' MUHAMMAD ATHAR SAEED, J.---By this constitutional petition, the petitioner/landlord has assailed the judgment, dated 30-1-2004 in F.R.A. No.42 of 2003 passed by learned District and Sessions Judge, Karachi (West), whereby the judgment of the learned Rent Controller-I, Karachi (West) in R.C. No.87 of 2002 was set aside and the appeal preferred by the respondents/tenants was allowed.
2. Brief facts of the case are that the petitioner filed an ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) before the Rent Controller against the respondents Nos. 1 and 2 on the grounds of subletting, addition and alternations in the subject premises, default in payment of rent and personal bona fide need. The learned Rent Controller decided the points of subletting and personal bona fide need in affirmative in favour of the petitioner while the points of addition and alterations in the subject premises and wilful default in payment of rent were answered in negative in favour of the respondents and accordingly the ejectment application filed by the petitioner was allowed and the respondents were directed to hand over the peaceful possession of the subject premises to the petitioner within sixty days.
3. The respondents preferred appeal under section 21(1) of the Ordinance, 1979 before the learned District Judge, Karachi (West). The learned District Judge vide impugned judgment, dated 30-1- 2004 allowed the appeal and reversed the findings of the learned Rent Controller as regards the point of subletting and personal bona fide need. While the points of additions and alterations in the subject premises and default in payment of rent were not challenged before the Appellate Court having already been decided in favour of respondents/tenants. The petitioner preferred this constitutional petitions against said judgment of the learned District Judge and prayed to set aside the same to restore the order of the learned Rent Controller.
4. I have heard Mr. K.B. Bhutto, Advocate for the petitioner and Mr. Khursheed Ahmed, Advocate for the respondents.
5. The learned counsel for petitioner challenged the findings given in the order of the learned District Judge, that the respondent had not sublet the shop in question and the tenancy rights of the shop was transferred by the respondent No.2 to respondent No.1 with the permission and consent of the petitioner. He further argued that there was no material before the learned District Judge to hold that the respondent No.1 before this Court had no sublet the shop in question to respondents Nos. 3 and 4.
6. The learned counsel submitted that the petitioner requires the shop in question for his personal bona fide need to establish and operate a hotel on the said premises. He said that the petitioner on the basis of evidence had established before the learned Rent Controller his personal bona fide requirement of the premises in question and there was no basis for the learned District Judge to reverse the finding of the learned Rent Controller on this point. Narrating the facts of the case he stated that he was serving in the former KMC as a low grade employee under the designation of Munshi, where he is drawing a monthly salary of approximately Rs.3000 which was not enough for his household expenses and therefore he wanted to establish the business of operating a hotel.
Although he candidly conceded that there was some other vacant shops available but he stressed that the shop in question was the best shop for the proposed business and therefore, he needed it for his bona fide personal business requirement. He said that on the basis of cogent evidence he had established his bona fide personal requirement and the order of the learned District Judge disbelieving his personal bona fide requirement was against the judgment of the superior Courts and could not be sustained. On this point he relied on the following case-laws: --
(1) Abdul Rashid v. Baboo through Legal Heirs (2002 SCM R 168), (2) Ishratullah Siddiqui, v. Alibhoy (1996 SCM R 1833),
(3) Shaikh Fazal Muhammad v. Shaikh Muhammad Shafi and 2 others (1983 CLC 261), (4)
Muhammad Sharif v. Nisar Ahmed and others (1988 SCM R 1587), (5) Sher Ahmed Jan v. Mst.
Zubeda Nasreen (1999 CLC 1113), (6) Muhammad Siddique v. Muhammad Shoaib (1986 SCM R 1207),
(7) Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCM R 593), (8) Haji Abdullah and 10 others v. Yahya Bakhtiar (PLD 2001 SC 158), (9) Muhammad Shoaib Alam and others v. Muhammad Iqbal (2000 SCM R 903), (10) Muhammad Fazil v. Sheikh Muhammad Yusuf, and another (1985 CLC 614), (11) Muhammad Musthaq Hussain v. Abdul Qadir Malbari (1985 CLC 2552), (12) Fazal Azim and another v. Tariq Mahmood and another (PLD 1982 Supreme Court 218) and (13) Hanif and others v.
Malik Ahmed Shah and another (2001 SCM R 577).
7. Mr. Khurshid Ahmed learned counsel for respondent stated that the petitioner had not approached the Rent Controller with clean hands and had concealed material facts. He drew my attention to the ejectment application filed before the learned Rent Controller to prove that the landlord had failed to mention in his ejectment application that he was serving as a Government Employee in former KMC and had cooked up the contention regarding subletting, unauthorized addition/alteration and had made wrong statement about his experience in the business. He stated that the landlord had granted permission and accepted the present respondent No.1 as the new tenant and this can be verified from the rent receipt issued by the petitioner in the name of respondent No.1 which proves that the landlord had accepted him as the tenant. He further submitted that respondents Nos. 3 and 4 before the Rent Controller were actually employees of respondent No. 1 and the petitioner had not brought any evidence on record to prove that the said shop. Had been subletted to therm and had produced no evidence of the rent paid by these sub- tenants. He took me through the reasons enumerated by the learned Rent Controller on this issue to prove that the finding given in favour of the petitioner by the Rent Controller was only to the extent that the present respondent No.2 had sublet the shop to the present respondent No.1 and no finding was given that the present respondent No.1 had subletted the shop to other persons and this finding was not challenged by the petitioner as no appeal has been filed by him before learned District Judge and therefore he cannot challenge this finding in constitutional petition before this Court. He said that since no finding had been given that the shop had been subletted to respondents Nos. 3 and 4 it was precisely for that reason that those respondents had not filed an appeal against the order of the learned Rent Controller before the learned District Judge.
8. On the point of bona fide personal requirement the learned counsel contended that the requirement for ejectment on the point of personal need are as follows:--
(1) Personal need must be genuine.
(2) Personal need must be supported by valid reasons.
(3) Mere ipsi dixit of the landlord that he requires the rented premises in good faith is not enough.
9. He said that if these three requirements are not fulfilled and it is not established that the need is bona fide the Court will not issue an ejectment order. In support of his contentions he relied on the following judgments:--
(1) Allied Bank of Pakistan Ltd. v. Abdul Majeed (deceased) through his Legal Heirs and 6 others (1985 CLC 1518), (2) Ahmed Khan v. Kasul Shah and others (PLD 1975 SC 311), (3) Attiya Badar v. Haji Munshi Khan (1994 CLC 1875), (4) Mst. Hameeda Begum and others v. Haji Abdul Ghani and another (1994 CLC 1882), (5) Muhammad Sanaullah v. Mehran Feed Industries Ltd. And another (1994 CLC 2141), (6) Messrs United Bank Ltd. v. Haji Abdul Razzak and Co. (1993 M LD 2575), (7) National Bank of Pakistan v. Shaukat Hussain (1993 M LD 2578), (8) Muhammad Aslam Khan v. State Life Insurance Corporation of Pakistan (1990 ALD 157(1) and (9) Niaz Ahmed v. A.A.I. Kizilbash (1990 ALD 578(1).
10. I have examined the case in the light of the arguments of the learned counsel, perused the impugned order and the judgments relied on by the learned counsel and also minutely examined the record of the case.
11. So far as the issue of subletting is concerned, Mr. K.B. Bhutto the learned counsel for the petitioner has candidly conceded that the transfer of tenancy rights of the subject shop from respondent No.2 to respondent No.1 had been accepted by the petitioner and he had issued rent receipts in the name of the tenant. He, however, vehemently stressed that the respondent No.1 had sublet the shop in questions to two persons, who were arrayed as respondents Nos. 3 and 4 in the ejectment application. In response to the Court's query that why these two persons were not arrayed as respondents in the present constitutional petition, he submitted that since these two persons had not filed appeal before District Judge against the order of the Rent Controller and were not mentioned as appellants in the appeal, therefore, they were not arrayed as respondents in the present constitutional petition. When he was asked to show from the order -of the learned Rent Controller that the learned Rent Controller had given a clear cut finding that the present respondent No.1 had sublet the subject shop to the persons arrayed as respondents Nos. 3 and 4 in the ejectment application filed before him, he drew my attention to the discussion on point No.1, which has been given on pages Nos. 8 to 11 of the order the Rent Controller. I have perused the entire discussion on this point and my conclusion is that although the learned Rent- Controller had given specific finding that the present respondent No. 2 had sublet the shop to present respondent No.1, but there were no finding to the effect that the present respondent No.1, has sublet the shop to two other persons arrayed as respondents Nos. 3 and 4 in the ejectment application and apparently for this reason, as rightly contended by the learned counsel for the respondent, these persons had not filed an appeal against the order of the Rent Controller before the District Judge. I am, therefore, of the opinion that the learned District and Sessions Judge has rightly held that the point of subletting has wrongly been adjudicated by the Rent Controller in favour of the present petitioner.
12. Now coming to the second grievance of the petitioner that the learned District Judge has without any material record reversed the finding of the Rent Controller given in favour of the present petitioner on the point of personal bona fide need, it would be pertinent to reproduce the reasons given by the learned District and Sessions Judge for reversing the finding of the Rent Controller:-- "On this point case of the respondent in rent application is that he is an educated person and wants to run hotel premises himself as the same is near to his resident. The contention of the appellants has been that the respondent is a permanent employee in KMC (city government) as a munshi and he has also 8/9 other shops in the same locality and that requirement of respondent is not in a good faith. The burden to prove this point lies upon the respondent that his requirement is in good faith bona fidely. It has been admitted by him cross-examination that he is serving in Land Department, KMC, on regular basis. As regards his experience he stated that his uncle is running a hotel as such he has experience in this business, however, he has not served at any hotel nor he has any experience in this business. Learned Rent Controller wrongly shifted the burden of this point upon the appellants holding that they have not produced any document to show that monthly salary of the respondent is Rs.5,000. It is an admitted position that the hotel premises is being run since 1969 when it was a Jhuggi Hotel and the appellants have established the same paying rent regularly with enhanced rate of rent from time to time whereas the respondent has no experience in hotel business . And he is permanent employee of local government so these circumstances do not crate any ground of requirement of hotel premises in good faith, therefore, I am not in agreement with findings of Rent Controller on this point."
13. I have carefully perused The above extract from the order of the learned District and Sessions Judge in the light of the averments made in the ejectment application and the judgments relied on by the learned counsel. It seems that the learned District and Sessions Judge based his order on the factual position that the petitioner had a regular job in KMC and had no experience of running of hotel and according to him, the Rent Controller had wrongly shifted the burden upon the present respondents by holding that he was drawing a monthly salary of Rs.5,000 per month. According to the learned District Judge these circumstances do not create any ground of requirement of hotel premises in good faith.
14. I have considered this finding of the learned District Judge in the light of judgments relied on by the learned counsel.
15. In the case of Fazal Azim and another v. Tariq Mahmood and another (PLD 1982 SC 218) relied on by the learned counsel for the petitioner, the Honourable Supreme Court held as under:-- "Although there were concurrent findings of fact by the learned Courts below on lack of bona fides regarding personal requirement of respondent No.1; yet after hearing the learned counsel, we find that there was misreading of evidence in this behalf. The High Court was thus justified in correcting the error so made by them. The admitted fact that respondent No.1 went abroad cannot by itself be considered as showing lack of bona fides. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time during the pendency of eviction proceedings. If during such a period he employs himself in a gainful occupation, that as a general proposition, should not negate the assertion of bona file on his part. In this case, the learned Courts below it seems misinterpreted the law, when raising a presumption in this behalf, against the landlord."
15. In the case of Muhammad Sharif v. Nisar Ahmad and others (1988 SCM R 1587) the Honourable Supreme Court refused leave by the following order:-- "The petitioner has been ordered to be evicted on the ground of personal requirement of the landlords.
' Learned counsel has raised three contentions; (i) that the respondents have other shops belonging to them. They, therefore, could have sought eviction of the petitioner on the ground of personal requirement, (ii) that it was not mentioned, in the application for eviction that the landlords had other shops; (iii) and that there is no assertion on their behalf that the other shops were not suitable for the expansion of their business.
' After hearing the learned counsel, we are satisfied that the defects in the pleadings of the parties or conduct of the lawyer at the time of examination and cross-examination of the witnesses would not make any difference insofar as the finding of fact regarding the bona fide personal requirement of the respondent is concerned. Leave to appeal accordingly is refused."
16. In the case of Ishtatullah Siddiqui v. Alibhoy (1996 SCM R 1833) the Honourable Supreme Court held as under:- "So far as the consideration to be had to the case of a tenant being uprooted from the business or being evicted from a shelter of residential premises, in case the landlord successfully proves his entitlement to the premises for his personal use or occupation under the provisions of section 15 of the Ordinance, all that can be said is that howsoever deep sympathies the Courts may have for the tenant in such a case, those cannot override the right of the landlord under the law, and it is to be remembered that if a party to a litigation in Court is to succeed, then opposite-party must fail and face the legal consequences. This aspect unfortunately escaped consideration of the High Court."
17. In the other cases relied on by the learned counsel for the petitioner the general consensus of the judicial authorities is that if the landlord makes averment in the plaint that he requires the property for bona fide personal use in good faith, the Court has to use its discretion in favour of the landlord unless mala fide intention is proved by the tenant to the satisfaction of the Court. So far the judgments relied on by the learned counsel for the respondent are concerned, he had relied on the two cases of this Court where the learned Single Judges of this Court had decided the case is favour of tenant on the failure of landlady to bona fide establish her demand for the premises.
However, in view of the judgments of Honourable Supreme Court relied on by the learned counsel for the petitioner the settled law, which as developed over the years, appears to be that where the landlord in good faith makes a statement that he needs the subject premises for his bona fides personal need, the Courts will accept the statement and order ejectment of the tenant.
18. In the present case the petitioner had stated in his ejectment application filed before the Rent Controller on the point of personal bona fide need, as under.
"(8) That the applicant who is a young educated person inherited with the experience of hotel business by his predecessor-in-title, is in acute need of the said premises, as the applicant in good faith and for his personal bona fide need/use, needs the said hotel premises for running the same to earn his livelihood, as the said hotel premises is best suited for the use and occupation of business of the applicant, as the said hotel premises is also near to the residence of the applicant, as such the Opponent No.1 is liable to be ejected along with the Opponents Nos. 2, 3 and 4 respectively, as the applicant is not in possession of any such hotel premises in the locality."
19. In my opinion the fact that lid is employed on low grade job in KMC or that he has no experience of running a hotel will not debar him from getting the ejectment in his favour if he bona fide wants to start the D operation of a hotel in the subject premises to better his financial conditions and future prospects. Though it is settled law that it is the landlord who can in his discretion decide that which premises is best for his personal need, but in this particular case the fact that the premises in question was being used as a hotel for more than thirty years establishes the claim of the landlord petitioner that this is the best premises to operate a hotel and, therefore, the presence of other vacant, shops will not prejudice his claim for the ejectment of the subject shop.
20. For the aforesaid reasons, this petition is allowed on the point of the learned District Judge on this point is set aside and the order of the the personal bona fide business need of the petitioner and the order of Rent Controller is restored. The respondent is given thirty days time to vacate the subject premises.
21. Before parting with this order it may be mentioned that this order is subject to the provisions of section 15-A of the Sindh Rented Premises Ordinance, 1979 and if the petitioner puts the subject premises to any other use other than his personal use within one year of acquiring possession, the respondent may apply to the Rent Controller for restoration of possession and the Rent Controller if satisfied that the condition of section 15-A has not been fulfilled should pass the restoration order and also levy fine in accordance with the provisions of sub-clause (1) of section 15-A of the Ordinance.
22. This petition is disposed of in the above terms.