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First Rent Appeal No. 70 of 1982, decided on 2nd October, 1984.

---S. 21--Ejectment--Grounds of requirement for personal use and default in payment of rent--Default not proved--Landlady obtaining vacant possession of another building during ejectment proceedings--Ejectment application dismissed without enquiring about condition and accommodation of vacated building--Building vacated allegedly in ruinous condition- Finding on bona fide use of landlord and occupation set aside--Case remanded to Rent Controller to examine Witnesses only on question whether building was habitable and sufficient to meet requirement of landlord.

Usman Ghani Rashid for Appellant.

S. Inayat Ali-for Respondent.

Date of hearing; 2nd October, 1984.

The appellant filed an ejectment application against the respondent on the grounds that he has committed default in payment of rent and she requires the premises for her bona fide use and occupation. The learned Controller by the impugned order dismissed the application.

I have heard Mr. Usman Ghani Rashid and Mr. Syed Inayat Ali. As regard issue No.1 regarding default the finding of the learned Controller is correct. There is hardly any evidence produced by the appellant to establish that default has been committed. Even the period during which default is alleged to have been committed cannot be ascertained. On the other hand the respondent has stated that he has been paying rent and no rent receipts were issued. When tender made by him was not accepted, he started regularly depositing rent in Court. The receipts issued by the Court have also been produced. As the appellant has not discharged the initial burden, the finding of the learned Controller is correct. Gul Sher the son of the appellant was examined on her behalf but he has not been cross-examined. His statement regarding non-payment of rent is not sufficient to hold that default has been committed.

On the next issue the appellant has established that there are six family members including her mother, sons and daughter. Although Gul Sher has included the children of her elder sister which are 9 in number they cannot be termed as members of family, nor can their need is covered by the definition of the words 'personal use' of the appellant. The main ground which has impressed the learned Controller, is that during the pendency of the case, the appellant obtained vacant possession of the building No.AK-7-A-10-5-40 consisting of the first and ground floors. The learned Controller therefore, observed that the appellant could have moved some of her family members in that building and thus solved the problem of shortage of accommodation. No doubt the statement of the respondent that, vacant possession of the building has been obtained has remained unchallenged yet there are many gaps in the evidence. The respondent has not explained or stated a word that the said building consists of such accommodation which would be sufficient to cater the need of the appellant. The appellant's witness Sher Gul has not stated anything about obtaining vacant possession of this building, nor in cross-examination any suggestion has been made by the respondent in this direction. The appellant in her memo. of appeal has stated that the finding of the Controller is incorrect as the building stated to have been occupied by her was in ruinous condition. This material was not placed before the Controller. However, mere statement that vacant possession of the building has been taken by the appellant without specifying the accommodation available in it and whether it is in a habitable condition does not automatically lead to the inference that the bona fides of the landlord are not genuine. In these circum stances I feel that the matter requires investigation in respect of the building whose possession has been acquired by the appellant. There does not seem to be any dispute that the appellant has acquired possession of the said building. In these circumstances in the interest of justice, I will remand the case to the learned Controller. Finding relating to the appellant's bona fide use and occupation is set aside. The learned Controller should examine the witnesses on the question whether the said building is in a habitable condition and is sufficient to meet the requirement of the appellant. On this limited point the parties will be allowed to examine their witnesses. The finding of the learned Controller relating to the default has not been disturbed, and therefore, the learned Controller will decide the matter only on issue relating to the bona fide requirement of the appellant. The appeal is partly allowed and the case is remanded to the learned Controller to decide it in the light of the above observation.

M.I. Order accordingly.

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