1. ' MUNIB AHMAD KHAN, J.---This constitutional petition has been filed against the judgment, dated 3-9-2007 passed in F.R.A. No.6 of 2006 whereby the appeal has been dismissed and judgment of the Rent Controller was upheld.
2. ' Brief facts of the case are that the respondent/landlord filed application under section 15 of the Sindh Rented Premises Ordinance, 1979, against the respondent for his eviction on the ground of default and personal need. The ground of default has not been accepted by the Rent Controller nor any appeal has been filed against that point while the issue of personal need has been decided in favour of the landlord by the Rent Controller and same finding has been accepted by the appellate Court, hence this writ petition.
3. ' Learned counsel for the petitioner has contended that the landlord has filed twelve separate applications for twelve tenements which are located in two groups and that since he has shown his need for all the shops therefore; he has to remove intervening walls between the shops hence this is a case for reconstruction and until permission is obtained from the concerned authorities the said shops cannot be utilized for personal need.
4. ' On the other hand the contention of the respondent/landlord is that he has taken plea of personal need and not of reconstruction and that since the shops arc very small divided by removal wall, therefore; he has planned to establish a Super Market in some shops, while Warehouse in other shops. He further submits that no permission for reconstruction is required as neither the applicant would be making any structural changes by removing any pillars or beams nor will rise any construction contrary to building laws but would be making internal changes to utilize the shops for his purpose.
5. ' Learned counsel for the petitioner, to force his arguments, has relied upon PLD 1987 SC 447, 1992 MLD 1574, 1985 SCMR 197, 1984 SCMR 710, 1986 SCMR 637 on the point that removal of the intervening wall amounts to reconstruction, therefore, until permission is sought from the concerned authorities it cannot be removed. He has further agitated that the said issue has not been decided by both the Tribunals, although it was urged.
6. ' On the other hand, learned counsel for the respondent has submitted that the applicants are in possession of the shop for the last more than 35 years as they were inducted around 1972 and now he has returned from abroad and being a qualified Engineer with sufficient funds has a plan in mind to establish a Super Market and Warehouse and that the premises is located in the area which is very much commercial and is suitable. He submits that the issue of reconstruction wan never raised and simply personal need was urged which has been decided by both the Tribunals through detailed orders after examining the evidence and that even one so called Architect was examined who could not support his qualification, experience or to justify that the building is old one and removal of the wall will cause demolition of the building. He submits that the construction is on pillars and beams while intervening walls is with red bricks and its removal will not cause any harm. He further submits that even otherwise that is not the issue as the shops have been required for personal need and the respondent undertakes to use the same for said purpose and if there is a violation on his part then the law itself has provided a penalty clause in the shape of section 15-A Sindh Rented Premises Ordinance, 1979. He has relied upon PLD 2004 Karachi 48, 2005 CLC 48, 2003 CLC 96, 2002 SCMR 1320, PLD 2001 SC 1123, 2001 CLC 1641, PLD 2003 Karachi 34 and 2001 SCMR 1197.
7. ' After hearing the learned counsel, I have observed from the record that in the Rent Application the applicant has urged in para.4 as under:--
4. "That the applicant requires the said shop for his personal bona fide use and occupation in good faith inasmuch as he wants to establish his own business of super store in the said shop by amalgamating the same with his other shops adjoining to it by removing the intervening walls."
8. ' In para. 5 of the application he has pointed out that for other. Shops he has also filed application and in para. 6 he has stated that he is jobless and is not in possession of any other premises, which is suitable for his need. This requirement of the landlord is denied by the tenant by stating that he cannot utilize the shops without removing the intervening wall which will amount to reconstruction.
9. The map is available at page 137 which shows that the shops are in two clusters one in 7 numbers and second in 5 numbers. The respondent's counsel has pointed out that one portion is to be utilized for super market while the other for Warehouse. The location of the shops shows that they are in the vicinity of other shops and on two sides of them there is a road while both the parties have admitted that it is a very busy commercial area. The Rent Controller has taken personal need as point No.2 in the following way:-- "Whether the applicant requires premises in question bona fidely for establishing Super Store and Warehouse?
10. ' The said issue after detailed inquiry of both the parties has been decided in favour of the landlord in the following words:-- ' I have gone through the aforesaid law cited by the applicant's counsel which are applied on the case in his, whereas learned counsel for opponent during the course of his arguments has stated that since no approved plan has been produced by the applicant to establish reconstruction and the construction being old one is in dilapidated condition, as such no shops can be amalgamated have no force, as it is neither the case of the reconstruction nor of dilapidated condition of the building. On the contrary the applicant intends to amalgamate the shops and to establish Super Store for the said purposes, he requires the shop in question, even it is for the competent authority to see at the time of amalgamation or any alternation and addition if being made by the applicant for his requirement is feasible. The Sindh Rented Premises Ordinance, 1979 itself put of penal clause upon the owner/landlord if after allowing the ejectment application on the ground on which basis he has sought is not used the premises then the tenant has a right to come before the Court against the landlord seeking the restoration of the possession and at this stage the applicant/landlord cannot be deprived for using of his own premises on apprehension or presumption. Opponent in his cross-examination has admitted that presently existing structure is found which consists the columns and beams, however, opponent also have shown ignorance about the security deposit paid to the father of applicant. He admitted that the shop in question is situated in commercial area. I have also gone through having referred summary of section 15 of the Sindh Rented Premises Ordinance, 1979, and have relied upon PLD 1986 SC 171, and 1984 CLC 1, and have no hesitation to say that the said citations are not applicable in the case in hand.
11. Consequently point relied in affirmative."
12. ' The Additional District Judge in appeal examined the issue in much detail in the following words:-- "The perusal of the evidence on this point would itself show that applicant/respondent in his application under section 15 of Sindh Rented Premises Ordinance, 1979 has set forth his personal requirement of shop in para. No.4 which is consistent with his affidavit in evidence on oath wherein also he has set forth with his personal requirement of shop in paras. Nos.3 and 4 and his personal requirement is not shaken in his cross-examination. It is established law that when applicant/landlord set forth his personal requirement in the application under section 15 of the Sindh Rented Premises Ordinance, 1979 and repeat the same on oath of his affidavit in evidence which is not shaken in the cross-examination the onus is shifted upon the opponent/tenant to prove the mala fide of the landlord by cogent evidence and in the present case it is clear from the evidence of the parties that the opponent has failed to produce any cogent evidence to prove the mala fide of the respondent/landlord. The arguments of learned counsel for the appellant that shops in question are not adjoining to each other, they are small in size, that the shops cannot be joined by removing intervening walls in between them and cannot be made one unit without demolishing the existing structure and without reconstruction are immaterial as in the case of Mrs. Salma Haq v. Mir Muhammad Abdul Haq Awan reported in 2003 CLC 96 (Karachi), his lordship Mr. Justice Mujeebullah Siddiqi (as then his lordship was) has laid down that it is prerogative of landlord to determine his personal bona fide requirement and it is not for the tenant to determine as to what is a suitable and reasonable for landlord. His lordship went on to observe that mare getting evaluated premises from an Architect would not disentitle landlord from obtaining ejectment from the premises. Likewise in the case of Iqbal Book Depot and others v. Khateeb Ahmed and 6 others reported in 2001 SCMR 1197 (Appellate Jurisdiction). Honourable Division Bench of Supreme Court has laid down that it is discretion of the landlord whether entire building would be needed or part of it, the landlord alone has authority to decide this aspect of the matter and not advise or suggestion can be made binding upon him as tenants cannot act as gratuitous advisors.
13. There is no force in the arguments of the learned counsel for the appellant that the landlord has no approved plan is with him as I am afraid the landlord has not filed the ejectment application on the ground of reconstruction. In these circumstances, I can do nothing but to maintain the findings of learned Trial Court on this point I therefore, decide this point in affirmative."
14. I have myself considered the matter as well as authorities cited and is of the opinion that the contention of the petitioner cannot be appreciated as the point of reconstruction and personal need cannot be taken together as they are destructive to each other as either the applicant will reconstruct or will occupy the shop. Here in the matter the building is already over the shop and it is some sort of market. It has come on record through the evidence that the outer boundary wall of the shops or their covered area is not going to be increased or decreased but simply intervening walls are to be removed which cannot be termed as reconstruction and even if any permission is required from building authority then the permission can be sought but since the building is on pillars and beams as urged by the learned counsel, therefore, removal of intervening walls does not fall within the meaning of reconstruction but at the most, from the point of view of the landlord, it would be an improvement. The authorities cited by the learned counsel for the applicant have no force as all the issues have been decided by both the Tribunals while the issue of reconstruction has unnecessarily been agitated by the tenant to complicate the issue. The authorities cited by the learned counsel for the respondent go in favour of the personal need of the respondent, therefore, in the light of such authorities I do not find it proper to restrain the landlord from occupying his own premises for his own purpose which he has demanded after 35 years while there is no mala fide shown on his part in any respect including availability of the finance or mental ability as he is Engineer and returned from Middle East after a long period. It is further to be added that the plea of the appellant that the shops will be given on more rent to other tenants is no ground keeping in view the restriction already imposed by virtue of section 15-A of the Sindh Rented Premises Ordinance, 1979 which provide a remedy to a tenant in case the landlord re-let the premises within a period of one year.
15. ' In the above situation I do not find any force in this petition, hence same is dismissed along with listed application.
16. As a rule in general, contracting parties are bound to their contract and if they failed to adhere then the Courts have to enforce after their jurisdiction is invoked. Likewise tenancy being based on contract mentioning therein certain terms and conditions including the specifications of the premises, quantum of rent and the lease period etc. But in presence of an Ordinance governing the tenancy, the terms under the contract agreed upon or in the matter of tenancy which have been continued after the expiry of tenancy agreement, are being governed under the tenancy Ordinance which provides that the eviction of a tenant is to be governed under the said Ordinance.
17. The said Ordinance provides different grounds for eviction including default in payment of rent, subletting, nuisance, impairment in the value of the property by alteration etc. And personal need.
18. All these issues except the personal need can be adjudged and controverted through material evidence and with the assistance of witnesses but as far as the ground of personal need is concerned it is squarely based upon the requirement of landlord which requirement much differs from person to person and that can be based on the standard of living, mental approach, location of the premises and its vicinity as well as some very personal problems of a landlord, therefore, for the purpose of personal need, Courts have to rely on the assertion of the landlord supported on oath and by other evidence he intends to bring and until it is patently defended on mala fide and same is established, the Rent Controller has to rely upon the assertion of landlord on his plea for personal need and same is to be accepted. Because of that aspect of personal need rent laws itself has provided section 15-A Sindh Rented Premises Ordinance, 1979 to check the need of the landlord so even if there is mala fide that could be checked to some extent. It further can be noticed that the rent matters remain pending for a longer period and crosses the barriers of Rent Controller and FRA and thereafter lend on constitutional jurisdiction consuming thereby much time, therefore, if an application has been moved for eviction, which include personal need, then the tenant, during longer period of proceedings should be ready to accommodate himself and if he suspect the intention of landlord then he should wait for the time to move application under section 15-A SRPO bringing thereby on record that the landlord has violated his assertion by giving the premises to another tenant. The matter in hand was initiated some 5 years before but still the tenant has not adjusted rather has asserted with proud that he is a tenant for the last 35 years and declined to vacate but that contention has no force as the premises is required for personal need.
19. ' The execution which was stayed by this Court may proceed in accordance with law.