1. ' This is First Rent Appeal under section 21 of the Sind Rental Premisees Ordinance, 1979 (hereinafter to be referred as the said Ordinance) is directed against the order of eviction dated 10th November, 1979 passed by the learned Illrd Rent Controller, Karachi.
2. ' Shortly stated the relevant facts are that the respondent/landlord filed application for ejectment under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 on the ground that he required the demised premises, which is a shop on Plot No, 0. T. 112/113 in Kagzi Bazar, Old Town Karachi for the personal use of his son Ehtramuddin, who had completed his education and wanted to do business of cloth. The rent of the premises in dispute as agreed between the parties is Rs, 275 per month.. The proceedings before the Rent Controller were resisted by the appellant/tenant, who denied in his written statement the assertion of the landlord and further took the plea that the demand, was not bona fide and the landlord wanted to increase the rent, which he has done in the past from time to time and also instituted proceedings civil as well as criminal against him with the purpose of harassing him as such the application was liable to be dismissed. Keeping in view the pleadings of the parties only one issue with regard to the requirement of the premises in good faith for personal use was framed and in evidence the landlord namely Haji Imamuddin examined himself and his son Ehtramuddin. In rebuttal of the evidence tenant Haji Majid examined himself and one Abdul Gbaffar, who is also a tenant of the same landlord in the shop,,;-adjacent to the shop in dispute and supported the case of the tenant that the landlord demanded the increased rent. The learned Rent Controller passed final order of eviction on 10th November, 1979. On 21st November, 1979. The Sind Rented Premises Ordinance, 1979 was promulgated, which repealed the Sind Urban Rent Restriction Ordinance, 1959 and as envisaged under section 27 (3) of the new Ordinance, the appeal has been filed under the new law.
3. ' It is contended on behalf of the tenant that the demand of the landlord for requirement of premises for personal use of his son is not bona fide for the reason that previously also lent case No, 1544/72 was filed by the landlord on similar grounds that the same premises in question were required by him for his own use and the use of his eldest son Ehtashamuddin and in that case ejectment was granted by order dated 16th August, 1973 !Against which the present appellant filed appeal ,(R. A. 365/73) which was allowed vide judgment dated 15th December, 1973 and the order of eviction was set aside. Certified copy of the judgment mentioned above is on the record as Exh.
4. 7/B. Mr. Khuda Bux Umrani, counsel for the respondent has pointed out that application in the previous rent case mentioned above was filed on the ground stated above and in the circumstances that the agreement of tenancy executed between the parties for a period of 11 months also had expired at that time. It is further submitted by Mr. Umrani that the order of eviction was passed against which the appeal was filed, which was allowed setting aside the order of eviction and the respondent filed second appeal in the High Court, which according to his knowledge was dismissed for non-prosecution and no further efforts were made for its restoration.
5. It is further submitted by the learned counsel that the present application has been filed on a separate cause of action that the premises in question are now required by the landlord for the use of his other son namely Ehtramuddin, who has completed his studies and wants to set up business in cloth. In the case under consideration the respondent/landlord has produced sufficient evidence, which has satisfied the Rent Controller who has granted the ejectment. In the previous rent case there was a different cause of action and premises were required by the landlord for his first son Ihtshamuddin and that case is no bar because there is fresh and separate cause of action in the present case.
6. ' It is contended on behalf of the tenant that he had deposed before the Rent Controller in this case that the landlord had filed a criminal case against him under section 145, Cr. P. C. And produced such copy of notice issued by S. D. M. Old Town, which has been brought on record as Exh. 7/A and those proceedings ultimately were dismissed. I have seen Exh. 7/A, which is a notice from S. D. M.
7. Old Town, Karachi with regard to dispute'between Imamuddin as party No. 1 and Abdul Ghaffar and Haji Majid as party No, 2 over two shops bearing Nos. 112 and 113 situated at Kagzi Bazar, Mithadar, Karachi. It is stated in the said notice that dispute is that the first party claims to be the owner and the second party refuses to vacate the shops as such there is apprehension of breach of peace between the parties, hence notice was issued for initiating proceedings under section 145, Cr. P. C.
8. And the parties were called upon to file their written statements. First hearing of the case was fixed on 22nd January, 1973. In the instant case application for ejectment from which the present appeal arises was filed on 27th April.
9. 1976. It is clear that this criminal case was filed about .5 years before filing of the application for ejectment in the instant case and moreover the tenant has not produced the copy of the final order as he claims that the proceedings ended in dismissal. In any case filing of the criminal case does not show that evidence produced by the landlord in this case before the Rent Controller was inadequate or did not prove the requirement of the demised premises for the use of his son Ehtramuddin What is really to be seen is the fact whether the landlord is in a position to produce evidence to satisfy the Rent Controller that his need as it stands at the time of filing of application for ejectment bona fide or not.
10. ' So for the evidence is concerned. Landlord Imamuddin has stated that his son Ehtramuddin has completed his education in the year 1978 and is jobless and wants to do his own business. He has further stated that neither he nor his son has any other vacant shop. Ehtramuddin when examined before the Rent Controller has stated that he has completed his education in the year 1978 and is jobless and wants to set up his own business of cloth in the disputed shop. This evidence does not appear to be seriously challenged but the learned counsel for the tenant has pointed out that the landlord in his application filed before the Rent Controller has stated that cause of action arose in the month of February, 1978, when it was decided that his son would start his independent business in the said shop and the tenant failed to vacate the same and as against that Ehtramuddin has stated in his deposition before the Rent Controller that the result of the examination was announced in March, 1978 and after the result he made up his mind to set .Up his own business. On this premise it is submitted by the counsel for the tenant that in February, 1978 there was no cause of action because Ehtramuddin decided to go for his business in March, 1978 after his result was announced. I do not find any merit in this contention for the reason that application for ejectment was filed on 27th April, 1978 which was in any case after the result was announced. In the application for ejectment in paragraph No, 5, which relates to cause of action, it is not specifically spelled out that since the son of the landlord has passed his examination and his results are announced as such shop is required to set him up in business. The only thing which is stated in the paragraph is that in the month of February, 1978 it was decided that the shop in question was required to set up the son of the landlord in business. Landlord Imamuddin has not been effectively cross-examined on this point but it appears that one question was put to him in cross- examination to which he replied that he did not know in which month his son completed education but he decided to get the shop for his son when he completed his studies. There appears to be no inconsistency between the evidence of Imamuddin and his son Ehtramuddin for the reason that even Ehtramuddin has stated in his evidence in cross-examination that he had appeared in his last examination in the end of year 1977 and the result was announced in March, 1978. It can be said that the studies are completed when the examinations are over and in this case Ehtramuddin completed his studies when he appeared in his last examination in the end of year 1977. In these circumstances I find no discrepancy in the evidence of father and son on this point. Even if the son has said that after the result he made up his mind to set up his business and the result was announced in March, 1978 this statement is not inconsistent with the application for ejectment because the application for ejectment is not filed by Ehtramuddin but by his father Imamuddin who has simply stated in the paragraph relating to the cause of action that in the month of February, 1978 it was decided that shop was required for his son to set up in business, which is further elaborated in his evidence before the Rent Controller that he wanted to set up his son in business after completion of his studies. The studies were completed in the end of 1977 when the last examination was taken.
11. ' It was next contended on behalf of the tenant that the need of the landlord to require premises in question for the use of his son is not bona fide for the reason that the landlord had always enhanced rent from time to time and in fact the purpose was again to demand enhanced rent. In this respect it is submitted on behalf of the tenant that originally the rent was Rs, 200 per month in 1969. Which was increased to Rs, 250 in 1970 and further increased to Rs, 275 per month from July, 1971. It is also stated that tenant has examined one other witness by name Abdul Ghaffar who is tenant of the same landlord in the adjoining shop and he has also supported this plea. Abdul Ghaffar has also produced before the Rent Controller certified copy of the previous rent case filed against him by the same landlord which was dismissed vide order dated 25th July, 1973. Appeal was filed against this order which was dismissed vide judgment dated 10th September, 1974.
12. Certified copy of the judgment of appellate court is also produced. The landlord does not deny that he filed ejectment proceedings against Abdul Ghaffar. The landlord also does not deny that the rent was increased from time to time but his plea is that the rent was enhanced by mutual consent and the tenants have been paying the same in the past. It is pointed out by the counsel for the landlord that paragraph I of the application for ejectment clearly states that the rent of the premises in dispute in the instant case is Rs, 275 per month, excluding electricity charges by virtue of written agreement executed on 1st July, 1971. The tenant in this case in his written statement has admitted the contents of para. 1 of the application to be true and has further explained the increase in rent from 200 to 250 and from 250 to 275 in the year 1971 and has not denied the execution of agreement on 1st July, 1971 as claimed by the landlord. Lastly it was contended on behalf of the tenant that no valid reason is given for the selection of the shop in question for the use of the son of the landlord when there are three shops of equal size in the same row belonging to the landlord and for the shop in question the son of the landlord has only stated that he has selected it because it is in the middle and secondly that the landlord has admitted in his evidence that a cabin rented out to a tenant, became vacant which he rented out again about years back. It is submitted that if the landlord wanted to set u p his c son in business he could have utilized that cabin. It is also submitted that there is no evidence on the record that the landlord or his son has enough money to start business of cloth. In this context the learned counsel for the respondent has submitted that so far the vacant possession of the cabin is concerned, it is 'admitted by the landlord that he rented it out before the ejectment application was tiled. It is also submitted that it is prerogative of the landlord to pick and choose the accommodation which is suitable to his needs. For this proposition reliance is placed on the decision in Punjab Hardware v. Wazir Ali (1). It is further submitted that the demand for higher rent by the landlord does not by itself cast any doubt about the personal bona fide requirement of premise D if the factum of bona fide requirement is independently proved. Fo this proposition reliance is placed on the decision in Rafiq Ahmad v. {{FOOT NOTE}}
(1) PLD 1976 Kar. 233 {{FOOT NOTE}} Ch. Abdul Rehman (1). It is contended on behalf of the landlord that ejectment can be granted on the ground of personal need on a fresh cause of action even if on previous occasion the landlord got possession of a tenement from other tenant and let it on rent. Reliance is placed on the decision in Nooruddin and others (2). So for the plea of the tenant is concerned that it is not in the evidence that the landlord or his son has enough funds to set up the business in the shop in question, the learned counsel for the respondent has stated that such plea was not taken by the tenant in his written statement and moreover it is not the requirement of law that the landlord must produce evidence to the effect that he has sufficient funds to commence a businesss. He has drawn my attention to section 13(3) (a) (ii) of the Urban Rent Restriction Ordinance, 1959 which provides that in case of a non-residential building the ejectment can be granted if the landlord requires it in good faith for his own use or for the use of any of his male children. He has also referred me to section 15(2) (vii) of the Sind Rental Premises Ordinance, 1979 which provides that ejectment can be granted 'if landlord requires the premises in good faith for his occupation or use or for the occupation or use of his spouse or any. Of his children. What is necessary in this context is to see whether the landlord has sufficient evidence to satisfy the Rent Controller that the premises in question are required in good faith for his own occupation or occupation or use of his spouse or his child and in producing that evidence it is not necessary that the landlord must produce evidence of the availability of the funds unless such plea is taken by the tenant specifically in the written statement necessitating recording of evidence on that point. When such plea is not taken' by the tenant initially, it is not necessary for the landlord to produce such evidence voluntarily. In the instant case had the tenant taken such plea in the written statement the landlord would have been on his guard and would have produced such evidence. The appraisal of evidence recorded by the Rent Controller clearly indicates that there is sufficient evidence to satisfy the requirement of law that premises in question are required for the use of the son of the landlord. In any case even under the new law i,e, Sind Rental Premises Ordinance, 1979 section 15-A envisages imposition of penalty of a fine not exceeding one year's rent, on the landlord, who, having obtained possession of the premises in question for personal need, relets or puts the same to a use other than personal use within one year of such possession. The provision stated above is intended to ensure that the landlord does not relet the premises in question. In these circumstances for the facts and reasons mentioned above I do not find any justification to interfere with the impugned order which is hereby maintained. In the result the appeal is dismissed with no order as to the costs. The appellant is directed to hand over vacant possession of the shop in question within three months from the date of this judgment. {{FOOT NOTE}}
(1) 1980 SCM R 772 (2) 1968 SC MR 1087 {{FOOT NOTE}}