rightly given his finding in affirmative to this issue.
19. ' The contention of the learned counsel that the evidence of the applicant/landlord was shaken as the averments of the written statement were denied, is not tenable.
20. ' The upshot of the above discussion is that this First Rent Appeal is dismissed in limine and the tenant/appellant is directed to handover vacant peaceful possession of the rented premises to the respondent/landlord within sixty days from the date of this judgment. The pending application also stands dismissed.