Mst. FARKHUNDA SULTANA vs ABDUR RAZAQ

ORDER

M. S. H. QURAISHI, J.-This is the landlord's petition seeking leave to appeal from the judgment dated 15-7-1982, whereby the tenant's appeal against an order of ejectment passed by the Rent Controller, Hyderabad, on 30-4-1980, was allowed and the cross-objection filed by the petitioner was dismissed.

2. The petitioner had sought the ejectment on the grounds of default, bona fide requirement for - personal use of her son and unauthorised alterations made to the building by the tenant. The parties also disputed the rate of rent. A written agreement dated 20-3-1978 (photostate of which had been filed by the petitioner along-with the ejectment application) was produced in evidence, which showed that in consideration of certain repairs and reconstruction done to the building by the tenant, for which he had spent Rs. 20,000.00, the parties had agreed to enhance the rent from Rs. 500.00 to Rs. 800.00 per month. But neither side was prepared to rely on this document. The petitioner denied the execution of the said document and based her claim for the higher rate on an oral agreement, The tenant, on the other hand, alleged that the enhancement of the rent had 'been secured by fraud and coercion. The Controller, however, repelled the allegation of fraud and held that the rate of rent was Rs. 800.00 per month. He also found the tenant guilty of default in payment of rent and of infringement of the terms of the tenancy regarding repairs and reconstruction, but rejected the petitioner's plea of requirement for personal use. Upon these findings, he ordered the ejectment of the tenant.

3. In the appeal preferred by the tenant before the High Court, the petitioner also filed a cross- objection against the Controller's finding on the issue of personal use. The learned Judge of the High Court- observed that the only agreement for enhancement of the rent was the written agreement but that being on terms and conditions contained in it and the petitioner herself not basing her claim on it nor having produced satisfactory evidence otherwise to support the existence of an oral agreement, she could not claim the higher rate of rent. Consequently he held that the tenant who had been depositing rent at the rate of Rs. 500.00, was not guilty of default. He further held that the tenant could not be held guilty of unauthorised altera--tions to the building in view of the fact that by such alterations the value of the building had increased and that the petitioner had even otherwise acquiesced in the reconstruction of the shop and by conduct had waived her right, if any, on account of that infringement. As regards the petitioner's cross-objection on the question of her bona fide requirement of the building for the use of her son, the learned Judge observed that the son had not been examined although. His examination as a witness was necessary to prove the bona fide requirement of the shop and that it was highly doubtful that a student of or a graduate of an Engineering College would like to start a business in a shop and that too, at a far away place from his family residence at Sheikhupura. We thus concluded that the petitioner had failed to prove the bona fide requirement of the shop for her son.

4. Learned counsel for the petitioner submits that in the absence of any evidence as to the existence of a clash of interest between the petitioner and her son, the High Court had erred in holding that the non-examination of the son was material. He further submits that the High Court had misread the evidence by wrongly assuming that the son was an engineering graduate. A On going through the evidence with the help of learned counsel, we, however, feel satisfied that the view taken by the High Court on the points at issue is upon fair consideration of the evidence on record and does not suffer from any illegality or perversity such as would justify an interference by this Court. The petition is, therefore, dismissed.