P L D 2001 Karachi 238 (PLP)

M. Ashraf Kazi for Respondents. Date of-hearing: 16th February, 2001. The appellant is tenant of the respondents in respect of a portion of premises No.22-A, Block-2 Central Commercial Area, PECHS, Karachi. On the grounds of default in payment of rent as well as personal bona fide need of the respondents. Rent Case No.754 of 1998 was filed before Vth Senior Civil Judge and Rent Controller (East) Karachi for eviction of the appellant. The rent case was filed through general attorney Muhammad Wasimullah Khan. After evidence of the parties, the learned Rent Controller found that the default in payment of rent was not proved, but he allowed the rent case holding that the premises was required by the applicants/respondents for their personal use. This finding has been called in question by way of the present appeal. Miss Kauser Amin, learned counsel for the appellant, during her contentions challenged bona tide of the requirement of the landladies and submitted that the nature of intended business was not mentioned and that during pendency of the rent case another portion of the same building became available, which was re-let by the respondents to some other person. She submitted that she has filed an application for additional evidence on this point to which no counter-affidavit has been filed. She further submitted that the premises in dispute is a residential flat and requirement of its commercial use is not genuine. She further submitted that the respondents are already employed as teachers and they do not need the premises to establish any business. Mr. Muhammad Ashraf Kazi, learned counsel for the respondents, submitted that in case any premises was re-let during pendency of the rent case, no such plea was raised before the Rent Controller and no such application was made in the rent proceedings. Mr. Kazi referred to the observation in the impugned order that the attorney of the applicants stated, in his cross-examination that the premises in question is needed for personal use as the applicants/landladies have no source of income and they want" to start some business. The most significant fact in this case with reference to the plea of personal requirement, is that the landladies neither appeared in the rent proceedings for evidence, nor they filed rent application themselves. Thus, from their mouth the claim that they require the premises for personal use has not come forward. It is only their attorney who states that the landladies require the premises for their use to establish a business. This is merely an opinion of a third person and this evidence could only be used for the purpose of corroboration. One cannot delegate his intentions by executing a power of attorney. The landladies should have placed their plea directly before the Rent Controller in their rent application, which has not been done. The attorney's examination before the Rent Controller is only evidence of a witness which could only be used for a corroboration of a version of the landladies, had there been one. Since the landladies have not directly informed the Court of the Rent Controller, in any manner, about their intention to use the premises, i.e. by filing rent application themselves or by tiling their affidavit, there is no occasion for use of the evidence of the attorney for a corroboration. If the attorney says that he has been' informed by the landladies that they need the premises for their use, this would be a hearsay evidence only. It may not be necessary for a landlord to appear for evidence to assert his plea of bona fide requirement, but it is necessary for him, at least, to approach the Rent Controller through his rent application and put, before him, the plea that he requires the premises for personal use. The plea and evidence of the attorney, in the absence of a direct assertion of the landladies themselves about their requirement, cannot be deemed adequate for an affirmative inference on the issue. The finding of the Rent Controller on this issue cannot, therefore, be maintained. It is accordingly set aside. Appeal is allowed and the Rent Case is dismissed. All the pending applications stand disposed of. Q.M.H./M-130/K Appeal allowed.