ZIA PERWAZ, J.--- This petition is directed against the order dated 27-5-2002, passed by First Additional District Judge, Karachi South in First Rent Appeal No,210 of 2001, whereby the said appeal, filed by the petitioners against the order, 24-9-1989 passed by the learned First Rent Controller, Karachi South dismissing the ejectment application filed by the petitioners against for ejectment of their tenants, was dismissed.
2. The brief facts of the case are that father of the present petitioners, Samiullah, was the owner and landlord of the building on Plot No,RB-6/108, Arambagh Quarters, Arambagh Road, Karachi and the respondent No,2 (wrongly mentioned as respondent No,1 in the memo. of the petition) was his tenant in respect of Shops Nos,3 and 4, situated at ground floor of the said building at a monthly rent of Rs,126, excluding electricity and other charges. On 23-5-1974 the said Samiullah died, leaving behind his widow, Mst. Zohra Bi and the petitioners as his legal heirs and the owners and landlords of the said premises. On 16-3-1981, Mst. Zohra Bi, widow of late Samiullah, and the petitioners filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 against the respondents Nos,2 and 3 for their eviction from the said premises on the ground of subletting and personal bona fide need of the petitioner No,3. This ejectment application was dismissed by the learned First Rent Controller, Karachi South vide order, dated 1-4-1984 against which the petitioners filed F.R.A. No,499 of 1984 which was allowed vide judgment, dated 5-9-1986 and the case was remanded back to the learned First Rent Controller, Karachi South for deciding it afresh after allowing opportunity to both the parties to lead further evidence. On remand, both the parties adduced fresh evidence by filing affidavit-in-evidence of their respective witnesses who were also cross-examined and after hearing the arguments of the counsel for the parties, the learned First Additional District Judge, Karachi South, vide order dated 14-9-1989, was again pleased to dismiss the ejectment application of the petitioners. The petitioners, being aggrieved by and dissatisfied with the said order, filed F.R.A. No,677 of 1989 under section 21 of the Sindh Rented Premises Ordinance, 1979 which, by operation of law, was transferred to the District Judge, Karachi South, registered as F.R.A. No,210 of 2001. The learned First Additional District Judge, Karachi South, on transfer of the appeal, after hearing the parties, dismissed the said F.R.A. vide order, dated 27-5- 2005 which order has been impugned in this petition.
3. This petition was filed on two grounds, namely, sub-letting and personal bona fide requirement of the premises by petitioner No,3. However, at the very outset, the learned counsel for the petitioners dropped the ground of sub-letting and advanced his arguments only on the point of personal bona fide requirement of the petitioner No,3.
4. Mr. Mian Mushtaq Ahmed, learned counsel for the petitioners, has contended that the learned Appellate Court has exercised a jurisdiction which did not vest in him, that the learned Rent Controller as well as the learned Appellate Court had not considered the evidence on record, that the learned Appellate Court has recorded 'its finding against the settled principles of law, that the learned Courts below have seriously erred in partly considering the earlier cross-examination of the petitioner No,1, and has prayed for ejectment of the tenant.
5. On the other hand, Mr. Irfanullah, Advocate, for the respondents/tenants has opposed this petition and has fully supported the impugned judgment and has prayed for dismissal of the petition.
6. I have heard the learned counsel for the parties, have also gone through the judgments of the two Courts below and have perused the record.
7. As the learned counsel for the petitioner candidly stated that he will argue the petition only on the point of requirement of the premises in good faith by the applicants, and has dropped the ground of subletting, no finding is required on the Point No,1 above.
8, The learned Appellate Court, after narrating the evidence of the applicants on the point of personal bona fide need of the premises, decided the same in the following terms:-- "The evidence led by appellant in support of their contention is not proved and as such the same was not allowed by the trial Court. Since the finding on this issue has been given by the trial Court after due appreciation of evidence, therefore, I do not find any reason to interfere with the finding of the trial Court."
The learned Appellate Court, for the above reason, dismissed the F.R.A. and maintained the order of the learned Rent Controller.
9. The petitioners moved an application under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking eviction inter alia, on the ground of personal bona fide need of the premises. The relevant part of the section reads as under:-- "15. Application to Controller.
(1) not relevant.
(2) The 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---
(i) to (vi) not relevant....
(vii) The 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."
10. Therefore, in view of the above quoted provisions of section 15 of the Ordinance, the only condition that is to be satisfied by the landlord is that he requires the premises in good faith. This issue was discussed in the case of Akhtar Qureshi v. Nisar Ahmad 2000 SCM R 1292 and it was held as under:-- "The assertion or claim on oath by the landlady/landlord that she/he required the premises for her/his personal use, should be accepted by the Rent Controller as bona fide, if such claim, or assertion although by itself may not be sufficient, yet is consistent with his/her averments made in the application and are neither shaken in the cross-examination nor are disproved in rebuttal."
11. Paragraph 4 of the Rent Case filed by the petitioners reads as under:-- "4. That the premises in possession of the respondents was and is required by the applicants for the use of applicant No,(iv) who is also one of the shares of the building in question. At present, Mr. Mansoor Ahmed (applicant No,iv) is not in possession of any business accommodation. He wants to set up his independent business in the accommodation which is in possession of the respondents No,1 and/or their sub-tenant respondent No,2."
12. The assertion or claim on oath, as contemplated in the above quoted judgment in the case of Akhtar Qureshi, has been made by the applicants in the Rent Case. The applicant No,4, in his evidence, has stated that sufficient finance to start his business and has also completed training in optico. He has also stated that sufficient space is available on the first floor which was offered to the opponents but offer was declined. Witness Muhammad Ilyas, Managing Partner of Messrs Optico, who appeared on behalf of the applicants, also stated that the applicant No,4 has worked as trainee in the said firm from 1983 to 1986.
13. The grounds which weighed with the learned Rent Controller in dismissing the Rent Case were that the applicants have not disclosed the type of business applicant No,4 wants to start in the case premises, during the pendency of the suit he has received the possession of premises situated on the 1st floor and did not give any reasonable ground that how the premises on the first floor are not fit for the business and that when they received the possession of Shop No,6 on the ground floor of the same building, why the said applicant did not start his business therein.
14. So far as the observation of the learned Rent controller that "... why he did not start his business in Shop No,6 which is situated on the ground floor of the building" is concerned or the fitness or otherwise of the premises situated on the first floor are concerned, suffice it to say that it is well- settled law that if the landlord possesses more than one house/shop in the same area, the choice as to the house/shop which he would like to possess is surely a matter within his prerogative and discretion and the law does not give either to the tenant or the Rent Controller the power to determine which premises the landlord should personally use/reside. The question as to which portion/shop of the building would suit the landlords better must be left to the discretion of the landlord and there is nothing unreasonable if the landlords are insisting that a particular portion of the building should be made available to them. I am fortified in my view by the judgment in the case of Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394.
15. So far as the disclosure of type of business to be established in the case premises is concerned, it may be observed that there is no legal requirement that the landlord in seeking ejectment of the tenant from a shop on the ground of personal and bona tide requirement must disclose the nature of the business which he intended to start in the premises. Applicant No,4, Mansoor Ahmed, in paragraph 4 of his affidavit-in-evidence has stated that "These premises are required by me, bona fide and in good faith, for my personal use and occupation as I want to do my business therein. I want to establish and do the business of optical and other allied items such as cameras. I have undergone training for above three years with the reputed optician's firm known as "OPTICO" situated at Zaibunnisa Street Saddar, Karachi... I have sufficient funds to start my business therein".
He was cross-examined at length. Many suggestion, including that the certificate of training produced by him was false and was obtained from his relatives, were put to him but all were denied. No proof in rebuttal was adduced to show that the certificate was false.
16. In view of the above discussion, I am of the considered view that the two Courts below have erred in arriving at the conclusion that the applicants have not been able to prove their bona fide requirement of the premises in question and, therefore, set aside the impugned order, dated 27-5- 2002, passed by the learned Appellate Court, allow the Rent Case No,1307 of 1981, and direct the respondents/tenants to hand over vacant possession of the premises within three months from the date of this order. However, the parties be left to bear their own costs.