' IRFAN SAADAT KHAN, J.--- This Rent Appeal has been filed against the order dated 20-1-2011 passed by the learned Additional Controller of Rent in Rent Case No,67 of 2008.
2. Briefly stated the facts of the case are that the appellant is a landlady of the Show Room No,44 comprising of basement, 'ground floor mezzanine and 4th floor situated on 26th street, Phase-V, DHA, Karachi which she has given on rent to the respondent at the rate of Rs,100,000 per month vide tenancy agreement dated 1-11-2005. As per the appellant, she wants to start a business by opening a super general store with the assistance of her son, she asked the respondent to hand over the said premises to her for opening the said general store. However, the respondent refused to vacate the same. She then filed an application under section 17 of the Cantonments Rent Restriction Act, 1963, ("the Act") before the Controller of Rent Clifton Cantonment Area. The matter proceeded before the said Rent Controller who vide his order dated 20-1-2011 dismissed the said application hence the present Rent Appeal.
3. Mr. Muhammad Ilyas Khan Tanoli, Advocate appeared on behalf of appellant and submitted that the said premises was required by the appellant for her own personal bona fide need as she does not have any other proper place to open the said super general store. He submits that though there are other properties also belonging to the appellant but firstly these places are not suitable for the said business and secondly these are under the occupation of some tenants. He has further submitted that it is the prerogative of the landlord to decide the place where to reside or where to commence business. If the landlord decides that a certain place is suitable for her business, the tenant is liable to vacate the same. He states that whether the appellant was having any experience of the said business or not is of no concern of the tenant. He states that the learned Rent Controller was not justified in deciding the matter by not considering the cross-examination and various documents furnished before him. He further submitted that the Rent Controller was not justified in not considering the written statement. He further stated that the Rent Controller has not considered the fact that the respondent was paying rent of Rs,1,33,000 per month, he however has fixed the same at Rs,1,00,000 per month with 10% increase, which is against the agreed amount being paid by the respondent. He submitted that it has been admitted by the respondent that the appellant needs the said place for her personal bona fide use and there is no other commercial place suitable for the said business available with the appellant. He further stated that the learned Court even did, not consider the assurance given by the appellant that the said property, if vacated by the respondent, would neither be let out to any person nor would be used for any other purpose other than the one mentioned in the said application. He further stated that since the order passed by the Rent Controller is a result of misreading and non-reading of evidence therefore the same may be set aside. In support of his above contentions, the learned counsel has relied upon the following decisions:---
1. Jehan Khan v. Province of Sindh and others Re: [PLD 2003 Kar.691]
2. Mushtaq Hussain and others v. Muhammad Inayat and others Re: [PLD 2012 Lah. 234]
3. Nisar Ahmad Khan v. Noor Muhammad Khan and 6 others Re: [1990 SCMR 544]
4. Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. Re: [1985 SCMR 1996]
5. Habib Bank Ltd. v. Anis Ahmad and 7 others Re: [2001 SCMR 981]
6. Dr. Raja Javed Kayani v. Muhammad Iqbal Re: [2000 CLC 2005]
7. Anis Ahmed v. Habib Bank Ltd. Re: [1997 MLD 01]
8. Muhammad Yousuf v. Mrs. Noor Jehan Bi Re: [2000 CLC 1252]
9. Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz Re: [1994 SCMR 355]
10. Abdul Samad v. Rashk-e-Jehan and others Re: [1999 SCMR 1353]
11. Almas Khan v. Mrs. Bano Re: [PLD 2009 Karachi 268]
12. Pakistan Institute of International Affairs v. Naveed Merchant and others Re: [2012 SCMR 1498]
13. Zarina Ayaz v. Khadim Ali Shah Re: [2003 SCMR 1398]
14. Capt. PQ. Chemical Industries (Pvt.) Ltd. v. Mrs. Romana Amjad Re: [2010 SCMR 837]
15. Nelofar Soomar v. Mst. Shahida Re: [2010 CLC 447]
16. Yaqub Masih Jacob v. Mrs. Louisa De Souza Re: [ 1992 'SCMR 1799]
17. Lt. Col. (R.) Muhammad Younis v. Ismat Mehdi Re: [2013 CLC 562]
18. Shakeel Ahmed and another v. Muhammad Tariq Farogh Re: [2010 SCMR 1925]
19. Haji Mohibullah & Co. And others v. Khawaja Bahauddin Re: [1990 SCMR 1070]
20. Noorul Amin v. Sheeraz Sori and others Re: [2008 MLD 1299]
21. Yousuf Aziz and another v. Asim Saleem Re: [2010 CLC 308]
22. Muhammad Haleem Siddiqui and another v. Dr. Huma Khusro Re: [1997 CLC 905]
23. Mrs. Tahira Dilawar Ali Khan v. Mst. Syeda Kaneez Sughra and 2 others Re: [PLD 2007 Kar.50]
24. Mian Muhammad Lateef v. Mst. Nasima Warsi Re: [2009 CLC 279]
25. Muhammad Saleem v. Mrs. Sanjida Kidwai Re: [2009 CLC 215]
26. Suleman Ghazi v. Ghulam Nyder and another Re: [1984 CLC 2213]
27. Muhammad Zaman v. Hasb-un-Nisa and another Re: [1991 SCMR 1307]
28. Messrs Bombay Corporation v. Mst. Amna Begum Re: [1986 CLC 1628]
29. Muhammad Attique v. Shafait Ali Shaikh Re: [2010 SCMR 1006]
30. Messrs. F.K. Irani & Co. v. Begum Feroze Re: [1996 SCMR 1178]
31. Abdul Rahman v. PSO Company Ltd. And another Re: [PLD 2004 SC 921]
32. Muhammad Iqbal v. Syed Sohail Wajid Gillani Re: [2004 SCMR 1706]
33. Sardar Muhammad Yaqoob v. Muhammad Saleem Re: [2000 CLC 274]
34. Major (R.) Ahasan-ul-Haque v. Muhammad Ejaz Re: [2011 SCMR 487]
35. Qamruddin v. Hakim Mehmood Khan Re: [1988 SCMR 819]
36. Ghulam Mustafa Bughio v. Additional Controller of Rents, Clifton and others Re: [2006 SCMR 145]
37. Ahmed v. Aisha Tariq Re: [2011 CLC 538]
38. Aamir Wahid v. Mrs. Haleema Akhtar Re: [2013 .CLC 622]
4. Mr. Iftikhar Javed Qazi, learned counsel for the respondent on the other hand submitted that the provisions of Sindh Rented Premises Ordinance, 1979 (the SRPO) are different from the Cantonment laws and since the decisions relied upon by the counsel for the appellant are on SRPO hence these are not applicable to the present case. He submitted that contradictory views have been taken by the appellant as on one stage she stated in her cross-examination that the said place is required for her personal bona fide use whereas on other place she has mentioned that she wants to enhance the rent of the property. He submitted that mere production of some printing material is not enough to prove the averments in the appeal as the appellant has to prove that the said place is required for her personal bona fide use in good faith which aspect according to him, is missing in the present case. He states that the decision of the Rent Controller is quite exhaustive who has dilated upon each and every aspect of the case and thereafter dismissed the rent case. He submitted that a detailed description of the properties held by the appellant has been furnished by him which amply proves that the appellant is a wealthy person who is in no dire need of the said premises and had taken a false stand that the said premises is required by her to open a super general store. He submitted that the aspect of good faith is totally missing in the instant case.
Learned counsel while elaborating his view point stated that the appellant has many commercial plots located in the different parts of the city and only to get the said place vacated has approached the. Court with unclean hands. He stated that this aspect is evident from the record that neither the appellant nor her son have any experience to start business of general store and with a view to expel the respondent she filed the ejectment application on the ground of personal bona fide use. Learned counsel further submitted that perusal of the cross-examination would reveal that she has candidly admitted the fact that she never told the respondent to vacate the premises but only wanted to enhance the rent. Learned counsel submitted that since ingredients regarding personal bona fide use were missing, therefore, her appeal was rightly dismissed by the Rent Controller. Learned counsel further submitted that at present the respondent is paying a substantial amount to the appellant as rent but she is bent upon to get the said premises vacated from the respondent. In support of his above contentions, the learned counsel has relied upon the following decisions:
1. 1989 CLC 644 Re: [Syed Musharaf Ali v. Mst. Qamar Ara Begum and 4 others] 2.2006 SCMR 117 Re:i [Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd.] 3.1992 SCMR 2439 Re: [Haj Muhammad Khan and 2 others v. Islamic Republic of Pakistan and 2 others] 4.PLD 1994 Lah 252 Re: [Chaudhty Nazir Ahmad v. Mrs. Mariyam Salahuddin Khawaja]
5. 1999 CLC 1676 Re: [Vector Joseph v. Muhammad Amin]
6. 1995 CLC 702 Re: [Muhammad Roshan Khan v. Ishtiaq Ali] 1988 CLC 811 Re: [Raja Shehbaz Khan v. Muhammad Fazal Kiyani] 7.1992 SCMR 1296 Re: [Jehangir Rustom Kakalia v. State Bank of Pakistan] 8.1997 CLC 1085 Re: [Abdul Rehman and others v. Pakistan State Oil Co. Ltd. And another]
10. 1991 CLC 53 Re: [Mst. Ashraf Alia v. Dr. Asif Majeed]
11. 2002 SCMR 1933 Re: [Mrs. Noor Jehan Bi v. Muhammad Yousaf]
12. 2011 CLC 270 Re: [Syed Hamid Raza v. Malik Khuda Bukhsh and others]
13. 2007 SCMR 1602 Re: [Muhammad Shafi v. Sultan]
14. 2007 SCMR 1193 Re: [Mst. Lalan Bibi v. Muhammad Khan and others]
15. 1989 SCMR 538 Re: [Bashir Ahmad v. Muhammad Shafi]
5. I have heard both the learned counsel at considerable length and have perused the record, the law and the decisions relied upon.
6. Before dilating upon the issue it would be pertinent if provisions of section 17(4)(b)(i), (ii) and (iii) of the Act are first examined.
"17.
(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,
(a) ...............................................................................
(ii) .............................................................................
(iii) .............................................................................
(b) in the case of a commercial building, if-
(a) he requires it in good faith for his own use; and
(b) he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situate for the purposes of his business any other such building suitable for his needs at the time; and he has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act;
7. From the perusal of the above provision of law it would reveal that in case of a commercial building if the landlord requires the same in "GOOD FAITH" for his own use and is not occupying any other property in the cantonment area or in any other locality in the vicinity, in which such building is situate for the purpose of his business and the other such, building is not suitable for his needs at the time, he may file an application before the concerned Authority that the tenant occupying his property be evicted as he requires the same in good faith for his own use and there is no other suitable building/ place available for the purpose of his business. The key words of the said provision are "good faith", "own use" and "not having any other such building suitable for his needs at that time". Both the learned counsel have relied upon a plethora of judgments in support of their arguments proving that the said premises is required/not required by the landlord in "good faith" for her "own use" and that "there is no other such building suitable for her need at that time".
8.In my view, apart from relying upon those judgments this case has to be gauged from the angle of the peculiar facts and circumstances obtaining in this rent appeal. The High Courts as well as the Apex Court have decided the issue regarding "good faith", "own use" "and not having any other suitable building", either in favour of the landlord or the tenant keeping in view the facts obtaining in those cases, and the golden principle laid down is that in case the landlord is able to prove "good faith", "own use" and "having no other such building suitable for his use" then in such circumstances the said landlord has the authority under the law to ask for the ejectment of the tenant from the said premises.
9. Now, coming to the facts of the present case, I will first discuss the averments made by the appellant in the ejectment application and the statements given by her in the cross-examination.
In the memo of application she has categorically stated that she wants to open a super, store in the demised premises with the assistance of her son Farrukh Afzal Muneef, who has passed Chartered Institute of Management Account (CIMA) from UK and at present is working in an advertisement agency. She has further stated that she has no other place to do or to start her own business to earn livelihood for herself and for her family and, therefore, she has decided to indulge herself into super store business at the premises which is in the occupation of the tenant. She has further stated that the applicant and her family is facing acute financial problems and great hardship is being experienced by her for want of suitable place to do business and that is why she has chosen the said premises for her personal bona fide use in good faith. She has further stated that she has refused to accept,the rent after December, 2007 from the tenant and on her refusal the said tenant has started depositing the same before the Court. She has further blatantly refused to talk about the rent being received by her in respect of second and third floor of the said building.
She has further admitted that she is earning Rs,14,40,000 as rent from the said premises. She has further admitted that the said property is being rented out to two different tenants since 1995. She has further admitted that she has not given any detail in her ejectment application about her other properties. She has further admitted that her husband and son have their own independent properties. She has 'further admitted that she has never done any business of super store or had any experience of that business. She had further admitted that she has never asked the tenants to vacate the demised premises, however, she has stated that she has asked them to increase the rent.
10. A perusal of the above admitted position would demonstrate that the aspect of "good faith" apparently is missing from the present case as at one stage she has stated that she wants to start business with the assistance of her son whereas she admits that her son is a highly educated person and is engaged in advertisement business. She has further admitted that she wants to start business for earning livelihood for herself and her family and that she is facing acute financial problem and great hardship whereas on the other hand she had admitted in her cross- examination that she is earning approximately Rs,1,400,000 per month by way of rent from her properties and has failed to adduce a single evidence before the Rent Controller to prove that she is facing any acute financial problem, as mentioned by her in her ejectment application. It is also seen from the record that she has further stated that she requires the premises to do business to earn livelihood for herself and her family whereas on the other hand she has admitted that her husband and son are having their own properties. She has further admitted that her husband is a Chartered Accountant and is running a Chartered Accountancy firm and had been a Minister of Sindh. She has further admitted that they are having their own sources of income. It is also seen from the cross-examination that she had never asked the tenant to vacate the demised premises but in fact was interested in increasing the rent but when the tenant refused to increase the rent, as he was paying the rent as per the stipulations of the rent agreement executed between them in 2005, the matter started to aggravate between them.
11. In view of the admitted facts recorded above, I have come to the conclusion that the element of good faith is missing in the present case. What is good faith has been explained in case of Shirin Bai mentioned supra by the Hon'ble Supreme Court of Pakistan wherein the term "good faith" has been explained to be that to have genuine need of the premises which should certainly be more than a wish or desire and that act should be honest and without fraud, collusion or participation for wrong doing. As explained above while granting or rejecting the ejectment application the element of good faith plays a pivotal role. Though no hard and fast rule or any yardstick could be applied but, in my view, the facts and circumstances of each case speak for itself. Good faith should be reasonable and would not be tainted to deprive the tenant to eject him from the property only on the wish and desire of the landlord if the said good faith and personal need is not proved. Once this good faith is proved and the statement given on oath has neither been shaken nor anything has been brought on record to contradict the same, these aspects are sufficient to allow the said ejectment application but in the case where the above parameters are not fulfilled then in the case of genuine need if the mala fide is apparent in such case no lease could be granted to the landlord. Personal need, in my view, depends upon the facts obtaining in each case. It is open to the Court that in a given circumstance and looking to the facts it may hold that personal bona fide requirement of a landlord has been proved. It is also equally open to the Court to reject the said application after coming to the conclusion that such personal need on the basis of good faith has not been established.
12. The learned lower Court, after dilating upon the issue in detail and after examining each and every aspect of the case, has come to the right conclusion that since the applicant has failed to prove her claim of personal bona fide need in good faith, which is the basic ingredient of the said section, therefore the issue was decided against her.
13. The counsel for the appellant has also raised an issue regarding the payment of rent. Since the issue requiring consideration by this Court is with regard to the presence of element of good faith only, hence the issue of rent, which is the subject matter in another case pending between the parties, the same is left to be decided on its own merits.
14. I am mindful of the fact that it is the prerogative of the landlord to select amongst various properties held by him/her where he/she would like to start his/her business and it is not the job of the tenant to suggest as to which place is more suitable for him/her. I am afraid this principle of law is not applicable to the present case on the basis of the facts obtaining in this case as it is the prime responsibility of the landlord to approach the Court with clean hands and to prove from the averments his/her good faith. In the instant case from the pleadings of the landlord, as detailed above, it has been observed that apparently divergent and contradictory statements have been made by the landlord which has put a dent in her case. If she was really in dire need of the demised premises, as stated, she would not have given contradictory statements about her financial condition i,e, she is facing acute financial problems and hardship and that she had to earn livelihood for herself and her family by admitting in her cross-examination that she is earning substantial amount as rent from her other properties and that her husband and sons are having their own properties and independent sources of income. Hence the decisions relied upon by the learned counsel for the appellant regarding availability of other place and personal bona fide use are found to be quite distinguishable on the facts obtaining in the present case.
15. In view of the facts recorded above, I have come to the conclusion that no case for interference is made out in the impugned judgment This appeal is, therefore, dismissed. Since the appeal is dismissed the CMA is also found to be devoid of any merit and is hereby dismissed.