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First Rent Appeal No.23 of 1985, decided on 6th October1985.

‑‑‑ S. 15‑‑Ejectment of tenant‑‑Bona fide personal requirement of landlord, proof of‑‑Averments in eviction application about personal requirement of landlord fully supported in deposition and nothing brought out in cross‑examination to show that such assertions were either false or based on wrong statements‑‑ Assertion of landlord on oath as to requirement of premises for his personal use, held, have to be accepted as bona fide, if consistent with his averments in application and not shaken in cross‑examination or disproved in rebuttal.

Kishan Chand v. Gul Muhammad 1984 C L C 1041; Mst. Begum Jan v. Abdul Rasul 1984 C L C 755 and Sh. Muhammad Riaz v. Mst. Nasim Akhtar and others 1981 S C M R 979 distinguished.

‑‑‑ Ss., 15 & 21‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 118‑ Landlord's ownership of any other house in same uiban area‑‑Burden of proof‑‑Burden to prove that landlord owned any other house in same urban area, held, would be on the tenant‑‑Where tenant fa' R d to prove such fact and his witnesses did not support him, lan loerd could not be blamed to have suppressed material facts about ownership of any other house in locality ‑‑Appeal being devoid of merit was dismissed.‑‑[ Burden of proof].

Sh. Muhammad Riaz v. Mst. Nasim Akhtar and others 1981 SCMR 979 (1) rel.

Moinuddin Ahmed for Appellant.

Dewan Bashir Ahmad for Respondent.

Date of hearing: 16th September, 1985.

This First Rent Appeal is directed against the order dated 4‑12‑1984 of the IX Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to vacate the premises and hand over peaceful vacant possession to the respondent within 120 days from the date of the order.

The facts which give rise to this appeal are that the respondent is landlord and owner of house No.900/14 Federal IBI Area, Karachi and the appellant was tenant in respect thereof at the monthly rent of Rs.200. The respondent filed eviction application No.80 of 1971 on the ground of default personal requirement. The appellant resisted the eviction application.

The respondent examined himself and besides himself examined one witness namely, Aftab Mazhar Noman. In rebuttal the appellant examined himself and besides himself examined two witnesses namely Syed Murtaza Hussain and Manzoor Ahmad.

The learned Rent Controller of the basis of the evidence adduced by the parties and after taking into consideration the arguments of the learned counsel for the parties decided issue o.l in the negative and issue No.2 in the affirmative and allowed eviction application on the ground of personal requirement only vide order dated 4‑12‑1984.

The appellant being aggrieved against the order dated 4‑12‑1984 on the lXth Senior Civil Judge and Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo. of appeal.

Mr. Moinuddin Ahmed the learned counsel for the appellant has submitted that the respondent has not established bona fide requirement and suppressed material facts in his eviction application.

On the other hand Mr. Dewan Bashir Ahmad the learned counsel for the respondent has submitted that the respondent has established bona fide requirement and has not suppressed any material facts in the eviction application.

With regard to the first contention that the respondent has not established his bona fide requirement it is pertinent to note that the respondent in his eviction application stated that he required the house in question for his bona fide use as the respondent at the ‑time of filing eviction application was residing in a rented house and his landlord was pressing him to vacate the l.ause and further the number of family increased as his house consists more accorrmodation than the house in which he was living on rent which consisted of two rooms and the same was insufficient for his proper accommodation for his family. The respondent also disclosed in his application that the house in question consists of ground floor and one (Dochatti room). The accommodation on the ground floor is three rooms including kitchen, bath and laterine fitted with the water motor and as well as completed electrical and the floor of the hall and rooms with mosale. The respondent in his deposition stated that at the time of filing eviction application he was residing in a rented house bearing No.46/9, Malir Extension, Karachi. The landlord of the house sold out the house and he was rejected and at the time of his deposition he was residing in 49/9 South Malir, Karachi in a rented house and he was paying Rs.200 as rent. He also deposed that he has no other house except the house in dispute. He required the house for his use. The respondent to a suggestion in cross‑examination replied that he rented out the house for six months only. The respondent to a question in cross‑examination replied that the house in which he was living at the time of institution belonged to one Moinuddin who sold the same to Aftab Mazhar. The respondent to a suggestion replied that the respondent at the time of depositing was staying at 49/9 and the name of the landlord is Yousuf. The respondent to another suggestion that landlord Yousuf is his "Hamzulf" and who is residing in 49/8. The respondent also denied the suggestion that he was residing in Green Town and owns the same. The respondent also denied the suggestion that "he was residing in Green Town". The respondent also produced a chit which was in the hand of his brother.

P.W.2 Aftab Mazhar supported the statement of the respondent. He deposed that he purchased the house from Moinuddin and the respondent vacated the house.

In rebuttal the appellant filed his affidavit‑in‑evidence in which he stated that the respondent has got his own house and he denied that the house in question was required by him for his own bona fide use. The appellant admitted in his cross‑examination that the respondent verbally asked him to vacate the house in question, as the respondent needed the same for his personal use. The appellant to a suggestion replied that the appellant resides in his own house, I have no documentary proof that the applicant is residing in his house. It is not a fact that the applicant is not residing in a house owned by him and that he is residing in the house of his brother‑in‑law on rent. It is incorrect to suggest that the applicant told me that his brother‑in‑law has asked him to vacate the premises. I do not know if the applicant has not been given any Government accommodation. I do not know if the applicant has five sons and three daughters.

The appellant besides himself also examined Syed Murtaza Hussain. He deposed that MC 798 is a vacant plot. The other witness postman deposed that respondent is residing in house bearing No. MC 798.

It is apparent that the averment in the eviction application about personal requirement of the respondent has been fully supported in his deposition and nothing has been brought out in his cross‑examination which could show the claim to be false or based on wrong statements.

It is well‑settled legal position that assertion of the respondent on oath as to requirement of the premises for his personal use have to be accepted as bona fide if consistent with his averment in his application and not shaken in cross‑examination or disproved in rebuttal.

With regard to the last contention that the respondent suppressed material facts in his eviction application as such the eviction application be dismissed. The contention of the learned counsel for the appellant is that the respondent did not disclose in his eviction application that he also owned other houses. The learned counsel for the appellant has relied on the cases of Kishan Chand v. Gul Muhammad 1984 CLC 1041 and Mst. Begum Jan v. Abdul Rasul 1984 C L C 755.

The facts of case of Kishan Chand are that respondent filed eviction application against the appellant on the ground of personal requirement. In that case it was an admitted position that the respondent prior to making gift of shop No.683 in favour of his wife, he was owner of two other shops in the same urban area. He vacated the shop No. 683 after the commencement of the repealed Ordinance. This fact was not disclosed in the eviction application. In view of this it was held by my brother Nasir Aslam Zahid, J, that it was mandatory for the respondent to have disclosed the fact of the ownership of Shop No. 683 and the fact that its possession was handed over in 1977 to his wife, in the eviction application or at least in his examination‑in‑chief and it should also have been established that he had not vacated shop No. 683 without sufficient cause.

The facts of the case of Mst. Begum Jan are that the appellant filed eviction application in which she discoursed that she was widow. The tenant filed written‑statement and it was pleaded that the appellant's husband was very much alive and she was not a widow. In this view my brother Mr. Ajmal Mian, J. held as follows:‑

"In my view a party who approaches the Court should come with clean hands. It is true that a single incorrect averment or suppression of a material fact in a rent application filed on the grounds of personal requirement may not fatal to the application. But when a landlord seeks ejectment on the ground of his personal requirement, the law enjoins him to prove his bona fide. Any fact which may adversely reflect or casts doubt on his bona fide will put the Court on guard and the Court may in such a case may appraise the evidence of the applicant with more cautiously or with suspicion that the party is capable of misleading the Court. In my view, when a married landlady, though not a widow, makes an averment in the rent application for ejectment on the ground of personal requirement that she is a widow. She in fact attempts to gain sympathy of Court by making misrepresentation. This will be a fact, which will adversely reflect on her bona fide."

The cases cited by the learned counsel for the appellant are not applicable to the facts of this case. The respondent denied in his deposition that he owned any other house in the same urban area. The burden was on the appellant to prove that the respondent owned other houses. The appellant himself denied the suggestion in his cross‑examination. He deposed that "I have no documentary proof that the applicant is residing in his house." The witnesses produced by him did not support him. In this view of the matter it seems that the respondent did not suppress any material facts in his eviction application. In the case of Sh. Muhammad Riaz v. Mst. Nasim Akhtar and others 1981 S C M R 979 (1) the Hon'ble Supreme Court laid down the following dictum:‑

"Mere ownership of property in the same urban area is by itself not a ground to refuse the application of the landlord for eviction of his tenant ‑9n ground of the personal requirement.

The above dictum is applicable to the facts of this case. The contention is without any substance.

For the reasons discussed above, I dismiss this appeal without any order as to costs The appellant is, therefore, directed to vacate the house in question on or before 31‑3‑1986, failing which he will be liable to be ejected without any notice subject to depositing rent.

A.A./A‑98/K Appeal dismissed.

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