ABDUL AZIZ Versus ZIAULLAH KHAN

1. This appeal is directed against the judgment of VIth Senior Civil Judge and Rent Controller Karachi, dated 8‑3‑1984 whereby the ejectment application filed by respondent Ziaullah against appellant Abdul Aziz was allowed and the latter was directed to vacate the demised premises within two months of the judgment.

2. The facts gleaned out from the impugned judgment are that the ejectment application was filed by the respondent in respect of residential flat on the ground floor of a building situating on Plot No. ST‑2/C, Shakil Corporation Building, Federal 'B' Area, Block I, Karachi which was in occupation of the appellant on rent. The ejectment of the appellant was sought on the ground of default in payment of rent, damage to the rented premises, conversion of the premises from residential purposes to commercial purposes and personal requirement. The learned Rent Controller after considering the evidence led by both the parties allowed the application only on the ground of personal requirement, recording his findings on the other grounds against the respondent. It appears the respondent has not challenged the judgment of the learned Rent Controller in respect of the grounds decided against him.

3. After hearing the arguments of the learned counsel for the parties the appeal was dismissed with no order as to costs by short order, dated 6‑10‑1985 for reasons to be recorded later on. Following are reasons in support of the said short her.

4. The respondent/ landlord's case with regard to personal requirement is stated in paragraphs 6 and 7 of the ejectment application which are to the following effect:‑

5. "6. That in December, 1980 the Applicant had to vacate the House No. 226/4 Marton Quarters, Karachi and was bound to shift any where so the applicant approached the respondent in November, 1980 and requested him to vacate the disputed flat as the same was/is required for personal bona fide use of the applicant because the applicant has no property at all in Karachi except the disputed flat. On the request of the applicant the respondent promised to vacate the demised premises on or about last week of December, 1980.

7. That in December, 1980 the respondent flatly refused to vacate the flat at any cost and threatened the applicant for dire consequences if he would dare to visit the respondent in future."

6. While denying the landlord's allegation contained in the above paragraphs of his ejectment application, the appellant/ tenant has taken a plea in para 6 of his written statement which is couched in the following words:‑

7. "6. Regarding para 6, it is denied that the applicant vacated the official quarter absolutely, but instead he got the substitute official accommodation i.e. a still nice and a spacious flat in the newly constructed K.M.C. Flats for their staff in Keamari, Karachi. Moreover the applicant has got his private flat also at his address given in the title of his application under reply. Hence there could be no question of his personal need for opponent's flat. He never expressed his personal need nor the opponent promised to vacate the premises on that account. On the contrary the applicant wanted forcible eviction of the opponent on the basis of his high‑handedness due to which opponent had to file Suit No. 3688/81 against the applicant for injunction to prevent opponent's apprehended forcible eviction; in the Court of learned XXIII Civil Judge, Karachi in which status quo order has been issued by the said Court which is still subsisting."

8. In support of his case stated in the ejectment application the landlord has filed his personal affidavit‑in‑evidence wherein he has reiterated his case that as he was required to vacate the accommodation in his possession in the Marton Quarters, Karachi in December, 1980, he approached the tenant in November, 1980 vacating of the disputed flat as he needed the same for his personal use. It seems the tenant has resisted the landlord's case of personal requirement on two grounds, namely, first that in lieu of the house in possession of the landlord at Marton Quarters he is provided by K . M . C . better and more spacious accommodation at Keamari; second, that the flat in occupation of the landlord is his own property.

9. It is settled law that once the landlord has stated on oath that he needs the demised premises for his personal need and his such statement is consistent with his case disclosed in the ejectment application, in normal course his statement has got to be accepted as correct. In other words if it is disputed by the tenant that demised premises is needed by the tenant for his personal use, the burden is cast on him to show that the landlord does not need the disputed premises for his personal needs. As stated above the tenant has contested the landlord's plea of personal requirement on two grounds. As for the first ground it appears that although the landlord was subjected to a lengthy cross‑examination no question has been put to him by the appellant showing that the respondent in lieu of the accommodation in his possession at Marton Quarters has been provided an alternate and better accommodation by the K.M.C. So the respondent's case remains unshaken on that ground. Coming to second ground that the flat in possession of the landlord belongs to him the respondent has denied the suggestion put to him in cross‑examination as under:‑‑

10. "It is not a fact that the flat in which I am at present residing belongs to me that it belongs to my father‑in‑law which is on rent with him."

11. The appellant/tenant has not produced any documentary evidence to rebut 'the above statement of the respondent nor has he in any manner proved that the respondent is the owner of the house presently in his occupation. The learned counsel however referred to oral statement of the appellant's witness Muhammad Hanif who has stated in his affidavit that the applicant (respondent) has one more house bearing Flat No. 15, Prem Bhawan Building, Burns Road, Karachi where he has been residing for the past many years. But in the same breath in course of his cross‑examination, this very witness has shown his ignorance as to the place where the respondent is residing at present. No reliance can be placed on evidence of such witness. Moreover, nothing prevented the appellant from obtaining certified copy of extract from survey record or producing such other document to prove the ownership of the respondent in respect of the house in his possession. Thus the appellant has not been able to demolish the case of the respondent on either of the grounds referred to above.

12. As a last resort the learned counsel for the appellant argued that since the respondent has been disbelieved by the learned Rent Controller in respect of the other grounds taken by him in support of his ejectment application, his findings in that regard seriously reflect on the character of the respondent who, therefore, cannot be believed even in respect of ground of personal requirement. In support of his arguments he placed reliance on Abdul Hameed v. Mst. Ameena Begum 1982 C L C 1018. The perusal of the para 17 at page 1022 of this reported case would show that the landlord was disbelieved solely on the ground that he was not believed in respect of the other pleas raised by him in support of his ejectment application.

13. As against the above authority the learned counsel for the respondent has placed reliance on Ehsan Elahi v. Muhammad Ashraf Khan Lodhi 1984 C L C 90 wherein it was held as under:‑

14. "9. The further contention on behalf of the appellant is that since in the ejectment application the grounds of default in the payment of rent and the conversion of residential into commercial premises had been taken and those grounds were not found against the appellant, therefore, the learned Controller should have considered the ground for personal bona fide requirement to be mala fide. The finding that the landlord bona fide requires the premises for his personal use has been arrived at by the learned Controller after discussing the evidence on record, and the fact that on some other grounds the findings was against the landlord cannot be considered to prove mala fide."

15. After going through the above two authorities I cannot persuade myself to endorse the view that if the landlord has failed to prove his case for ejectment of his tenant on any of the grounds initially taken by him in support of his case, his failure to do so cannot be held to disbelieve the alternate plea raised and duly proved by him by reliable evidence.

16. For reasons stated above the appeal was dismissed.

17. H. B. T. Appeal dismissed.