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First Rent Appeal No. 36 of 1984, decided on 31st March, 1985.

(a) Sind Rented Premises Ordinance (XVII of 1939)--

---S.21(1)--Relationship of landlord and tenant--Denial of by tenant- Disputed premises proved to be obtained by landlady on lease for 90 years front Karachi Development Authority--Tenant failed to show any misreading of evidence while reaching such finding--Finding of Rent Controller on point of lease being in accordance with evidence on record=-Relationship of landlord and tenant, held, was established in circumstances.

(b) Sind Rented Premises Ordinance (XVII of 1979)--

---Ss.15(2)(ii) & 21(1)--Wilful default of tenant in payment of rent;-Proof of--Contention of tenant that his wife was owner of disputed .property but miserably failed to prove said contention--Wilful default of tenant, held, proved in circumstances.

(c) Evidence Act (I of 1872)--

---S.137--Sind Rented Premises Ordinance (XVII of 1979), S.21(1)- Ejectment--Fact deposed--Failure to cross-examine on such fact-=Effect- Fact deposed to in examination-in-chief not questioned in cross examination by opposite-party--Such fact, held, would be deemed to have been accepted by party against whom evidence had been given.

M. Moosa for Appellant.

M. Yaseen Azad for Respondent.

Dates of hearing: 2nd December, 1984 and 31st March, 1985.

This First Rent Appeal is directed against the order, dated 11th December, 1983 of the learned XIV Rent Controller; Karachi, whereby the ejectment application was allowed and - the appellant was directed to vacate the disputed premises and hand over its vacant and peaceful possession for the respondent within the period of sixty days from the date of the impugned order.

The facts which give rise to this appeal are that the respondent is owner/landlady acid the appellant is her tenant in respect of property bearing plot No.540, Block 15/A, Orangi, Karachi, at a monthly rent of Rs.150. The respondent filed Ejectment. Application No. 3697 of 1982 against the appellant on the ground of default since January, 1980 till August 1982 amounting to Rs.4,800 and also on the ground of personal requirement for reconstruction of a new building at the site: The appellant filed written statement and resisted -the application and stated therein that his wife is the owner of the plot in his possession and the respondent has no right for construction on his plot. The attorney of the respondent filed affidavit-in-evidence on behalf of the respondent and also filed affidavit-in-evidence .of two witnesses namely, Tauqir Alam and Ashfaq Ahmed -in support of the eviction application. The appellant filed his own affidavit-in-evidence besides affidavits-in-evidence of Mst. Jamila Khatoon wife of the appellant and Syed Akbar, Ghulam Abbas, Noor Muhammad and Mukhtiar Rehman in rebuttal.

The learned Rent Controller, on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues in the affirmative and allowed the eviction application on the ground of default and the requirement for reconstruction of new building.

Mr. M. Moosa, the learned counsel for the appellant, contended that:

(1) the respondent has not established. the relationship of landlord and tenant;

(2) the appellant is not a defaulter; and

(3) the respondent has not proved the requirement for reconstruction.

On the other hand Mr. Muhammad Yaseen Azad, the learned 4counsel for the respondent, has submitted .that the order is in accordance with the evidence on record.

Adverting to the first contention of the learned counsel for the appellant that in the instant case the relationship of landlord and tenant is not proved. The respondent in her application states that she is the owner of the disl5uted property. The attorney of the respondent filed affidavit-in-evidence and stated that respondent is landlady of Me disputed premises by virtue of indenture of lease executed in her favour by the Karachi Development Authority Exh. A/2. The respondent also examined Muhammad Aslam, clerk from the office of K.M.C., who brought record pertaining to the disputed plot and stated in his deposition that the disputed premises were transferred to the respondent as per lease for 99 years. The learned counsel for the appellant has contended that the learned Rent Controller has misread the evidence on record but he is unable to show any misreading of evidence. It appears that the finding of the learned Rent Controller on this point, is in accordance with evidence on record.

Adverting to the second contention of the learned counsel for the appellant that the respondent has not established default in payment of rent since January, 1980. The respondent has, in her, eviction application, stated that the appellant has committed default in payment of rent for the period commencing from 1-1-1980 to 31-8-1982 amounting to Rs.4,800. The appellant filed written statement and in para. 2 thereof stated that para. 2 is totally denied as the appellant is not the tenant of the respondent. Therefore, there is no question of any rent. The attorney of the respondent stated in para. 3 of the affidavit-in-evidence

Adverting to the last contention of the learned counsel for the appellant regarding requirement of the premises for construction of new building. The, respondent had obtained approved plan for erection of new building. The attorney of the respondent, in his examination-in- chief stated that the disputed premises are required for constructing new building .and had got loan sanctioned from the House Building Finance Corporation for constructing the new building. It is pertinent to note that no question was put to him in cross-examination, nor any suggestion was made to him in cross-examination. It is a settled position in law that if some fact is deposed to in examination-in-chief which is not questioned in cross-examination, the presumption is that that part t of the evidence is deemed to have been accepted by the party against whom that evidence has been given. Acting on this principle the learned Rent Controller accepted the evidence of the attorney of the respondent, his evidence in respect of requiring the premises for reconstruction having not been questioned. I am of the view that the learned Rent Controller rightly contended that demand for reconstruction of the disputed premises had genuinely been proved.

I, therefore, find no justification in the above appeal and it is, therefore, dismissed but I grant two months time to vacate the premises. In the circumstances, there will be no order as to costs.

H . B . T.

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