'The petition assails the judgment dated 28-1-2003 passed in F.R.A. No,506 of 2001 whereby the order of the learned IVth Rent Controller, Karachi East, allowing Rent Case No,390 of 1995 for the eviction of the petitioner was upheld.
2. Briefly stated the facts of the matter per the petitioner are that the predecessor-in-interest of the parties viz. Pervez Malik and Muhammad Haneef entered into a lease agreement dated 28-5-1976 whereby the latter had rented out two shops in the premises known as 138-A, Block No,2, PECHS, Karachi, to the former on the terms and conditions appearing therein. Thereafter, another shop was obtained on lease from Muhammad Haneef by Pervez Malik in the same premises vide lease agreement executed between the parties in October, 1983. All these three shops are now in the occupation of the petitioners being the legal heirs of late Pervez Malik as tenants of the respondent No,1 who is the widow of late Muhammad Haneef.
3. Respondent No,1 had filed, R.C. No,390 of 1995 against the petitioners for their eviction from the shops in question on the ground of personal need which was allowed and subsequent F.R.A. No,506 of 2001 filed against such order of the learned Rent Controller was dismissed and hence this petition.
4. Mr. Faisal Arab appearing for the petitioner has firstly submitted that prior to the present round of litigation between the parties there were two earlier rounds. In the year 1977 late Muhammad Haneef filed Rent Case No,3430 of 1977 on the ground of personal use. For Shops Nos.2 and 3 which was subsequently settled. Again in the year 1987 Rent Case No,989 of 1987 was filed on the ground of nuisance, which was dismissed in the year 1991. As against such dismissal the respondent Nol.
Preferred appeal being F.R.A. No,294 of 1991 in this Court. On 13-10-1992, a compromise was reached and F.R.A. No,294 of 1991 was disposed of. In terms of the compromise rent of the premises was enhanced from Rs,2,850 to Rs,4,000 and the petitioners handed over possession of the first floor office premises back to respondent No,l. In the compromise it has been specifically agreed that the petitioners would continue with their tenancy without any let or hindrance from respondent No,l.
However, in utter disregard of the commitments made by respondent No,1 at the time of the compromise, she initiated the present proceedings by filing R.C. No,390 of 1995 before the learned Rent Controller seeking the petitioner's eviction from all the three shops on the ground of nuisance, default in payment of electricity bills and bona fide personal need. Per learned counsel this was done as the goodwill of the shops in the area had increased and hence was totally mala fide. In this connection learned counsel also submitted that on the previous two occasions when the parties had entered into a compromise, the rent was enhanced which would establish that what the respondent No,1 wanted was increased rent which would belie her contentions regarding personal bona fide need. Per learned counsel the law in this regard is very well-settled i,e, the landlord should approach the Court with clean hands and establish his/her bona fide need which is to be adjudged in accordance with the facts and circumstances of the case and the previous history of litigation of the parties as in the present matter.
5. In support of his contentions learned counsel relied upon Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCM R 336, Latif Ahmad v. Mst. Farrukh Sultana 1996 SCM R 1233, Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCM R 1559, ' Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCM R 2051, Ghulam Haider v. Abdul Ghaffar and another 1992 SCM R 1303, Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCM R 1178, Muhammad Aslam v. Muhammad Aslam 1987 CLC 686 and Mst. Hajiyani Ayesha Bai v. Zahid Hussain 1999 M LD 2761.
6. Next learned counsel has submitted that in para.5 of the application before the Rent Controller the respondent has stated that she being a widow has no other means of income except the rents from the shops in question and hence she has decided to open ladies garments and boutique shop with the help of her son for which purpose she needed the shops. However, in her affidavit in evidence, the respondent No,1 has not stated that the shops in question were her only source of income. Furthermore, under cross-examination she has admitted that she is doing her own business. Again per learned counsel the respondent No,1 has admitted that she has two other tenants in the same building viz. Baba and Ghousia Flower Shop. As these shops were recently vacated, the respondent No,1 could not be cross-examined on the issue. Consequently, the matter should be remanded for this purpose viz. Whether or not the Flower Shops were sufficient for her personal bona fide need. In support of his contentions learned counsel has relied upon Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCM R 1559 and Latif Ahmed v. Mst.
Farrukh Sultana 1996 SCMR1233. He has therefore, prayed that the petition be allowed.
7. Mr. Muhammad Ismail Memon, appearing for the respondent, has on the other hand submitted that the flower shops vacated recently by the tenants are only 10 x 10 ft. And hardly suitable for a boutique of a garment shop. Secondly, the previous compromises with the petitioners in litigation could hardly fetter the respondents right to assert her personal need again in the present proceedings for which proposition he has cited Allah Rakha v. Muhammad Shafi 1978 SCM R 437.
8. Finally, learned, counsel has submitted that the respondent has clearly stated her need to start a garment shop/boutique in partnership with her son which has been supported by him as well.
Nothing has come about in the cross-examination of the respondents to dispel their version.
Hence, learned counsel has prayed that the petition be dismissed. He has relied upon Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCM R 1613, Muhammad Anwar v. Jamaluddin 1996 SCM R 771 and Mst. Razia Begum v. Muhammad Rafi 1986 SCM R 309.
9. I have heard both learned counsel and my conclusions are as under:--
10. It would be seen that the respondent No,1 has stepped into the witness-box before the learned Rent Controller and deposed inter alia that she required the shops in question in order that she may establish a business with her son Syed Muhammad Rehan. Under cross-examination she has admitted that she is running a business in some other premises but nothing has been asked of her whether these premises were sufficient for running the new business which she proposed along with her son. Similarly her son Syed Muhammad Rehan has also stated in his affidavit in evidence that he intends to start a business along with his mother in the shops in question but again nothing has been asked in cross-examination as to the nature of this business or whether in fact he did intend to start such business.
11. On the other hand, the petitioner in his affidavit in evidence has stated inter alia that the respondent was a habitual litigant and on two previous occasions when her late husband and she herself had filed proceedings against him for eviction the same were compromised. Hence, the present proceedings are totally mala fide in nature and only filed in order to extricate enhanced rent from him as was done on the previous occasions. Under cross-examination he has inter alia denied that either the respondent No,1 or her son needed the shops for their own personal bona fide need in order to start their business.
12. On the basis of the foregoing evidence on the record, it would be seen that on the one hand the respondent No,1 landlady has consistently maintained her bona fide need for the shops in question in which she proposes to start a business along with her son, whereas on the other hand this need has been denied by the petitioner. The law in respect of personal bona fide need is very well- settled viz. All that the landlord is required to do is to step into the witness-box and state his personal bona fide need whereupon the burden shifts to the tenant to establish the contrary.
However, it is equally well-settled that the need C should be bona fide and eviction should not be sought for some other ulterior purpose or on a mere whim or fancy. In this respect reference can be made to F.K. Irani & Co. v. Begum Feroze 1996 SCM R 1178, Saira Bai v. Anis-ur-Rehman 1989 SCM R 1366 and S.M. Nooruddin v. Saga Printers 1998 SCM R 2119.
13. In the present case it would be seen that both the landlady and her son have stepped into the witness-box and deposed that they required the shops in question in order to establish a business.
Under cross-examination the landlady has only admitted vis-a-vis personal need that she is running another business in another premises whereas her son has admitted that he is running a business of Computer Sale and Service with his friend Ilyas Moosa. However, in my opinion these admissions are not sufficient to dispel the stand of the respondent and her son that they required the shops in question in good faith for their own personal bona fide need. A landlord/landlady has all the rights to open up any number of businesses in the premises belonging to them or for that matter elsewhere which is not questionable by the tenant except where mala fides can be established. Similarly, although in the previous round of litigation culminating in F.R.A. No,294 of 1991 before this Court, the matter was compromised upon the rent of the shops being increased and possession of an office above the shops handed over to the respondent, this in my view cannot fetter the rights of the respondent to seek eviction of the petitioner on the ground of personal need.
Such compromise cannot be interpreted so as to grant a lease in property to the petitioner. In any event as the compromise took place in 1992, it cannot be said that in 1998 when the rent case was filed the need of the landlady could not occur again. In this regard reference can be made to Allah Rakha v. Muhammad Shafi (supra). So also it would be seen that no question was asked of the respondent No,1 or her son in cross-examination whether the office premises given up by the petitioner earlier was sufficient for opening up a new business.
14. As to Mr. Faisal Arab's contention that in this regard the case of the petitioner would be in all norms with the facts in Latif Ahmed v. Farrukh Sultana (supra) where the Honourable Supreme Court had repelled the ground of personal bona fide on the ground that she had not disclosed the fact of previously obtaining vacant possession of two other shops, sufficient to say that such possession had been obtained immediately before filing of the rent case. In the present matter the office above the shops was handed over to the respondent in 1992 upon compromise of R.F.A.
No,294 of 1991. Similarly, I cannot also agree with learned counsel's proposition that the matter should be remanded to the learned Controller for the purpose of recording evidence on the issue whether the recently vacated flower shop are sufficient for the respondent's needs. This is for the simple reason that upon a perusal of the photographs of such shops, which are on the record, in my opinion, they can never be sufficient for a boutique or garment shop being too small in area.
Hence, no useful purpose would be served in remanding the matter.
15. In this view of the matter, I am of the opinion that the respondent has established her personal bona fide need and that of her son for the shops in question. Consequently, this petition is dismissed. The petitioner shall vacate the shops within three months from today and hand over vacant peaceful possession to the respondent.