P L D 1988 Karachi 160 (PLP)

Civil Miscellaneous Application No. 1862 of 1987. This application under Order XLI, rule 27 read with section 151, C.P.C. has been presented on behalf of the appellant praying that a certified copy of the registered sale deed executed by the vendor Ahmed Din in favor of respondent Mohammad Salim in respect of a property standing on Plot No.1/396, Block‑1, Drug Colony, Karachi, on 31‑12‑1970 be brought on record. The respondent has filed counter‑affidavit and to which rejoinder has also been filed on behalf of the appellant.

2. I have heard the learned counsel for the appellant in order to find out as to what relevancy has with the case as set up in the original application or in the memo. of appeal. The learned counsel contended that this document would prove that the respondent owns another property wherein there is also one residential portion and that his claim to have the property under dispute would be hit by the production of this document. The learned counsel on my enquiry candidly admitted that the respondent is not occupying or residing in the residential portion of the above‑noted property. In this view 1A of the matter I fail to appreciate that as to how the production of the said sale‑deed would be relevant or assist the appellant in, establishing his case to the effect that the respondent does not require the disputed premises for his own personal bona fide need and for the purpose of reconstructing a building thereon. In this view of the matter, I am firmly of the opinion that the application is wholly misconceived and it deserves to be rejected as such dismissed.

3. This appeal is directed against the order of learned Vetch Senior Civil Judge/ASJ and Rent Controller, Karachi, dated 10th October, 1984, whereby he has allowed the application for eviction made under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) by the respondent above named and ordered the eviction of the appellant from the residential house on Plot No.1/1509, Shah Faisal Town, Karachi.

4. The respondent filed an application under section 15 of the Ordinance in the Court of Vetch Rent Controller, Karachi, on 16‑11‑1982 which was registered as Rent Case No.4542/82 for the eviction of the appellant from the above‑noted residential premises on the grounds of personnel bona fide requirement and for the demolition of the whole ,structure and the reconstruction of a new building in its place. The respondent's case as set up in the application is that he has no residential property of his own and was residing~. with his father in the house of his father at 1/1118, Shah Faisal Township, Karachi, which is constructed on an area of 80 squared only. Besides the respondent and his family his two married and two unmarried brothers were also residing in the said house. It is further averred therein that on 11‑10‑1982 the respondent had sent a notice under section 18 of the Ordinance by registered post A.D. to the appellant intimating him that he had purchased the building standing on Plot bearing No.1/1509, Shah Faisal Township, Karachi, of which the appellant was a tenant in respect of residential portion thereof.

5. The appellant filed written statement admitting the receipt of the notice under section 18 of the Ordinance but denying the respondent's right to get the premises in his occupation vacated.

6. Upon the pleadings of the parties the learned Rent Controller framed the following points for determination. "(1) Whether the applicant requires the premises for his personal bona fide use? (2) Whether the applicant requires the premises on the ground of reconstruction? (3) What should the decree be?"

7. The respondent in support of his case examined (1) himself, (2) his father Chaudhry Islamuddin, (3) Sibte Hasan, Assistant Director, K.D.A., (4) Zahir Ahmed Khan and (6) Rahimuddin. The appellant, on the other hand, examined only himself as his witness.

8. The learned Rent Controller held both the above‑noted points Nos.1 and 2 in the affirmative and, consequently, allowed the application with a direction to the appellant to hand over vacant peaceful possession of the disputed premises to the respondent within 60 days from the date of the order viz. 10‑10‑1984.

9. I have heard Mr.Aziz, the learned counsel for the appellant as well as Mr.Hasan Jaffar, the learned counsel for the respondent.

10. The learned counsel for the appellant submitted that the evidence of P.W.Chaudhry Islamuddin, the father of the respondent is to be considered cautiously as he is a blood relation of the respondent. He urged with vehemence that the evidence of P.W. Sibte Hasan, Assistant Director, K. D.A., was also of no avail inasmuch as he during the cross‑examination has deposed that he had no knowledge that Plot No.1/1118 is Benami in the name of Islamuddin and that he has no personal knowledge about the private arrangement made between Islamuddin and his sons in respect of the said plot. With regard to other two witnesses, P.W.Rahim‑ud‑Din and Zahir Ahmed Khan, the learned counsel submitted that their evidence does not lend any support to the case of the respondent for the obvious reason that, in the first instance, they have stated that they had no knowledge about personal and family affairs of the respondent and secondly, it was because of love and affection for the respondent that they had come to depose for him. In support of his contention the learned counsel for the appellant placed reliance on the authorities reported in 1985 C L C 340 and 1983 C L C 468 and P L D 1984 Kar. 143.

11. The learned counsel for the respondent, on the other hand, supported the impugned order by contending that the evidence of the respondent‑landlord is consistent on the point of personal requirement. The witnesses produced in support of the application have duly deposed that the premises in question are required by the respondent for his personal use. He submitted that P.W.Islamuddin, the father of the respondent, is a natural witness in the case and in it is he who could depose whether the respondent was actually residing with him as alleged by him in his application and deposed to during the hearing of this case. He submitted that P.W.Saeeduddin, the real brother of the respondent, had filed his affidavit‑in‑evidence but he was not made available for cross‑examination and as such his affidavit‑in‑evidence may be ignored. He further maintained that in so far as Sibte Hasan is concerned he only proved that the house bearing No.1/1118, Shah Faisal Township, Drigh Colony, Karachi, is owned by the father of the respondent and not by the respondent as pleaded by the appellant. The learned counsel submitted that the premises in question are required by the respondent for his personal use. He was first to demolish the premises and then reconstruct it according to his requirement. In support of his contention, the learned counsel placed reliance on the authorities reported in 1983 S C M R 1227 and 1987 C L C 1146. 12. 1 have given my earnest consideration to the submissions made at the Bar and have also gone through the evidence with the assistance of the learned counsel for the parties. I have also carefully perused the impugned order passed by learned trial Court and I am clearly of the view that the appellant has failed to make out a case for my interference with the impugned order. No doubt, P.W. Islamuddin is the father of the respondent but in view of the pleadings made by the parties he was a natural witness to be examined in regard to the correctness of the respondent's version about his stay with him (his father) and of his personal need of the house in question. It was specifically deposed by the appellant in his affidavit‑in‑evidence filed in Court on behalf of the appellant that the House No.1/1118, Shah B Faisal Township, Drigh Colony, Karachi, was actually owned by the respondent and not by his father. This fact has become clear from the deposition of P.W. Sibte Hasan, who has proved through documentary evidence that the said house is actually owned by Chaudhry Islamuddin, the father of the respondent, ad not by the respondent himself as. alleged by him the appellant in affidavit‑in evidence. Even ff the evidence of P.W. Zahir Ahmed Khan and P.W. Rahimuddin is not given due consideration because of their having deposed that they did not know about the family affairs of the respondent still the evidence of the respondent, Chaudhry Islamuddin and Sibte Hasan, was sufficient to prove the case of the respondent as set up in the application for ejectment. 13. 1 'have carefully perused the three authorities referred to above cited by the learned counsel for the appellant and I find that none of them is relevant to the facts of the case in hand. 14. 1 have already held that the respondent has succeeded in establishing the case that he required the premises in question for his personal need. 15. 1 find that the contentions raised on behalf of the respondent by his learned counsel are well‑placed. It has been held in 1983 SCMR 1227 "that the pleas of reconstruction and of personal use are C not destructive". The facts of the reported case are almost identical to the facts of the case in hand. In 1987 C L C 1146 a learned Single Judge of this Court has held "that if the ground of personal bona fide requirement pleaded by a landlord in his eviction application remains unshaken in his cross‑examination, the learned Rent Controller can rightly arrive at a conclusion that the premises were bonafidely required by the landlord for his personal need".

16. For foregoing reasons I find no merit in this appeal and would, accordingly, dismiss it. I would, however, allow four months' time to the appellant to vacate the disputed premises and put the respondent D in possession thereof. In case the appellant fails to do so, the execution shall automatically follow without any further notice to him. The respondent shall also in the meanwhile continue to pay the monthly rent regularly as usual, if he fails to do so he Shall be liable to be evicted forthwith. There shall be, however, no order as to costs. A. A/A‑233/K Appeal dismissed.