SHAFIQ-UR-RAHMAN vs ABDUL GHANI

' This is Second Appeal against two judgments dated 6th August, 1977, and dated 13th December, 1977 passed by the learned IInd Rent Controller, Karachi and learned I lIrd Additional District Judge, Karachi respectively, in Rent Case No, 3135/74 and Rent Appeal No, 240/77, respectively. The brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid Rent Case inter alia, on the ground of default since April, 1972 till the filing of the rent application on 12th December, 1974, personal requirement nuisance etc. The above rent application was resisted by the present appellants. Consequently, 5 issues were framed. The learned Rent Controller allowed the respondent's rent application only on the ground of default. The A appellant being aggrieved by the above order, filed aforesaid Rent Appeal. It seems that respondent filed cross-objections in the above appeal. The learned First Appellate Court after hearing the appeal and the cross- objections maintained the finding of the learned Rent Controller on the question of default, whereas reversed the finding B on the ground of personal requirement and granted the rent application on the aforesaid ground. The appellant being aggrieved by the above two judgments, has filed the present appeal."

2 (a) In support of the appeal, Mr. Nabi Raza, learned counsel for the appellant has made following submissions :- i. That the cross-objections filed by the respondent in the rent appeal were not competent particularly as the order was in his favour. Ii. That the finding on the question of default of the two Courts below is contrary to evidence. Iii. That learned Appellate Court was not justified in reversing the finding of the learned Rent Controller on the question of personal requirement.

(b) On the other hand, Mr. Waheed Ascent, learned counsel for the respondent has submitted as follows :- i. That since an appeal filed under the rent law is to be disposed of in the manner of a civil appeal, cross-objections were competent. Ii. That the finding on the question of default is supported by evidence. Iii. That the learned First Appellate Court was justified in reversing the finding on the question of personal requirement.

3. It may be advantageous to deal with the question of maintainability of the cross-objections. In my view, it is an academic question, which does not require any detailed examination since respondent could have supported the ejectment even without tiling cross-objections on the ground of personal requirement.

4. As regards the question of default, it has been contented by Mr. Nabi Raza that it was the practice of the respondent not to issue any receipt and, therefore, the appellant's statement to the effect should have been accepted by the two Courts below. In support of the above submission, he has referred to the effect that he had not issued any rent receipt to the tenant of adjoining shop.

The above contention is devoid of any force. The testimony is to be read as a whole which indicates that the respondent had deposed that as he wanted to get the shop vacated by Naseem he had not accepted .Any rent and had not issued any rent receipt. The respondent has produced the Rent Book containing counter-foils indicating that the appellant had paid rent up to March, 1972. The above documentary evidence read with the deposition of the respondent, could have been believed by the two Courts below. The finding recorded by the two Courts below on the question of default cannot be said perverse or contrary to law, I accordingly maintain the above finding.

5. Reverting to the question of personal requirement, it may be observed that 1 am inclined to hold that the learned First Appellate Court was not justified in reversing the finding of the learned Rent Controller on the above question. It is the case of the respondent that he needed the shop in question which measures 10 x 7 feet for adding the same to his Industrial Home which was run by him. It may be pointed out that the respondent did not even disclose the dimensions or the area of the premises, in which he was running a Industrial Home in order to substantiate that the same was not sufficient for 32 students or more. In the absence of the above basic evidence, learned First Appellate Court was not justified in reversing the finding of the learned Rent Controller on the question of personal requirement of the respondent. I accordingly reverse the above finding of the learned First Appellate Court and hold that the finding of the learned Rent Controller on the question of personal requirement was in accordance, with law and did not cal for interference by the First Appellate Court.

6. The upshot of the above discussion is that the above appeal is dismissed as I have maintained the finding on the question of default. However, 1 grant four months' time to the appellant from today to vacate the shop premises on the condition that the appellant shall continue to deposit monthly rent with the learned Rent Controller and further that in case appellant fails to vacate the premises on the expiry of 4 months, the learned Rent Controller shall issue a writ of ejectment without any further notice to the appellant.