Haji QASIM Versus ISMAIL
This is an appeal against an order dated 6‑8‑1986 passed by the learned 1st ASJ/SCJ/Rent Controller, Karachi South, in Rent Case No.836 of 1985 allowing respondent's applicatipn. for ejectment on the ground of personal requirement in respect of the s1iof‑id question. The appellant being aggrieved by the above has filed the present appeal.
2. The brief facts leading to the filing of the above appeal are that the respondent filed rent case on the ground of personal requirement. The same was resisted by the present appellant inasmuch as he filed written statement. On the basis of the pleadings of the parties following two issues were framed:
"(1) Whether the applicant required the disputed premises for his personal bona fide use?
2. My findings on the above points are as under:
(1) In affirmative.
(2) The rent application is allowed."
3. The respondent filed his own affidavit and also the affidavits of his two brothers Muhammad Suleman and Noor Muhammad. The appellant did not file any affidavit in evidence. Learned counsel for the appellant has cross‑examined the respondent on the affidavit but did not cross‑examine his two .brothers. The learned Rent Controller after hearing the parties allowed the above rent application.
4. Mr.Raja Sher Muhammad Khan, learned counsel for the appellant in support of the above appeal has urged as follows:‑
(1) That since the appellant had denied the ownership of the respondent, the learned Rent Controller should have allowed the amendment of the written statement.
(2) That the respondent could not have sought ejectment on the ground of personal requirement when the shop in question did not belong to him but to his brothers.
(3) That the appellant should not be made to suffer on account of the negligence of his counsel.
On the other hand Mr.S.Shoaib Ahmed Bukhari learned counsel for the respondent has contended that the order under appeal is in accordance with law and that the appellant did not deny the relationship of the landlord and tenant in the written statement. It was also submitted that in the absence of any evidence in rebuttal the respondent's personal requirement stood proved.
5. Mr.Raja Sher Muhammad learned counsel fro the appellant in support of his above submission has referred to para.1 of the written statement which reads as follows:-
"That the contents of para one of the application are denied except that initially a sum of Rs. 250 p.m. was payable to the applicant and subsequently it was enhanced to Rs.300 p.m. It is further submitted that although the above shop was given on rent to the opponent but the agreement was drawn as of a contract between the parties. Regarding ownership of the shop by the applicant, it is submitted that this is not within the specific knowledge of the opponent."
From the perusal of the above quoted para, it is clear that the appellant had admitted the relationship of landlord and tenant by admitting the payment of the rent. In the last two lines he has stated that it was not within his specific knowledge that the respondent was the owner. This statement does not amount to denial of the relationship. However, it has been submitted by the learned counsel for the appellant that the appellant came to know about this fact after the filing of the written statement when he obtained extract from the City Survey Office. Suffice to observe that once the relationship of landlord and tenant is admitted inasmuch as even the execution of the appellant to have denied the title of the respondent.
Admittedly the appellant has not produced any evidence in rebuttal to the respondent's evidence and any suggestion in the cross‑examination would not nullify the other evidence of the respondent which was brought on record.
6. Adverting to the second submission of Mr.Raja Sher Muhammad that the appellant could not be penalised for the negligence of his counsel, it will suffice to observe that nothing has been brought on record to indicate that factually the Advocate of the appellant was negligent and not the appellant. It is not known as to why the Advocate for the appellant had not appeared on the date when the respondent's two brothers were to be cross‑examined. It is also not known as to why the appellant has not filed any evidence in rebuttal. It will be a matter of surmises and conjectures to attribute any negligence on the part of the y appellant's counsel particularly in the absence of any affidavit of the appellant in support of his counsel's negligence. The order under appeal seems to be in consonance with the evidence on record. I would, therefore,, dismiss the above appeal with no order as to costs. However, I allow one year's time to the appellant as the subject‑matter is a shop on the condition that the appellant shall continue to deposit rent with the Rent Controller, failing which the respondent shall be at liberty to file execution application before the expiry of one year. Furthermore, in case appellant fails to hand‑over vacant possession of the shop on the expiry of one year's period, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellant.
M.Y.H./0‑16/K Appal dismissed.