NASIM SHAH vs MUHAMMAD ALI BATALVI

' This second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is by the aggrieved tenant. The respondent landlord sought the eviction of the appellant from the house in dispute on the basis of default of payment in rent and requirement for personal use.

Learned Rent Controller vide his order, dated 29th March, 1977 found the requirement of the landlord for personal use as bona fide and reasonable and directed the appellant to vacate the premises. Findings of the trial Court found favour with the Appellate Court and his appeal was dismissed on 31st July, 1977. Hence this second appeal.

2. The main contention of the learned counsel for appellant is that the ejectment order has been made on the basis of the personal requirement of the landlord but the landlord who has to justify the bona fides or good faith of his personal requirement has not appeared as a witness, which according to the learned counsel is necessary under the law. On this respect reliance is placed on Ghulam Mohyuddin v. Suba Khan (1).

"It is always the landlord of the property who can show reasonable cause for occupying a particular property for personal need. If he himself fails to make out a case for bona tide personal need, then other evidence produced by him in this behalf would be of no use,

(1) PLD 1977 Lab. 1094 ' in this view of the matter it is always the statement of the landlord as well as the person for whose benefit premises are sought to be vacated, which is most relevant to determine the point in issue."

3. In the instant case landlord who is an old man did not appear in Court as a witness, but his son Ghulam Mustafa as special attorney appeared to prove the facturn of personal requirement.

According to the statement of this witness, landlord alongwith his three sons, two of whom are married and the third one has been engaged, is living in this small house, which is insufficient to accommodate this large family. To rebut the assertion of the landlord learned counsel for the appellant has referred to the evidence of one Munawar R. W. 2 who is a property dealer. According to his statement the respondent had asked to him to sell the house in dispute. It appears that the plea of the appellant about the sale of the house in dispute is an afterthought as this fact was never alleged by the petitioner in his written statement. The principle secundum allegata probatta, will also be applicable to the A facts of the instant case and appellant cannot be allowed to prove a fact which he never alleged in the pleading.

4. Section 13(3) of the Ordinance provides that in the case of residential building, a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession if he requires it in good faith for his occupation or the occupation of his children and he is not occupying another residential building, suitable for his needs in the same urban area or he has not vacated such a building without sufficient cause after the commencement of the Ordinance. The house in dispute is constructed on a land measuring one mada. The area underneath is not disputed.

Finding by the Court below is not open to any objection and High Court in second appeal is not competent to reverse the same, by re-assessing the evidence or by going into question of weight to be attached to the testimony of a particular witness.

' In view of the discussion made above there is no force in this appeal and is, accordingly, dismissed. The parties are, however, left to bear their own costs.