MUHAMMAD ASHRAF LEGHARI, J.- The appellant through this First Rent Appeal has assailed the order dated 6.11.1997 passed by Additional Controller of Rent Clifton Cantonment, Karachi in Rent Case No. 10/1994 whereby he allowed the ejectment application filed by the respondent Shujaur Rehman Khan. The appellant was thereby directed to hand over the vacant possession of demised premises to the respondent within 45 days after passing of the impugned order.
2. The brief facts of the case are that the applicant/respondent owned Apartment No. FF-3 Building No. 2, Sea View Township, Phase V, (Extension) Defence Housing Authority, Karachi. The appellant was rented out the said premises on monthly rent at the rate of Rs. 3600/- vide rent agreement dated 6th May, 1985. The appellant had to pay gas, electric, watap and conservancy charges. The appellant failed to pay rent and other water and conservancy charges for the years 1992-93 and 1993-94 amounting co Rs. 10183/-. It is further stated in the ejectment application that the appellant made some additions and alterations in the premises which materially impaired the value, look and utility of the demised premises. The respondent needed the premises in good faith for his personal use. The appellant has sublet the premises to somebody else.
3. The appellant was served. He field his written statement wherein he denied all the allegations made in the ejectment application. He denied to have made any default in payment of rent as well as in payment of other charges. The appellant denied that the landlord needed the demised premises for his personal bona fide use. He asserted that the landlord wanted to sell the property.
4. Out of the pleadings the learned Rent Controller settled the following issues:-
(i) Whether the applicant requires the premises for his personal bona fide use in good faith?
(ii) Whether any default of rent has been committed by the opponent?
(iii) Whether the opponent has not cleared all the charges such as water and conservancy etc?
(iv) Whether the opponent sublet the demised premises without the consent of the applicant?
(v) Whether the opponent has committed such acts which have materially impaired the value, look and utility of the premises in dispute?
(vi) What should the decree be?
The applicant in support of his ejectment application tiled his affidavit- in-evidence. The opponent/appellant tiled his affidavit-in-evidence and affidavit of his son. Subsequently affidavit of his son was withdrawn and he only examined himself.
5. The learned Rent Controller ultimately came to the conclusion that the demised premises were required to respondent in good faith for his personal use and that the appellant had failed to clear all the charges of water and conservancy etc. He allowed the ejetment application and passed the order which is impugned in this appeal.
6. It is contended by the learned counsel for appellant that issues Nos. 1 and 3 have been erroneously decided in favour of landlord. The evidence on these issues have not been properly evaluated. The bona fides of landlord have not been properly considered by the learned Rent Controller. It is stated that the respondent owned other properties in the city and he wanted to sell demised premises. It is pleaded that the appellant was depositing rent in Court as per order dated 2.11.1994 including water and conservancy charges. The respondent was residing at Saudi Arabia with his family and whenever he visits Karachi, he lives in KDA House and does not want the demised premises in good faith for personal use. It is submitted that the conclusion arrived at by tie learned Rent Controller is based on misreading of the evidence.
7. Mr. Iftikhar Javed Qazi learned counsel for respondent submitted that the premises in question were required for the use of first wife of the respondent for which he has categorically stated in ejectment application in sub-para (ii) of para 8. The said para (ii) of para 8 reads as under:- "Apartment in question bearing No. FF-3, Block 2, Sea View Apartments, Phase V Extension, Defence Housing Authority, Karachi in the name of the applicant meant and reserved for the purposes of residence of the applicant's said first wife Mst. Qamar Ara Begum."
The said assertion has not been specifically denied by the party in his written statement. It is submitted that the demised premises cannot be sold by the respondent under the rent laws as there is a penal clause contained under Section 17(6) of the Cantonments Rent Restriction Act, 1963. It is pleaded that the respondent visits Pakistan and lives in different hotels for which the bills have been produced on record. The respondent does not owned any other property except those which have been disclosed by him in his rent application. The demised premises are only suitable for the residence of his wife and children. The suitability of comfortable accommodation is to be decided by the landlord and he cannot be compelled by the tenant to occupy the premises at the choice of tenant. Reliance is placed upon the cases S.M. Nooruddin and others v. Saga Printers, 1998 SCM R 2119, Wasim Ahmed Adenwala v. Shaikh Karim riaz, 1996 SCM R 1055, M/s. F.K. Irani and Co. v. Begum Feroze, .1996 SCM R 1178, National Development Finance Corporation Shahrah-e- Quaid-e-Azam, Lahore v. Shaikh Naseemuddin and 4 others, PLD 1997 SC 567, M/s. Chaudhri Wire Rope Industries (Pvt.) Limited Muridke through its General Manager v. Secretary to the Government of the Punjab and Rural Development Department, Lahore and others, 1994 CLC 1060, Abdul Wahid Lehri v. Arbab Mir Nawaz and others, 1997 SCM R 1789, Muhammad Khurshid v. Wazir zada and others, 1986 SCM R 1.81, Mrs. Abdul Hamid Khan v. Shamsul Hassan, 1988 CLC 2294, Sardar Khan v.
Riaz Ahmed and others, 1986 SCM R 1981, Mrs. Rukaya Sultana v. Mrs. Zaree Zafar, 1996 CLC 1060, M/s. Everday Picture Ltd. v. Chaman Begum, PLD 1982 K 770, Hareon Qasim and another v. Azam Suleman Madha, PLD 1990 SC 394, M/s. F.K. Irani and Co. v. Begum Feroze, 1996 SCM R 1178 and Habib v. Abdul Ghani, 1993 M LD 396.
8. The perusal of record shows that applicant had two wives and their children. He wanted the demised premises for the accommodation of his first wife and her children. This fact has been specifically averred in the pleadings. The landlord has stated this fact on oath but he has not been cross-examined on that point and the veracity of landlord remained unshaken. The plea of personal bona fides need in good faith is proved beyond any doubt. The landlord has stated this fact on oath which is consistent to the contents of pleadings. The reference can be had to the case of National Development of Finance Corporation Shaharh-e-Quadi-Azam Lahore v. Shaikh Naseemuddin and 4 others (PLD 1997 SC 564), wherein it is observed as under:- "It is a settled position of law that assertion of a landlord on oath as to requirement of the premiss for his personal use, has to be accepted as bona fide if consistent with his averment in his application of ejectment and not shaken in his cross-examination and not disproved in rebuttal."
In the case of S.M. Nooruddin & 7 others v. Saga Printers, 1998 SCM R 2119, wherein their lordships have held as under:- "The law is too well-established on the point viz. That a landlord has a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest case of bad faith."
The reference can also be had to the case of Abdul Wahid Lehri v. Arbab Mir Nawaz and others (1997 SCM R 1789).
9. The allegations against the appellant were that he failed to pay water and conservancy charges for the year 1992-93 and 1993-94. The appellant in his evidence produced pay receipts of water and conservancy charges for the year 1993-94 and 1994-95 but he failed to produce the receipt for the year 1992-937 The respondent in his cross-examination had admitted that the water and conservancy charges for the year 1993-94 were paid but he failed to produce bills for the year 1992-93. It is therefore proved beyond doubt that the appellant had failed to clear the bills of water and conservancy.
10. The impugned order does not suffer from any illegality or infirmity. The order is based on sound and logical reasoning. No misreading or mis-appreciation of evidence is seen on the record. The order does not need any interference.
Consequently the FRA No. 370/1997 is dismissed with no order as to cost. The appellant is directed to hand over vacant possession of demised premises to the respondent within 90 days after passing of this order.