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First Appeal No.832 of 1982, decided on 30th May, 1984.

---Ss. 15(2) (vii) & 21(1)--Ejectment--Personal requirement--Discrepancy between application and affidavit--Effect of--Plea of personal requirement of landlord remained unrebutted and unchallenged--Finding of Rent Controller on issue of personal requirement was found in consonance with evidence on record and law--Alleged discrepancy in application and affidavit was proved to have occurred by mistake of counsel--Discrepancy, held, of no consequences in circumstances.

Zaheeruddin Khan for Appellant.

Hussain Adil Khatri for Respondent.

Date of hearing: 30th May, 1984.

This is an appeal against the order dated 21-7-1982 passed by the learned VIIth Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 1902/78 allowing the respondent's application on the ground of personal requirement. The brief facts leading to the filing of the above appeal are that the respondent filed two rent cases, namely, Rent Cases Nos. 1801/78 and 1802/78 against the two tenants in respect of two Flats, on the ground of personal requirement. In the former application, it was averred that the accommodation at his disposal was not sufficient for accommodating his large family including an unmarried son whose marriage was to be solemnized very soon. Whereas in the latter application, it was averred that respondent's married son Abdul Rehman was residing in Malir with his 4 children. The accommodation was not sufficient nor it was suitable for his need. Both the above rent applications were resisted by the tenants. On the basis of the pleadings of the parties the learned Rent Controller framed the following two issues:-

(1) Whether the premises in question is required by the applicant for the need of his son

(2) What should the order be In Rent Case No. 1801/78 the respondent filed his own affidavit and the affidavit of his son Abdul Rehman, whereas the appellant in First Rent Appeal No. 939/82 filed her husband's affidavit. In the above second rent application the respondent filed his affidavit and the affidavit of his son Abdul Rehman, whereas the appellant in First Rent Appeal No. 832/82 filed her own affidavit. The learned Rent Controller after hearing the parties allowed both the above rent applications by separate order of even date namely, 21-7-1982. The opponent in Rent Case No. 1801/78 filed First Rent Appeal No. 939/82, whereas the opponent in Rent Case No. 1802/78 filed First Rent Appeal No. 832/82. 2. Both the above appeals had come up for hearing before me yesterday and so also today. It may be observed that First Rent Appeal No. 939/82 has been compromised out of Court and the terms of compromise contained in an application are brought on record. It may also be stated that in First Rent Appeal No. 832/82, the possession of the Flat was taken over by the respondent on 26-7-1982, according to him after making payment of compensation amounting to Rs.2,000 to the appellant's brother. 3. However, Mr. Zaheeruddin Khan, learned counsel for the appellant in above First Rent Appeal No. 832/82 in support of the above appeal has urged that there is a material discrepancy between the averments contained in the application and the affidavits in evidence inasmuch as in the rent application as observed hereinabove, the ground pleaded was the personal requirement of the married son Abdul Rehman living in Malir, whereas in the affidavit in evidence the ground mentioned is the respondent his own personal and his family's requirement. I have perused the files of both the rent cases, it seems that there was a mistake on the part of the learned counsel then appearing for the respondent inasmuch as he filed an affidavit in evidence in Rent Case No. 1801/78 of Rent Case No. 1802/78 and vice versa. The factum that the respondent has a married son by the name of Abdul Rehman having a wife and 4 children living in village of Malir, remained unrebutted. Similarly the factum that the respondent is putting up in one room with his wife and an unmarried grown up son and 6 daughters out of which 3 are married also remained unchallenged. In my view the above discrepancy between the application and the affidavit as observed hereinabove is explainable and occurred on account of mistake on the part of the counsel. I am satisfied that the finding of the learned Rent Controller on the question of personal requirement is in consonance with the evidence on record and law. I would therefore, dismiss the above appeal with no order as to costs. However, the appellant shall be entitled to have the refund of rent deposited for the period after eviction. According to Mr. Zaheeruddin Khan, the appellant has deposited rent upto May, 1984, though the possession was taken over from him in July, 1982. The respondent undertakes to withdraw the above rent and would refund the same to appellant. The learned Rent Controller is directed to pay the above amount to the respondent. H.B.T. Appeal dismissed.