NAUSHABA MASROOR Versus RASHEEDA KHATOON

This appeal is directed against an order dated 10-3-1982 passed by the learned Senior Civil Judge and Rent Controller Court No.XII Karachi in Rent Case No.243 of 1979.

2. The brief facts leading to the filing of the above appeal are that the respondent filed the above rent case for ejectment on two grounds namely, default and personal requirement. The above application was resisted by the present appellant. The learned Rent Controller on the basis of the pleadings of the parties framed the following five issues:-

"(1) Whether the premises No.65/3/9 Rifah-e-Aam Society Karachi was let, out to the opponent No. l and or opponent No. 2?

(2) What is the agreed monthly rent of the premises in question?

(3) Whether the opponents committed default in payment of monthly rent?

(4) Whether the applicant requires the premises for her own use and occupation?

(5) What should the order be?"

The respondent filed her own affidavit in evidence and also the affidavit of her son Rashid Rafiq and one witness Ali Asghar; whereas the appellant filed her own affidavit in rebuttal. The learned Rent Controller after hearing the parties rejected the ground of default but allowed the rent application on the ground of personal requirement. The appellant being aggrieved by the above order has filed the present appeal.

3. (a) In support of the above appeal Mr. Ahmad Saeed Qureshi learned counsel for the appellant has urged as follows:-

(i) That since the appellant was not cross-examined by the respondents counsel, her statement remained unrebutted, and

(ii) That the respondent has been disbelieved by the learned Rent Controller on the question of default and also as to the rate of rent and, therefore, this adversely reflected on the question of personal requirement.

(b) On the other hand Mr. A.H. Alavi learned counsel for the respondent has contended as follows:

(i) That the evidence on record is sufficient to sustain the ground of personal requirement though on account of sickness of the Advocate of the respondent the appellant was not cross-examined.

(ii) That the mere fact that the learned Rent Controller has disbelieved the ground of default or the respondent's version as to the rate of rent would not negate the evidence on personal requirement if otherwise sufficient.

4. I have gone through the evidence on record and find that respondent's husband left for Saudi Arabia some time in or about 1977. The respondent had let out the present house in 1977 for the reason that she was not well and her children were comparatively young and, therefore, she wanted to live close to her relations. After nearly two years she filed the present application for ejectment. I am satisfied that the finding of the learned Rent Controller on the question of personal requirement is correct and is in consonance with the evidence on record. Neither the fact that the appellant was not cross-examined nor the factum that the learned Rent Controller rejected the other ground would negate the evidence of personal requirement if otherwise convincing. It cannot be denied that the respondent's children have grown up since then i.e. since the time of letting out of the house and that she is living in a rented house. She has given a cogent reason for letting out the house in 1977 which reason leas been believed by the Rent Controller. I am inclined to concur with the finding of the learned Rent Controller on the above question. I, therefore, dismiss) the above appeal and maintain the order under appeal.

However, I allow six months time to the appellant from today on the condition that she will continue to deposit rent in terms of the Rent Controller's order, failing which the respondent shall be at liberty to file an execution application before the expiry of the above period of six months. Furthermore, in case the appellant fails to hand over the vacant possession on the expiry of the above period of six months, the learned Rent Controller shall issue a writ of ejectment without any further notice to the appellant.

H. A. K. ??????????

Appeal dismissed.