' RANA BHAGWANDAS, J.--- Petitioner is aggrieved by judgment of the Sindh High Court, dated 23- 10-2003 in constitutional petition filed by her calling into question the concurrent findings of fact arrived at by the Rent Controller, Karachi-South and an Additional District Judge, Karachi-south in ejectment proceedings initiated by her for eviction of the respondent-company on the ground of personal requirement in good faith for the use and occupation of her two sons. Her prayer for eviction was declined by the forums below under the provisions of sections 15 and 21 respectively of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). On its part, an Honourable Judge of the High Court declined to exercise constitutional jurisdiction in her favor and upheld the findings of fact.
2. Petitioner is admittedly the owner/landlady of the demised premises let out on rent to respondents in the year 1957. In the year 1982 a shop on the ground floor of the building measuring 4 x 18 square feet was vacated by another tenant, which was also let out to the respondent on same terms and conditions for amalgamation with the existing premises. The rate of rent was, thus, raised to Rs,1,400 per month for entire ground floor admeasuring about 3000 square feet. The parties mutually agreed not to increase the rent for a period of five years i,e, upto 31-12-1987.
Petitioner complained that, when called upon to increase the rent as agreed, the respondents not only refused to raise the rate of rent but also threatened her of dire consequences and stopped payment of rent. She termed the act of sending rent for the month of January, 1989 by money order at incorrect address with a view to create harassment for the petitioner. It is her case that her sons had acquired rented premises in the year 1999 on third floor of a building situated in Block-E, North Nazimabad on a rent of Rs,12,100 with an area admeasuring 1700 square feet. Her sons had established and were running Cybergen System, Computer Learning Institute, Cyber Cafe and Software Consulting Services in the aforesaid rented premises. She urged that she was in genuine need of the demised premises for bona fide use of her sons Fakhuruddin and Shabir, who, having started their own business in rented premises in North Nazimabad, wanted to shift the Computer Institute to the premises situated in the heart of the city, which would be more profitable and most suitable place for establishing a computer institute. She highlighted her case by pointing out that the demised premises are situated within the vicinity of Government Commerce Colleges, S.M. Law College, D.J. Science College, many Government and private schools, five star hotels, offices of national and multi-national companies, insurance companies and markets.
3. Respondent-company seriously resisted the eviction petition and filed joint written statement spread over 26 pages. The crux of their defence appears to be that they are running their printing business in the demised premises for the last about half century and that the petitioner's business was located in a vicinity, which was most suited and profitable for cyber net system and computer literacy education, as the vicinity, in which they had established their business, had developed into a mini computer city. Essentially, the respondents attempted to say that the proposed shifting of the business of the petitioner's sons was neither bona fide nor reasonable and intended only to uproot them and to destroy their fully established business.
4. Both the parties adduced evidence. On consideration, Rent Controller, by his judgment dated 29- 5-2002, dismissed the petitioner's plea for eviction. Appeals before the Appellate Authority comprising an Additional District Judge met the same fate vide judgment, dated 7-11-2002.
Concurrent findings were assailed through a writ petition before the High Court of Sindh as being without lawful authority and of no legal effect but without any success, leading to the present petition for leave to appeal.
5. Pursuant to notice, Mr. Mushtaq Ahmad Memon, learned Advocate Supreme Court has entered appearance on behalf of the respondent-company whereas Mr. Naraindas C. Motiani has advanced his arguments in support of the petition. It was vehemently contended by petitioner that the forums below under the Ordinance miserably failed to properly appreciate the spirit and scope of personal bona fide requirement of the landlady for the use of her children and proceeded to determin the suitability of the premises for shifting of the Cyber Gen System business and establishment of a computer literacy education centre at Haqani Chowk, which is surrounded by printing presses and paper mart activities. Learned counsel agitated that it was none of the business of the Controller or the appellate forum to embark upon the question of suitability of the premises for starting computer net business and establishment of a computer literacy centre as no unreasonable restriction could be placed on the right of the landlady to enjoy the fruits of her property according to her own choice and freedom. Justification for shifting of the business on the part of the landlady and her sons was projected and highlighted by pointing out the existence of various colleges and educational institutions in the fields of Science, Commerce and Law as well as the presence of various national and multi-national banks, insurance companies and limited companies in the proximity of the demised premises. Reference was also made to a letter from British Council, Karachi declining affiliation of the Computer Centre established by the petitioner's sons on account of insufficiency and inadequacy of the layout of the building and class rooms as well as the lack of resource facilities offered to the students in the presently rented premises.
Aforesaid letter, inter alia, pointed out that the current atmosphere did not reach the standard that was expected of Cambridge Registered Institute. Another circumstance, to which our attention has been drawn by petitioner relates to area presently in occupation of the petitioner being 1700 square feet on 3rd floor of a building at a rent of more than Rs,17,000 per month whereas the area of the demised premises is admittedly 3000 square feet on the ground floor situated at a Chowk on payment of Rs,1400 only by way of rent. Learned counsel also urged that present tenancy in favor of the petitioner's sons is for a period of three years and, though there is no immediate threat of eviction, in all reasonableness, petitioner cannot be deprived of the use of her own property as any clog on the exercise of right to enjoy the freedom of trade and business and acquisition of property would be in violation of the constitutional mandate guaranteed by Articles 18 and 23 of the Constitution. Reliance is placed on Imran Ahmad v. Noor Ahmad 1992 SCM R 1152.
6. Conversely, Mr. Mushtaq Ahmed Memon, learned Advocate Supreme Court for the respondent was at pains to persuade us by pointing out the evidence of petitioner Mst. Shirin Bai and her son Shabir Ahmed to suggest that it was only 1-1/2 years before eviction proceedings that the petitioner's sons had chosen to start Cybergen System business at Haideri Market on their own volition. Inference drawn by the learned counsel from the evidence of landlady as well as her son appeared to be that there has been smooth sailing in the present state of affairs of the business conducted by petitioner's sons, thus, there was absolutely no justification for shifting of a well- established and profitable business from North Nazimabad to a congested locality like Haqani Chowk. Learned counsel defended the impugned judgment and supported the view of the High Court in not interfering with the concurrent findings of fact. According to Mr. Memon, there are no compelling reasons for shifting of the business of the petitioner's sons from rented premises in North Nazimabad to Haqmi Chowk. In this behalf, he relied upon F.K. Irani & Co. v. Begum Feroze 1996 SCM R 1178 and Iqbal Book Depot v. Khatib Ahmed 2001 SCM R 1197 and an unreported judgment of a Bench of this Court refusing leave to appeal to which one of us (Rana Bhagwandas, J.), was a party in C.P. No,208/Q of 2003, decided on 12-7-2005.
7. Section 15(2)(vii) of the Ordinance providing for ejectment of a tenant, inter alia, lays down that the Rent Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children.
8. "Good faith" means an honest act. Honesty is a state of mind and is capable of proof or disproof only by evidence of conduct. If requirement of landlord is found to be genuine, Rent Controller is bound to order eviction of tenant notwithstanding the fact that he had also made a demand for enhancement of rent or any other demand from the tenant.
' The expression "good faith" is abstract term not capable of any rigid definition. The ordinary dictionary meaning of the expression "good faith" is honesty of intention and, therefore, what is required under clause (vii) of subsection (2) of section 15 of the Ordinance is that the landlord should have a genuine need of the premises, which should certainly be more than a mere wish or desire. The expression "good faith" has been used in the Ordinance purposely meaning an act performed honestly without fraud, collusion or participation in wrong doing. The words "desire" or "need" have not been used, which would negate the two extreme views which are pleaded in cases of this nature. The expression "good faith" employed in clause (vii) must be interpreted in the light of definition thereof as embodied in section 2(28) of the West 'Pakistan General Clauses Act, 1956, which provides, that "a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not". Strictly speaking it means honesty and when a person is in occupation of another premises, generally speaking he cannot be said to be acting honestly when he asks for another premises unless the premises in his occupation is not sufficient for his need. Mere whim or fancy, wish or convenience of the landlord should not be adequate to demonstrate that the landlord requires the premises in "good faith". He must plead and prove his requirement by sufficient and satisfactory evidence inspiring confidence. It is a state of mind, which may be inferred from circumstances attending to each case and Courts ordinarily accept requirement of landlord without imputing bad faith unless strong circumstances indicate to the contrary. Right of landlord to claim possession from a tenant is regulated by Rent Controller only to the extent to examine whether the request of landlord for possession is inspired with "good faith", or is frivolous or mala fide. Sufficiency or insufficiency of accommodation available with a landlord is a matter of individual taste and discretion with which neither Controller nor the Appellate Authority would ordinarily interfere. All that Controller has to see or the Appellate Authority has to examine is whether the landlord requires the premises in "good faith" for his own occupation or use or for occupation or use of his spouse or any of his children. Expression "require the premises in good faith" cannot be confined to precise, identical and invariable definition nor can any hard and fast rule be propounded as to encompass all possible eventualities which could arise due to particular facts and circumstances of a case. Bona fide requirement cannot be turned down simply on assumption of tenant that proposed business could not be carried out profitably in the tenanted premises. Even otherwise, it is a fundamental right of landlord to shift his business or to change its nature so long it remains lawful and not against the public interest. "Good faith" means bona fide, which would show reasonableness of requirement of landlord whereas mala fide would mean that case has been brought with some ulterior or collateral purpose. Where a landlord wants to carry on his business in his own premises, instead of rented accommodation, to deprive him of the use and enjoyment of his property would be against all canons of justice unless he is expressly prevented by law from carrying on such business or there are circumstances to reflect that his need is not bona fide. Once a landlord has elected to live in his own house or start a business in the premises earlier let out on rent, his demand for eviction of the tenant would be presumed to be bona fide and founded on "good faith" unless mala fide is alleged and proved by the tenant. Suitability of requirement of landlord to commence a lawful business in the premises in dispute can by no stretch of imagination be said to be mere desire rather than bona fide need. In law a landlord is required to discharge his onus and to satisfy the conscience of the Controller that his requirement is based on "good faith" and is bona fide. Once a landlord is able to satisfy the Controller about the truth and genuineness of his requirement, the latter is left with no discretion but to order ejectment of a tenant irrespective of the fact that it would result in uprooting its long standing trade or business. In Iqbal Book Depot (supra), it was, inter alia, held that where the statement on oath was quite consistent with the averments of the landlord in the ejectment application and the same had neither been shaken nor anything had been brought in evidence to contradict the statement, such statement on oath would be considered sufficient for acceptance of the ejectment application. It was also observed that "good faith" of landlord being a question of fact, finding on the issue could not be taken exception to unless it was shown that finding suffered from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. Likewise in F.K. Irani & Co. (supra) statement of law was reiterated to the effect that suitability of opening a departmental store by landlord, in any one of the available premises, entirely depends upon the choice of the landlord. It was cautioned that such need and choice, however, should be real, genuine and not tainted with mala fide. In Muhammad Bashir v.
Sakhawat Hussain 1991 SCM R 846, it was observed that there appears to be no legal impediment in the way of landlord if he wanted to start business in the demised premises in spite of the fact that he is a rich man and has no children. Sajjad Ali Shah, J. (as his Lordship then was) remarked that the landlord can do whatever he liked with his property and if the interest of the tenant was involved because property of landlord was rented out to him, then his rights are protected under the law. If landlord did not contravene the provision of rent law, which allows him the relief, it would not be open to the tenant and even for that matter to the Court to make a comment as to what landlord should do or should not do. In Imran Ahmed ',supra), right of the landlord to seek eviction of his tenant on the ground of personal requirement in good faith for his own use or for the use of his spouse or children was fully recognized by this Court without any unreasonable restriction. In Jehangir Rustam Kakalia v. Haswa ni Sales and Services (Pvt.) Limited 2002 SCM R 241, this Court candidly held that a landlord of the demised premises cannot be deprived of his right and interest to use his property in a manner more suited to his requirement. It was expressly laid down that no unreasonable restriction can be placed on the exercise of such right, which would offend the fundamental rights guaranteed under Article 23 of the Constitution.
9. Having considered the case of the parties from every angle in the light of the submissions advanced at the Bar and the legal position, which has emerged in the facts and circumstances of the case, we are inclined to observe that the view formed by the Rent Controller and endorsed by the Appellate Authority on the face of record, appears to be hyper-technical, too narrow and not in consonance with the spirit and object of law. Even if the argument of the respondents to the effect that presently sons of the petitioner are running their business smoothly and in a profitable manner is considered, it would not deprive them of their intention to shift the same to the premises owned by them and start the same business in a locality of their own choice. In our opinion, it is not for the Controller or the Appellate Authority or the tenant to determine the suitability and fitness of the location of the business which the petitioner's sons intend to establish as they cannot be deprived of their right to deal with their property in a manner suited to their circumstances. It is not at all necessary for them to demonstrate compelling circumstances for shifting of their existing business as agitated on behalf of the respondents. At any event, it is not shown that their demand is motivated by any ulterior factor or suffers from lack of bona fides. Whether it is a reasonable and fair demand or not, should be judged from the view point of the landlord rather than the tenant, who is already enjoying the fruits of the property for almost five decades. Refer Taj Muhammad Abasi v. Feroze Sons (Pvt.) Limited, Rawalpindi 1996 SCM R 97. It will be advantageous to refer to the case of Abdul Jabbar v. Sharafat Khan 1997 M LD 2813, decided by the Sindh High Court as the facts of the decided case are quite analogous and similar to the facts of the case in hand. The facts of the cited case were that the landlord filed a case against the tenant on the ground that the property was required by him for his personal bona fide use as he wanted to shift his business which he was carrying on in a shop owned by his wife. The eviction application was allowed and the tenant was ordered to be ejected as all the forums upto the level of the High Court found that notwithstanding the fact that the landlord carrying on business in the shop owned by his wife was entitled to possession of his shop as he wanted to shift his business to his own shop. The case in hand is on a stronger footing than the cited case, as in the precedent case the husband was not burdened with the payment of rent because the shop was owned by his wife whereas in the case in hand the sons of the landlady are paying more than Rs,17,000 as rent of the premises in their occupation as against the sum of Rs,1400 received by them as rent of the demised premises. By shifting their business to the demised premises the respondent would be making a saving of about Rs,16,000 per month, which is a circumstance requiring serious consideration. Reference may also be made to Muhammad Aziz v. Mst. Asmat Begum PLD 2000 Kar. 41 with close similarity and resemblance of the facts and circumstances of the case in hand. In this case ejectment was sought by the landlady on the ground that the premises were required by her for use of her son who was running business in the rented shop and wanted to shift his business to the shop of his mother which was rented out by her. The mother's ejectment application was allowed and ordering eviction of tenant to enable the son of the landlady to shift his business therein from the shop which he had acquired on rent.
10. The respondents cannot be permitted to say that their long standing established business would be uprooted on account of their ejectment but the fact remains that for rehabilitating a landlord, the tenant must make a room for the owner and find out an alternate accommodation. In case the respondents have enjoyed tenancy rights for almost fifty years, they cannot claim a lifelong tenancy rights in the demised property. Refer Muhammad Naseem Khan v. United Bank Limited PLD 2002 SC 753.
11. For the aforesaid facts, circumstances and reasons, we hold that the view taken by the forums below as well as the High Court is not in accordance with the law declared by this Court from time to time. In case the impugned judgments are allowed to remain in the field, it will unsettle the well- settled legal position. Consequently, we convert this petition into appeal and, on acceptance, set aside the impugned judgments of the forums below as well as that of the High Court, which do not conform to the requirements of the settled principles of law for allowing ejectment on the ground of personal requirement of landlord. We, however, grant a period of two years for vacating the premises in order to enable the respondents to find out an alternate accommodation with a view to continue their business, subject to payment of usual rent and other charges as before. No order as to costs.