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First Rent Appeal No.658 of 1984, decided on 4th February, 1987.

---Ss.21 & 14--Ejectment on ground of personal need of landlord--Shop in dispute needed by landlord to accommodate his jobless son for business purpose--Merely because landlord was residing in a shop, would not mean that he was in possession of a shop in which he could accommodate his son--No evidence on record available that landlord owned any other premises which he was occupying for residential purpose--Landlord's statement regarding his son being jobless having remained unchallenged and no other accommodation being available to him, he had established his case for personal bona fide requirement--Non-production of son as witness, held, could not be fatal to landlord's case--Order of Rent Controller set aside and application for ejectment granted.

P L D 1969 Quetta 21 ref.

---Ss.21 & 14--Ejectment on ground of subletting--Evidence produced by landlord weak, shaky and unspecific--No independent evidence from neighbourhood produced to establish subletting--Finding of Rent Controller, held, could not be disturbed in circumstances of case.

Feroz Khan for Appellant.

Vazir Ali for Respondent.

Date of hearing: 4th February, 1987.

The appellant filed an application for ejectment against respondent in respect of shop premises situated on Plot No.3-F-5/3 Nazimabad, Karachi. The grounds for ejectment pleaded were (1) default in payment of rent (2) causing nuisance to the neighbours (3) misusing and converting the shop unauthorisedly (4) subletting the premises by handing over possession to others and (5) for bona fide personal requirement of his son. The Respondent filed written statement denying all the allegations. The learned Controller dismissed the ejectment application.

Mr. Feroze Khan the learned counsel for the appellant has not pressed the issue relating to default in payment of rent. He has confined his arguments only to two issues namey personal bona fide requirement of the appellant and subletting. So far the first ground is concerned, the learned counsel has contended that the learned Controller has not appreciated the evidence on record. In this regard the learned counsel has referred to the averment made in the application for ejectment and the affidavit of evidence of the appellant in which it has been clearly stated that the premises is required for his son Rashid Akhtar who is jobless and he wants to start photographer's business in the disputed premises. According to the learned counsel for the appellant the respondent has not cross-examined the appellant and therefore, this statement has gone un-challenged and un-rebutted. He further contended that the respondent has not led any evidence. Mr. Nazir Ali the learned counsel for the respondent has contended that the witness was fully cross-examined and that as there was no evidence to establish bona fide personal requirement, the respondent did not lead any evidence in the case. It may be mentioned here that the respondent had filed written statement but did not file affidavit of evidence nor examined any other witness in support of the defence raised in the written statement. Now question is whether the appellant has established bona fide requirement. This plea as stated in the application and mentioned in the affidavit of evidence has been stated above and need not be repeated again. The appellant's son Rashid Akhtar is stated to be jobless. This averment in the affidavit in evidence was not at all challenged in the cross-examination. Although there is cross-examination on other aspect of the case to attack the bona fides of the appellant suggesting that he owns other proper and alternate accommodations but all these suggestions were denied and from the statement of the appellant it has not been established that he owns any other premises in which he can accommodate his son Rashid Akhtar. The respondent has not produced any evidence to show that there was any such accommodation available with the appellant. It has been contended that one shop is being occupied by the appellant but he has explained in his cross-examination that he is using it for his residential purpose. Mr. Feroze Khan the learned counsel for the appellant has referred to P L D 1969 Quetta 21 where it was observed that there being, thus, no bar to the conversion of a shop to residential purpose, the conversion of a room which is attached to a residential building into a "Baithak" a sitting room cannot, therefore, be objected to, nor can it be urged that the said converted room continues to remain a shop and, therefore, the respondent-landlord must be held to be occupying another shop, in the same urban area. In the present case merely because the appellant is residing in a shop it does not mean that he is in possession of a shop in which he can accommodate his son for business purpose. There is no evidence on record that the appellant owns any other premises which he is occupying for his residential purpose. In view of the facts that the appellant's statement regarding Rashid Akhtar being jobless has remained unchallenged and no other accommodation is available to the appellant, he has established his case for personal bona fide requirement.

Mr. Vazir Ali the learned counsel for the respondent has contended that as Rashid Akhtar the son of the appellant for whom the premises is required has not been produced the appellant has failed to prove the requirement. In every case production of the son for whom the premises is required is not necessary. It depends upon the facts and circumstances of the case. As the statement of the appellant has remained un-challenged and un-rebutted as stated above non-production of this witness cannot be fatal to the appellant's case.

So far subletting is concerned the evidence produced by the appellant is weak and shaky and un-specific. No independent evidence from the neighbourhood has been produced to establish subletting. In these circumstances finding on question of subletting cannot be disturbed. In the result the order of learned Controller is set aside and the application for ejectment of the respondent is granted on the ground of personal requirement of the appellant. The respondent should vacate the premises within three months.

S. Q./M-94/K Appeal accepted.

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