P L D 1981 Karachi 537 (PLP)

The appellants are the son, widow and daughters respectively of one Abdul Ghani who died during the pendency of appeal in the Ist Appellate Court. Abdul Ghani deceased was the owner of the house bearing No. 2H11/6, Nazimabad, Karachi, comprising of a ground floor and 1st floor. (He will hereinafter be referred to as "the landlord"). The ground floor is Abdul Sattar (1), Muhammad Siddique v. Mistri Muhammad Aslam (2) and Qalandar v. Muhammad Zareen and another (3).

6. With regard to the ground of bona fide personal use the landlord respondent has asserted that he has got a family of seven members including the children of his son Abdul Bari who had recently married and he is in occupation of only four rooms in the premises which are in-sufficient for their requirement. The statement to the effect that Abdul Bari is the son who has got three children and has recently married has not at all been challenged. So far insufficiency of accommodation with the landlord-respondent on the upper floor is concerned Mr. Farman Ali Hashmi, the learned counsel for the appellant tenant has drawn my attention to appellant's averment in para. 11-A in the memo of appeal filed in this Court to the effect that the landlord had constructed one more room on the roof of the first floor of the house during the pendency of the appeal. The averment to that effect has not been disputed by Mr. Q. M. Rasheedi, the learned counsel for the landlord respondent. It is contended on behalf of the tenant that the newly-built room on the top floor of the house would meet with the requirements of the landlord and there is no substance in his plea of insufficiency of the accommodation with him. It is contended on behalf' of the landlord that the construction is unauthorised which fact has not been disputed on behalf of the tenant appellant and that the landlord was forced to raise this unauthorised construction in order to meet with his requirements and the unauthorised construction may be asked to be demolished at any time and this fact would speak for the landlord's bona fide requirement of the premises in occupation of the appellant tenant on account of his family members having increased due to his son's marriage rather than would speak in favour of the case of the appellant tenant. Unauthorised construction which is liable to be demolished would not be deemed to meet with the bona fide requirement of the landlord. In my view, the unauthorised construction of this room would support the case of the landlord to the effect that his need is bona fide inasmuch as he has been compelled to the extent of raising of unauthorised construction to meet with his requirement. What is further clear in the statement of the landlord that his assertion in the examination-in-chief not only in respect of subletting of the premises but also in respect of his bona fide personal need has not been even challenged in the cross-examination and such an assertion although by itself may be insufficient, in case it is? consistent with hiss averments in the application shall be deemed to have bee accepted by the appellant tenant. Reliance in that respect has been placed on the case of Hassan Khan v. Munawar Begum (4) wherein

1. Mahmud, J. as he then was relying on the case of Muhammad Siddique v. Mistri Muhammad Aslam (5), wherein it was observed that the assertion of the landlord that he required the premises for his personal use should be determined in the context of the provision contained in subsection (4) of section 13 of the Ordinance, which enables a tenant to regain possession from his landlord who had obtained it on a false plea of bona fide personal need, but who had failed to occupy the premises within one month of obtaining the possession or who relet it within two months of the said date to any person other than the tenant, held that this was said to be a safeguard for the tenant against being ejected on a false plea of bona fide requirement by the landlord. He further held that the effect was that the assertion or claim on oath by the landlord that he required the premises for his personal use should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in the cross-examination or disproved in rebuttal. The evidence in the instant case on both the pleas of subletting and bona fide personal use is clear to the effect that the landlord's assertion in that respect in his statement on oath has not been challenged or disproved in rebuttal and although by itself may be insufficient, yet is clearly consistent with his averment in the application to the effect that the premises were sublet by the appellant tenant to his brother and that his present accommodation was insufficient to his requirements on account of his son Abdul Bari's marriage and the children born to him. The circumstances of the instant case and the evidence on the record has a direct bearing on the point in that respect involved in the above-mentioned authority and the learned 1st appellate Court relying on it has very rightly dismissed the plea in respect of bona fide personal use as well, raised on behalf of the appellant tenant. ??????????? (1) P L D 1963 Kar. 465 ??????? (2) P L D 1975 Lab. 308 ???????????? (3) 1980 C L C 1417? (4) P L D 1976 Kar, 832 ??????????? (5) P L D 1975 Lah.308

7. The question of the personal requirement in good faith and that of subletting being of fact, a decision arrived at by the 1st appellate Court even though at variance with that of Rent Controller could not be amenable to interference in second appeal as it cannot be said that the finding of the appellate authority is upon no evidence or is perverse to the evidence on the record. Reliance in that respect has been placed on in the case of Miss Jamila Latif v. Ghulom Yazdani Khan and 4 others 1979CLC29.

8. The case of the appellant tenant therefore, fails on both the grounds, and the result is that the appeal is dismissed with no order as to costs. Appeal dismissed.