1994 PLP 1751 (CLC)

Zamiruddin for Respondent. Date of hearing: 16th January, 1994. This appeal was allowed by me today for reasons to .he recorded subsequently: I now proceed to record reasons for the short order.

2. The respondent had sought ejectment of the appellant from the demised premises situated on Plot No.207, C‑11, P.E.C.H.S., Karachi consisting of three rooms. The ejectment application was filed by the respondent through, his son and attorney, Dr. Waris Oidwai. According to the case of the respondent, the premises were required by him for use of his another son, Dr. Sohail Zamir who was, " a doctor by profession and wanted to use the demised premises for residential purposes and one of the rooms was required to be used as a drawing room for his patients desiring to visit him for treatment and advice. The appellant, according to the respondent, had also failed to pdy electricity charges from January, 1989 to February, 1.990 amounting to Rs.695.60 due for consumption of 856 units of electricity and had thus made himself liable for 'ejectment on such ground as well.

3. The case of the respondent was resisted by the appellant, according to whom, the claim of the respondent that the premises were required for personal use of Dr. Sohail Zamir was not bona fide. The appellant also denied the other claim of the respondent viz. that he was liable to pay electricity charges to the respondent over and above the rent.

4. The learned Controller although was not convinced. by the respondent's claim in regard to default allegedly committed by the appellant in respect of electricity charges but the learned Controller was nevertheless convinced regarding the respondent's case vis‑a‑vis personal use and consequently vide order dated 13‑7‑1993 he directed the appellant to deliver vacant possession of the demised premises to the respondent. ,

5. Mr. Muhammad Ismail Memon, learned counsel for'the appellant has assailed the order mainly on the ground that the respondent had failed to establish that the premises were required by him inn good faith. In this regard, it may be pointed out that although as per admission of the respondent's witness and attorney Dr. Waris Qidwai, first floor of the said premises was lying vacant but the same was not occupied by the witness's brother Dr. Sohail Zamir. The explanation offered by the witness during his cross‑examination in this regard was that the premises on the first floor were in a dilapidated condition and therefore, the same could not be utilized by the respondent's son. But I find that apart from the uncorroborated testimony of the said witness in this regard no other evidence was produced by him in support thereof. In the first instance, when vacant premises were admittedly lying in the respondent's possession an obligation was placed upon him to explain why the said premises were not suitable for his need. Although no such explanation was volunteered by P.W.1, Dr. Waris Qidwai, in the affidavit filed by him in evidence but when cross‑examined by the counsel for the appellant on the point, he failed to corroborate his 'said statement with further evidence to establish bona fides. Although Dr. Sohail Zamir also gave evidence before the learned Controller but no such:explanation was offered by him either in his affidavit‑in‑evidence or during his cross‑examination. Mr. Ismail Memon has sought support from the case of Mrs. Shi hnoor Faza v. Ghulam Akbar Mangi (1987 SCMR 2051) wherein the Supreme Court declined to grant leave to appeal against the order of the High Court dismissing the landlady's request for ejectment on personal ground as the latter had failed to explain as to why vacant premises in her possession were not sufficient for her needs which could entitle her to seek ejectment of the tenant from the disputed premises. The same case was relied upon by the Supreme Court in Ghulam Haider v. Abdul Ghaffar (1992 SCMR 1_303). Although Mr. Zamiruddin has argued that the first floor of the house would have been inconvenient for the patients and therefore, the premises on the first floor were not suitable for the needs of the landlord's son but the contention does not appear to by supported by evidence on the record. 1, therefore, find no force in the contention of Mr. Zamiruddin.

6. So far as the other ground in regard to default is concerned, as has been pointed out earlier, the learned Controller was not convinced in respect of the evidence adduced ' by the respondent in the case. Although the plea raised on behalf of the .respondent was that the appellant was liable to pay electricity charges apart from the monthly rent of Rs.200 for the demised premises but the claim of the respondent has been disputed by the 'appellant, according to whom electricity charges were included in the monthly rent. Mr. Zamiruddin has argued that the respondent was able to establish that there was a sub‑meter installed by him in the demised premises and therefore, the learned Controller should have decided the issue in favour of the respondent. However, this contention has also no force because the question whether the appellant was liable to pay electricity charges in addition to the said rent would depend upon the terms mutually agreed between the parties. No evidence was produced in this regard by the respondent. The mere fact that sub‑meter had been installed in the demised premises cannot necessarily lead to an inference that the appellant was liable to pay electricity charges to the respondent besides the said rent of Rs.200 per month. Consequently, in my opinion, the learned Controller has rightly decided the issue in favour of the appellant. '

7. In the result, on account of my findings on the first issue, this appeal was allowed and the order passed by the learned Controller dated 13‑7‑993 was set aside. The parties are left to bear their own costs in view of the questions raised. H.B.T./N‑523/K Appeal allowed.