1983 PLP 3006 (CLC)

(2) Whether the premises are required bona fidely by the applicant for his personal use and occupation and that of his family members ?

3. What should the order be ?'' After recording the evidence of the parties the learned trial Court came to the conclusion that default in payment of rent was not proved while the requirement of the house for his bona fide use was proved by the respondent.

4. In support of his claim respondent Saifuddin Ahmed has examined himself and his uncle Haji Amiruddin, who have deposed that the respon dent Saifuddin Ahmed is presently residing in the house of his uncle Naseeruddin. They have further stated that Naseeruddin is compelling the respondent to vacate the house. It is not disputed that Saifuddin Ahmed is actually residing. in the house of his uncle, who is brother of A D. W. Haji Amiruddin. The learned Rent Controller, in view of this factual position, rightly concluded that the respondent had every right to vacate the house which he was occupying as a licensee of his uncle and come to his own house which was on rent' with the appellant.

5. No exception, therefore, can be taken to the finding of the learned trial Court that the respondent has proved his requirement for his own bona fide use of the rented premises.

6. It is not necessary to refer to the plea of default in payment of rent because the learned Rent Controller has relied on the various receipts produced by the appellant through respondent Saifuddin Ahmed on the basis of which he found that the plea of default was not proved.

7. Mr. Sbafaat Hussain learned counsel for the appellant has, however, taken the plea that after renting out the first floor of his house to the appellant, the respondent had in the year 1974 vacated the ground floor, rented it out to another tenant and shifted to the house of his uncle and as such be is not entitled to eject the appellant from the first floor of the house. In support of this plea he has relied on Clause (i) of Sub section .(3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Subsection (3) (a) (i) of section 13 runs as under :‑ "(3) (a).‑ A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession :‑ (i) in the case of a residential building, if‑ (a) he requires it in good faith for his own occupation or for the occupation of any of his children ; (b) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated ; and (e) be has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area." The learned counsel for the appellant has relied on sub‑clause (c) above and has pleaded that since the respondent has vacated the ground floor in the year 1974 and shifted to his uncle's house, hence he is not entitled to eject the appellant from the first floor. This plea was not raised by the appellant before the trial Court. The burden of proving the fact that the respondent bad vacated the ground floor without sufficient cause (underlining here in italics is mine) in the year 1974 and that the ground floor was sufficient for the requirement of the respondent was upon the appellant. It is proved from the respondent's evidence that he has got eleven children, which means that his family consists of 13 members including the respondent and his wife. The presumption, therefore, shall be that the ground floor was vacated because it was not sufficient for his use, or that he had shifted to his uncle's house which was lying vacant for some time as his uncle had gone to Mirpur Khas. There is nothing on the record to indicate that the case of the respondent falls within the mischief of clause (c) quoted above. For the above reasons I do not see any reason to interfere with the order of the learned Rent Controller. The appeal is, therefore, dismissed with costs. The appellant is, however, given three months time to vacate the premises in question. K. M. A. Appeal dismissed