The facts leading up to these two connected Second Appeals Nos. 232 and 235 of 1973 briefly stated are that the appellants-landlords filed Rent Applica--tion No. 1861 of 1967 in the Court of learned Civil Judge and Rent Controller, Karachi on the grounds of subletting and bona fide personal need in respect of the ground floor of Allahwala Building on Plot No. SR-8/7, Bunder Road, Karachi, against the tenant-respondent. The learned Rent Controller gave a finding in favour. Of the tenant-respondent on the ground of sub--letting, whereas on the ground of bona fide personal need he gave a finding in favour of the appellant-landlord vide his order dated 30-8-1971, and directed that the tenant-respondent to put the appellants landlord in vacant possession of the premises within one month from the date of the order. The respondent-tenant filed 1st Appeal No. 289 of 1971 against the finding of the learned Rent Controller on the ground of bona fide personal need, whereas the appellant landlord filed 1st Appeal No. 315 of 1971 against the finding of the learned Rent Controller on ground of subletting. The 1st Appellate Court of the Additional District Judge, Karachi, disagreeing with the finding of the learned Rent Controller allowed the appeal of the respondent-tenant holding that there was no case for bona fide personal need, whereas agreeing with the learned Rent Controller with regard to finding on subletting dismissed the appeal, of the appellants landlord vide his judgment dated 23-5-1973. The result was that ultimately, the appellants landlord failed on both the grounds with the result that he filed the present two second appeals against the findings of the 1st Appellate Court. Since common facts are involved in the two connected second appeals they have been heard together and are disposed of by this common judgment.
2. The learned Rent Controller had framed two issues, one on the ground of bona fide personal use and other on subletting. The parties also led evidence in support of their respective contentions.
3. I have gone through the evidence on the record and have also heard the learned counsel for the parties, Mr. Muhammad Saeed for the appellant/ landlord and Mr. Syed Inayat Ali for the respondent/tenant at considerable length.
4. The .Contentions raised on behalf of the appellants/landlord by their learned counsel are that the appellant/landlord Muhammad Yasin was carrying on business of Sewing Machines and parts jointly with his elder brother Muhammad Saeed and that due to family dispute the matter was referred to an arbitrator who gave an award in the year 1964 vide Exhs. 8 and 9 awarding the properties including the premises in dispute to the appellant Muhammad Yasin and the business to his elder brother Muhammad Saeed exclusively and that on confirmation of the award by the High Court resulting in the decree dated 18-4-1966 the appellant/landlord Muhammad Yasin remained without business and therefore, he required the premises in question for his reasonable and bona fide personal use as he wants to establish his Sewing Machine business in the premises in question. His further contention is that the respondent/tenant does not carry on the business of running a restaurant personally in the premises, as he lives at Quetta where he runs another restaurant by name Cafe Shiraz. The contention has also been raised to the effect that the respondent/tenant sublet the part of the premises to Messrs Amin Stores, Muhammad Arif and Essa Usman and that he would be liable to eviction on that ground as well. .
5. The pleas raised on behalf of the respondent/tenant in defence are that the appellant/landlord Muhammad Yasin is in possession of the pro--mises under the name and style of Allahwala and Company on the ground floor of Esmail jee Amijee Natbani Trust Building on Bunder Road, Karachi and that the appellants do not require the premises in question for their reasonable and bona fide personal use. It is further argued that `Cafe Broad Way' was a partnership business having three partners and any partner may conduct firms business. It has also been pleaded that the sub- tenants in the cabins attached to the premises are there since before Partition of India and in any case before the present appellants exclusively acquired the premises in question in April, 1966.
6. As regards the ground of subletting there is concurrent finding of the two Courts below in favour of the respondent/tenant. The two Courts below have found that the ground of subletting of the premises by the respondent/ tenant was not proved by the evidence on the record. It has been con--tended on behalf of the appellant/landlord by their learned counsel that the three cabins which are the subject-matter of the alleged subletting are there since before partition and before the property was purchased by the appellant Muhammad Yasin and his brothers in the year 1948 and in any case there is no dispute that they were there much before the appellant Muhammad Yasin exclusively acquired the premises on the basis of decree passed by the High Court dated 13- 4-1966 confirming the award and, therefore, no question of subletting the premises without the consent of the appellants/ landlord by the respondent/tenant arises. The contention raised on behalf of the appellants/landlord is also very clearly based on no cogent evidence available on the record. The appellant Muhammad Yasin has deposed in his statement that the sub-tenants came in possession since 1949. His witness Muhammad Arif who is one of the occupants of the cabins has deposed that he came into possession of the premises of his business since 1957. He has further deposed that prior to his occupation of the cabin Abdul Ghani was occupying and doing his business in it. His next witness Muhammad Saleheen has deposed that he is running cabin which is inside the premises in question and that be has occupied the same since. 1947. He has further deposed that the cabin which he is occupying was in existence even prior to his coming in it and that one Hindu watch-maker was working in the cabin. The next witness of the appellant/landlord namely Muhammad Ibrahim, Cabin Inspector of K. M. C has deposed that on survey of the unauthorised cabins in the year 1958 he found the two cabins of Tayabali and Abdul Ghani in the premises and no other cabin. According to him no survey was done after the year 1958. Shahzad Ahmed another witness of the appellants/landlord has deposed that there are three cabins attached with the walls of `Cafe Broad Way' and that he does not know who has permitted them to be there. Against this evidence produced by the appellants/ landlord the respondent/tenant has examined his Attorney who has deposed that there are cabins attached to the premises since before Partition of India. He has further deposed that since 1966 - there has been no change of hands so far these cabins are concerned. He has further deposed that the cabins are there from the time of their Hindu owners and that Panwala cabin is there since before 1947 and so also the cabin of S. M. Arif who migrated from India after 1947. He has further deposed that he does not know that who was in the cabin before it was occupied by S. M. Arif. The next witness of the respondent/tenant namely Jehangir has deposed that the cabins are attached with the premises for the last more than 20 years. His witness Khamoo has deposed that the cabins are there for more than 22 years. Assessing all this evidence in the light of the con--tentions raised there is no room for doubt that these cabins which are said to have been sublet by the respondent/tenant without the consent of the appellants/landlord are very old cabins and are in existence since last many years, even before the premises were purchased by the appellant Muhammad Yasin and his brothers. Even according to Muhammad Yasin himself the sub-tenants came into possession as long back as in the year 1949. The evidence examined by the parties in that respect at least snakes it very clear that the cabins are there since before Partition of India and that much before the property was purchased by the appellant Muhammad Yastri-and his brothers. In any case, the evidence available on the record is very clear to the effect, in fact there is no dispute about it, that the cabins were in existence and in occupation of different persons much before 1966 when the present appellant Muhammad Yasin exclusively acquired the premises on the basis of a decree passed by the High Court confirming the award. The claim of the appellant landlord in that respect is therefore clearly based on presumptions and surmises rather than arising out of definite assertions proving conclusively that the premises were sublet by the present respondent/tenant without the consent of the appellants/landlord. The irresistible conclusion in that respect, therefore, would be that no cogent and conclusive evidence has been brought on the record in support of the plea of subletting.
7. The contention to the effect that `Cafe Broad Way' restaurant is being run in partnership and not by the respondent/tenant personally and, therefore, it amounted to subletting is also without substance, as there is no evidence on the record with regard to the terms and conditions of such partnership if any and that premises in question at all formed part of partnership property and, therefore, no interest in the premises passed on to other partners so as to make them co-lessees, sub-lessees or transferees. The interest in such circumstance if at all passed only as licencees and, therefore, the respondent/tenant would not be liable to eviction even on that basis. The appellant/landlord, therefore, has failed to establish that the respondent/ tenant is liable to be evicted from the premises in question under sec--tion 13(ii)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959, on the ground of subletting, and the impugned judgment does not call for interference on that score.
8. As regards the second ground of the appellants/landlord with regard to the requirement of premises in question for his personal bona fide use, the learned counsel Mr. Muhammad Ali Sayeed has contended that since the appellant/landlord Muhammad Yasin has separated from his elder brother Muhammad Saeed, in business by virtue of an award Exhs. 8 and 9 arising out of family dispute, he is without business since the award was confirmed vide the decree passed by the High Court dated 18-4-1966. It is contended that the property including the premises in question alongwith other pro--perties were exclusively acquired by the appellant/landlord Muhammad Yasin, whereas the business of Sewing Machines and parts which was being run by the appellant Muhammad Yasin and his brother Muhammad Saeed jointly, was exclusively acquired by his elder brother Muhammad Saeed. There is no dispute about the appellant Muhammad Yasin acquiring exclusively the property Allahwala Building on Plot bearing No. SR-8/7, Bunder Road, Karachi which includes the premises in question on its ground floor by virtue of an award Exh. 8, but it has been contended that the business was not exclu--sively acquired by Muhammad Saeed to the exclusion of the appellant/land--lord Muhammad Yasin. In that respect the copy of the award Exh. 9 is on the record and it speaks at items Nos. 4 and 5 of the assets and liabilities awarded to Sheikh Muhammad Saeed Allahwala about the business premises and the goodwill of the business having been awarded to Sh. Muhammad Saeed and no such mention has been made in the details pertaining to the distribution of the assets and liabilities of the Virjees business concern run in partnership awarded to the appellant Muhammad Yasin. The con--tention to the effect that as a result of the distribution of assets and liabilities of the business concern as a result of award the appellant Muhammad Yasin was left without business as soon as the award was confirmed by a decree of the High Court dated 18-4-1965, is not without substance. It has been contended that since the partnership was registered and there is no evidence available that it was legally dissolved, there could be no dissolution of the business firm and, therefore, the contention to the effect that the appellant Muhammad Yasin was legally out of business has no force. It has been urged by the learned counsel for the appellants that such legal dissolution of partnership was irrelevant in the circumstances of the present case as one has only to see as to whether as a result of the decree and a distribution of assets and liabilities the business going to the lot of elder brother, there was reasonable bona fide personal need in favour of the appellants-landlord within the meaning of the provisions of West Pakistan Urban Rent Restriction Ordinance in 1959, in order to establish his separate business as he was with--out business. To establish such legal dissolution of partnership is immaterial for determining the real question between the parties. It has, therefore, been established by sufficient and satisfactory evidence that the appellant --landlord Muhammad Yasin remained without business as soon as the award was confirmed by the decree of the High Court dated 18-4-1966.
9. In view of that situation the appellants-landlord filed a rent applica--tion in the Court of learned Rent Controller for ejectment of the respondent--/tenant on the ground of his reasonable and bona fide personal need, the tenancy between the parties having been admitted. He has asserted in his application as well as in his statement before the learned Rent Controller that as he was out of business on account of separation from his elder brother Muhammad Sated he is in personal need of the premises in question. He has stressed that he wants to establish his separate business of Sewing Machines which originally he used to run jointly with. His brother since very long time in the premises, the locality being suitable for such a business, His version to that effect has not been challenged in his cross-examination by the learned counsel appearing on behalf of respondent- tenant in the Court of learned Rent Controller, and, would be deemed to have been accepted on behalf of the respondent-tenant. His assertion with regard to his bona fide personal need has also not been controverted by Aide Sher the attorney of the respondent-tenant examined on his behalf.
The respondent--/tenant has also failed to come into the witness-box', and has failed to examine himself in that respect. There is, therefore no rebuttal of the assertion of the appellant-landlord Muhammad Yasin in respect of his bona fide personal need of the premises in question. What is further apparent in the evidence available on the record that the appellants have not vacated any other business premises without sufficient cause after the commencement of West Pakistan Urban Rent Restriction Ordinance, 1959, in the same urban area, with regard to his occupation of any other business premises suitable for his need at the time, the appellant Muhammad Yasin has denied that he is having a shop at Denso Hall in which he runs a business. On seeing the photograph of the shop he does not claim to be his own. On the other hand the respondent/-- tenant has claimed that the shop is in possession of the appellant Muhammad Yasis and that he is running business in it. There is only a solitary word of the respondent-tenant's attorney Aide Sher in that respect. According to him the appellant Muhammad Yasin Allahwala is in occupation of a shop opposite J A Advani Shop Bunder Road, Karachi where he is running a business of Sewing Machines. There is no cogent evidence adduced by the respondent-tenant in that respect. His witnesses Jahangir and Khamoo only talk of board of Allahwala fixed on this shop on Bunder Road opposite J. D. Advani shop. There is nothing to show that this Allahwala is Muhammad Yasin appellant. There is no other evidence on the record to the effect that the shop belongs to the appellant-landlord Muhammad Yasin where he runs his business of Sewing Machines. It is, therefore, not established by reasonable evidence on the record that the appellant Muhammad Yasin was in occupation of any other business premises. It is, however, contended on behalf of the appellant-landlord by his learned counsel that the need is referable to the time at which the landlord applies and is not confined to the need of his existing business at the time. Reliance in that respect has been placed on the case of Abdul Ghafar v. Haji Salamatullah (PLD 1961 Lah. 233). In that respect, there is not even a slightest evidence to the effect that the appellant--landlord Muhammad Yasin was in occupation of business premises at the time be made, the rent application in the Court of the learned Rent Controller. He, therefore, very clearly needed the premises for his personal use at the time of the application was made in the year 1967. Assuming he subse--quently acquired any business premises as he was out of business since as long back as in the year 1964, his claim for eviction of the respondent-tenant from the premises in question would not be unsustainable on that ground.
10. It has been also contended that the appellant-landlord is also the owner of two other properties one near Plaza Cinema and the other in tae Elephinstone Street which would be sufficient for their requirement for the business purpose. There is absolutely no evidence on the record that he is in possession of these two premises. Moreover, he has explained that the premises near Plaza Cinema are not suitable for the business of Sewing Machines and parts and that the shop in Elphinstone Street is too small to run any business in it. It is an admitted position that he is not running any business therein and that they are not in his occupation at all. What I further find on the basis of the ample evidence available on the record that the locality in which the premises in dispute are situated is suitable for the business of Sewing Machines and parts. The version in that respect is supported by Muhammad Aslam and Shahzad Ahmed witnesses of the appel--lants- landlord and there is no rebuttal of that version by any evidence avail--able on behalf of the respondent tenant. In any case, it has been contended on behalf of the appellant-landlord that it is neither for the tenant not for the Rent Controller to determine as to where the landlord shall carry on his business personally. It is purely a matter within the prerogative and dis--cretion of the landlord as to where he should establish his business as it would suit him. Reliance in that respect has been placed on the case of Sabumal v. Kikaram alias Hamendas (1973 SCMR 185). It has been contended that this authority pertains to residential accommodation, whereas in the instant case business premises are involved. It may be true, that the principle involved is the same and there is no reason as to why the same should not be made applicable to the instant case.
11. It would be, therefore, clear on the basis of the evidence and the circumstances on the record that the assertion of the appellants-landlord to the effect that they are in need of the premises in dispute for their reason--able bona fide personal use is not only supported by the fact that the, appellant-landlord Muhammad Yasin has been out of business since the year 1964 after the separation from his elder brother Muhammad Sated as a result of award and its consequent confirmation by the High Court, but the said assertion has also been unrebutted by any cogent evidence or reason--able material on the record. What I further find that the learned 1 Appellate Court has not considered the case of the light of sub-paras (b) (c) of para. (ii) of subsectionst appellant-landlord section 13 of the Ordinance and that of subsection (4) of the same section of the Ordinance. The intention of the landlord in prosecuting the ejectment proceedings against his tenant if nothing is brought on record against him in view of sub-- paras. (b) and (c) of para. (il) of subsection (3) of section 13 of the Ordinance is to be seen in context of the provision as contained in subsection (4) of section 13 of the Ordinance. In case of his mala fide intention the entire proceedings started by him would be rendered useless and he would have to surrender the possession of the premises to the evicted tenant. Since the intention of the appellants to prosecute ejectment proceedings in good faith and bona fide for his personal use has not been examined in view of the provisions contained in sub-paras. (b) and (c) as mentioned above and sub-sec--tion
(4) of section 13 of the Ordinance, the finding as given by the 1 Appellate Court cannot be treated a finding of fact, but contrary to law. The condition as laid down in para. (a) that if the landlord requires a non-residential building in good faith for his own use or for the use of any of his male children is to be read in context of the conditions as laid down in sub-paras. (b) and (c). If it is proved that the landlord or his male child is not occupying in the same urban area any building for the purpose of business suitable for his needs or has not vacated such a building or rented land without sufficient cause then his good faith or bona fides will have to be determined in context of the said paras. (b) and (c). There is no cogent and reasonable evidence on the record that either he vacated any premises without sufficient cause or he is occupying any other business premises in the same urban area, and, therefore, his need would be considered in the light of such circumstances and that the reasonableness or bona fides of his claim would be considered in that context. Reliance in that respect has been placed on the case of Muhammad Siddique v.
Muhammad Aslam (PLD 1975 Lab. 308). Judging in the light of the evidence available on the record in that context, I would find that the reasonable bona fide personal need of the appellants- landlord is fully established. The appellants-landlord therefore shall be entitled to ejectment of the respondent-tenant on that ground within the meaning of section 13 (3) (ii) (a) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
12. Consequently, judgment of the learned 1st Appellate Court on the ground of bona fide personal use is set aside and the order of the learned Rent Controller in that respect is restored. Accordingly Second Appeal No. 235 of 1973 is allowed, whereas Second Appeal No. 232 of 1973 is dismissed.
However, 1 direct that in the circumstances of the case the res--pondent-tenant shall put the appellants-landlord in possession of the premises within a period of four months from the date of this judgment. The parties shall bear their own costs.