'SHAHID ANWAR BAJWA, J.--By this judgment I propose to decide C.Ps Nos.S-423, 424 and 376 of 2007.
2. The facts relevant to C.P. No,S-423 of 2007 are that property involved in this petition is Shop No,2 in Property No,677, Block-I, Shah Faisal Colony, Karachi. On 11-12-2000 ejectment application was filed by the present private respondent (hereinafter referred to as "landlord"). It was stated in the ejectment application that said premises consisted of six shops, three facing main road and other three facing side street. Out of six shops. Shop No,2 was rented out to the present petitioner (hereinafter referred to as "tenant"). In the ejectment application bona fide personal need of landlord was pleaded. Relevant para.9 is in the following words:-- 'That the applicant has a very meagre income from his business of general merchandise hence facing hard to survive amidst present tough time; and especially when the jobs have become scarce for the young ones with the result the sons of the applicant are remained unemployed despite their hectic search for jobs. The applicant has, therefore, decided to engage his sons in some small business within his own shops. For that the applicant requires Shop No,2 in possession/occupation of the opponent for the use of his son Muhammad Akbar in good faith."
3. Property was originally owned by one Zakir Ali who had let it out to the tenant. Zakir Ali died and his legal heirs sold the property to one Muhammad Asghar on 20-9-1990. Said Asghar after purchasing the same sent notice under section 18 of the Sindh Rented Premises Ordinance, 1979 on 14-10-1990. Consequently, tenants started paying rent to Asghar. Thereafter on 22-6-2000 Asghar gifted the property to his father the present private respondent (landlord) and consequently notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was sent by landlord to the tenant.
After recording the evidence Rent Controller vide order dated 11-7-2003 dismissed the ejectment application.
4. Being aggrieved by the order appeal was filed in the appellant Court and appellate Court vide its order dated 31-7-2007 accepted the appeal and ordered ejectment of tenant. Consequently, constitutional petition was filed. In the other two petitions, landlord is the same and tenants are for different shops.
5. Mr. Shahanshah Hussain and Mr. Muhammad Azhar Fareedi who are appearing for the petitioners made the following submissions:--
(i) Notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was sent by the landlord to tenant and in the notice no mention whatsoever was made regarding personal need of the landlord. Learned counsel submitted that notice was issued on 25-8-2000 and within four months of it ejectment application was filed. He has relied upon Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 to contend that ejectment application was filed on mala fide ground.
(ii) Landlord in his evidence stated that his son Muhammad Akbar was running chiken business and landlord had no concern with that business.
(iii) Learned counsel also pointed out from cross-examination of landlord where landlord admitted that there were four shops on the main road out of them one was in possession of his son Muhammad Akbar who was running chicken business. Learned counsel contrasted it with para 1 of the plaint where it had been stated that there were three shops on the main road.
(iv) Learned counsel referred to cross-examination of plaintiff where he stated that he was running business under the name and style "Qadir General Store at 5/50 Shah Faisal Colony Karachi. It was further stated by the landlord that Property No,5/50 is of same size as the property-in-question. He also stated that Property No,5/50 did not belong to him but belonged to his grandmother and his brother is also in occupation of the same. He further stated that grandmother died about 40 years ago and his brothers are co-sharers in that property. He also admitted that Property No,5/56-B is his property but it is in name of his son Muhammad Akram.
(v) That it was duty of landlord to show that the property in his occupation in the same area is not suitable for his requirements when compared with other premises available to him. He referred to the cross-examination where landlord admitted that he had given one shop to Babo Sabziwala and was all along able to get back that shop whenever he wanted. Learned counsel relied upon Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197, Allied Book Corporation through L.Rs, v. Sultan Ahmed and others 2006 SCMR 152 and Latif Ahmed v. Mst. Farrukh Sultan 1996 SCMR 1233.
(vi) That conclusion recorded by the appellate Court in Paras 7 and 8 of its judgment are contrary to established law.
(vii) That there has been gross misreading of evidence by learned appellate Court below and therefore writ petition would be maintainable. Learned counsel referred to Allies Book Corporation's case in support of his contention.
(viii) Learned counsel referred to agreement available at page 51 which agreement was signed by said Zakir Ali in 1983 wherein right was given to tenant to sublet the premises. Learned counsel submitted that it is available in law for the landlord to give such right of subletting to the tenant and in respect of his contention he relied upon Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Limited 1992 SCMR 943. Learned counsel submitted that in presence of such right having been given by landlord to the tenant it is not available to landlord to file application for ejectment on ground of personal need. Learned counsel referred to evidence of one Syed Muhammad Ali produced by the tenant in Court below. Said Syed Muhammad Ali is son of Zakir Ali who was original owner who had let out the shop in first phase. Muhammad Ali stated that the property was worth of Rs,15,00,000 but it was sold for Rs,1,90,000 because they had received Pagri amount/deposit from the tenant. He further stated that property was in dilapidated condition and construction was raised by the tenant.
6. In C.P. Nc .S-424/2007 landlord is the same, property is the adjacent shop. There is no element of construction involved. Para 9 is identical, except name of son for whose need the premises is being sought to be vacated is Muhammad Akram and in his cross-examination landlord stated that Muhammad Akram is a student of B-Com Part I and he wants to continue his studies and his father landlord agreed with him. He also stated that there were no adverse circumstances for his son to discontinue his studies. As far as C.P.No S-376/2007 is concerned, only difference is name of third son for whom proposed property is being sought was Muhammad Aslam. Landlord in cross- examination regarding Muhammad Aslam stated that Muhammad Aslam is aged about 18 years and he had appeared in matriculation examination but unfortunately failed. Landlord further stated that he was determined that his son would continue his education to the extent he might like. It was further stated by him that Muhammad Aslam besides his studies also worked with his brother Muhammad Asghar.
7. Learned counsel for private respondent filed written arguments and in his written arguments his main contention was that it is for the landlord to decide what would be the most suitable property for his need and tenant cannot be given right of veto over decision of landlord. A number of case- laws was cited to which one shall refer in due course.
8. I have considered contentions of the learned counsel. I have also gone through the written arguments as well case-law cited by the learned counsel and material available on record.
9. What prevailed with the appellate Court is as under: "So far the claim of the tenant that he has other properties, it is settled law that in personal bona fide need of landlord, which pertains of the premises is required by landlord, has to be let to discretion of landlord who alone has the authority to decide such aspect of the matter. No advice/suggestion can be made binding upon the landlord. In this respect I rely upon 2001 SGMR 1198. In respect of claim items applicant sum of was not upon (sic) I relied upon 1981 SCMR page 985 produced by the Advocate for the applicant.
820 'That opponent claims that the applicant has many other premises in his possession where he is doing the business with the help of his son, it is time honour principle of law that on the ground of personal bona fide need the case of the landlord stands proved if (i) his statement, in the pleading is consistent with his evidence (ii) his testimony has not been rebutted in the evidence of the tenant, which saying so, I am guided by case- laws reported in 1984 CLC 2427, 1993 CLC 2380, 1989 CLC 247. In the light above scale of law laid down by the superior Courts, I have carefully examined the pleading and evidence of the parties. Although a lengthy cross- examination was conducted by the leamed counsel for the opponent upon the applicant, yet applicant stood test in his own version and his testimony was not shaken. I also rely upon 2004 MLD 587 wherein the Honourable Chief Justice Mr. Sabihuddin Ahmed held that Bona fide need of landlord mere statement of the land to the effect that he needed premises in question for his personal need, would be sufficient proof of personal need of landlord."
10. In the legal notice served by landlord after property was gifted to him by his son landlord did not make any statement regarding his personal need. Learned counsel for petitioner emphasized that this omission established mala fide on the part landlord. In this connection he relied on upon Muhammad Hafeez's case. In that statutory notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was sent on 18-7-2007. While factum of the acquisition of property was disclosed in the notice calling upon tenant to pay rent to new landlord, new landlord did not disclose his desire for personal need. The Honourable Supreme Court held as under:- "There is yet another aspect of the case, in the statutory notice under section 18 of the Ordinance sent on 18-7-2000 the petitioners while disclosing the factum of acquisition of proprietary rights calling upon the respondent to pay the rent to them did not disclose their desire for their ejectment default on his part. Strictly speaking this may not be requirement of law but in order to demonstrate good faith and bona fide it would be appreciated if the landlord comes out with his true intention while calling upon the tenant to attorn to him."
11. The distinctive feature of the case was that there was property which was jointly owned.
Ejectment application was filed on ground of default in payment of rent and bona fide personal requirement. Petitioners were non-suited in appeal on the ground that petitioner claimed to be residing in flat with his family consisting of wife and four sons. With regard to accommodation he disclosed that he had three rooms in his possession. Appellate Court came to the conclusion that instead of three rooms petitioner had seven rooms of the building in his possession. Therefore, it cannot be accepted as a settled proposition of law that if notice under section 18 of the Sindh Rented Premises Ordinance, 1979 is sent by the landlord and on the ground of personal need is not stated therein it would subsequently debar the landlord from raising such ground for ejectment.
Nonstating of such ground can be fatal in all cases but it taken into consideration by the Court while deciding ejectment application.
12. Second major submission of learned counsel for petitioner was that if the landlord who had other property in die same tenement or in the same locality which properties were available to him, it is for the landlord to prove that why the particular claimed by him is suitable to his requirement and why other properties are not so suitable to his requirements. First case referred to by the learned counsel was Iqbal Book Depot (supra). Relevant Para 11 of the same judgment is reproduced as follows:- "Now adverting to the contention that ejectment application has been moved with mala fide and for the need enumerates therein can be met in a few shops and eviction of entire building is not necessary, hardly needs any elaborate discussion as it is well-settled by now that "so far as Ordinance VI of 1959 is concerned there is a qualifying word attaching to the requirement and that is of good faith provided in the law itself.
'There is a penalty provision of restoration of the property in case there is failure on the part of the landlord. These qualifications, limitations and prescriptions clearly suggest the context by reference to which the law has to be interpreted and applied in a given situation. The requirement here does not mean the fancy, the desire, the fondness or the mere aspiration of an individual.
There has to be something more. It has not to be on the other extreme the need in the sense of survival or in the sense of continuing physical existence or a dire need without which the man cannot do. The meaning has necessarily to be fixed somewhere in between dependent on the facts of each case and the condition of the parties to the litigation and the nature of the property involved. A person may be very affluent and well to do, may not need \ a property for his economic betterment. All the same he may want it to keep himself meaningfully pre-occupied, to advance and fulfil his educational and cultural aspirations, to . Meaningly contribute in his own way to his social and intellectual betterment," We are conscious of the fact that "mere wish, convenience, whim or fancy of landlord, held, would not be enough to show that landlord 'requires premises in good faith'. Landlord must prove requirement of premises for reasonable needs and that he ,was not seeking eviction on pretext of requiring additional accommodation with oblique motive of realizing some extraneous purposes. Order of eviction would require satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of premises. Eviction order could not be granted on vague allegations in eviction application. Mere ipse dixit of landlord that premises were required for accommodating of its senior staff was not enough. Plea of requirement would have to be supported by valid reasons as to how such requirement is genuine." PLD 1986 Kar.
84. The ejectment application and the evidence led by the landlord proves that the building in question is required to establish a restaurant/hotel. The objection that the landlord is having a Green Card hardly matters and would have no bearing on the genuine and the bona fide need of the landlord."
13. In Allies Book Corporation's case the Honourable Supreme Court observed that it is settled law that it is prerogative of landlord to decide as to which particular house, shop or building is suitable for his personal bona fide occupation and use. However, if other premises are also available to the landlord for the purpose of exercising such prerogative it is duty of landlord to give plausible and satisfactory grounds for choice of the premises occupied by tenant one other premises available to landlord for occupation. The Court thereafter observed from the material of that case that not a single word had come from the landlord as to why shop on Erst floor which was in his occupation would not be sufficient and would not meet demands of business sought to be established by him.
It was noticed in the case that a shop at the ground floor was lying vacant for the last seven years.
In Latif Ahmed's case just before filing of ejectment application landlady got vacated one shop which she divided into two and rented the same to two persons but she did not mention this fact in her ejectment application nor stated as to why her son did not occupy the said averments to the effect that shop in question was more suitable for requirement of her son than the one of which she had obtained possession a few months before filing of ejectment application. Ejectment application had been dismissed by the Rent Controller and order of the Rent Controller had been set aside in appeal. Honourable Supreme Court agreed with Rent Controller and ejectment of tenant was set aside and order of the Rent Controller was restored.
14. On the other hand learned counsel for tenant relied upon Messrs F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178. Facts of the case were that three cabins in the building in commercial area of Tariq Road were leased out for running Cafe Liberty. Rent application seeking eviction on the grounds including personal bona fide requirement of son of landlady was filed. Rent Controller granted application but in appeal High Court set aside order and remanded cases to Rent Controller to decide question of bona fide requirement of landlady's son after recording further evidence on the point highlighted in the remand order. It was pleaded in the application that son wanted to run Supermarket. In the remand order High Court observed that no material had been brought on record to indicate what would be reasonable requirement for supermarket if in fact the son wanted to open Supermarket. After remand both the parties led evidence and Rent Controller dismissed the application holding that no new evidence was brought on the point highlighted in the remand order and that landlady's son was engaged in full time business and therefore it would not be possible for the son to attend to new business. High Court accepted appeal and leave was granted by the Honourable Supreme Court. Honourable Supreme Court observed as under:-- "The question whether 160 square yards is sufficient to run a departmental store was also raised to attack the bona fides of the respondent's requirement. The premises is situated on Tariq Road, which presently is the most busy and lucrative commercial area of Karachi. On two sides of the premises are roads. In such a highly valuable commercial area, 160 square yards is a sufficient and reasonable area in which a departmental store or any other business can be run. Moreover, if the landlord wants to establish a business in a particular area, then unless it is shown that the alleged business can, in no circumstances, be run in such an area or that in all probability, it cannot be used or suitable for the purpose for which the landlord demands it, the bona fide cannot the attacked. There is no evidence to show that Super markets cannot be opened to or run or established in the premises comprising 160 square yards in a commercial area. ------------------- The suitability of opening a departmental store in any one of the available premises entirely depends upon the discretion of the landlord. However, such need and discretion should be real, genuine and not tainted with mala fides."
15. In Juma Sher v. Sabz Ali 1997 SCMR 1062 it had been held by Honourable Peshawar High Court that landlord in statement before the trial Court did not specify the business petitioner wanted to run in the shop-in-question. High Court held that in order to prove bona fide of his requirement for personal use landlord had to establish the need and give particular of type and nature of business that he wanted to start in the shop. When matter reached the Honourable Supreme Court the Supreme Court held that non-mentioning of nature of business is not fatal. Appellate Court below placed heavy reliance in Raees Ahmed Pasha v. Kamaluddin and others 2004 MLD 587 a judgment by Mr. Justice Sabihuddin Ahmad. Petitioner in that case was tenant in respect of two shops and evidence was sought on ground of personal bona fide need of his two sons. His application was allowed to be withdrawn and thereafter fresh ejectment application was filed on the ground of personal need as well subletting. Application was allowed by the Rent Controller and Appeal was dismissed by the Appellate Court. Relevant part of observations at para 10 are in the following words.
"Mr. Aamir Naqvi then attempted to argue that respondent No,l had not been able to establish the bona fide personal need of the shops for the use of his sons. He referred to a judgment of this Court in Nooran Nisas v. Qamar-ul-Huda (1998 CLC 1822) wherein a learned Single Judge of this Court took the view that a mere statement of the landlord that he needed the premises for personal use was not sufficient for seeking ejectment of a tenant. With profound respects I am constrained to observe that the above view is no longer good law. Keeping in view the subsequent pronouncement of four Members Bench of the Honourable Supreme Court in Saira Bai v. Syed Ansiur Rehman 1989 SCMR 1366 and several subsequent decisions. It may be added in any case no evidence in rebuttal of the respondent's assertion as to this aspect of the matter was adduced by the petitioner."
16. It may not be out of place to mention that said Sara Bai's case has been extensively quoted and relied upon in Juma Sher's case.
17. A perusal of above cases indicates that while it is right of landlord to decide and determine as to which premises is more suitable for him and tenant cannot be given veto over such right of landlord but if in the same premises or same locality other property is available to landlord or which property landlord just recently let out prior to filing of ejectment application or during the pendency of ejectment application or which property is lying vacant and unused and if landlord has suppressed such facts in his ejectment application, the conclusion would be unavoidable; first in case suppression landlord has come to the Court with unclean hands; and secondly, burden would be shifted back to the landlord to at least, prima facie, say something, even if not strictly required to be proved it as to why other property or vacant property or property let out is not sufficient for his requirement.
18. In the present case landlord has himself admitted that one of the shops he had given to Babo Shabziwala and no rent is being charged from him and landlord has stated in cross-examination that he can get it vacated whenever he wants. These circumstances were sufficient to shift the burden back to landlord to establish as to why shop given to Babo Sabziwala is not sufficient for his requirements. His son Akbar is running chicken business and landlord has not said a single word as to why the premises being used for chicken business by Akbar, is not sufficient for his requirement.
19. B As regards his sons Aslam and Akram landlord himself stated that one of them was student of B.Com Part-1 and wanted to pursue his studies. Thereafter landlord added that he had no adverse circumstances meaning thereby no circumstances compelling the landlord to require his son to discontinue his studies and start the business. Incidentally, this statement of landlord that there are no adverse circumstances in the context, to a certain extent, belie his statement that he had very meagre income and his son remained unemployed despite hectic efforts to search for job. Third son, landlord himself stated, that he had failed in matriculation examination and landlord wanted him pursue studies. Akbar runs chicken business, Akram is at lull throttle at his studies and Aslam wanted to study even after having failed in the matriculation examination. Therefore, I do not think that landlord established his personal bona fide need. Appellate Court has merely observed that landlord's statement proved bona fide need without referring to any piece of specific evidence available on record. This is clearly case of misreading of evidence and as has been held by the Honourable Supreme Court in Allies Book Corporation's case that in cases of misreading and non- reading of evidence, it is duty of High Court to interfere with findings of Courts below. In this case findings are not concurrent but are at variance.
20. Leamed counsel for petitioner referred to agreement dated 7-8-1983 (at page 516) wherein tenant had been given right to sublet the premises and it was contended by the landlord that in pursuance of such right having been given to the tenant, it would not be available to the landlord to seek ejectment on ground of personal need. For such submission learned counsel relied upon Mrs. Zehra Begum's case. In that case appellant in 1965 leased out plot to respondent company for establishing Patrol Pump. Lease was initially for a period of 10 years with two options available to the lessee to get it renewed for two terms of 10 years each, thus total period 30 years period which was to run till 1995. Lease deed was duly registered. Lessee was entitled to sign and sublet the premises. Lessor undertook not to evict or interrupt enjoyment of lessee for entire period.
Subsequently, landlady filed an application for ejectment on the ground of personal bona fide need. Supreme Court held that such ground was not available to her. This case does not help the case of the petitioner. In that case lease agreement was for 30 years and duly registered. There is no such thing available in this case. Secondly there was clear undertaking not to evict or interrupt the enjoyment of lessee if lessee continues to pay rent. Honourable Supreme Court observed that parties are free to contract on basis of equality of bargaining power and therefore if landlady had bargained away her right for 30 years she cannot under the statutory provision reclaim the same.
Agreement in present case is not a registered document. Therefore, facts are quite distinguishable:
21. As far as learned counsel for petitioner's contentions that since construction was made by petitioner in Petition No,S-423 of 2007 out of his own funds he could not be evicted on any ground. I do not think I can agree with this C proposition. There are three reasons for it. No written documents have been produced on record that there was any agreement between Zakir Ali and the present petitioner showing any such right. Secondly, when Zakir Ali sold the property to Muhammad Asghar no such condition was put by him in document of sale. Statement of Muhammad Ali, son of Zakir Ali that when his father sold the property, he did so at lesser price because of Pagri amount, cannot be relied upon because in the presence of sale deed oral testimony cannot be relied upon and in the sale agreement between Zakir Ali and Muhammad Asghar, it is no reference to any such condition or consideration was included or specified.
22. Result of the, above discussion is that these writ petitions are allowed and orders of appellate Court passed on 31-7-2007 in F.R.A. Nos.97, 98 and 99 of 2003 are set aside and orders of Rent Controller are upheld. In the peculiar circumstances of the petitions, there shall be on order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.