1986 PLP 1567 (CLC)

Date of hearing: 9th May, 1985. This First Rent Appeal is directed against the order, dated 20‑5‑1982 passed by the IXth Rent Controller, Karachi whereby the Ejectment Application filed by the respondent was allowed and the appellant was directed to hand over the vacant possession of the disputed property to the respondent within 119 days from the date of the order. The facts which give rise to this appeal are that the respondent is the owner of the House No. A‑656, Block 'L', Barkat Haideri, North Nazimabad, Karachi and the appellant is the tenant in respect of the premises. The respondent filed Eviction Case No. 3345 of 1979 against the appellant on the ground of personal requirement. The appellant resisted the eviction application. The respondent filed her own affidavit -in‑evidence and submitted for cross‑examination. In rebuttal the appellant filed his affidavit‑in‑evidence and submitted for cross -examination. The learned Rent Controller, on the basis of evidence produced by the parties and taking into consideration the arguments of the learned counsel for the parties, decided issue No. 1 in the affirmative and allowed the ejectment application vide his order, dated 20‑5‑1982 and directed the appellant to hand over the vacant possession of the premises within 119 days from the date of the order. The appellant being aggrieved against the above order, dated 20‑5‑1982 has preferred this appeal on the grounds mentioned in the memo. of appeal. Mr. Syed Ansar Hussain, learned counsel for the appellant, has contended that the respondent has not established her personal requirement. On the other hand Mr. Shaikh Hamid Hassan, learned counsel for the respondent, had submitted that the respondent has established personal requirement in this case. The sole question for determination in the instant case is whether the respondent has satisfied the legal requirement that the disputed premises were needed by her for her own use. In the present case the respondent has stated in her eviction application that she has no other house of her own and she and her family are residing with her mother who has a large family. She approached the appellant and requested him to vacate the premises as she required the same for her own occupation and the appellant promised to vacate the premises but he did not do so in spite of repeated attempts and notice, dated 28‑6‑1976 and the appellant is avoiding to vacate on the ground that he could not find alternate accommodation. It is further averred in the application that she required the premises bona fide and in good faith for the use of herself and her family. She filed the affidavit‑in‑evidence and stated therein that she had purchased the disputed house from one,Mr. Khurshid Alam vide sale‑deed, dated 28‑5‑1976; that the house in question was let out to the appellant by the previous landlord. After executing the sale‑deed, a notice under section 13‑A of the repealed Ordinance was served on the appellant through registered A/D which was duly received by him. The appellant was asked by the notice to vacate the premises under his possession as the same is required for her personal bona fide needs. She has further stated that at the time of filing her affidavit‑in‑evidence, she was presently residing in her brother's house with her husband and five children and occupying only one room. The room under her possession is muchless than the requirement as she has five children and husband and the tenement in possession of the appellant is best suited to her needs which consists of three bed‑rooms, kitchen, latrine and some open space. She has further stated that she required the premises in good faith for the use of herself and her family. To a question in cross‑examination she stated that it is not a fact that she filed the eviction application mala fide. To another question in cross‑examination, she has stated that she was married about 20‑21 years back and she was residing with her parents till now and the accommodation where she was residing with her parents consists of five rooms including drawing room. The appellant filed his affidavit‑in‑evidence. The appellant has stated in his affidavit‑in‑evidence that the respondent has stated that she owned another house in North Nazimabad allotted to her by K . D. A . for residential purpose and personal use and from the evidence recorded in the instant case, it is quite clear that her intention for filing eviction application is not bona fide but mala fide, as she is residing in another house which is owned by her. It is well‑settled legal position that the assertion or claim on oath by the landlady that she required the premises for her personal use should be accepted by the Rent Controller as bona fide if such claim or assertion has been fully supported in her deposition and nothing has been brought out in cross‑examination or disproved in rebuttal. The evidence of the respondent in the instant case fulfilled the standard laid down in the case of Hassan Khan v. Mst. Munawar Begum P L D 1976 Kar.

832. The dictum laid down in the above case was approved by the Hon'ble Supreme Court in the case of Mst. Toheed Khanam v Muhammad Shamshad 1980 S C M R 593. ' In the instant case I find that assertion of respondent is very much consistent with the averments in the application and has not been shaken in cross‑examination. The evidence adduced by the appellant is, therefore, not sufficient to rebut the claim of the respondent. It is an admitted position that the respondent has five children and husband and they are living in one room which also belongs to her brother. The accommodation in occupation of the respondent is not sufficient. I hold that the need of her family regarding suitable accommodation for the members cannot be met with the existing accommodation with her. The evidence led from her side was enough to prove her bona fide. The finding of the learned trial Court is in consonance with the evidence on record. The respondent has established her bona fide requirement. For the reasons discussed above I dismiss this appeal but with no orders as to costs. The appellant is, however, allowed two months time to vacate the premises subject to payment of rent in accordance with the tentative rent order passed by the Rent Controller. H . B . T . Appeal dismissed.