1989 PLP 4531 (MLD)

This appeal is directed against an order dated 22-5-1983 passed by the learned VIIIth Senior Civil Judge/ASJ/Rent Controller, Karachi in Rent Case No.2097 of 1979 dismissing the present appellants' application for ejectment of the respondent from the shop.

2. The brief facts leading to the filing of the above appeal are that the appellants filed the aforesaid application for ejectment on the ground of personal requirement on the basis of allegation that the shop in dispute was in fact constructed in a passage which was intended to have been used by the occupants of the building, and that since the adjacent plot was lying vacant the appellants had let out the shop to the respondent on the understanding that when the adjacent building would be constructed he would vacate the shop. The above application was resisted by the present respondent. On the basis of the pleadings of the parties the learned Rent Controller framed the following issues: (1) Whether the applicants require of the premises in question in good faith for their own personal bona fide use? (2) hat should the order be?

3. In support of the rent case appellant No.2 Asghar Ali filed affidavit-in- evidence reiterating the contents of the rent application. However, in the cross -examination he admitted the fact that when the shop was let out to the respondent he was not present and that the same was let out by M/s Fida Ali and Tahir Ali. In rebuttal the respondent filed his affidavit-in-evidence in which it was averred that there was no such understanding between the parties. The learned Rent Controller dismissed the above rent application by holding that factually Ashgar Ali was not the person having personal knowledge of the facts of the case on the point in dispute. The appellants being aggrieved by the above order have filed the present appeal.

4. In support of the above appeal Mr. Shafaat Hussain, learned counsel for the appellants has vehemently urged that the factum that the shop was constructed in a passage has not been disputed and also the factum that factually the appellants need the shop for using it for passage and therefore, the learned Rent Controller was not justified in dismissing the rent case. On the other hand Mr. S. Inayat Ali, learned counsel for the respondent has submitted that the basic question in the rent case was that there was no understanding between the appellants and the respondent to the effect that the latter would vacate the shop upon the commencement of the construction of the building on the adjacent plot and which fact the appellants failed to prove as has been rightly held by the learned Rent Controller.

5. In my view, it is not open to the appellants to urge that the shop was required for the use of the passage in the absence of proving the fact that there was understanding between the appellants and the respondent at the time of letting out the shop that the latter would vacate the shop upon the commencement of the construction of the building on the adjacent plot. The appellants after having converted the passage into a shop voluntarily cannot come forward and say that they wish to reconvert the shop into passage m the absence of any understanding or agreement arrived at between the parties at the time of letting out the shop. The conclusion arrived at by the learned Rent Controller seems to be in consonance with law.

6. The appeal has no merit and, therefore, it is dismissed but there will, however, no order as to costs. MYH/F-109/K Appeal dismissed.