' The appellant has called in question the final order, dated 28-11-1996 passed in Rent Case No,165 of 1995 re: Mst. Bibi Zaitoon v. Muhammad Riffat Javed directing the appellant to vacate the premises and hand over the same to the respondent within 30 days.
2. The case of the respondent-landlady is that she is the owner of premises of which the appellant is the tenant under a written tenancy agreement executed on 15-4-1991 at the monthly rent of Rs,5,000 (five thousand). That the appellant was a habitual defaulter in the payment of rent and on several occasions the cheques issued in favour of the respondents were dishonoured by the bank and that the appellant was a defaulter from the months of December 1993 to August, 1994 in the sum of Rs,45,000. That the appellant in order to harm and victimize the respondent prepared a forged sale agreement in respect of the Bangalow in his occupation as tenant, in favour of his wife and such criminal case against the appellant was registered.
3. The case of the respondent further is that she wanted the premises for her own personal bona fide use and she had, therefore, requested the appellant in the month of November 1993 through a letter intimating him, her need. But the appellant did not make any positive response. Her case therefore, was based on the ground of default in payment of rent and her personal bona fide need of the premises. She, therefore, filed the rent case on 9-3-1995.
4. The case of the appellant is complete denial to the case of the respondent. He has denied that he committed default in payment of rent at any time. He also denied that the respondent needed the premises for her personal need. He denied the execution of sale agreement in his favour. He put up the plea that the said sale agreement was prepared by the respondent herself.
5. On the pleadings of the parties the learned Rent Controller framed following issues:
(1) Whether the opponent has committed default in payment of rent w,e,f, December, 1993 to August, 1994?
(2) Whether the premises in question is required by the applicant for her personal requirement or for the requirement of her family?
(3) What should the order be?
6. The, respondent-landlady filed affidavits in evidence of her son namely Syed Aziz Ahmed and Shaikh Muhammad Javed Hanif. On the other side the appellant filed his own affidavit in evidence and produced photostat copies of various cheques. The witnesses of both the parties were cross- examined.
7. I have heard Mr. Ghulam Abbas Pishori for appellant and Mr. S.M. Haider for the respondent and have also gone through their written arguments and have also perused the record and proceedings.
8. Since the issue on the point of default in payment of rent was decided in favour of the appellant the same has not been pressed the second important and only issue requiring consideration is the personal bona fide need of the premises by the respondent-landlady.
9. It has come in evidence that the respondent had requested the appellant repeatedly to hand over the vacant possession of the premises to her as she needed the same for her personal bona fide use and use of her other family members. It is further in evidence that the respondent has got six sons and they reside separately and the respondent is staying in the house of one of her sons namely Syed Aziz Ahmed. Respondent's another witness namely Shaikh Muhammad Javed Hanif has supported the case of the respondent in toto. He has, however, admitted that the respondent is his maternal-aunt.
10. The appellant in his evidence has admitted the tenancy. He has denied that he was a habitual defaulter. He has asserted that he used to pay the rent regularly through cheques. He has also stated that he started depositing the rents through M.R.C. 523 of 1994 by way of abundant caution after obtaining permission from the Court. He has disowned the sale agreement. He has also produced copy of order under section 249-A, Cr.P.C. Dated 24-9-1995 of IXth, A.C.M., Karachi, East.
He has also denied the requirement of the premises for personal use of the respondent. He has also filed a copy of the order, dated 8-1-1995 in Criminal Miscellaneous Application No,614 of 1994 of this Court quashing the proceedings under section 145, Cr.P.C. Pending before the S.D.M., Jamshed Quarters relating to the premises in question.
11. The appellant has admitted in cross-examination that his wife Mst. Zahida Shaheen was not a party in the rent case (who has filed the written statement). He has also admitted that no document was filed alongwith written statement.
12. The appellant has further deposed in cross-examination in the following words:--- "I do not know whether the premises in question are required by the applicant for the personal bona fide need of her children. It is correct that I have not produced any documentary proof in order to show that the sons of the applicant are residing separately and independently and have sufficient accommodation with him."
13. It is argued on behalf of the appellant that the learned Rent Controller decided the issue No,1 on the point of default in favour of the appellant but the learned Rent Controller has failed to decide the issue No,2, in favour of the appellant due to misappreciation of evidence. The sons of the respondent are residing separately and they have ample accommodation and the respondent's need of the premises is not just and bona fide. The respondent is residing with her son since 1976 and even when the respondent was living with her son, she rented out the premises to the appellant. It was stressed that the respondent wanted ejectment of appellant due to ulterior motives and due to abovesaid Criminal case between the parties' he has therefore, urged that proceedings were the result of malice. Reliance was placed on PLD 1985 Kar. p.639, (2) 1985 CLC p.1007, (3) 1986 CLC 1751, (4) 1988 CLC p.1833.
14. On behalf of the respondent Mr. S.M. Haider, learned Advocate argued that the respondent has established her personal bona fide need of the premises. The evidence led by her is unshaken and unrebutted. There is no suggestion even that the respondent does not require the premises for her own self or for her children. It was further argued that the prayer of requirement of premises cannot be rejected on the ground that the respondent had been living with her son since about twenty years. The learned counsel has referred to the averments in evidence of respondent repeatedly requesting the appellant to hand over possession of the premises. The learned counsel has further urged that the evidence led by the respondent having gone unrebutted would be deemed to have been accepted by the appellant. He has placed reliance upon 1980 CLC p.1540 and 1999 CLC p.454. It was lastly argued by Mr. S.M. Haider, that the law stands well-settled that the landlady stating on oath that she requires the premises for her own personal use, such statement made by her can be considered as her need. Learned counsel in support of his case has placed reliance upon 1996 SCMR p.1178, (2) 1992 SCMR p.1296, (3) 1986 CLC 1747 (4) PLD 1987 Kar. p.462. (5) unreported judgment of Honourable Supreme Court in Constitutional Petition No, 63/K of 1999, dated 4-3-1999 U.B.L. v. Mrs. Alafia Hussain 1999 SCMR 1796.
15. In the first case referred by the appellant, the appeal of the landlady was dismissed on the grounds that landlady was found in occupation of a double storey house consisting of twelve rooms and has failed to establish her genuine need. In the second case the appeal of the tenant was allowed as landlord had failed to establish his requirement through tangible evidence and the evidence of "good faith" was missing. In the 3rd case the appeal filed by the landlady was dismissed on the ground that the landlady had sufficient accommodation in her occupation. In the last case the appeal of the tenant against the landlord was allowed on the ground that the landlord had failed to establish his bona fide requirement of the premises and the requirement of the landlord was found to be tainted with mala fide.
16. In the case of Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 the appeal 'of the landlord was allowed and it was observed therein that on the issues of personal need, statement on oath, if consistent with the application and not shaken in cross-examination or disproved in rebuttedly is sufficient to prove that it is bona fide. In another case of Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296 rule laid down in the earlier authority of the Honourable Supreme Court was followed. In the 3rd case of Hameed v. Muhammad Mashooq 1986 CLC 1747 the appeal of the tenant as against the landlord was dismissed and it was observed that:-- "It is well-settled legal position that assertion of the landlord on oath as to requirement of the premises for his personal use has to be accepted as bona fide if consistent with his averment in his application and not shaken in cross-examination or disproved in rebuttal."
' In the last case of Dr. Juzer Ali v. Mrs. Mani Bai PLD 1987 Kar. 462 the appeal of the landlord was allowed and it was observed that it is well-settled that if landlord elects to live in his own house, then his need is presumed to be bona fide unless mala fides are alleged by the tenant and proved.
17. The fact that the respondent-landlady is residing with one of her six sons since about twenty years would not go to establish that her demand of personal need of the premises at any subsequent point of time would be unjustified and not bona fide. It is nowhere said that the respondent-landlady has got her other accommodation also besides the premises in occupation of the appellant. It has not been proved that the criminal case relating to forgery of sale agreement was a conspiracy against the appellant. There appears prima facie no reason for the respondent- landlady to have manipulated, fabricated or forged such a sale agreement. The evidence led by the respondent-landlady stands unrebutted in material particulars relating to the personal bona fide need. Indeed, the burden to prove personal bona fide need lay on the respondent-landlady who has in my humble view succeeded in establishing the same. The respondent-landlady cannot be forced to live with her son indefinitely. She cannot again be asked to go and live in the house of any one of her other sons. The appellant has utterly failed to prove that the respondent's claim of personal need was the result of mala fides.
18. Under the circumstances, the learned Rent Controller has rightly come to the conclusion that the case of the respondent-landlady in respect of her personal use of the premises had been fully established. I, therefore, find nc force in this appeal, which is hereby dismissed. The parties are, however, left to bear their own costs. The appellant is directed to hand over vacant possession of the premises to the respondent-landlady within period of two month.