JUDGMENT ABDUL HAMEED DOGAR, J.-- This appeal through leave of this Court is directed against the judgment dated 12.12.20900 delivered by a learned Single Judge the High Court of Sindh, Karachi, whereby an appeal filed by respondent Raja Zafarullah Janjua tenant was allowed and the order of the Rent Controller allowing eviction application of the appellant-landlady for her personal bona fide need was set aside.
2. The facts giving rise to the appeal are that the appellant instituted an ejectment application against -the respondent from Flat No. 129, Adam Arcade, Shaheed-e- Millat Road, Bahadurabad, Karachi, under Section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance') on the ground of default in payment of rent by the respondent and her personal bona fide need. Before doing so, the appellant had also sent a notice dated 21.5.1998 to the respondent which was served upon him, whereby he demanded the vacant possession of the demised premises mainly for the reason that she as well as her sons usually visited Pakistan from abroad and faced great difficulties and hardships to stay with the relatives and friends but the respondent failed to reply, which constrained her to file the above-mentioned ejectment application.
3. The respondent contested the application and filed written reply wherein he admitted relationship of landlord and tenant and claimed that the said Flat was rented out to him vide agreement dated 16th May, 1991 and a sum of Rs. 10,000/- was deposited as security with the appellant. He further claimed that the appellant as well as her family had been settled in England since long and visited Pakistan occasionally for a short period, therefore, she used to stay somewhere during that period and never demanded the rented premises for her personal bona fide, need. As regards default in payment of rent, he stated therein that the rent was being deposited at the rate of Rs.4500/- per month in her daughter's account till March, 1999. Thus no cause of action had accrued to file ejectment petition.
4. To substantiate her case, the appellant produced affidavit in evidence of Altaf Hussain, her attorney and that of Dr. Tehsin-ur-Rahman whereas respondent Raja Zafarullah Janjua filed his own affidavit. All of them were thoroughly cross-examined. On the conclusion of the hearing the Rent Controller vide order dated 17.4.2000 allowed the eviction of the respondent on the ground of her personal bona fide need only and allowed 60 days time to vacate the premises and hand over the possession to the appellant.
5. Aggrieved by the aforesaid order, an appeal was filed before learned High Court of Sindh by. The respondent which was allowed vide judgment dated 12.12.2000 whereby the rent case was dismissed, whereafter jurisdiction of this Court was invoked through petition wherein leave to appeal was granted by this Court on 23.5.2001.
6. We have heard Syed Shahenshah Hussain, learned ASC for the appellant and Mr. Faizanul Haq, AOR for the respondent and gone through the record and the proceedings of the case in minute particulars.
7. It is vehemently argued by the learned counsel for the appellant that the appellant has established her case and produced sufficient evidence with regard to her son and her son's personal bona fide need of the rented premises which was thoroughly examined by the Rent Controller, therefore, the order of evidence of the respondent form the premises on the above ground was quite unexceptionable and was not amenable to any variation. The contrary findings recorded by the learned Appellate Court are quite contrary to the record and based on mere assumption, presumption, on non-reading and non-appointed of the evidence.
8. On the other hand, Mr. Faizanul Haq, learned AOR vehemently controverted the above contentions and argued that the appellant for whose need the rented premises was required had failed to examine herself without any sufficient cause as such she is not entitled to any relief. He supported the judgment of the High Court and stated the same is quite justified and in accordance with law.
9. We are afraid, the appellant cannot be non-suited only on the ground of non-examining herself in support of her personal bona fide need and that her representation through attorney was fatal to her case. The record reveals that the appellant has been able to establish her case by producing sufficient evidence of her attorney, namely, Altaf Hussain and one Dr. Tehsin-ur- Rehman's in support of her contention. No even a single question was put to the attorney of the appellant to rebut the claim of her personal bona fide need as such the judgment of the learned High Court is. Not sustainable and it has travelled beyond the scope of the pleadings of the parties.
Above-mentioned witnesses, namely, Altaf Hussain and Dr. Tehsin-ur-Rehman's had categorically stated in their evidence that the appellant needed .The premises for her bona fide personal need and she demanded the premises many times for vacating the premises in question but the respondent refused to vacate the same. This version was never controverted by the respondent in his evidence as such the finding of the eviction recorded by the High Court is not sustainable in law and is thus set aside whereas the judgment of the Rent Controller being based on sufficient reasoning is maintained.
10. Consequently, this appeal is allowed with no order as to costs. However, the respondent is allowed 30 days time to vacate the demised premises.