2001 PLP 3033 (YLR)

From the opponent/appellant side, the appellant filed his affidavit-in-evidence as well as of his father Diwan Riazuddin Khan and they were cross-examined by the counsel for respondent. The Rent Controller after examining the oral as well .as documentary evidence adduced by the parties recorded his findings on point Nos. 1 to 3 in favour of the respondents and consequently ordered eviction of the appellant from the case premises. I have heard Mr. Mehmood Habibullah, Advocate for appellant and Mr. M. Qaiser Qureshi, Advocate for respondents and perused the case record. As regards to the findings of Rent Controller on point No. 1, which relate to the claim of non-service of notice under section 18 of the Rent Ordinance, learned counsel for appellant conceded that such findings recorded by the Rent Controller are in accordance with law and therefore, he is not disputing the same. Arguing his case with reference to point No.2 which relates to the claim of personal bona fide use of the respondent No.4 Muhammad Ayub, learned counsel contended that in his cross-examination, opponent No.4 himself has admitted that for the purpose of running a tea restaurant, which he intended to open in the case premises, he has no past experience, he further contended that it is the case of the respondents that the respondent No.4 is out of business/job since 1990 and in such circumstances filing of eviction application after lapse of seven years is mala fide, but the Rent Controller illegally allowed the ejectment of appellant on this point. In reply to these arguments, learned counsel for respondents referred to paragraphs 5 and 6 of the affidavit-in -evidence of respondent No.4 Muhammad Ayub and also paragraph 9 of the affidavit in evidence of his brother Sabir Hussain and on the basis of avertments made in these paragraphs, he submitted that through this evidence respondents had fully established their claim of personal use of respondent No.4 and such case of the respondent not only remained unshaken in the cross examination but from the side of the appellant also nothing came on record to dislodge such claim of the respondent. In support of his contention, learned counsel for the respondents placed reliance on the following cases:-- 1. 1992 SCMR 1152;

2. PLD 1982 SC 218 and 3. 1994 CLC 2433. In order to examine the case of the respondent No.4 on the point of his personal need it will be useful to reproduce here paragraphs Nos.5 and 6 of the affidavit-in evidence of respondent Ayub Hussain, same read as under:-- "

5. That I say I was running my business at Liaquatabad, Karachi in a rented shop but in the year 1990, the landlord asked to vacate the rented shop so I did it. Since that day I became jobless. I temporarily joined my brother's shop as a helping hand and I was paid by him. The applicant No. 1 did not fetch much profit to give me sufficient money for pulling on my family. At present I am supervising the Kirat machines of my aunt at Liaquatabad, Karachi, till I get my own shop for running the business. I say and deny that I am not running my own business at Liaquatabad, Karachi as alleged by the opponent in his written statement.

6. That I need the shop of the opponent which is a bigger shop and an ideal shop for running Tea Restaurant in it. The shop is on the main road. I require the shop for my personal bona fide need for my own use and livelihood. I am ready to execute an undertaking that after getting the possession of the shop from the opponent I would carry on my own business and in case I failed to carry on business I would surrender the possession to the opponent. I am making this statement to ensure that I need the shop for my own personal bona fide use. " In addition to the above, I have gone through the entire evidence adduced by the parties before the Rent Controller and have no hesitation to observe that the evidence of respondents/landlords on the point of personal need of the respondent No.4 has remained unshaken in cross-examination and further nothing has come from the side of the appellant to rebut this position. It may be observed that once the landlord has succeeded to establish his claim of personal use mere lack of experience of some business, like running a tea restaurant, would not disentitle him from claiming eviction of his tenant on the ground of personal use. In these circumstances, I am of the view that the findings of Rent Controller on point No.2 are based on proper appreciation of evidence, the same are in accordance with law and call for no interference in appeal. Coming to the point of default in payment of rent, learned counsel for appellant vehemently argued that the appellant had pleaded payment of rent for the disputed months of June, July and August, 1997 through valid receipts issued by the respondent No. 1 and photocopies of such receipts were filed by the appellant alongwith his written objections as Annexures B-1, B-2 and B-3. In this context, learned counsel also referred to a hand-written application available in the R & Ps of the rent case to show that through this application moved by the appellant, appellant prayed for referring these original rent receipts, bearing the alleged signatures of respondent No.1, to the handwriting expert for his opinion and such application dated 10-10-1998 was allowed by the Rent Controller with the consent of the respondents vide order dated 14-11-1998. However, later on the Rent Controller without either waiting for the final report of the handwriting expert about the genuineness or otherwise of the signatures of respondent No. 1 on these receipts or for the return of original rent receipts, passed the impugned order wherein he held the opponent defaulter in the payment of rent by discarding these receipts as not proved. In this regard, learned counsel also referred to a letter dated 20th July, 1999 which was issued from the office of Assistant Inspector-General of Police, Criminalistic Division, Sindh, Karachi, to show that even at the time of passing of impugned order on 25th November, 1999 the issue with regard to the opinion of the handwriting expert was alive but the Rent Controller overlooked these facts. Learned counsel for the respondents did not dispute the above facts, however, he still attempted to justify the findings of the Rent Controller on the point of default. I have perused the photostat copies of receipts placed on record by the appellant which are available as Exhs.B-1 to B-3 to the affidavit-in-evidence of the appellant. In the facts and circumstances of the case when the appellant had pleaded payment of rent through these receipts, it was incumbent upon the Rent Controller to have either waited for the opinion of the hand writing expert or to have undertaken the exercise of comparison of signatures himself, after recalling the original rent receipts from the office of hand writing expert 'to form some view about the genuineness or otherwise of these receipts. Mere fact that the respondent No.1 had denied the execution of such receipts was not sufficient to hold that these receipts were not proved. In the above circumstances, findings of Rent Controller on the point of default in payment of rent cannot be sustained, same needs to be decided afresh. However, as I have already maintained the findings of Rent Controller on the point of personal bona fide use of respondents I am not inclined to remand the case to the Rent Controller for fresh decision on this point. For the preceding reasons while maintaining the findings of the Rent Controller on points Nos. 1 and 2, this appeal is dismissed in limine alongwith listed application. H.B.T./M-264/K Order accordingly.