1983 PLP 1409 (CLC)

This is a second appeal against the orders dated 17th March, 1979 and 5th December, 1981 passed in Rent Case No. 1970/1976 and Rent Appeal No. 242/1979 respectively, by the learned VI Rent Controller at Karachi and learned VIII Additional District Judge at Karachi, respectively, dismissing the present appellants' application for ejectment against the respondent filed on the three grounds, namely, default, personal require ment and impairing of the value and utility of the tenement by cons tructing a mori". The brief facts leading to the filing of the above appeal are that the appellants filed above rent case on the above three grounds, which was resisted by the respondent. On the basis of the pleadings of the parties the learned Rent Controller framed the following three issues (1) Has the opponent committed default in payment of rent (2) Has the opponent impaired materially the value and utility of the building ? (3) Is the premises required reasonably and in good faith by the applicant ? In support of the application appellants Nos. 3 and 4 have examined themselves as P. Ws. 1 and 2 respectively, whereas the respondent examined his son Mohammad Saleem and one Mohammad Siddique, who is a tenant of one of the flats in the building in question. The learned Rent Controller dismissed the above application and recorded findings on all the above three issues against the appellant. The appellants being aggrieved by the above order filed aforesaid Rent Appeal No. 242/1979, which was also dismissed by the learned VIII Additional District Judge, Karachi, who concurred with the above findings recorded by the learned Rent Controller on all the three issues. The appellants being aggrieved by the above two orders have filed the present appeal. 2. (a) Mr. Mansoorul Arfin, learned counsel for the appellants, in support of the above appeal has assailed the findings on the two grounds and has given up the ground of default. He has urged as follows :‑ (i) That there was sufficient evidence on record to conclude that the appellants' personal bona fide requirement stood proved and that both the Courts below had drawn incorrect inference from the evidence on record and, hence this Court can interfere in a second appeal ; (ii) That since the respondent's son D. W. 1 Mohammad Saleem had admitted the. factum of having constructed a "mori", the third ground, namely, impairing the value and utility of the tenement also stood proved. (b) Referring to the above first contention of Mr. Mansoorul Arfin, learned counsel for the appellants,, it may be observed that appellants Nos. 3 and 4 ‑in their deposition have incorrectly deposed that both of them were in possession of a single room though from the evidence on record, it is evident that there are 12 fiats in the building having room to room i.e. each flat having two rooms. D. W. 2 Mohammad Siddique in his examination has given even the measurements of the rooms, by deposing that the front room measures lj' ‑ 10' and the other 16' x 14'. He has further deposed that the landlords had occupied 6 flats and 3 rooms on the top are vacant. The above statement remained unchallenged as he was not cross‑examined by the appellants' counsel being absent. However, Mr. Mansoorul Arfin, learned counsel for the appellants, has urged that D. W. 2 Mohammad Siddique cannot be relied upon as admittedly the appellants were not on good terms with him inasmuch as there is litigation going on between the appellants and him in respect of ejectment of his tenement as well. Even if I were to ignore the state ment of this witness one fact stands proved that in any case the appel lants are in possession of 5 flats as per statement of P. W. 1 Abdul Ghaffar as he in his cross‑examination has deposed that out of 12, the 7 rooms are or rent. It may again be observed that factually there area 12 flats and not 12 rooms having 2 rooms each which fact has not been, disputed by the learned counsel for the appellants. According to the statement of P.W. 1 one room is in occupation of appellant No. 1, second room with appellant No. 4, one room in occupation of another brother, not party to the case, and the other room also on the ground floor in his possession, which is used as store as per statement of P. W. 2 Abdul Sattar, which flat they got vacated from a tenant Ahmed on the basis of a compromise in the ejectment case out of Court. It may be pertinent to point out that appellant No. 3 in his cross‑examination first stated that he was in possession of one room (i.e. one flat) but on further cross‑examination, he stated that he was also in possession of one other room on the ground floor. In other words appellant No. 3 accord ing to his own statement is in possession of two fiats and not 2 rooms. It has been urged by Mr. Mansoorul Arfin that though there are more members in the appellant's family but according to the evidence on record there are 26 members and therefore, 5 flats would not be sufficient to accommodate 26 members. According to the finding of the two Courts below certain fiats are lying vacant. This finding of the two Courts below has been assailed by Mr. Mansoorul Arfin on the ground that this could not have been so as there were only altogether 12 flats, 7 of which are in oc cupation of the tenants as per detail given in para. 2 (b) of the memo. of appeal. It may be observed that P. Ws. 1 and 2 have not given any detail as to the tenements in occupation of the tenants. However, the memo of appeal cannot be used as a piece of evidence for the purpose of reading the same alongwith the statements of P. Ws. 1 and

2. Even if it was to accepted that there was no fiat lying vacant, the fact remains that 5 fiat are in occupation of the appellants and the fact that they made a delibe. rate misstatement by stating that they each were in occupation of a single room which also reflects on the bona fide of the appellants. In my view the two Courts below on the basis of the evid4nce on record could record the finding that the appellants failed to prove personal bona fide require ment. Since there is a concurrent finding on the above question of the ap pellants' personal requirement, which is neither contrary to record nor per verse, the same does not call for interference by this Court in a second appeal. (c) With reference to the second contention, namely, that the D. W.

1. Mohammad Saleem having admitted of having constructed a "mori" the third ground, namely, impairing the value and utility of the tenement stands proved, it may be observed that D. W. 1 has made the following statement in his deposition on this point. "There is a Mori for passing the water in our premises. This mori is in this premises since before we occupied this flat. Similar mori exists in other flats." There is no admission on the part of D. W. 1 that the respondent has constructed any mori which according to Mr. Mansoorul Artin in Gujrati means a bath room. Furthermore, according to the above‑quoted deposi tion of D. W. 1 mori" is for passing water i.e. outlet for water. The word "mori" in Urdu language connotes an outlet for water and not bathe room. The above statement of D. W. 1 is in consonance with the above urdu meaning of the above word "mori". The above witness has also] averred that the more in question exists since before the occupation of the, Hat in question by the respondent, and, that similar Imori' is also in other fiats, It cannot be denied that every flat contains at least one 'mori'. The' finding of the two Courts below that the appellants were unable to prove that the value and utility of the tenement have been impaired because of the alleged construction of `mori', in my view is sustainable as there is no evidence on record to indicate as to how the value or the utility of the tenement has been impaired.

3. For the aforesaid reasons the appeal is dismissed in limine. M. Y. M. Appeal dismissed.