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First Rent Appeal No.826 of 1984, decided on 12th April, 1987.

---S.15--Application for ejectment--Fact not alleged in application- Applicant cannot be allowed to improve his version at evidence stage.

Zahid Marghoob for Appellant.

Umer Qureshi for Respondent.

Date of hearing: 8th March, 1987.

This appeal has been brought at the instance of landlord against the order of the, learned IX Senior Civil Judge and Rent Controller, Karachi whereby he dismissed the appellant's rent application for eviction of the respondent.

2. The brief facts giving rise to this appeal are these:

The appellant is landlord of House No.A/540, Block 'L', North Nazimabad, Karachi and the respondent is his tenant in respect thereof on a monthly rent of Rs.600 only since 1975. The premises were originally let out on a rent of Rs.450 per month. The ejectment was sought for on the ground of bona fide personal requirement of the appellant. The respondent contested the said application and denied the appellant's assertions. He pleaded that the case was filed with malafide intention in order to re-let the disputed house on a higher 'pugri'. The respondent also pleads that the rent case filed was premature inasmuch as the period of 11 months for which the premises were let out under Rent Agreement dated 22-12-1979 had not expired. The learned Rent Controller framed the following points for determination: -

(1) Whether the present rent case is premature

(2) Whether the case premises is required by the applicant for his personal bona fide use and his children

(3) What should the order be

3. The learned Rent Controller held the case to be premature and so also he decided the above noted second issue against the appellant by recording a finding that the case premises were not bona fidely and genuinely required by him for his personal use. Consequently the application, as already stated, was dismissed.

4. I have heard the parties' representatives. The learned counsel for the appellant at the outset stated that he would press the appeal only on the ground of personal need. The appellant examined himself and also produced two witnesses, namely M.A.Rehman, his brother and Taj Muhammad whereas the respondent examined only himself as his witness. The agreement executed for a period of 11 months on 27th December, 1979 whereas the application for ejectment was made on 24th May 1980, i.e. after about 5 months of the extension (sic) of lease period for 11 months. No notice was admittedly served upon the respondent before filing of the ejectment application, out of which this appeal has arisen. It was urged by the learned counsel for the appellant that after the execution of the agreement in question the appellant was transferred from Pipri to Karachi and hence it made it necessary for the appellant to file ejectment application. The appellant, accordingly, on his transfer to Karachi was residing with one of his relatives in a small house in Mahmoodabad as a licensee. That accommodation was not sufficient for the requirement of his family which comprises of 7 members. According to the learned counsel for the appellant, the appellant had been consistent in his stand during his examination-in-chief as well as in cross-examination. His version was also duly supported by his witnesses and hence, he so urged, the learned lower Court improperly acted in rejecting the application. The learned counsel for the respondent, on the other hand, supported the impugned order According to him, the application was presented with mala fide intention. He drew my attention to the deposition of the parties' witnesses and vehemently urged that there was enough evidence on record to show that the appellant was collecting rent of the case premises regularly and that he never mentioned about his personal need for the said premises. No notice was served prior to the filing of the ejectment application. The counsel submitted that the sole object of the appellant was to harass the respondent so as to press him to increase the rent. He submitted that both M.A.Rehman and Taj Muhammad were interested witnesses.

5. I have perused the evidence on record and I find that the appellant had utterly failed to establish his bona fide requirement in respect of the disputed premises. The alleged fact that it was because of his transfer from Pipri to Karachi that he required the premises in question is not even mentioned in the application. He has tried to improve his case by so deposing in his affidavit-in-evidence. I do not think that having failed to mention such an alleged fact in the ejectment application, the appellant could reasonably be allowed to improve his version at the evidence stage. Moreover, even this improved version was coot supported by any documentary' evidence although in the normal course it was expected by him that the order of his transfer from 'Pipri' to Karachi should have been brought on record. Besides a bare perusal of the agreement of Lease executed on 22-12-1979 between the appellant and the respondent in respect of the disputed premises, makes it absolutely clear that the appellant has given his address therein as "13/168, Mahmoodabad". This very address is given in para of the Rent Application as well. This fact alone belies the appellant's contention that it wits, consequent to his alleged transfer from "Pipri" to Karachi, when he came to stay with his relation in House No.B/168, Mahmoodabad as a licensee. Since appellant's own statement had been held to be unbelievable, it is no use to refer to the evidence-of the two witnesses produced by him in support of his case, who have even otherwise, for valid reasons, been held by the learned lower Court as interested witnesses.

8. Under the aforesaid facts and circumstances of the case and for the reasons recorded hereinabove I am clearly of the view that there is no merit in this appeal and it should accordingly fail. It is therefore, hereby dismissed with no order as to costs.

K.B.A./M-166/K Appeal dismissed.

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