1986 PLP 1638 (MLD)

The learned Rent Controller, on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No.1 in the affirmative and allowed the eviction application on the ground of personal requirement vide order, dated 27‑3‑1984. The appellant above named being aggrieved against the above order has filed this first rent appeal on the grounds disclosed in the memo. of appeal. Mr. Azhar Ali Siddiqui the learned counsel for the appellant has contended that the learned Rent Controller has misread the evidence and also erred in rejecting application for inspection. On the other hand Mr. Shahanshah Hussain the learned counsel for the respondent has submitted that the impugned order is in accord with evidence on record and the order rejecting application for inspection is legal and the learned Rent Controller has not committed any illegality in rejecting the same. I have considered the arguments advanced by the learned counsel for the parties, have perused the evidence on record with the assistance of the learned counsel for the parties and also have gone through the impugned order. Reverting to the contention of the learned counsel for the appellant that the learned Rent Controller has misread the evidence, the respondent in her eviction application averred that she needed the premises in question for her personal use and for the use of her children. She also averred therein that her children have grown up and the accommodation at her disposal was not sufficient. She also averred "moreover, one of her sons is going to be married shortly and in view of this also the need for the demised premises has become more pressing and urgent". The appellant filed written statement and as regards contents of para. 4 of the eviction application stated "that the contents of para.4 are not admitted. The present accommodation available to the applicant is more than sufficient for the need of the applicant and her children. The appellant further stated in his written statement that the respondent had demanded exorbitant rent which was beyond his resources, he had offered a reasonable increase to which she did not agree and filed the eviction application. Rizwan Ahmed, respondent's son and attorney filed affidavit‑in -evidence and in para. 5 thereof stated that the ground floor consists of two bed‑rooms, one store‑room, one dining room, one drawing room, and a Verandah. He also stated that the ground floor is in occupation of respondent, her three sons namely himself i.e. Rizwan Ahmed, Imran Ahmed and Rehan Ahmed and her two daughters. He also stated that "all the children are grown up and need separate rooms. As the accommodation is insufficient the store‑room and dining room are also being used as bedrooms. A portion of drawing room is also being used as dining room. This is causing great hardships to the applicant and her children. Her sons Imran and Rehan and her two daughters are studying and since they do not have separate rooms they are constantly distributed in their studies". He also stated that he was going to be married in September, 1984 and the present accommodation being insufficient. They shall be put to further inconvenience. He also denied that the respondent did not ask for increase in rent. The respondent's son and attorney also stated in his affidavit that the first floor consists of drawing room and dining room, three bedrooms and a Verandah and on the second floor there is bedroom. The witness denied the suggestion that the ground floor consists of four bedrooms. He also denied the suggestion that the room in which his father was residing was lying locked. He also denied that suggestion about his not getting married in September, 1984. The witness to a question in cross‑examination replied that one brother and one sister are college going. He also denied the suggestion about enhancement of rent. As against the above evidence, the appellant in his affidavit‑in- evidence reiterated the same facts that is, "there is sufficient accommodation available with the applicant for their need. The house in which the applicant is residing consists of four bedrooms, drawing dining and other attachments.." He also stated that the respondent through her relative Salamat Ali Khan had negotiated with him to increase the rent or to vacate the premises and demanded exorbitant increase in rent. It is pertinent to note that the appellant stated in his written statement that the respondent demanded exorbitant increase in rent. Rizwan Ahmed was cross‑examined at length and the only suggestion put to him in cross‑examination is "it is incorrect to say that we demanded from the opponent to enhance the rent, or threatened my cousin Salamat Ali Khan". The stand which he took in his affidavit was that the respondent through her relative Salamat had negotiated with him to increase the rent or to vacate the premises and demanded exorbitant increase in rent. It is apparent that the averment in the eviction application about requirement of the respondent for her use and for the use of her children has been fully supported in her son's affidavit‑in-evidence and nothing has been brought in cross‑examination which could, show that claim of personal use for herself and her children's use is false or is based on wrong statements or disproved in rebuttal. It is well‑settled legal position that the assertion of the landlord or her attorney on oath as to her requirement of the premises for he personal use or for the use of her children is to be accepted if consistent with her averment in her application not shaken in cross‑examination or disproved in rebuttal. I do not find and force in the contention of the learned counsel for the appellant that the eviction application is mala fide as 'the respondent had demanded exorbitant rent which the appellant refused to agree. I have already held in earlier part of this judgment that there were three different persons. Apart from this, it is well‑settled legal position that a demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirements is independently proved. Another contention of the learned counsel for the appellant: is that the ground floor consists of four bedrooms and in support of this contention take learned counsel for the appellant has invited my attention. The Commissioner's report, dated 8‑9‑1985 has been perused by me. The Commissioner has submitted in his report that "there are in all four bedrooms in the respondent's occupation. The first and second bedrooms are interconnected by a common attached bath‑room. Immediately next to the aforesaid second bedroom there is a third bedroom which also has an attached bath. On the anorther side of the aforesaid bedroom there is fourth bedroom with attached bath which has a door leading to the northern side looking on the external passage." This report of the commissioner has to be seen in the light of the evidence on record. The respondent's son in his affidavit stated that the ground floor consists of two bedrooms and as the accommodation is insufficient, the store‑room and the dinning room are also being used as bedrooms. A portion of drawing room is also being used as dining room. He was not at all cross‑examined on this point. The only question put to him was about four bedrooms which suggestion was denied by him. In view of this matter, the Commissioner's report is not helpful to the appellant. It is an admitted position that there are six member of the family and they at least require one room each. The respondent has established that the accommodation in her possession is not sufficient and the need is bona fide. After going through the evidence on record with the assistant of the learned counsel for the parties and after perusing Commissioner's report and the impugned order of the learned Rent Controller, it seem that the learned Rent Controller has rightly 'granted eviction of the appellant on the ground of personal requirement. I, therefore, find no justification in the above appeal and it is, therefore, dismissed by a short order, dated 27‑5‑1986 which reads as under. "I grant six months time to vacate the premises on the condition that the appellant shall continue to deposit rent in terms of the Controller's order. However, in case he will commit default the respondent shall be entitled to file the execution application before the expiry of the abovementioned six months time." The above are the reasons for the above short order. In these circumstances, there will be no order as to costs. H.B.T. Appeal dismissed.