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First Rent Appeal No.1086 of 1984, decided on 20th May, 1987.

---Ss.14, 15 & 21--Ejectment on ground of subletting of premises- Document produced' in evidence in some other case could not be used as evidence in instant case for establishing subletting No other evidence except oral evidence of landlord himself produced-- Allegation of subletting, held, had not been sufficiently established.--[Evidence].

---Ss.14, 15 & 21--Ejectment on ground of personal requirement- Landlord, in first instance, has to establish good faith and bona fides in regard to his personal requirement of premises and when the onus is discharged by him then the tenant can be called upon to rebut the allegation--Where not only the landlord had failed to establish his bona fides but even the Rent Controller had failed to give proper reasons for ordering eviction of tenant from the premises on plea of personal requirement raised by landlord, order of eviction was set aside in appeal.

Khawaja Mahfoozur Rehman for Appellants.

K.M. Nadeem for Respondent

This appeal arises from the order passed by the XVth Senior Civil Judge and Rent Controller Karachi, dated 28-10-1984, ordering the appellants eviction from' ground floor of House No. 130-A/2, P.E.C.H. Society, Karachi within one month from the date of passing of the order.

The Respondent had filed an application before the learned Controller for eviction of the appellants from the aforesaid premises wherein the appellant No. 1 was a tenant at a monthly rent of Rs. 700/-. It was averred in the application that the appellant No. 1 had sublet the premises to appellant No.2 without permission of the respondent and had also used the premises for the purpose other than that for which the same has been let out. The respondent also required the premises for his personal bona fide use as' he had retired from Government service and wanted to start business of his own. The respondent had also alleged default in payment of rent for three months, starting from March 1979. The appellants filed written statement, denying all such allegations. According to them, the premises had been let out to the first appellant for running a restaurant, therefore, there was no contravention of any terms of the tenancy committed by the appellants. It was also denied that the premises had been sublet by the first appellant as according to him the appellant No. 2 was the employee of appellant No. 1. The allegations in regard to default in payment of rent were also denied and it was also denied that the premises were required by the respondent for his personal use.

After framing issues and taking evidence the learned Controller was impressed by only two of the grounds taken in the ejectment application viz., subletting of the premises by appellant No. 1 to appellant No. 2 and requirement of the premises for personal use of the respondent. The rest of the pleas did not find favour with the learned Controller. However, ejectment of the appellants was ordered from the premises as aforesaid.

2. I have heard Mr. Khawaja Mehfoozur Rehman learned counsel for the appellants and Mr. K. M. Nadeem, learned counsel for the respondent.

The sole contention of Mr. Mehfoozur Rehman is that the learned Controller has failed to make proper appreciation of the evidence in the case as the respondent had failed to establish any of the grounds urged by him in the ejectment application. Mr. K. M. Nadeem, on 41 the other hand, has fully supported the impugned order.

3. So far as the question of subletting of the premises, is concerned, no other evidence appears to have been produced b&-ore the learned Controller except the oral evidence of the respondent. The case of the appellants, according to their pleadings, was that the appellant No. 2 was an employee of the appellant No. 1. However, when evidence in the case was adduced, the appellant No. 2 was stated to be the Managing Partner of the restaurant which was being run in the name of "Cafe Afzal". The learned Controller has, however, placed reliance on a photostat copy of an agreement of sale filed in another case, namely Rent Case No. 2624 of 1979, on the basis of which it has been held by him that subletting of the premises by the appellant No. 1 to the appellant No. 2 has been established. When Mr. K. M. Nadeem, learned counsel for the respondent was asked as to how the learned Controller could place reliance on a document adduced in evidence in some other case, he could offer no explanation, but his contention was that since the document has now been filed by the appellants themselves with the present appeal, the same tantamounts to admission of the document and therefore, the same can now be taken' notice of by this court. No doubt, a copy of this document has been filed by the appellants alongwith the memo of appeal but it is pertinent to note that no reference has been made to this document therein. Under the circumstances I cannot understand as to how this document can be regarded as admitted by the appellants. However, I have no doubt in my mind that this document could not have been used as evidence in the case by the learned Controller. There being no other evidence in regard to subletting except the word of the respondent himself, the allegations made by the respondent in this respect, in my opinion, have not been sufficiently established.

3. Turning to the other grounds of personal requirement, I do not find the evidence adduced by the respondent in this respect to be reliable either. In his ejectment application filed before the learned Controller he has categorically stated that the premises were required by him for his own personal use as he wanted to start some business. The reason stated by him was that he had retired from Government service. Although there is no controversy in respect of the respondent's retirement from Government service, but in the evidence the respondent appears to have made a complete deviation from his earlier stand by stating that the premises were required by him for his own use and that of his children and not only for the purpose of business but also for the residential purposes. According to him his son who had gone to U.S. for higher education in medicine and surgery had completed his education and wanted to return to Karachi to start his practice and the premises in question were, therefore, required by him. It was also stated that another son and married daughter of the respondent who are in Islamabad and Australia respectively wanted to shift to Karachi and live with the respondent in the premises in question. This clearly was a new case set up by the respondent. The order of the learned Controller fails to indicate whether he was impressed by the first plea raised by the respondent in his eviction application for the second plea raised by him at, the time of the evidence. Moreover, the order appears to be based simply on the fact that the appellants had failed to adduce evidence to rebut the plea of personal requirement raised by the respondent.

However, it may be pointed out that in the first instance, it is the landlord who has to establish good faith and bona fides in regard to his personal requirement of the premises and when the onus is discharged by him then the tenant can be called upon to rebut the allegations. In the present case, it clearly appears that not only the respondent has failed to establish his bona fides but even the learned controller has failed to give proper reasons for ordering eviction of the appellants from the premises on the basis of the plea of personal requirement raised by the respondent.

Fogy the aforesaid reasons this appeal is allowed and the impugned 'order, dated 28-10-1984, is set aside. There will however be no order as to costs.

S. Q. /M-241/ K Appeal allowed.

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