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Second Appeal No. 103 of 1980, decided on 13th March, 1983.

‑‑S. 13‑Eviction proceedings‑Evidence produced by landlord before Rent Controller in respect of personal and bona fade requirement remained unchallenged by tenant‑Tenant neither by cross‑examination nor by own statement denying that premises required by landlord bona fide and in good faith for personal use and ex planation given for such non‑denial having no force‑Eviction of tenant ordered.

P L D 1959 Lab. 710 ; P L D 1966 Lab. 733 ; P L D 1980 Kar. 223 ; 1979 C L C 367 ; 1980 C L C 241 ; 1980 C L C 604 ; P L D 1977 Lab. 308 ; 1972 S C M R 473 ; P D 1979 Lab. 317 ; P L D 1978 Kar. 188 and 1979 C L C 367 ref.

‑‑S 15‑Finding of fact given by First Appellate Court, held, cannot be interfered with unless it is perverse and not at all supported by evidence on record.‑(Finding of fact].

1979 C L C 660 and 1978 S C M R 89 ref.

Iqbal Hyder for Appellant.

Mustafa Lakhani for Respondents.

Date of hearing : 7th March, 1983.

Appellant abovenamed, being aggrieved by judgment dated 30th January, 1980 of the learned IInd Additional District Judge, Karachi, in Rent Appeal No. 104 of 1978 filed against the order dated 15th January, 1978 passed by the Controller No. 1, Karachi, in Rent Case No. 3228 of 1976, has preferred the above appeal on the following facts and grounds :‑

Briefly stated the facts as alleged giving rise to this appeal are, that the appellant is the tenant of the respondent in respect of Bungalow situated on Plot No. 162‑A, Block No. III, P.E.C.H. Society, Karachi, at a monthly rent of Rs. 969 inclusive of taxes, water and conservancy charges, etc. The tenancy was created under a written agreement on 1st September, 1973. The respondents filed the rent application for eviction of the appellant on the ground, that the appellant had committed default in payment of rent and that he has also damaged the property in ques tion. It was further alleged, that the respondents require the said premises for their own personal occupation and that of their family. The respondents, therefore, prayed, that the appellant be ejected from the said premises.

The appellant filed his written statement wherein be admitted the factum of tenancy and rate of rent. He, however denied the rest of the allegations of the respondents. It was denied, that the appellant had committed default .in payment of rent as alleged. It was further alleged, that cheques as usual in payment of rent for the months of April, May,, and June, 1976 were sent to the respondents, which were deliberately not encashed by the respondents. That when the appellant came to know about the cheques not having been encashed by the respondents, the appellant sent rent through money order, which was also not accepted by them. Consequently the appellant deposited rent in Court and thus in this view of situation' the appellant had committed no default in payment of rents as alleged. It was further denied, that the appellant has caused damage to the property as alleged. It is submitted that repairs, etc. were carried out by the appellant which, in fact, were required to be done by the respondents and thus the appellant is entitled to be reimbursed amount so spent by him on repairs, etc. of the premises. It was further denied, that the respondents require the said premises for their personal use and/or that of their family. In short, it was con tended, that rent application was not maintainable and was liable to be dismissed.

The learned Rent‑Controller vide his order, dated 15th January, 1978, dismissed. respondents'. ejectment application No. 3228 of 1976 on all grounds and consequently respondents filed appeal No. 104 of 1978, in the Court of IInd Additional District Judge, Karachi, who allowed the said appeal and set aside order dated 15th January, 1978 of the learned Rent Controller and granted respondents' application on grounds of default and personal and bona fide use only and consequently appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal.

The learned Advocate for the appellant in support of above appeal submitted as under (a) That respondents have failed to establish that they require the premises in occupation of the appellant bona fide for their personal need, as none of the respondents went into witness‑box in support of their alleged ground in question and as such failed to discharge the burden of proof, which was on them. In support of this learned counsel for appellant relied upon cases reported in P L D 1959 Lab. 710, P L D 1966 Lab. 733 and P L D 1980 Kar. 223 as well as on cases reported in 1979 C L C 367, 1980 C L C 241/604 and P L D 1977 Lab. 308.

(b) That bona fides of the respondents is doubtful, as respondents tried to eject appellant on all possible grounds and since ground of damage was rejected by both the learned lower Courts. In support of this contention, the learned Advocate for appellant relied upon cases reported in 1972 S C M R 473, P L D 1979 Lab. 317, P L D 1978 Kar. 188 and 1979 C L C 367.

(c) That respondents failed to produce ration card to support the number of family members and independent evidence to prove, that all of them were staying with their father.

(d) That learned appellate Court has also erred in coming to con clusion, that appellant is defaulter, within the meaning of section 13 of West Pakistan Urban Rent Restriction Ordinance 1959, by ignoring the evidence adduced by appellant., without cogent reasons.

(e) That since claim of the respondents, that they were staying in 2 bedroom flat, in spite of their member being 25, is so absurd that it was not necessary for appellant to rebut such absurd claim, in of section 102/103 of Evidence Act.

(f) That even in main ejectment application respondents in para. 7 dealing with cause of action have not mentioned any date, when cause of action accrued for ejectment on personal ground nor they have given details in respect of this ground in their eject ment application and as such learned appellate Court has erred in granting ejectment application, on this ground.

"The learned Advocate for respondents on the other hand submitted, that this was second appeal and as such the impugned judgment cannot be interfered with, on grounds of credibility, etc. as urged by the learned Advocate for the appellant. He further submitted that evidence of respondents brought on record was not challenged by appellant either by cross‑examination and/or by his own statement, that respondents do not bona fide and in good faith require the premises in occupation of the appellant. He further pointed out, that even the fact, that family members of respondents consisted of 25 persons was not disputed, except appellant alleged that one son and his family totalling 6 persons had gone away to U.S.A. and as such at least 17 persons in family of respondents was not disputed and so also, that occupation in possession of the respondents consisted of 2 bedrooms and other usual facilities. In view of this, the finding of fact given by first appellate Court cannot be disturbed in this second appeal. In support of this contention, the learned Advocate for the respondents relied upon cases reported in 1979 C L C 660 and 1978 S C M R 89.

However, learned Advocate for the respondents submitted that he was pressing ejectment of appellant on ground of default, though granted by the learned appellate Court, in view of the evidence brought on record by the appellant, before learned Rent Controller.

I have carefully considered the above submissions made by the learned Advocates of the parties and have gone through R and P of the learned trial Court as well as through impugned judgment and order dated 15th January, 1978 of the learned Rent Controller and cases cited by both the parties before me.

I find evidence produced by respondents, before the learned Rent Controller, in respect of their personal and bona fide need has remained unchallenged by appellant. Appellant neither by his cross‑examination nor by his own statement denied, that the premises in question are re quired by the respondents bona fide and in good faith for their personal use. The explanation given by the learned Advocate for such non‑denial has no force at all. The contention of the learned Advocate for appel lant that respondents failed to discharge burden of proof which was on them in respect of this ground, also has no force, in view of my above conclusion. The cases cited by the learned Advocate for appellant are either not applicable to present case and/or are based on completely, different facts and as such of no help to the appellant. Non‑production of ration card and/or examination of independent witnesses by respondents,1 in my opinion did not affect respondents' case, which stood established by the evidence adduced by respondents, which remained unchallenged,1 in my opinion. Further, this is second appeal and as rightly urged by the learned Advocate for the respondents, finding of fact given by 1st Appellate Court cannot be interfered with unless it is perverse and q not at all supported by evidence on record, which is not the case in1 present appeal. Cases cited by learned Advocate for respondents fully support the contentions of the learned Advocate for respondents, raised before me.

Therefore, I find no merits, in the above appeal, which is consequently dismissed with cost and impugned judgment of the learned 1st appel late Court is maintained on ground of personal and bona fide use only, in view of the statement of learned Advocate for respondents made in open Court, on the date of hearing of the above appeal, as hereinbefore Mentioned. However, I allow period of 4 months from 1st March, 1983 to the appellant to vacate the premises in his occupation and hand over its vacant possession to respondents on or before Ist July, 1983 provided appellant continues to deposit monthly rent for said period in accordance with the tentative rent order of the learned Rent Controller.

M. Y. M. Appeal dismissed.

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