1. ' The appellant filed an ejectment application against the respondent under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 on the ground that he has retired from Government service and wants to carry on his business in the disputed shop. The tenancy agreement between the parties commenced from the year 1964 in respect of shop on the ground floor, at a rent of Rs,75 per month. In the year 1965 the monthly rent was increased to Rs,80 and in the year 1967 it was again increased to Rs,100. In the year 1970 first floor of the building in which the shop is situated was also rented out to the respondent at a rent of Rs,90 per month and joint receipt in respect of both the tenements for Rs,190 was issued by the appellant. An agreement was entered into between the parties on 23rd July,1974 whereby the monthly rent of the residential portion and the shop was increased from Rs,190 to Rs,245. The appellant retired in June 1975 and on 21st December,1978 he served a notice on the respondent calling upon him to vacate the shop as he required it for his own personal bona fide use and occupation. As the respondent did not vacate, the appellant filed an ejectment case on 28th January,1979. It is an admitted position that the ejectment case relates to the shop and not to the residential portion. The learned Controller held that the appellant's bona fide requirement has not been established and dismissed the ejectment application.
2. ' Mr. Abdul Fahim Khan the learned counsel for the appellant has contended that the finding of the learned Controller is erroneous and is a result of misreading and misappreciation of the evidence on record. The learned counsel has contended that the Controller has erred in holding that the personal requirement of the appellant has not been established as the appellant has failed to state the nature and type of business he would start in the shop. According to the learned counsel mere fact that the appellant wants to carry on business and has so stated in his affidavit is sufficient to prove that the premises is required for his bona fide use and occupation. The question of personal use and occupation is to be decided by objective assessment of the evidence and facts which may be brought on record. Mere desire or statement even on oath that the landlord wants to carry on business in the disputed premises by itself is not sufficient to prove his bona fide requirement to carry on business in that premises. The intention may be very pious but it has to be established in accordance with the principle for proving a fact. The fact that the landlord requires the premises for his bona fide use and occupation has to be established by evidence. The purpose for which it is required should be genuine and bona fide. To establish that the landlord wants to carry on business in the disputed premises he has to show the nature of business he wants to carry on. Relatively it may also be necessary for consideration whether the landlord has sufficient resources to carry on that business or that he has made necessary arrangements to start the business. The landlord without any resources or fund or arrangement which he may have made to raise the fund, cannot be expected to open and establish a business provided he proves that the business he wants to start does not require investment of any fund or that it requires only nominal fund. Under Law mere statement that the landlord wants to carry on business in the disputed premises is not sufficient. Additionally it has to be established that the requirement is bona fide and in good faith. It is only after all facts relating to the funds and arrangements made by the landlord have been established it is possible to prove bona fide and in good faith. In the present case the appellant has not prod is any evidence of this nature except that he has made a statement on oath that he has retired and wants to carry on business.
3. Mr. Fahim the learned counsel for the appellant has contended that from the fact that the appellant has retired, it is sufficient to establish that he requires the premises for his own bona fide and personal use and occupation. This presumption cannot be drawn merely because the landlord has retired from service. To establish good faith and bona fide the landlord has to submit facts which are necessary to prove that he requires the premises for opening the business. In these circumstances the learned Controller has correctly held that bona fide use and requirement has not been established by the appellant.
4. ' Mr. Khuda Bux Umrani the learned counsel for the respondent has contended that by the agreement dated 23rd July, 1974 the appellant has agreed not to eject the respondent for any reason whatsoever. In clause 2 of the agreement the appellant has recited that "I declare that under no circumstance I will demand for eviction of the shop. Even this demand will not be made in case of sale mortgage or any other reason and in all circumstances such demand will be illegal and I will have no right to make such a demand." This declaration was made at the time when the appellant had increased the rent from Rs,190 to 245 per month for both the premises. The question therefore arises whether such declaration can debar the landlord form seeking ejectment. Such condition can be pressed provided the tenant continues to discharge his obligation under the agreement. The learned counsel for the respondent has referred to Mrs.Zehra Begun v. Pakistan Burmah Shell Ltd. PLD 1984 SC 38 where the registered lease deed was initially for a period of 10 years from 1st May, 1965 with two options made available to the lessee to get it renewed in all 30 years and the lessee was entitled to assign or sublet the demised premises. The first renewal was made in May, 1975 and is to last till May 1985 with another option of renewal till May 1985. The lessors on the other hand undertook not to evict or interrupt the enjoyment of the lessee if the lessee continued paying the rent reserved and observed the covenants. On 8th February,1981 the lessor served a notice on the lessee to vacate the premises forthwith as she wanted the same for her own occupation and for her family. An application under section 15(2) (viii) of Sind Rented Premises Ordinance, 1979 for ejectment of the lessee was filed which was dismissed by the Controller. This order was maintained in appeal and the lessor appealed to the Supreme Court.
5. After giving historical background of the rent Laws in Karachi and Sind it was observed:-- "The provisions of the Ordinance permit freedom of contract based on equality of bargaining power in both parties. It formalizes the contract. It does not profiles to protect any one class against the other. In this view of the matter if at the time of entering into lease agreement in 1965 the landlord know that he was bartering away his personal need under the law then in force for a period of thirty years, he cannot under the statutory provision made in the Ordinance turn back to repudiate the term of the agreement. In the first place the Ordinance keeps alive the contract, lends it continued validity and force and professes to protect as much the right of the tenant as that of the landlord, referable always to a valid subsisting contract. In the second place even if there was such a right available under the law (for argument sake but not as a fact) it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration.
6. ' The bona fide requirement of the premises by the landlord for 'his own occupation or use or for the occupation or use of his spouse or any of his children' is, to begin with a need personal to him. He has only to place certain facts before the Controller to make the objective assessment, and review in appeal, of his need and good faith possible. When an owner vacates the only house possessed by him gets it demolished, lets out the plot for commercial exploitation on pest market rent on a long lease giving up his right to recover possession if the rent was paid and the covenants observed he cannot on the ground of same need then existing or one which could then be visualized get the tenant evicted. It would not be in good faith. It would be in repudiation of contract."
7. ' Although these observations were made while considering section 15(2) (viii) of the Sind Rented Premises Ordinance, it equally applies to section 13(3)(a)(i) of Sind Urban Rent Restriction Ordinance, 1959. The appellant by entering into an agreement in July 1974 had agreed not to evict him which impliedly meant that so long the respondent observed the terms of agreement he will not be ejected. He was to retire in 1975 and he was aware of it. Even after retirement for 3 years he did not consider to open a business. All of a suddening 1978 he thought of starting his business but no evidence has been given to establish in what circumstances he decided to start his business. In these circumstances as the appellant has 'batted away his personal need under the law', he cannot be allowed to press this ground for ejectment. In cases where the landlord knows or could visualise his need and personal right under the Rent Ordinance but agrees not to press it and waives it for valuable consideration, he is not entitled to apply for ejectment on such grounds during the currency of the agreement.
8. ' The appeal is dismissed with no order as to costs.