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First Rent Appeal No.583 of 1981, decided on 1st April 1984.

---Ss.15 & 21--Bona fide personal need of son--Tenant not producing any concrete proof of employment of landlord's son, which was not difficult to obtain--Assertion that some other shops of landlords were lying vacant not convincing--Tenant's evidence nothing more than word against a word--Rent Controller, having benefit of seeing conduct and demeanour of witnesses, who were examined and cross-examined before him, finding evidence of landlord more trustworthy and inspiring- Ejectment on ground of bona fide personal need of landlord's son upheld, in circumstance.

---Ss.15 & 21--Mala fide--Burden of proof--Tenant attributing conduct of mala fide--Such question a question of fact which must be satisfactorily established by accusers--Tenant had not been able to do so, Rent Controller rightly held against him--Appeal against ejectment order dismissed.--[Burden of proof--Mala fide].

S.S.Hameed for Appellant.

Akhlaq Hussain Qureshi for Respondent.

This is the tenants appeal filed against the order of the Rent Controller, Karachi dated 27-9-1981 passed in a rent application seeking the ejectment of the appellant from Shop No.9 in Atzal Market, Hassan Road, Karachi on the grounds of (1) default in payment of rents, (2) Personal requirements of the landlord, and (3) Subletting. The appellant contested all the grounds raised is the ejectment application and file his written statement. The learned Rent Controller framed the following issues:----

(1) What is the rate of rent

(2) Whether the Opponent is a wilful defaulter If so since when.

(3) Whether the Opponent has sublet the premises in question

(4) Whether the Applicant requires the premises in question for bona fide use of his son Ahtashamul Haq

(5) What should the order be

The applicant landlord filed the affidavit in evidence of himself and of his son Ahtashamul Haq and both were cross-examined by the opponent. The opponent /appellant filed his affidavit of evidence and also the affidavit of his father Adam in support of his contention and both were cross-examined by the applicant /landlord. On this evidence the learned Rent Controller proceeded to examine the plea of the landlord and the tenant and came to the conclusion that the landlord had failed to prove his case on the question of default, and on subletting. As such he answered issues 2 and 3 in the negative. But the plea of requirement of premises for personal use of the landlord found favour with the learned Rent Controller and issue No.4 was decided in favour of the landlord /respondent and the learned Rent Controller allowed the ejectment application directing the appellant to vacate and deliver the possession of the premises to the respondent landlord within a period of two months from the date of the order. The appellant has filed this F.R.A. against this order.

As other issues were decided in favour of the appellant the learned counsel for the appellant has argued the case on the point of personal requirement of the landlord only. The burden of the argument is that the building has several shops most of them are lying vacant. In support of this contention the learned counsel moved two applications with prayers that the site be inspected. That inspection would reveal that most of the shops are lying vacant. The other contention raised in the application under Order XLI, rule 27, C.P.C. was for seeking permission of the court to produce some documents. The documents mentioned in the application were photos of the shops A.A /1 and A /2. Newspapers cutting and certified copy of F.I.R. It appears that due to some confusion both the applications were numbered as C.M.A.2108/83. These two applications with two different prayers were disposed of by a learned Judge of this Court by a single order dated 23-11-1984, which I would reproduce below:----

"23-1-1984. For hearing of C . M . A . 2108/83.

For Regular hearing.

This is an application filed on behalf of appellant in which it has been prayed that site inspection of the shops be ordered. Mr.Akhlaq Hussain has filed counter-affidavit in which he has stated that it is not necessary at this stage to grant this application as matter is too old. I have perused the record and found that the rent case was filed in 1978 and finally after about three years on 20-7-1981 the rent controller decided this matter. Appeal against the order of the rent controller was filed by the appellant on 3-i1-1981. Mr. S.S.Hameed has admitted that he has not submitted any application to the Rent Controller for site inspection. Even otherwise this application before this Court has been filed after about two years of the filing of appeal. I find no ground to grant this application which is accordingly dismissed.

Heard Mr. S.S.Hameed and Mr. Akhlaq Hussain Qureshi. Six photographs have been produced alongwith the application. By consent these photographs be considered at the time of hearing final appeal. Mr. Hamid requests for time. Mr. Akhlaq Hussain has no objection provided some fixed date is given and on that date appeal is heard.

By consent adjourned to 16-2-1984 accordingly.

(Sd.)

Judge"

When the case come up for hearing before me on 29-3-1984. I could not see any reason to allow the appellant to produce the F.I.R in some case which would indicate that the applicant landlord son had remained in service under some department at some time in the past and during the course of that employment was charged for some improper conduct. If this F.I.R. is brought on record with all the supported evidence to prove its genuineness and truth of its contents it would mean allowing the appellant to enjoy a second round at this late stage. Merits of these contention apart the mere fact that this would deprive the respondent from the fruits of the decree passed in his favour as long ago as 27-9-1981, is inhibitive enough for me to allow this request.

So far as the newspaper cutting and the photographs are concerned I fail to understand how the photos showing drawn shutter of some shops, some where, at sometime can be taken to mean that these are the shops in question and it should be taken for granted that drawn shatters of the shop in the photograph mean that they are vacant and ready for occupation.

In this situation the appellant has to remain contended with the material that has been brought on the record before the Rent Controller and on which the learned Rent Controller has based his findings which are now under appeal. The learned Rent Controller has discussed the evidence of the parties in his order dealing with issue No.4 and it is worth while to reproduce it in extension.

Issue No. 4.-- The applicant case in the rent application as well as in the evidence is that the shop in dispute is required by his son Ehtashamul Haq for doing separate business. This evidence of the applicant is fully supported by his son Ehtashamul Haq who has stated in specific and can did terms that he want to run a separate business in the disputed shop and that they have no other shop in Karachi. The Opponent contention is that Shop No.4 is in possession of applicant wherein his son is running a kite business, and also Shop No.6 has been relet by applicant to one Tariq during the pendency of the case and that applicant's son Ehtashmatul Haq is serving in Sind Secretariat Karachi. The applicant and his son Ehtashamul Haq has specifically denied this contention of the Opponent in their evidence. The applicant has denied that Shop No.4 is lying vacant but has stated that it is occupied by one tenant Anwar Ali, regarding Shop No.6, he has stated that it was forcibly occupied by Tariq. The applicant has also denied that his son is serving in Sind Secretariat, Karachi. So, is the case with the evidence of Ehtashamul Haq son of the applicant who has also specifically denied that he is now serving or that they are in a possession of any shop or that lie is running a kite business, or that Shop No.4 is in their occupation or that they relet the Shop No.6 during the pendency of the case. The burden was on the opponent to prove that applicant's son Ehtashamul Haq is in service of Sind Secretariat or that Shop No.4 is in possession of applicant and that Shop No.6 was relet which fallen vacant during the pendency of the case. No sufficient oral or documentary evidence has been produced by the Opponent to prove that need of the applicant is not genuine. Since it is established that applicant has no other shop in his possession and his son want to start separate business in the disputed shop. No evidence has been brought on record by the Opponent that applicant has filed the present application with mala fide intention. No doubt there are 10-11 shops in the Afzal Market owned by the applicant but all the shops are in the possession of the tenants and applicant is not in occupation of any shop. In the circumstances the need of the applicant for the disputed premises for the use of his son appears to be genuine. I, therefore, decide the issue in affirmative. "

I do not see any reason to set aside these findings. Nor any discrepancy has been pointed out by the learned counsel in the analyses of the Rent Controller. The appellants allegations that the son of the landlord does not require the premises because he is employed in the Government of Sind were found to be mere assumptions. No concrete proof of his employment was produced which in my opinion was not difficult to obtain from the office or agencies where he is allegedly serving. Equally unconvincing is the assertion that some other shops are lying vacant or the applicant son is doing the kite business. It was a case of a shop flanked by other shops and situated in a commercial area. Both these pleas could be substantially proved by offering independent evidence on each of these pleas. The appellants evidence at its best would be nothing more that word against a word. If the learned Rent Controller has found the version of landlord /respondent to be more trustworthy and more inspiring how, in this first appeal I can uproot that finding and replace it with the version of the appellant when I am handicapped by not having the benefit of seeing the conduct and demeanour of the witnesses which were examined and cross-examined before the learned Rent Controller.

In my view if the landlord /applies to have possession of his property to enjoy its benefits himself how one can just brush aside his prayer by saying that it is not a bona fide requirement. To attribute such a conduct of non bona fide is a question of fact which must be satisfactorily established by the accusers. As the appellant has not been able to do it, the learned Rent Controller has rightly held against him. This appeal is, therefore, dismissed with costs. By consent of the learned Advocate for the respondent the appellant is allowed to vacate the shops within 6 months from the date of this order.

M . A . K . Appeal dismissed.

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