1. ' The present Second Appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance (hereinafter referred to as the Ordinance) has been filed by S. Farzan Ali to challenge the concurrent order of 11th Civil Judge and Rent Controller, Karachi, in Rent Case No, 1293/1972, whereby he has been directed to be evicted, and the, order of the 2nd Additional District Judge, Karachi, in Rent Appeal No, 476 of 1975, by which the order of the Rent Controller has been affirmed.
2. This Second Appeal came up for hearing before me in 1980, and, upon hearing Mr. Muhammad Idrees Qureshi for the appellant and Mr. Fazle Ghani Khan with Mr. Abdul Majeed Khan for the respondent, I had framed the following additional issues :-
(1) Whether the applicant (landlord) has vacated a building after 1959 in the urban area of Karachi, and, if so, without sufficient cause?
(2) What is the effect of finding on Issue No. 1 ?
3. ' The case was remanded to the Civil Judge-cum-Controller under Order XLI, rule 25, C. P. C. For recording evidence on these issues, and to give a finding thereon. This order was challenged before the Supreme Court in C. P. L. A. No, K-133 of 1980, and leave was refused by an order, dated 18-8-1981. The Civil Judge-cumcontroller proceeded to record evidence on the two additional issues, which were framed, and has given a finding on Issue No. 1 in the affirmative, and on Issue No, 2, he has held that the applicant (landlord) was not entitled to any relief. This order has been passed on 14-2-1981. The respondent landlord has not challenged this order by way of any objections. On the date of hearing, I rejected an application by the appellant seeking adjournment, and I have heared Mr. Abdul Majeed Khan for the respondent landlord, and, by a short order, I hadi allowed this Appeal. The reasons for such short order will follow presently.
4. ' The facts briefly are that the appellant is a tenant of respondent Khalilur-Rehman is respect of the tenements in question paying a monthly rent of Rs, 325.00. The appellant runs a workshop for repairing Televisions and Radios. The respondent filed an application under section 13 of the Ordinance, seeking ejectment of the appellant both on the ground of default in payment of rent and bona fide personal requirement. The case of the respondent was that he was doing the business of manufacture of Katha in East Pakistan, and, after the disturbances in that province of Pakistan in 1971, he had to close that business and come away to Karachi. He wants to start that business in Karachi, for which he needs the premises in question.
5. ' In para. (5) of the application under section 13 of the Ordinance, it is stated that the premises were required in good faith for owner's use to start the business of Katha by manufacturing the same. In para. (4) of the application, it is stated that no other premises is available for his business. It is alleged that rent for the month of April, 1972, and thereafter has also not been paid.
6. ' A written statement was filed by the appellant in which tenancy was admitted. It was averred that there were three separate tenements and a single application for eviction was not maintainable. In regard to default in payment of rent, it was stated that the respondent demanded an I increase in the rent and had refused to accept rent, so that the same was sent by money order, which was also refused. It was denied that the respondent was doing any business of manufacturing Katha in East Pakistan and it was averred that the respondent was and had been doing business in West Pakistan. It was further stated that Katha is manufactured only in West Pakistan, although the raw material for the same is produced in East Pakistan, Thailand and Malaysia. It was denied that the premises was required by the respondent in good faith, and was further averred that the respondent had recently let out other commercial premises in the vicinity to some other person.
7. ' On the pleadings of the parties, the following issues were framed : "ISSUES
(1) Whether the opponent has committed default in payment of rent ?
(2) Whether the applicant requires the premises in good faith for his personal use ?
(3) What should the order be ?"
8. ' Before the Civil Judge-cum-Controller, respondent Khalil-ur-Rehman examined himself, and he produced a certificate of registration of his trade market issued at Karachi on 29-5-1963, and two bills of lading (Exhs. 8 and 9) dated 15-3-1968 and 22-3-1968, showing export of some packages from East Pakistan to West Pakistan. The contents of these packages are described as "Pak. Cutch".
9. He also produced and proved copy of a notice given to the appellant, seeking his eviction, on the ground of bona fide personal requirement. The respondent examined Sheikh Abdul Majeed, an Advocate, who stated that he was living in East Pakistan from 1967 to 1971, and he knew that the respondent was carrying on the business of manufacturing Katha in East Pakistan. He stated that, for most of the time, the respondent used to reside in West Pakistan, although he had a factory, bearing the name of Messrs Aftab in East Pakistan. This witness produced some documents to show that he was residing in East Pakistan. The appellant had examined himself, and he stated that the main business of the respondent was in Karachi, which was being carried on in the name of Jamal & Company. He further stated that the respondent had no Katha business in East Pakistan.
10. He also produced and proved the receipts for money orders. The appellant also examined Syed Shahanshah Hussain and Muhammad Usman. The first of these two witnesses stated that the respondent was carrying on cloth business in Eidgah Cloth Market, and further that he left out the premises on rent behind the case premises for installation of a printing press. Other witness, however, stated that the respondent had Katha business in East Pakistan. This witness produced several documents issued from the Directorate of Excise & Taxation, showing that the respondent had considerable immovable property, the total annual rental value whereof exceed Rs, 70,000.00.
11. He also produced the documents, showing that the area of the premises in occupation of the appellant was about 3,000 sq. Ft. The other witness, Muhammad Usman, also stated that the respondent had a cloth shop, although previously he was doing business of Katha.
12. ' The issue in regard to default in payment of rent had not been pressed before the Civil Judge- cum-Controller, so that it was not answered. On the issue of the respondent requiring the premises in good faith for his personal requirement, the finding was given in favour of the respondent. An appeal was filed by the appellant, and this finding was upheld, and the appellant was directed to vacate the premises in question.
13. ' The moot point that requires consideration in this case is, whether the respondent bona fide requires the premises in question for his personal use. The premises are nonresidential premises, and, by virtue of subsection 3(a) (ii) of section 13 of the Ordinance, the respondent could succeed in evicting the appellant in case he shows that-
(a) he requires it in good faith for his own use or for the use of any of his male children ;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time, and
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area.
14. ' On analysis, it would appear that the landlord has to show that his requirement is in good faith for his own use, that he is not occupying in the same urban area any other building suitable for his needs, and that he has not vacated such a building without sufficient cause after the commencement of the Ordinance viz. 1959.
15. ' In the application under section 13 of the Ordinance, all that the landlord has stated was that he was doing business of manufacturing Katha in East Pakistan, and such business had been stopped by him in 1971. He further stated that he required the premises in question "in good faith for his own use to start his business of Katha and of manufacturing the same". The Landlord had earlier given a notice to the appellant in which he made a demand for the premises in question, and has stated as follows :- "4. That my client thus requiring the above premises in your occupation for his personal and bona ftde use for carrying on business, storing and setting up factory of 'Katha as a Cottage Industry in it and thus to establish his business in Karachi."
16. ' At best, the above averments go to show that the landlord wants to start the business of manufacturing Katha. He had not stated in his evidence what would be the requirements in terms of area needed for starting the business. Similarly, in his evidence all that be stated was that he wanted to start workshop of Katha in the case premises. In such circumstances, I had asked the learned Advocate for the respondent as to what were the actual needs of the landlord for the purpose of starting manufacture of Katha, and also asked him if necessary permission had been obtained from the local authorities for starting such manufacture in a premises located within the heart of the city. Mr. Fazle Ghani Khan had stated that some raw material has to be put on the bail in a cauldron, and after melting the raw material it needs to be separated in the mounds.
17. ' Additionally, he stated that the accommodation would be required for the purpose of stacking firewood and Keeping the raw material. All the same, the answers were vague. No evidence was available on record. It is also very doubtful if the permission to start manufacture of such kind, requiring burning of firewood would be permitted in the locality which is not at all - meant for industry. This factor alone militates against an assumption that the premises are required by the landlord in good faith. Secondly, the area of the premises presently in occupation of the appellant is 3000 sq. Ft. (as stated by Mr. Fazle Ghani Khan), and without any indication as to the approximate area necessary to run such a factory it is not possible to find out whether the demand of the landlord is bona fide.
18. ' In addition, there are other circumstances which disentitle the landlord to relief. He has stated in his evidence that while he was carrying on his business in East Pakistan, he was retaining a premises in Jodia Bazar. In regard to this premises located in Jodia Bazar, he had stated that he had given away the same to some other person temporarily. He has not stated if the premises in Jodia Bazar was unsuitable for his needs nor did he elaborate as to what were the causes for his parting with the possession of these premises. Syed Shahanshah Hussain, the witness of the appellant stated in his evidence that the landlord had let out some other premises located behind the case premises for installation of a printing press. In cross-examination, this witness was asked some question about the letting out of these premises to a printer, and the witness stated as follows : "It is not a fact that the applicant had not let out the premises behind the case premises for printing press in the year 1973. It is not a fact that the printing press is working in this premises since 1967.....
19. The premises in which the printing press is installed is bigger than the case premises. It is not a fact that the case premises is bigger than the premises in which the printing press is installed."
20. ' The trend of cross-examination would seem to indicate that the landlord was not disputing the letting out of the premises for a printing press, but what he seemed to dispute was the time when the same was let out. According to the appellant, it was let out in 1973. The other controversy was in regard to the area of the premises in which the printing press was located. Be that as it may, the fact of the matter is that two premises, one in Jodia Bazar and the other near the disputed 'premises, were let out by the C landlord after the coming into force of the Ordinance, and sub clause (c) of section 13(3) (ii) disentitles him to relief. There is not even an averment that both these premises and, any of them was not suitable for his needs.
21. ' After the hearing in the case had concluded, I had given notice of rehearing to the parties, as I found that the respondent had sought eviction of the appellant only on a statement that he was not occupying any other premises, where he could do business. It seems to me that, in cases if this nature, the Courts has to be on caution, because, before ordering eviction, the Courts have to take into consideration the requirement of the landlord. There may be cases of a nature when eviction of very big premises is sought for the purpose of carrying on business, which does not require as much space and vice versa, there may be cases when eviction is sought from a place, which would be far too small for carrying on the proposed business of the owner. In either case, the demand could not be termed bona fide. To such proposition, Mr. Fazle Ghani Khan stated that, in absence of evidence that the landlord had suitable alternate premises, he was entitled to possession. If the statement of Mr. Fazle Ghani Khan is taken to be the correct statement of law, I think the results which are likely to follow would be completely opposed to the intention of the Legislature, This Ordinance and the previous legislation on the subject are designed to protect the tenants against eviction at the will of the landlord. In these circumstances, the Courts have to look to the nature of business, which the landlord proposed to establish in the premises after eviction of the tenant. Scores of cases could be pointed out when the superior Courts have adverted to the needs of the landlord in order to determine whether the demand for eviction is bona fide and in good faith. On an examination of the provisions of section 13(3) of the Ordinance, it would appear that the Legislature intends that the Rent Controller should take into consideration the genuine requirements of the landlord, and not his mere desires. In the case of Khushi Muhammad v.
22. Muhammad Rashid (1), the Supreme Court was considering the following passage in the judgment of the Additional District Judge. Such passage reads as follows :- "If the appellant says that he now wants to start the business it cannot be said that he is not genuine in his claim, because it is in the evidence that he now desires doing such a business. So, on the evidence the conclusion is irresistible that the appellant actually wants to start a business again. This would show that his desire to start business is not fake."
23. ' The Supreme Court in this case held the view that the approach of the Additional District Judge to the question of requirements "in good faith" was not correct. In fact, the mere desire of the landlord to obtain a particular premise can never be equated with the landlord seeking eviction in good faith. The import of these words is that the Court has to be satisfied with the claim of the landlord being bona fide and reasonable. Such position was examined by Muhammad Afzal Zullah J. (as he then was) in the case of Ghulam Muhammad v. Abdul Qadir (2), and the learned Judge observed as follows :- "This observation with subject to the consideration that the mode of proof of reasonableness and or good faith bona fides is dependent upon various factors and it cannot be ignored that one of the material items of evidence for consideration, of course, would be the statement on oath of the landlord himself. Unless he makes a statement in his behalf asserting his requirement it would not be possible to visualise from circumstances alone that he has a bona fide personal need. With the above discussion and these remarks, I repel the argument of the learned counsel for the respondent in so far as the general question of approach of the requirement of the landlord is concerned."
24. ' Suitability of premises for the proposed business is always relevant. In the ease of Allah Ditta v.
25. Mst. Rasoolan Bibi (3), the Supreme Court considered the same question. A submission was made before the Supreme Court that a Thara, where a goldsmith was carrying on business, was suitable for the purpose. The Supreme Court had to consider, whether a shop on the ground-floor, or, on the first floor is suitable for gold smith's business, and it was observed that, in spite of the District Judge not having considered that question, they would consider the same, and their Lordships came to the conclusion that a shop on the first floor is obviously not suitable for gold smith's business, as a shop on the ground floor. It would thus seem that the question of suitability of the premises for a particular business is not {{FOOT NOTE}}
(1) 1968 SCMR 1158 (2) PLD 1975 Lah. 200
(3) 1976 SCMR 459 {{FOOT NOTE}} ' merely a relevant factor, but such enquiry would also be necessary for determination of the question, whether eviction was sought in good faith. In the present case, admittedly there is a total absence of evidence on the record to show how much space would be required for preparing Katha and there is also total absence of evidence that the landlord had obtained permission, or, would be permitted to carry on such a trade in the premises, which are the subject-matter of this case.
26. ' The landlord in this case had obained a sum of Rs, 15,000.00 from the appellant as a deposit. The notice given by him to the tenant states about the receipt of the amount, and it is further stated that the landlord was prepared to return this amount in case the tenant vacated the premises. No agreement has been placed on the record, and there is no explanation as to the purpose for which this amount had been paid. It may well be premium (Pugree), or, it may even be deposit to cover the accruing rents. Since payment of premium, or, Pugree is prohibited by section 7 of the Ordinance, it is only proper to assume that this amount represents deposit to be applied to accruing rents. Since this amount, which is equal to about 65 months' rent is lying with the landlord for being applied to the accruing rents, the first proviso appearing after clause (ii) of section 13 (3) of the Ordinance needs consideration. The proviso reads as follows :- "Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period."
27. ' The plain meaning of the proviso is that, if the tenancy is for a particular period, then the landlord cannot evict the tenant before the expiry of that period, except of course on ground of damage, subletting, etc. I shall state even at the risk of repetition that, in cases when it is satisfactorily proved' that an amount has been paid by the tenant to the landlord, the latter has to explain the purpose for which the amount has been paid. In circumstances, it may have been paid to cover any damage to the property, or for providing additional fittings, or, amenities, or, for a variety of reasons. But, if the landlord does not describe the purpose underlying such payment, it would only be reasonable to assume that such amount has been paid towards future rent, for, as otherwise, it can only be termed premium, the acceptance o which by the landlord is prohibited. In that view of the matter, this amount of Rs, 15,000.00, the acceptance whereof is admitted by the landlord, has to be deemed as payment of advance rent under the oral agreement of tenancy. Under the proviso (reproduced above) by necessary implication, deducible from the intention of the parties, the period of tenancy would be deemed to extend to such time by which, on application of the amount towards rent, the amount is set off. In other words, as long as the amount is lying with the landlord, who has not even returned the same, the landlord is disentitled to apply for eviction.
28. ' Mr. Fazle Ghani Khan has stated this amount of Rs, 15,000.00, which is called a deposit, is to be applied to compensate the landlord for any damage to the property. As stated, there is no written agreement between the parties, and the landlord has not stated a word in his evidence to explain the purpose of such deposit. Even the appellant was not cross-examined on the point. In these circumstances, it is impossible to hold that this amount was paid to compensate the landlord in respect of damage to the building.
29. ' Since the evidence on the point of the respondent having vacated some premises was somewhat vague, and no issue had been cast on that point, the case had been remanded for recording of further evidence, and determination of the issues framed by this Court. In further evidence, two facts have been succinctly highlighted. The respondent has stated that, when he gave a notice to the appellant to vacate, he was in possession of two shops, bearing Nos. G-1 and 0-2 on the ground floor of Jilani Manzil in Jodia Bazar, Karachi. He has also admitted that, on 30-8-1972, he had parted with the possession of that shop in favour of one Sattar. What is more revealing that he used to pay Rs, 50.00 per month as rent for the said shop, and started charging Rs, 100.00 per month from the sub-lettee Sattar. No doubt, he denied having obtained Rs, 1,00,000.00 as Pugree from Sattar, but he admitted that, on account of such unauthorised subletting, the landlord objected, but utimately the landlord accepted Sattar as his tenant. This circumstance would clearly show that, in order to make a profit, he relinquished possession of two shops in Jodia Bazzar in favour of Sattar, and, as a consequence, he was compelled to vacate the said shops. The conduct of the respondent was most unreasonable, and it would seem that, in order to make profit, he handed over possession of the shops to Sattar. The other fact, which has clearly transpired in further evidence of the respondent, is that, in 1968, he had let out premises No, G-3 (adjacent to the premises in dispute) to Iqbal Printing Press. Admittedly, from 1977 the receipts in respect of the said premises are being issued in the names of Jamal Musharaf and Kamal Musharaf. Previously, Messrs Iqbal Printing Press were paying a rent of Rs, 200.00 per month, but the new tenants, Jamal Musharaf and Kamal Musharaf, are paying Rs, 500.00 per month. The respondent has given a clumsy explanation to the effect that Jamal Musharaf and Kamal Musharaf are partners of Messrs Iqbal Printing Press. It is hardly believable that the same partners would agree to raise the rent to 250% solely for the reasons of having their names inserted in the receipt. It is reasonable to assume that, even the printing press was vacated by the previous tenant, and thereafter the respondent put Jamal Musharaf and Kamal Musharaf in the premises in 1977 at an enhanced rate of rent. In any case, this premises, which is adjacent to the premises in dispute, was suitable accommodation for the respondent with which he has parted only for making profit.
30. ' It seems that the respondent is not interested in starting his Katha business, and, in any case, he is out of such business for the last ten years. If his demand was bona fide, he could have started the said business in Jamal Musharaf and Kamal Musharaf's shop, i. e. In the premises, which were vacated by Messrs. Iqbal Printing Press. The sole intention of the respondent appears to be to obtain ejectment of the appellant, so as to make a profit, either by obtaining Pugree, or, enhanced rent.
31. ' On the new issues, the learned Civil Judge has arrived at correct conclusions of fact, and Mr. Abdul Majeed Khan has hardly been able to challenge such findings. In fact, the evidence in support of the findings appears to be unassailable.
32. ' I am not satisfied that the demand for ejectment of the appellant is bona fide, and I am also not satisfied that the premises in question are suitable for carrying on Katha business in the heart of the city. Admittedly, the respondent has not obtained any licence, and it is doubtful if the local authorities will permit such a dangerous trade to be carried on in a predominently residential locality.
33. ' I allow this Appeal with costs throughout.