1983 PLP 1101 (CLC)

3. Against the above order Rent Appeal No. 45 of 1977 was preferred before the learned lower Appellate Court who by judgment passed on 15th March, 1980 dismissed the same.

4. The appellant has challenged the above orders by filing this appeal under section 21 of Sind Rented Premises Ordinance, 1979.

5. At the hearing of this appeal the learned Advocates for the parties restricted their arguments to the findings given by the two Courts under Issue No. 3 which reads as follows Issue No. 3 Whether the applicant requires the house for his per sonal and bona fide use ? 5‑A. With the assistance of the learned counsel for both the parties, I have gone through the record. So far as the Issue No. 3 which covers the requirement of the landlord for eviction of the appellant/tenant from the premises in dispute, both the Courts have given concurrent findings of facts in favour of the respondent, landlord. These findings are based upon the evidence on record. The landlord examined himself as Exh. 17 and he in his evidence deposed that he has got five sons, two of whom were going to get married and that he required this house for personal and bona fide use. He further stated that presently he is residing in a house which consists of only two rooms and this house is not sufficient for 10 members of his family. The landlord was cross‑examined at length by the learned Advocate for the appellant however nothing could be brought out which could in any way show that the statement of the landlord as to the number of members of his family and the accommodation in the house in his possession could be belied or shaken. To question put in cross‑examination, the landlord replied that it is not a fact that at present he is residing in a house of 6 rooms or that he wanted to get the rent enhanced or that he does not require the pre mises for his own personal use. Tne evidence of the landlord on the ques tion raised under Issue No. 3 remained consistent with what was pleaded in the application for ejectment filed against the appellant, and was believed by both the Courts below. The learned counsel for the appellant however assailed the order of the Rent Controller on the ground that the inspection of the site (house in occupation of the landlord, was made ex parte in the absence of the appellant and that the order of eviction passed by the Rent Controller is based upon inspection and is thus erroneous and liable to be set aside. Reliance was placed by the learned counsel on the cases Hans Raj‑Malatti Ram v. Nathu Mal and others (A I R 1929 Lah. 782) and Muhammad Juman and another v. Mst. Aqlan and 2 others (P L D 1980 Kar. 108).

7. In order to appreciate the question raised as above, I may refer to what transpired before the Rent Controller. After the evidence of the parties was closed the case was adjourned to 31st January, 1977 for announce ment of judgment. On the last mentioned date the Rent Controller with the consent of the Advocates for the parties and in their presence fixed 1st February, 1977 for inspection of the accommodation presently occupied by the landlord. The diary sheet of 31st January,~1977 of the trial Court shows that site inspection was ordered to be made by the Rent Controller as it was found necessary for just decision of the case. The house occupied by the landlord was in these circumstances inspected by the learned Rent Controller when the learned advocate for appellant was present though the appellant personally was not present. The grievance of the learned counsel for the appellant that the site was inspected in the absence of the appellant or that the inspection made was ex parte, in the circumstances, is without any substance.

8. As regards the second argument raised by the learned counsel for the appellant that the order of the Rent Controller is based solely on his site inspection, I find that this plea is not supported by the material on record. Perusal of the record shows that the respondent landlord had ex amined himself in the Court. In his evidence he expressly stated that he has got five sons, two of whom were going to get married, that at present he is residing in a house which consisted of two rooms which is not sufficient for 10 members of his family. He further deposed that he re quired the house in question for his personal bona fide use. The suggestions made in the cross‑examination that the house presently occupied by the landlord consists six rooms or that the landlord in fact wants to charge enhanced rent were expressly denied. No material was brought on record by the appellant/tenant to belie the above statement of the landlord. In view of the controversy raised as to number of rooms in the house occupied by the landlord and in order to understand and appreciate the evidence, the site was inspected by consent arid in the presence of both the Advocates for the parties. . The conclusion reached by the Rent Controller is based upon the evi dence of the respondent/landlord that his family consists of 10 members and the accommodation in his occupation is only a two room house which is insufficient for his requirement and that his two sons were going to get married. The learned Rent Controller thus on evidence and inspection made to appreciate and understand the evidence found that the house in which the respondent now resides consists of two rooms and that the admitted position is that he has got 10 members of family. Accordingly it was held that the respondent landlord who has got a large family and his requirements being bona fide, he is entitled to select better accommodation. Reliance was placed by the learned Rent Controller on the cases reported in P L D 1968 Lah. 149 and P L D 1976 Kar.

437. The above narration of facts and perusal of the order of the Rent Con troller, thus show that the said order was not based on mere inspection of the site made by him. The learned Rent Controller while passing the order has rightly relied upon the cases decided by the learned Lahore High Court and this Court, as well.

9. It is also worth noting here that the above order of the Rent Con troller was challenged in Rent Civil Appeal No. 45 of 1977 which was ultimately disposed off by the First Additional District Judge, Hyderabad, who also on the evidence on record came to the conclusion that the family of the landlord consisted of 10 members and that the accommodation in his possession consists of only 2‑3 rooms. Placing reliance on the case of Khuda Bakhsh v. Syed Muhammad Habib Shah Hashmi (1978 S C M R 89) the learned lower Appellate Court held that the accommodation presently available at the dis posal of the landlord is only of two rooms and that he has got large family to reside therein and therefore his requirement could not be doubted. Having held as above the learned lower Appellate Court dismissed the appeal.

10. The finding of facts arrived at by the two Courts as above, con currently holding that the family members of the landlord consist of 10 members and that the present accommodation with him consists of only 2‑3 rooms, which are insufficient and inadequate for his requirement, so far this Court is concerned exercising jurisdiction in second appeal under section 15 (4) of the then West Pakistan Urban Rent Restriction Ordinance, 1959, concludes the matter.

11. The argument advanced by the learned Advocate for the appellant Mr. Kazi Ashraf that the findings of the Rent Controller are based upon mere inspection and therefore liable to be set aside, in view of the facts stated above, cannot be accepted. The facts of the cases reported in A I R 1929 Lah. 782 ; A I R 1934 Mad. 548 and P L D 1980 Kar. 108 are totally different and have no application to the facts and circumstances of the present case. Significant to note is also the fact that no grievance was made by the' appellant before the learned first appellate Court that the inspection by the (K. A. Ghani, J) Rent Controller was made ex parte or that his order is vitiated on the alleged ground that it is based solely on site inspection. This new plea, for the above reason, therefore, cannot be allowed to be raised for the first time an this second appeal, particularly in the absence of any prejudice shown to have been caused to the appellant.

12. The findings of the learned two Courts below are based upon appreciation of evidence and are in accordance with the principles laid down in the cases reported in 1978 S C M R 89 ; as well as P L D 1976 Kar.1 1231 and P L D 1968 Lah. 199.

13. Lastly, it may be mentioned that the learned counsel also raised the plea that the learned Rent Controller ought to have seen that the two sons who it was alleged were to be going to be married were not examined. 1 do not find any force in this argument as the order of eviction has been passed mainly for the reasons that the family of the landlord consists of a large l., number of persons and are residing in a house consisting of two rooms only and the disputed house is required bona fide and reasonably by the landlord for his own use and occupation. Moreover I do not find any illegality in placing reliance on the statement on oath made by the landlord that his two sons were going to be married.

14. No other point was urged.

15. For the reasons stated above, I find no merit in this appeal which is accordingly dismissed. The appellant is granted time to vacate the pre mises upto 31st October, 1982. The parties to bear their own costs. M. Y. H. Appeal dismissed,