P L D 1988 Karachi 450 (PLP)

In this appeal is impugned order dated 5‑1‑1985 passed by learned VIIIth Senior Civil Judge and Rent Controller, Karachi, whereby ejectment sought on the ground of personal need has been refused. Briefly stated the relevant facts giving rise to this appeal are that appellant before me is landlady and respondent is tenant in respect of residential accommodation described as building on plot No.V‑E‑2110, Nazimabad, Karachi. Agreed rate of rent payable is Rs.250. Ejectment was sought on the' ground that premises in dispute were required by the landlady for her use and occupation and that of tier husband and tier son, who were residing in the house o.` Mrs. Talat Rauf, a relative of the husband of the landlady. Tenant was served with notice to vacate the premises in question for the purpose stated above but he, refused to do so. In the written statement, tenant took the plea that landlady had many other houses and wanted to sell the disputed accommodation after having it vacated. It was also asserted by the tenant that the landlady wanted to enhance the rent from Rs.250 to Rs.600 p.m. In the evidence landlady produced her affidavit and was cross‑examined. On the other side, tenant examined himself and also filed additional affidavit. Landlady stated in her affidavit that she served tenant with notices for vacation of the premises in question but the tenant persisted in refusal. On 10‑1i‑1981 she servers the tenant with notice calling upon him to vacate the premises. She also 'stated that she was living in the house of Mrs. Talat Rauf who wanted vacant possession from her and in such circumstances, she needed her own accommodation for her personal need. In the cross‑examination She stated that House No. D‑105, K. D . A . Scheme No.l belongs to her father and she did not live in that house. She had been living in the house of Mrs. Talat Rauf, who is wife of elder brother of her husband. She also stated that another house in Nazimabad belongs to her mother. She denied the suggestion that she wanted to enhance the rent. She did not produce any other witness in support of her assertion that she wanted the premises in question for her own occupation and need and that of her family. Tenant in his affidavit of evidence stated inter alia that landlady is owner of two other houses, out of which one is in K.D.A. Scheme No.l and the other is in Nazimabad. Further that the landlady is already in possession of mezzanine floor in the same building and further that the landlady is living in her own house. Tenant stated in the cross‑examination that the house in which the landlady resided belongs to her and not to Mrs. Talat Rauf. He enquired from K.D.A. Department and came to know that other two houses mentioned above also belonged to the landlady but he could not produce any document to show the exclusive ownership of those houses in favour of the landlady. Tenant also submitted his additional affidavit in evidence in which he stated that first floor in the same building in which the demised premises were situated alongwith mezzanine floor was in possession of the landlady and the accommodation available in first floor consisted of three rooms, one bath room, one latrine and a balcony and that accommodation was of same size as demised premises. in the cross‑examination, tenant stated that accommodation on the ground floor in size was same as of first floor which was lying vacant and was sufficient for the purposes of the landlady. It appears from the record that against the additional affidavit of the tenant in which categorical assertion is made with regard to the availability of equal accommodation on the first floor with the landlady no evidence is produced by her in rebuttal. Moreover, the landlady had not stated specifically in her application for ejectment as well in her affidavit of evidence as to why she preferred to go for accommodation on the ground floor. In such circumstances, it is held by the learned Rent Controller that the landlady has not produced satisfactory evidence to convince the Court that her need for the ground floor was bona fide, particularly when accommodation in equal size is lying vacant and available for her need on the first floor. Mr. Saleem Qureshi, advocate has submitted that in support of memorandum of appeal filed in the High Court, there is affidavit of the landlady in which she has explained the facts that staircase to the first floor is without any landing in the middle and is dangerous for the young children of the appellant and further appellants father -in‑law is 88 years old and mother‑in‑law is 80 years old who often stay with appellant and in such circumstances, accommodation on the ground floor would be more comfortable than accommodation on the first floor. Assertions made in the affidavit in the Court of appeal for the first time are indisputably outside the pleadings between the parties in the trial Court. These assertions are made for the first time and are outside the record of the learned Rent Controller as A such cannot be considered. We cannot travel outside the record and have to confine ourselves to the pleadings of the parties as were in the trial Court and evidence produced by the parties in connection with such pleadings. For the facts and reasons stated above, I find no justification to interfere with the impugned order, which is hereby maintained and in the result this appeal is dismissed with no order as to costs. H.BT./S-171/ K Appeal Dismissed