1. This appeal under section 21 of the Sind Rented Premises Ordinance, 1970 is directed against the order dated 31-7-1980, passed by the Controller whereby he ordered the eviction of the appellant from the shop premises on the application made by the respondents.
2. Briefly, the facts giving rise to this appeal are that the respondents who are owners and landlords, of a shop premises bearing No. E/2335 situated at Shahi Bazar, Hyderabad filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959, on the grounds of default in payment of rent, personal requirement of the shop by respondent No. 2 who is the only earning male member of the family, and on the further ground that the appellant had damaged the premises.
3. The appellant in his written statement denies all the grounds.
4. On the pleadings of the parties the Controller framed the following issues "(1) Whether the opponent is defaulter in payment of rent?
(2) Whether the opponent has damaged the premises in question?
(3) Whether the applicants require the disputed premises for their personal use?
(4) Whether the application is not maintainable?
(5) What should the order be?
5. The respondents in support of their case examined respondent No. 2 (Exh. 17), Hakim Muhammad Saeed (Exh. 30), Manzoor Ahmad (Exh. 3l), Qutubuddin (Exh. 32) and produced a number of documents. The appellant examined his attorney Muhammad Iqbal (Exh. 76) and Adam (Exh. 77) and Wazir Ali (Exh. 78).
6. The Controller decided the issue of default in favour of the appellant as the same was not pressed and other issues in favour of the respondents.
7. I have heard Mr. Siraj Ahmed, learned Counsel for the Appellant and Mr. M. Zaheeruddin Khan, learned counsel for the respondents and have gone through the record.
8. It is submitted by Mr. Siraj Ahmed that the Controller erred in holding that respondent No. 2 required the premises for his own personal use as he had failed to disclose the nature of the business for which be wanted the shop and his financial resources for carrying on business. It is further submitted that the Controller failed to take into consideration the fact that in the year 1973 the respondents had entered into fresh agreement of tenancy and if respondents needed the shop for the use of respondent No. 2, they would not have entered into such agreement.
9. Now, before discussing these submissions, I may state that M. Zaheerud din Khan, Advocate stated at the bar that he would mainly rely on the finding on issue of bona fide requirement of the premises by respondent No. 2 and for this reason the learned counsel for the appellant did not advance any argument in respect of the finding on the issue of damage to the property given by the Controller against the appellants.
10. Now, taking up the first submission of the learned Counsel I may first state that it is an admitted fact that respondent No. 2 Attaur Rahman, is a hawker and has been selling small articles of merchandise in towns like Hala and Saeedabad. Muhammad lqbal, the attorney of the appellant (Exh. 76) himself in paragraph 3 of his affidavit has so stated. Then it is evidence of Adam another witnesses examined by the appellant that Attaur Rahman has no other shop and is doing business as hawker. It is also not disputed by Mr. Siraj Ahmed that this shop was let out to the appellant in the year 1969, after the death of the father of respondent No. 2 who was carrying on business in the same shop and who had died in the shop because o fire. It is also not questioned that at that time the age of respondent No. A was only 10 years and at the time when he made the application he was about 18 years of age and was carrying on business of selling merchandise by hawking.
11. Therefore, on these facts it cannot be said that respondent No. 2 who is also co-owner and landlord of the shop did not require the same in good faith.
12. Reverting to the submission that the respondents had failed to prove the bone fide requirement of the shop by respondent No. 2 because he had failed to disclose the nature of the business and financial resources, it ma be stated on the facts and circumstances of this case it was not necessary for him to have stated the nature of business or the financial resources for he was already carrying on business as hawker moving from place to place.
13. What he required was the shop so that he could carry on business at a fixed place. In support of the submission, however, the learned counsel relied on Barkat Ali v. Sughra and others (PLD 1980 Kar. 223). But in that case the landlord had required the premises for his four sons who were employed and who wanted to start their own business in the premises in occupation of the tenant.
14. It may further be stated that in that case the landlord was already carrying on business of import and export in the office established at his residence. In that case it was urged before the learned Single Judge as follows "Mr. Saeeduzzaman, the learned counsel invited my attention to the landlords' application in which all that was stated was that four of the applicants were unemployed and they wanted "now" to start their own business. He also referred to the disposition of witness Noor Hassan on behalf of the landlords and made a justifiable grievance that this evidence did not as much as state as to what was the business which the applicants/landlords wanted to start, whether they had the means to start it or that the existing accommodation where export import business was being carried on was insufficient. The learned counsel complained that the finding given by the First Appellate Court that the applicants wanted to carry on import export business from the shop premises is devoid of evidence for the witness Noor Hassan has not so stated. His statement merely is that he carries on import export work, the office of which is, situate in his residence and that this business did not fetch much income. He further complained that the onus was all the more on the applicants/landlords to prove that they had intended to start a particular business and had the financial capacity to do so, for as late as 1966, they had reconstructed the building and let out the shop to the appellant on condition that the tenant will not be evicted so long as he continues to pay rent and abide by the terms and conditions of the tenancy. In this state of evidence I am in agreement with the learned counsel for the appellant that the landlords had failed to prove required the premises for their personal use for the burden cannot be said to be discharged by bare and bald statement in the evidence that some of the landlords were un-- employed and they wanted to start some unspecified business."
15. On these submissions the learned Judge observed as follows :- "In this state of the evidence I am in agreement with the learned counsel for the appellant that the landlord has failed to prove that they required the premises for their personal use for that burden cannot be said to be discharged by bare and bald statement in the evidence that some of the landlords were unemployed and they wanted to start some unspecified business."
16. Therefore, this case is distinguishable on facts.
17. As regards the submission that if respondent No. 2 had needed the shop for personal requirement he would not have rented out the same by entering into agreement in 1973. 1 may state that this submission ignores two facts, first, that in the year 1973 the respondent had rented out the shop only for 11 months as stated by Mr. Siraj Ahmed, himself at the bar and not for unlimited period, second, respondent No. 2 at that time was only about 14 years of age, therefore, on coming of age of 18 years he could very well require the shop for his own personal use.
18. I therefore, find no substance in this appeal and dismiss it with costs.
19. Mr. Siraj Ahmed, Advocate requests that the appellant may be allowed one-month time to vacate the premises. Time as prayed is granted.