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First Rent Appeal No. 12 of 1981, decided on 7th November, 1982
Ss. 13 & 15‑Appeal ‑Ejectment‑Personal and bona ‑fide use Statement of landlord b.‑fore Rent Controller that their present place of living not sufficient for their use corroborated by witnesses whose test money not shaken in cross‑examination‑Findings of Rent Con troller that landlords required premises for their personal and bona fide use, held, cannot be disagreed‑Appeal against order of ejectment dis missed.
‑ Ss. 15 & 21‑Ejectment‑Personal and bonafide use‑Statements of witnesses produced by landlord to prove fact of personal and bonafide requirement of property, held, cannot be disbelieved, merely because their statements with regard to issues of default and damages rejected by Rent Controller.
P L D 1965 Lab. 23 ref.
Ss. 15 & 21‑Appeal‑Ejectment‑Factum of personal and bona fide requirement not intimated by landlord to tenant in his notice for change of ownership but intimated in second notice‑Contention that ground of personal and bonafide requirement should have been taken in notice of change of ownership, held, has no force‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑A.
1976 S C M R 52 ref.
S. S. Hamid for Appellant.
Mehrab Gul for Respondent No. 1.
Date of hearing : 31st October, 1982.
Appellant above‑named, being aggrieved by order dated 20ttt November, 1980 of the learned IInd Rent Controller, Karachi passed in Rent Case No. 5893/78, by which he allowed respondent's application for ejectment on the ground of personal and bonafide use, has preferred the above appeal, on the following facts and grounds
2. Mst. Chand Bibi and others have brought the application for the ejectment of the appellant Muhammad Yous.uf Khan, from the quarter bear ing No. 1492/2 K. D. A. Scheme No. 16 Federal 'B' Area, Karachi, on the grounds of default in payment of rent, personal 'requirement and causing damages to the premises in case. The brief facts of the case are that the respondents, being the legal heirs of deceased Muhammad Essa the original owner and landlord of the quarter No. 1446i2, K. D. A. Scheme No. 16, Federal 'B' Area, Karachi, are the owners and landlords of the above said premises, while the a1ppellaiit is the tenant of the respondents in the above said house at a monthly rent of Rs. 90. It has been alleged, that the appel lant has committed default in payment of rent since September, 1978, in spite of service of the notice as required under section 13‑A of 'the Repealed Ordinance. It has been further submitted, that the respondents require the property in dispute for their own use bona fidely and in good faith. It has been also alleged, that the appellant has caused damages to the property and has impaired the value and utility of the same, therefore, respondents have prayed for the ejectment of the appellant from the property in dispute.
3. The appellant filed the written statement in which he. has denied that he has committed any default in payment of rent. The appellant has further coextended that respondents do not require the premises in case for their own use bona fidely and in good faith. The appellant has also denied, that he has caused any damages to the premises in case.
4. On the pleadings of the parties the following issues were framed
"(1) Whether the appellant has committed default in payment of rent
(2) Whether the respondents require the demised premises for their personal bonafide use
(3) Whether the appellant has damaged the demised premises which has impaired materially its value and utility
(4) What is the period of arrears of rent
(5) What should the order be
5. On the above issues respondents had examined P. W. Mst. Chand .Bibi, Abdul Mowyed Siddiqui, Moinuddin, Ma.sood Haider, Muhammad Jamil, Saeed and Akhtar, while the appellant had examined himself and D. Ws. Shahid Ali, Wahab Ali, Qurban Ali and Muhammad Yasin.
6. The learned ' trial Court taking into consideration the evidence adduced by the parties, granted respondents' ejectment application on the ground of personal and bonafide use only, while rejecting the other ground, vide its order dated 30th November, 1980 and consequently the appellant, above‑named has filed the above appeal, on the grouqds mentioned in the memo of appeal.
7. The learned Advocate for the appellant in support of the above appeal submitted as under
(a) That since respondents were not believed in respect of the other two grounds on which ejectment was sought, they ought not to have been believed in respect of the third ground of personal and bona fide use and as such their application for ejectment ought to have been dis missed. In support of this the learned Advocate for the appellant relied upon case reported in P L D 1965 Lab. 23.
(b) That the first notice dated 18‑8‑1977, sent by respondent No. I regarding transfer of ownership, did not at all mention, that the premises in occupation of the appellant were required for personal and bana fide use of the respondents and as such filing of the ejectment application on this ground was mala fide.
(c) That the respondents are residing in their own house and ‑as such ejectment application was not legal' maintainable. ‑
(d) The respondents have not proved their personal and bonafide need for the premises in occupation of the appellant, as they failed to establish the exact number of family members residing in the house in their occupation at the time of filing of the ejectment application and as they included respondents Nos. 4, 5 and 6 as the persons for whose benefit the premises were also required, although these respondents are married and are living with their husbands.
8. In view of his above contentions the learned Advocate for the appel lant submitted, that the respondents have failed to establish by cogent evidence their personal and bonafide need and as such their ejectment ‑application on this ground also ought to have been rejected by the learned Rent Controller.,
9. The learned Advocate for the respondents on the other. hand sub mitted as under :‑
(a) That the statement of respondent No. I and other P. Ws. adduced on behalf of the respondent, has remained unrebutted in their cross -examination on the ground of personal and bonafide use and as such learned Rent Controller was fully justified in accepting the said evidence and granting the respondents' ejectment application on this ground.
(b) That notice dated 18th August, 1977 was only intimation of transfer and as such it was not necessary to mention in the said notice the ground of personal and bonafide use. However, this ground was men tioned in the second notice dated 5‑11‑1978, which is on record. In support of this the learned Advocate for the respondents relied upon cases reported in 1976 S C M R 52 and P L D 1980 Kar. 409.
10. 1 have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceed ings of the learned Rent Controller as well as the impugned order and the cases cited by both the learned Advocates before me.
11. 1 find that respondent Chand Bib in her statement before the learned Rent Controller stated, that the accommodation in possession of her son, with whom she was residing has not sufficient for the entire family members, which numbered in all 14. She further stated, that out of 14 family members, his son Muhammad Jamil, with his wife and three children was residing separately in a rentea house, but in spite of this the present accommodation, where she resides with remaining 9 members of her family was not sufficient for their needs, as it consisted of 2 bed‑rooms only and one drawing room. Her thi5 statement has been fully corroborated by P. Ws. Abdul Moyed. Moinuddin and Muhammad Jamil one of the applicants. The statement of these witnesses produced by the respondents before the learned Rent Con troller were not shaken in their cross‑examination at all. The appellant in his statement before the learned Rent Controller, except for denying assertion of the respondents, that they require the premises in his occupation for their personal and bonafide use, did not deny the total number of the family members of the respondents. The witnesses produced by the appellant, in their statements before the learned‑Rent Controller, simply stated, that they have no knowledge, if respondents require the premises in occupation of the appellant for their bona fide use. However, the learned Advocate for the appellant before me stated, that respondents Nos. 4, 5 and 6 are married daughters of Mst. Chand Bibi and as such they are not residing with her. However, this fact was not admitted by the learned Advocate for the respon dents and since there is nothing on record to confirm this fact, the mere assertion of the appellant in this connection cannot be accepted in the absence of any evidence on record to prove this fact. Even for the, argument sake if it is assumed, that respondents Nos. 4, 5 and 6 are not residing with Mst. Chand Bibi, then too at least six members of the family are definitely residing in 2 bed‑rooms apartment at present and consequently I see no reason to disagree with the conclusions and finding arrived at by the learned Rent Controller, that the premises in occupation of the appellant are required by the respon dents for their personal and bona fide use. The contention of the learned Advocate for the appellant, that since respondents' application on ground of default and damage to the property was rejected by the learned Rent Con troller, by not believing the statement of the respondents and their witnesses, the learned Rent Controller ought not to have believed these very witnesses in respect of personal and bonafide ground as well, but I see no force in this argument of the learned Advocate for the appellant. Similarly the contention of the learned Advocate for the appellant, that in the first notice dated 18‑8‑1977 the respondents did not mention, that the premises in occupation of the appellant were required by them for their personal and bona fide use, also has no force. In this connection it may be noted, that the first notice dated 18‑8‑1977 conveyed the ‑intimation of change of ownership only and in the second notice which was sent ‑later on, the respondents have mentioned this fact, that the premises in occupation of the appellant were required them for their personal and bonafide use.
12. Therefore, I find no merits in the above appeal, which is consequent dismissed, with no order as to costs. However, I allow appellant four on time to vacate the premises in his occupation and hand over its vacant possession to respondents, provided appellant continues to deposit the rent for the said period, in accordance with the tentative rent order of the learned Rent Controller, in the Court of the learned Rent Controller.
M. Y. H. Appeal dismissed.
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