The instant appeal is directed against the judgment of the First Additional District Judge, Karachi, who by his judgment dated 11th April, 1978 allowed the appeal filed by the respondent/tenant. The Rent Controller had decided the matter in favour of the appellant/landlord and bad given finding in his judgment dated 27th October, 1977.
2. The facts briefly are that appellant Fazal Abbas owned a building in the Sindhi Muslim Co- operative Housing Society on plot No. 8. He himself resided on the first floor namely the upper storey of the building while on the ground floor of the premises now in possession of the respondent/tenant were rented out to the Respondent on 20th October, 1972 vide rent deed. The rent was fixed at Rs.500 per month. The rent deed contained a clause that in case the appellant' 'landlord bona fidely required the premises for his business purposes the Respondent would hand over the possession to him. The appellant/landlord had a workshop at Keamari which turned out oil tankers.Unfortunately the said workshop was blown of by bombs in 1971 in the air raids. He suffered a huge loss and that he could not get any compensation from either Insurance Companies pr from any source whatever. He was ruined as such so far his business was concerned and his continuous efforts for 3-4 years to get some compensation from the Insurance Companies did not yield any fruits or favourable results. Constrained by .The circumstances of such a misfortune he gave a notice to the respondent/tenant on 12th July, 1975 to honour the stipulation contained in the rent deed. The respondent however, did not respect the condition mentioned in the rent deed. Thus rent application was filed before the Rent Controller, Karachi. The respondent/ tenant in his written objections before the Rent Controller did admit relationship of landlord and tenant at the rate of Rs.500 per month. He however, contended that the application filed by the appellant was mala fide and in fact he did not need the premises bona fidely for the purposes of his business. The Respondent/tenant further contended that the rent deed was null and void as it was not registered under section 49 of the Registration Act.
3. The evidence of appellant was recorded by the Rent Controller . And his two witnesses Ziauddin and Shakir Hussain were examined in the lower Court. Similarly the evidence of the respondent/ tenant and his two witnesses Yousuf Hussain and Khalid Ahmed was recorded by .The Rent Controller. Following four issues were framed
(1) Whether it k: provided in the agreement that the opponent shall vacate the suit premises if the same are required for the applicant's bona fide use and occupation. If yes what is its effect ?
(2) Whether the applicant requires the suit premises for his own used and occupation for business and commercial purpose ?
(3) Whether the opponent has. Rendered himself liable to be evicted on account of above reasons ?
(4) What should the order be ?
The finding of the Rent Controller was that the appellant/landlord required the premises in question bona fidely for his business and commer--cial purposes and as such it was ordered that the respondent/tenant be evicted therefrom. However, the first appellate authority, i. e. First Additional District Judge. Reversed the finding of the Rent Controller by his judgment dated 11th April 1978.
5. The Advocate for the appellant and also for the respondent were both heard at length by this Court. The Advocate for appellant/landlord has taken me through the relevant portions of the evidence recorded in the lower Court. The impugned judgment is attacked on the grounds that the evidence of witnesses Shakir Hussain and Ziauddin was not appreciated in the proper context and that the learned Judge came to a conclusion that the appellant/landlord was in possession of one room on the ground floor which was sufficient for his business purposes. In fact the appellant/ landlord had no such room but only a garrage under the staircase where he parked his scooter and car. From the evidence on record ,the learned First Additional District Judge did not draw the correct inferences.
6. The tenancy is not denied. The calamity which had fallen on the appellant/landlord in consequence of hombing and the destruction of his workshop is a fact which is also not denied.
While going through the deposition of the appellant/landlord I gather that he had made ceaseless efforts to re-establish and get the compensation from Insurance Companies but failed in his efforts. It is also on record that be approached by a notice to respondent who flatly refused to vacate the premises. It has come on the record that the appellant/landlord has acquired an agency from Sulleman Ji & Company to do the business. Thetp are in ail three shops on the ground floor in the building owned by the appellant/landlord. Two of the shops on the ground floor are rented out-to two doctors namely Elyas and M. F. Ali. The third shop is the premises now I in question. These shops rented out to the doctors have no connection with the instant appeal and any arguments raised that why the respondent be evicted and not the doctor have no bearing on the point in issue. There is a stipulation in the rent agreement itself that the respondent would vacate the premises if the same are needed in good faith for the business purpose by the landlord/appellant. There is hardly any point in bringing the two shops of the doctors in this case.
The statements of Ziauddin Exh. 13 and Shakir Husain Exh. 15 relate to the fact that .Appellant has acquired an agency is the month of June. 1975 from Sulleman Ji & Com--pany. The letter of agency Exh. 8 is signed by the brother of Ziauddin the Director of the same company of which Zisuddin is also a Director Shakir Husain states that he had a dealing with the landlord when he had a workshop at Keamari and that he used to print cash memos. Etc.' for him but since 3-4 years such a dealing had stopped because the appellant had no premises to run the business. It is being urged before this Court by the learned counsel for the landlord/appellant that the learned First Additional District Judge has misread the evidence of Ziauddin and Shakir Husain and as such has fallen in error. While perusing para. 8 of the judgment of the First Additional District Judge it appears that he had considered Exh. 8 as a Policy. In fact Exh. 8 is letter for acquiring an agency to stock, sell and distribute Kolson Brand Macaroni. This letter contains a condition that if he had suitable premises in a commercial area and ade--quate arrangement for stocking and displaying the goods, then his request for agency would be considered. This is signed by the Director who is brother of Ziauddin who again is the Director in the same Company. It is indeed surprising that the first appellate Court con--sidered Exh. 8 to be a policy whereas it is mere a letter for the grant of agency. The evidence of Shakir Husain and Ziauddin is rejected by the first Additional District Judge in his judgment. P.W. Shakir Husain did not say in his deposition that the appellant had other premises for doing business where the Company Fazal Traders is accommodated. Such averments find no place in the evidence of Shakir Husain. Be that as it may witnesses Ziauddin and Shakir Husain prove one fact and one fact alone that the landlord ha d no premises and that Sulleman Ji & Co. Put a condition for the grant of agency that he should have some place to stock the material.
To this extent I think the evidence of Ziauddin and Shakir Husain was not properly appreciated by the first appellate Court.
7. On the other side the respondent raised two pleas; firstly that. The requirement of the premises by appellant is not bona fide and it is in fact pretext to evict him and in fact his intention is to enhance the rent from Rs.500 to Rs.1,000. Secondly the appellant had one room on the ground floor where he is doing business and this is sufficient for him. These are the points on which the respondent led the evidence before the Rent Controller. His witnesses support him that appellant had demand-- ed Rs.1,000 as rent: As regards the demand for the enhancement of rent it is repelled and not admitted by the appellant. Raising of such a plea is for the purpose to show that appellant has no good faith and bona fide. The two witnesses Khalid Ahmed and Yousuf Hussain both aver that the landlord and tenant had quarreled in respect of enhancement of rent. These witnesses only - prove the fact that in reality the problem was relating to the enhancement of rent.
The problem could have been solved by paying Rs.1,000 per month which now-a-days is no rent of a substantial size and it can easily be paid by the respondent who was run--ning the business in Chemical goods. This was not in fact the reason for filing the rent application. The evidence of these two witnesses and for that matter the evidence of respondent/tenant has no weight or value: This aspect of the case is worth rejecting. In support of my view I may refer -to 1980 SCMR 772 wherein it is observed : "We do not find any reason for interference and agree with the dic--tum contained in Badruddin Hasan Faruqui and others v. Manghi Industrial Home that a demand of higher rent by itself does not cast -any doubts about the personal bona fides requirements if the factum of bona fide requirement is independently proved."
8. The second aspect is in respect of the room in possession of the appellant which has influenced the mind of the Additional District Judge while recording the impugned judgment. He in fact believed that there was a room though insufficient, in possession of the appellant. Revert--ing to the evidence on record I find that no mention is made in respect of a room in possession by the appellant in the written statement filed by the respondent. It is in the main application of the appellant that he had only one garrage where be parked his car and the scooter. It has been argued before me that this garrage is below the staircase and would hardly be called a room. I am referred to an application made by the appellant in the lower Court for inspecting premises in respect of the garrage or the room to the Rent Controller and objections were filed by the respondents that such an inspection would be of no consequence and that it is not necessary on the ground that alteration might have taken place. No further action was taken in respect of this particular applica--tion but the fact is that the respondent bad resisted the inspection of the ground floor. It is being urged in his arguments by the learned coun--sel that the respondent wanted to avoid such an inspection lest the truth may be out. I have considered this point and after perusal of the entire record I feel that there was only one garrage in possession of the appellant/ landlord and there is no room whatsoever where the business was being conducted by him. The plea taken by the respondent in respect of the room is false and it is manifest from the record.
9. The moot point in this case is whether the appellant needs in goods faith and bona fidely the premises for conducting his business. So far bona fides are concern it is a matter which relates to the mind of the appellant. None knows the mind of a man. However, there are authorities which have laid down the tests by which bang fides could be in--ferred. Besides these authorities on the factual aspect of the case one would not fail to notice that the workshop of the appellant was entirely destroyed by the unfortunate bombing and that he further suffered getting the Insurance Companies compensation and that he had attempted to get agencies wherein he was handicapped. These circumstances lend support to the bona fide of the appellant. These facts can not be disregard--ed, omitted or ignored.
10. I may refer to PLD 1976 Kar. 832 wherein it was held that an assertion or claim on oath by landlord that the required premises for his personal use and the same were found consistent with the averments in his application and not shaken in cross-examination, or disproved in rebuttal, are considered good grounds for believing the bona fide of the landlord.
11. Lastly after having assessed the entire case I have come to the conclusion that the bona fide of the landlord/ appellant cannot be doub--ted and he has the right to get the ejectment of the premises in question The learned First Additional District Judge has misread the evidence and drawn inferences which are incorrect.
Consequently I set aside the judgment of the first appellate Court and allow the appeal. I hereby order that the respondent be evicted from the premises within a period of 15 days within which peaceful possession be handed over to the appellant by the respondent. The costs to be ---borne by the parties.