1986 PLP 1747 (CLC)

The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No.l in the affirmative and issues Nos. 2 and 3 in the negative and allowed the eviction on the ground of personal requirement only vide order, dated 22‑5‑1983 and directed the appellant to hand over vacant and peaceful possession of the premises in question within 119 days from the date of the order. The appellant being aggrieved by the aforesaid order, dated 22‑5‑1983 of the IX Senior Civil Judge and Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal. Mr. S. Mahmoodul Hassan, the learned Counsel for the appellant has submitted the appeal was dismissed for non‑prosecution on 7‑4‑1985 and the same be restored to the original file. His contention is that he enquired from the dealing clerk of the concerned branch regarding from time to time and he was informed by him that appeals were taken up of 1982 and the appeals which were filed on the year will be taken up after vacation. He came to know on 10‑7‑1985 about the dismissal of appeal. Mr. Naraindas C. Motiani, the learned counsel has fairly conceded that he has no objection for restoration 'of the appeal. I am of the view that good cause has been shown for restoration. I, therefore, restore the appeal under the circumstances of this case. Mr. S. Mahmoodul Hassan has contended that the learned Rent Controller did not consider the evidence on record. On the other hand Mr. Naraindas, the learned counsel for the respondent has submitted that the finding on the ground of personal requirement is in accordance with evidence on record. The respondent in his eviction application averred that he was ailing for some time past and had rented out the premises to the appellant during his illness. He had recovered from illness and fit to work as such he required the premises for his own bona fide use and had to start a business of his own. The appellant filed written statement and stated therein that he is not aware of the illness of the respondent. The requirement was denied by him. He further averred that he wanted to enhance the rent but the appellant did not agree and as such the respondent did not accept the rent sent by money order, dated 24‑4‑1978. The respondent in his deposition repeated the same facts and stated that he was suffering from T.B. He also produced Radiological report as Exh.A/5. The respondent denied the suggestion that he wanted to enhance the rent to Rs.200. He also denied the suggestion that he wanted to get Pugree and wanted to increase the rent. As against all the aforesaid evidence discussed above there was only word of the appellant in his affidavit of evidence firstly that the respondent demanded enhancement of rent from Rs.100 to Rs.200 and the respondent did not require the shop for his bona fide personal use but he is greedy person and wanted to deprive off the good‑will and of Rs. 4, 000 given to him at the first instance. He would give shop to some one in Pugree which now‑a‑days fetches Rs.80,

000. As against the documentary evidence produced by the respondent the appellant has not made any attempt to adduce evidence to prove his mere verbal version to the contrary in the written‑statement. It is apparent that the statement in the eviction application about personal requirement. of the respondent has been fully supported in his deposition and nothing has been brought out in his cross -examination which could show the claim to be false or based or: wrong statements. It is well‑settled legal position that assertion of the landlord on oath as to requirement of the premises for his personal use have to be accepted as bona fide if consistent with his averment in his application and not shaken in cross‑examination or disproved in rebuttal. With regard to the allegation of mala fide to the effect that the respondent wanted to enhance rent of the premises, wanted to deprive Pugree amounting to Rs.4,000 which was given at the first instance and wanted to let at the enhance rent or Pugree, the respondent had totally denied the same in his deposition. 1 am supported in this view of money by decision in the case of Badruddin Hasan Farooqui through his 5 Legal Representatives 'v. Manghi Industrial Home P L D 1976 Kar. 620). Mr. M.A. Rashid, J. (as he then was) had before him facts of the instant case and he has taken the same view as I am now taking. With regard to the allegation that the respondent wanted to give the shop to someone in Pugree which fetches Rs.80,000, the respondent had totally denied the same in his deposition. Moreover the safeguard) against letting the premises to someone else after getting the tenant evicted was provided in section 15‑A of the Rented Premises Ordinance, 1979 that the tenant could be back in possession if the landlord does not occupy the premises himself after getting him evicted on the ground of personal occupation and use. For the foregoing reasons, I find that the Order of the learned Rent Controller was based on proper appreciation of evidence on record and was in all respects a legal and proper order. I therefore, dismiss this appeal with no order as to costs. The appellant is hereby directed to hand over the vacant possession of the shop to the respondent within six months of the date of the order. H.B.T. Appeal dismissed.