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First Rent Appeal No. 303 of 1984, decided on 10th March, 1985.

---S.15(2)(vii)--Bona fide personal requirement--Property purchased through registered document--Presumption would be that registered document was genuine, in absence of any cogent-evidence to rebut the same--Previous landlord not succeeding in ejectment petition selling disputed premises to new landlord (respondent) on alleged low consideration--Contention that respondent has been set up as tenant by previous landlord, therefore, application for ejectment seas not bona fide, repelled.

---S.15(2)(vii)--Bona fide personal requirement--Burden of proof- Tenant raising plea that landlord was in possession of flat owned by himself--Held, initial burden to prove owning of flat by landlord was on tenant, which could have been discharged by producing either some reliable oral evidence or documentary evidence--Such burden could not be discharged by making a few suggestions in cross -examination in absence of any admission on the part of adversary.

---S.15(2)(vii)--Bona fide personal requirement--Residing of landlord in a rented premises proved--Ejectment application on ground of personal requirement by landlord, held, was bona fide.

Abdul Karim Siddiqui for Appellant.

Husain Adil Khatri for Respondent.

Date of hearing: 10th March, 1985.

This is an appeal against the order, dated 13-2-1984 passed by the learned XIVth Senior Civil Judge and Rent Controller at Karachi in Rent Case No. 218 of 1983 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 tenement in question was transferred by the Settlement Department to one Abdul Wajid Khan, who filed Rent Case No. 3222 of 1977 for ejectment against one Abdul Rehman son of Nakar. He obtained ejectment order but upon filing of an execution application, the appellant filed objections to the aforesaid execution application averring therein, that he was the tenant and not Abdul Rehman. He also obtained a stay order. While the above objections were pending the respondent purchased the above property under a registered sale-deed, dated 5th April, 1981 Exh. D/3. It is the case of the appellant that this is a bogus transaction and that the previous landlord has set up the respondent. The respondent filed Rent Case 'No. 2459 of 1981 against the aforesaid Abdul Rehman as well as against the appellant in the capacity of tenant and sub-tenant respectively.- The above case was dismissed on 5-1-1983 on the ground that factually the appellant was the tenant and was not a sub-tenant. After that the respondent filed present Rent Application on 18-1-1983. The above application was resisted by the present appellant. The learned Controller on the basis of the pleadings of the parties framed the following two issues:-

"(1) Whether case premises is required by the applicant for his use and for the use of his family members

(2)What should the order be

The respondent filed his affidavit-in-evidence, whereas the appellant filed his affidavit-in-evidence. They were cross-examined by the respective counsel of the parties. The learned Rent Controller after hearing the parties, allowed the above application by the order under appeal the appellant being aggrieved by the above order has filed the present appeal.

2. (a) In support of the above appeal Mr. Abdul Karim Siddiqui, learned counsel for the appellant has urged as follows:-

(i) That factually the respondent has been set up by said Abdul Wajid Khan and, therefore, the application for ejectment was not bona fide.

(ii) That in any case, the respondent is putting up in the adjacent flat which is owned by him and, therefore, the application for personal requirement was not bona fide.

(b) On the other hand Mr. Hussain Adil Khatri learned counsel for the respondent has contended as follows:

(i) That there is no evidence on record to reflect even remotely that the sale transaction between the respondent and said Abdul Wajid Khan was a bogus transaction.

(ii) That the burden of proof that the respondent was in occupation of the flat owned by him was on the appellant, which he has failed to discharge.

3. Adverting to the above first contention, it may be observe a that Mr. Abdul Karim Siddiqui, learned counsel for the appellant has referred to the cross-examination of the respondent, in which he has admitted the fact that he was the Court Clerk of the Advocate, whop was appearing for Abdul Wajid Khan in aforesaid Rent Case No., 3222/77 filed by him against Abdul Rehman son of Nakar. He has further submitted that the sale consideration shown in the sale-deed is only Rs.15,000 which seems to be absurd as the flat is situated in the city. I am unable to agree with the above submission. No landlord is going to execute a conveyance deed on the regulation stamp papers in favour of the Court clerk of his Advocate for getting a tenant ejected. Since a registered document has been produced; the presumption would be that the above registered document is a genuine document in the absence of any cogent evidence to rebut the above presumption. In my view, It is not necessary to go into the question whether the consideration of Rs. 15,000 for the flat without possession of which rent is only Rs. 30 per month is on the very low side as has been urged by the learned counsel for the appellant or whether it is reasonable. It will suffice to observe that in context with the question of rent, the above consideration can be said to be compatible with the above rent., as the possession of the flat was not given.

4. As regards the above second contention, it may be stated that Mr. Siddiqui has referred to the fact that in the previous Rent Case No.2459/81 filed by the respondent, namely, the appellant had raised the same plea but the respondent did not produce any tenancy,. agreement which has been produced (dated 1st September, 1972 Exh A/1) in the present case. He has further submitted that the respondent is unable to give the address of the widow of his landlord. It has also been submitted by him that in view of the above facts. It was incumbent upon the respondent to have produced the rent receipts and should have examined his landlady. It will suffice to observe that the appellant had raised the plea that the respondent was in possession of the flat owned by him. The initial burdon was on him which could have been discharged by producing either some reliable oral evidence or documentary evidence in the form of a copy of a P.T. form I or some record from the Settlement Department or from the City Survey Office. This was not done, instead of that certain suggestions were made to the respondent in his cress-examination. In my view a party cannot discharge such initial burden by making a few suggestions in .the cross-examination in the absence of any admission on the part of the adversary.

5. Reverting, to the merits of the case, it may be observed that it has been proved that factually the respondent is residing in a rented premises and, therefore, his application on the ground of his personal requirement was bona fide. I concur with the finding of the Rent Controller, with the result that the appeal is dismissed with no order as to costs. However, I allow six months time to the appellant from today to vacate the premises on the condition that he shall continue to deposit rent in terms of the Rent Controller's order in the Miscellaneous Application, failing which the respondent shall be at liberty to file an execution application before the expiry of the above period of six months. Furthermore, in case the appellant fails to hand over the vacant possession on the expiry of the above period of six months, the learned Rent Controller shall issue a writ of ejectment 'without any further notice to the appellant.

M.A.K./M-205/K

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