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First Rent Appeal No.666 of 1980, decided on 5th September, 1984.

---S. 13--Sind Rented Premises Ordinance (XVII of 1979), S.21- Ejectment--Personal requirement--Evidence showing that rented premises were genuinely required by landlord for his own use as he was living with his family in a house with his eldest son which accommodation was insufficient--Request of landlord very genuine and reasonable and evidence on this point properly appreciated by Rent Controller--Order of ejectment passed by Controller maintained in circumstances.

A.A. Abbasi for Appellant.

A. Q. Malik for Respondents.

Date of hearing: 30th August, 1984.

The first rent appeal is directed against the impugned order, dated 13-7-1980 passed by the learned Vth Rent Controller, Karachi whereby ejectment has been granted against appellant/ tenant on the ground of personal need.

2. Briefly stated the relevant facts giving rise to this 'appeal are that respondent namely Mushtaq Ahmed Qureshi who is landlord of house in question applied for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance on the grounds of default in the payment of rent for seven months at the rate of Rs.150 p.m. change of residential accommodation for commercial purposes, additions and alterations and that the premises were required for personal need of the landlord who had retired from the service In Railway Department. Application for ejectment was filed on 4-3-1975. Proceedings were contested by the tenant, who filed his written statement in which allegations were denied. Subsequently the learned Rent Controller framed as many as four issues keeping in view the controvertial pleadings of the parties. Landlord examined himself and his attorney Munir Ahmad Khan while on the other hand the tenant examined himself and two other witnesses namely Rafique Rehman and Maqbool Hassan.

3. So far the evidence is concerned landlord deposed before the learned Rent Controller that the tenant was inducted into possession on 3-9-1970 and subsequently an agreement was executed. Ejectment application was filed on 4-3-1975 and on that date the tenant was in arrears of RS-935 on account of default in the payment of rent for seven months. It was also stated that accommodation in question was let out for residential purpose and the same was converted into commercial by the tenant, who had installed Dentona Tooth Powder Factory. It was further stated that tenant had constructed one room in the courtyard and the other room was partitioned and one other room was constructed in the Varanda without the consent of the landlord. It was also stated by the landlord that he was Deputy Chief Controller in Pakistan Railway and retired from service on 24-8-1974. Previously he lived in the accommodation provided by the Railway and after his retirement he has been living with his wife, two major sons and one daughter. This house belongs to his eldest son who was independent. His eldest son has wife and two sons, who were dependent upon him. House of the eldest son is in Gulberg area and has only three rooms and he was residing with his family in one of the three rooms. His furniture was lying in Railway Bungalow. The house of his eldest son is insufficient for both of them. Munir Ahmed Khan P.W.2 is attorney of the landlord. He has produced photostat copy of the power of attorney Exh.2. Tenant Attaur Rehman examined himself and stated before the learned Rent Controller that he has not committed default and he used to pay rent by issuing cheques as well as by making cash payments. He paid the rent to the landlord whenever landlord came to him. Landlord did not pay water charges and water was disconnected. He converted the premises with permission of the landlord. He used to fill plastic bags with tooth powder and no machine was installed in the house. He obtained license after permission of the landlord. He sought permission for constructing one additional room and after that rent was increased landlord was living in his other house in Gulberg. The requirement of house in question for personal need of landlord was not bona fide and genuine. Tenant examined Rafiqur Rehmari who is brother of tenant and has supported him and claimed to be present on all occasions. Second witness produced by the tenant' is Maqbool Hassan who has supported the tenant on all fours and claimed to be present on all occasions. This witness admitted in his cross-examination that tenant had business dealings with his brother and both were friends. At another place in the cross-examination this witness further admitted that he was in the service of tenant.

4. The learned trial Judge after assessing the evidence came to the conclusion that Issue No.1 with regard to default was not proved. Likewise on issue No. 2 regarding conversion of residential accommodation for commercial purposes the learned Rent Controller held that there was explicit consent of the landlord. On the issue of alterations, it was concluded by the trial Court that there was consent of the landlord. Finally ejectment was only granted on the ground of requirement of premises for personal need.

5. Learned counsel for the tenant argued before me that application for ejectment filed by the landlord under section 13 of the West Pakistan Urban Rent Restriction Ordinance was not signed by the landlord but was signed by the Attorney who did not have power-of-attorney at that time. It was further stated by the learned counsel that power-of attorney was not produced in the Court but somehow or the other it came to be marked as Exh.36. The contention of the learned counsel is factually incorrect. Photostat copy of power-of-attorney is on the record. It is attached immediately after application for ejectment. Landlord came in the witness-box for the first time on 24-7-1977. He has stated in his cross-examination that application for ejectment was signed by his attorney Munir Ahmed Khan and power-of-attorney was not filed in the Court at the time of filing of ejectment application. Landlord produced agreement as Exh.2. Subsequently P.W.2 Munir Ahmed Khan, attorney was examined on 20-2-1978. He produced photostat copy of power of attorney in his Examination-in-Chief which has been wrongly marked as Exh.2 by the Presiding Officer probably due to inadvertence. I have seen the endorsement of the Presiding Officer on this document. It was originally marked as Exh.2 on 20-2-1978 subsequently in other much brighter ink number of Exhibit has been changed from 2 to 36. Record also shows that after evidence of Munir Ahmad Khan was recorded side of the landlord was closed and then Presiding Officer started recording evidence of the tenant with brighter ink and in the same ink exhibit number in the photostat copy of power-of--attorney has been changed as 36. In any case mistake appears to be innocuous because the power -of-attorney was executed on 14-2-1975 and application for ejectment was filed on 4th March, 1975. Photostat copy of power-of-attorney has been produced by Munir Ahmed Khan P.W.2. This objection does not bear much weight for the reason that it is only technical in nature and in any case it has no bearing on the merits of the case. Moreover there is sufficient material on the record to suggest that it was bona fide mistake with regard to marking of exhibit numbers. This objection as such was not taken before the learned Rent Controller where a similar objection was taken that in Exh.No.36 the landlord has stated that Haji Munir Ahmad Khan was attorney in respect of application for ejectment proposed to be filed and any other movable or immovable properties he held or may hold in future. Such objection appears in the impugned judgment but has not been raised before me in appeal.

6. Mr. A.A. Abbasi, Advocate for the appellant then contended before me that he had 'filed an application for recalling of landlord Mushtaq Ahmed Qureshi for further cross-examination but his application was rejected. This objection was taken before the learned Rent Controller and is reflected in the impugned judgment. The reason given by learned trial Judge for rejecting such application is that Mushtaq Ahmed Qureshi landlord was examined on 24-7-1977 and thereafter on.20-2-1978 P.W. Munir Ahmed Khan attorney, was examined and cross-examined and then landlord closed his side. Thereafter, tenant led his evidence and closed his side on 18-11-1979 and the matter went for final arguments. Thereafter on 12-12-1979 tenant moved an application for recalling of landlord for further cross-examination. This application was rejected because it was filed belatedly. Even before me the learned counsel could not put any convincing argument to justify such request. He only stated that the landlord was to be further cross-examined on the point of power-of-attorney.

7. Another argument raised by Mr. A.A. Abbasi, Advocate on behalf of the tenant is that while before the Rent Controller case was fixed for arguments, the new Sind Rented Premises Ordinance, 1979 came into force and hence judgment should not have been announced under the new law particularly on the ground of requirement of premises in question after retirement from Government service for which there is separate provision of section 14 in the new Ordinance. According to the learned counsel the judgment should have been passed under the old law and he referred me to section 27 of the Sind Rented Premises Ordinance, 1979. Mr. A.Q. Malik, Advocate for the landlord has pointed out that subsequently there came an amendment and new subsection has been added which provides that all cases filed under the old law and pending at the time of promulgation of new rent law to be deemed to have been decided under the new law. In any case the impugned order does not show that it has been passed under section 14 of the Sind Rented Premises Ordinance, 1979 and the evidence produced on the record also shows that rented premises were genuinely required by the landlord for his own use as he was living with his family in the house with his eldest son which accommodation was insufficient. Landlord wants to live in his own house and the request is very genuine and A reasonable. Evidence on this point has been properly appreciated by the learned Rent Controller and I find no ground to interfere with the order of ejectment passed by the learned Rent Controller which is hereby maintained. Appeal is dismissed and the tenant is directed to handover vacant possession of the demise premises within two months. There will be no order as to costs.

M. Y. H. Appeal dismissed.

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