' This is first appeal under section 21 of the Sind Rented Premises Ordinance,1979 (hereinafter referred to as the said Ordinance) from the Judgment of 1st Senior Civil Judge and Rent Controller, Nawabshah dated 25th November,1981 whereby the learned Rent Controller had allowed the ejectment application of the respondents and directed the appellant to vacate the rented shop within three months.
2. The facts of the case are that the rented shop bearing C.S.No,694 situated in Ward "A", Market Road, Nawabshah originally belonged to Manzoorul Haq and others. The respondents have purchased the same from Manzoorul Haq and others by registered sale-deed dated 19th November,1978. The appellant was occupying this shop as a tenant of the former landlord. He continued to be tenant of the present respondents on the same terms and conditions which were incorporated in a tenancy agreement executed by the appellant in favour of the said former landlord on 19th August,1976. According to this agreement the period of tenancy was fixed as five years but it was stipulated that the landlord shall be entitled to ask for possession of the shop before expiry of the five years on the condition that the goods lying in the shop shall also be purchased by the landlord.
3. On 13th December,1978 the respondents gave legal notice to the appellant informing him that the shop has been purchased by them from Manzoorul Haq, and that the appellant should attorn to them and pay rent of the shop in question to them. It was also mentioned in the notice that in view of the stipulation in the tenancy agreement the respondents want to terminate the tenancy agreement, as they have option to purchase the opponent's stock in trade lying in the shop. It was further stated by them that they require this shop for their own personal use and they want to run business of their own in this shop. It was alleged by the respondents that the appellant did not comply with the offer made in the notice nor paid rent of the shop to them. Hence they filed ejectment application on 15th January,1979.
4. In his written statement the appellant admitted having received notice from the respondents regarding change of ownership etc. It is alleged that the appellant had sent a reply to the respondents asking them to send copies of sale-deed etc. To prove their ownership. The respondent did not send any document to them to prove that they had purchased the shop in question from Manzoorul Haq. The appellant, therefore, denied in written statement that he has become tenant of the respondents or that the rent agreement dated 19th August,1976 can be availed of by the respondents in order to claim status of landlord in respect of the shop in question.
5. The appellant in para. 9 of his written statement has taken a plea which is inconsistent with the above averment of denial of land lordship of the respondents. The appellant states in this para. That rent was remitted to the respondents by money order but the latter refused to accept the same. Hence the rent was deposited in the Court of Rent Controller under Misc. Rent Application No, nil of 1979. It is denied that the respondents require the shop in question for their bona fide use. He has alleged that the father of the respondents has got many shops and that the respondent No,1 himself is working with one Akbar Saheb in his shop and therefore, the plea of the respondents that they require this shop for their bona fide use is not correct. It is also alleged that the rent application was not maintainable being premature and that the previous owner Manzoorul Haq had orally agreed to sell this shop to the appellant for Rs, 60,000 but in spite of this he secretly sold the shop to the respondents malaciously. On these pleadings the learned Rent Controller recorded evidence of the parties and came to the conclusion that the rent application was maintainable, that the appellant had committed default in payment of rent and the personal bona fide requirement of the respondents for the shop in question was proved. In view of these findings the ejectment application was allowed as stated above.
6. The first point raised by Mr. K. A. Wahab learned counsel for the appellant is that the rent application is premature because according to the agreement dated 19th August, 1976, the period of tenancy was fixed as 5 years which was to expire on 19th August,1981. The rent application was filed on 15th January,1979 i,e, after 2 years of the execution of the rent agreement. Mr. S. Rashid Ahmed learned counsel for the respondents has relied on condition No,9 of the rent agreement which is Exh. 9/B on the trial Court's record. This condition is reproduced hereunder:- "That if the landlords desire to get the shop vacated before expiry of five years, they shall have to purchase business commodities of the tenant but if the tenant desires to vacate it at any time, he shall hand over vacant possession of the shop to the landlord and shall not demand purchase of his business goods."
7. Now in the notice that was given by the respondents to the appellant and which has been produced as Exh. 19/C by the respondents in the trial Court's record, it is clearly stated that in view of condition No, 9, they are prepared to purchase the goods lying in the shop in lieu of vacating the shop by the respondents. The actual words in which this demand is made by the respondents in the notice Exh. 19/C are as under:- "That as per terms and conditions of the tenancy agreement dated 19th August,1976, the period of the tenancy is 5 years. There is, however, a condition in the said agreement, that the owners will have the option to purchase your stock in trade in case they desire you to give up your tenancy before the expiry of the contractual period and deliver vacant possession thereof."
8. The terms and conditions of the rent agreement (Exh. 19/B) are not denied. The receipt pf the notice (Exh. 19/C) is also not denied by the appellant. Mr. K. A. Wahab has not pressed the appellant's plea taken in the written statement that the rent agreement dated 19th August,1976 cannot be availed of by the respondents. On the contrary he himself has taken shelter under the terms of the rent agreement by alleging that the rent application was premature for the reasons that it has been filed before the expiry of five years. The sale-deed produced by the respondents as Exh. 19/A before the trial Court executed by Manzoorul Haq in favour of the respondents clearly stipulates that the respondents shall be deemed to be landlords of the shop in question. The respondents are successor-in -interest of Manzoorul Haq and therefore, they have stepped into the shoes of Manzoorul Haq as landlords of the appellant by virtue of the rent agreement dated 19th August,1976. The respondents were, therefore, fully entitled to take advantage of the terms and conditions of the rent agreement which was formerly between Manzoorul Haq and the present appellant. After the sale of the shop by Manzoorul Haq to the respondents, the appellant shall be deemed to continue as tenant of the respondents on the same terms and conditions under which he was holding the shop on rent from the previous landlord. This being the factual position, the respondents were fully entitled to terminate the tenancy agreement before expiry of the five years under condition No,9 reproduced above, subject to the option of purchasing the business of the appellant/tenant. In view of the condition No,9 under which the tenancy agreement was liable to be termainted even before the expiry of five years, it cannot be said that the rent application filed before the Rent Controller, was premature.
9. Mr. S. Rashid Ahmed learned counsel for the respondents has stated that even otherwise the rent application will not be premature because the period of five years has expired during the ejectment proceedings before it was decided by the learned Rent Controller on 25th November,1981. His plea is that if the stipulated period in an agreement expires during the proceedings of a case based upon that agreement, then the proceedings shall not be deemed to be premature. In support of this plea he has relied on the case of Raj Muhammad and 11 others v.
Haji Muhammad Zareen and 3 others. 1980 SC K R 339. In this case the ejectment application was filed before the cause of action had actually accrued to the landlord. But during the proceedings of the case the cause of action matured. It was pleaded on behalf of the tenant before the Supreme Court that the ejectment application was premature. The Court rejected the plea with the following observations:- "We do not agree with the learned counsel. It was held in the case of Mst. Amina Begum and others that the forums acting under the Rent Restriction law were not, in exercise of discretion vested in them, precluded to take note of events taking place during the course of the proceedings after the institution of an ejectment petition so as to suitably would the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings'. It was also observed that compelling the applicant-landlord to withdraw ejectment petition which had already been tried, merely on the technical ground of the cause of action not having matured at the time it was filed so that it may be filed again, would not advance the interest of justice as 'results on merits were not likely to be different. Learned counsel has not satisfied us that if the ejectment petition was withdrawn and refiled, the results on merits would have been different. The cases of Abdur Rashid and Muhammad Shafi cited by the learned counsel, in view of the dictum in Mst. Amina Begum's case are of no help to the petitioners. There is no force in the argument advanced by the learned counsel in support of this petition.
' It fails and is accordingly dismissed." Mr. K. A. Wahab learned counsel for the appellant has argued that the case is distinguishable because if the landlords had filed fresh application the result would not have been the same. The argument has no force. If the respondents are put to the unnecessary botheration of filing another ejectment application, they will take the same plea i,e, of personal requirement and default in payment of rent. Moreover this plea was not taken in the written statement hence even otherwise the appellant cannot succeed on the plea that the rent application was premature.
10. The next issue which was decided in favour of the respondents by the learned trial Court, was the bona fide requirement of the respondents for this shop. In support of this plea the respondents have examined Fateh Mohammad (respondent No,1) and two witnesses Nazir Ahmed and Ali Bux. In his affidavit Fateh Mohammad has stated that he has got no other shop of his own and that presently he is working with one Akbar Saheb as his employee. He admits that his father Nazir Ahmed has got some shops but they are on rent and that he is living separate from his father and wants to have his own business in the rented premises. P.Ws. Nazir Ahmed and Ali Bux have also supported the respondents.
11. In rebuttal appellant Mohammad Ishaq has examined himself and produced affidavits of Abdul Sattar and Faqir Mohammad. In his affidavit appellant Mohammad Ishaq has denied that he committed any default, that Fateh Mohammad has established business in Madina Market, Nawabshah, that he is working as employee of Akbar Saheb at his shop in Madina Market in addition to running his own shop in the same market. It is not stated by Mohammad Ishaq that the shop in which Fateh Mohammad respondent is running his business belongs to him. It is, on the contrary, in evidence of Fateh Mohammd that he is doing his business in rented shop and that now he wants to run his business in his own shop. The defence evidence is, therefore, of no avail to the appellant. The fact that the father of the appellant has got many shops is not relevant. In the case of Ehsan Karim and another v. Nisar Ahmed 1979 CLC 801 a learned Judge of Lahore High Court held that if a landlord is carrying on business in the shop belonging to his father, this fact shall not preclude the landlord from running business independently in his own shop which is rented to a tenant nor the desire of the landlord to seek possession of his rented shop would show lack of bona fide.
12. So far as bona fide requirement of the landlord is concerned, it has been consistently held that the statement of the landlord in this behalf, if found consistent with his pleadings, should be taken as sufficient proof of bona fide requirement. Reference in this connection may be made to the case of Muhammad Ishaq v. A.R. Khan 1982 CLC 562. In the case of Muhmmad Ishaq v. Dr. S. Muzammil All 1981 CLC 327 Ajmal Mian, J. Of this Court has, with reference to several decisions of Supreme Court, laid down certain principles for determining the question of personal requirement of the landlord. In this connection relevant observations made by the learned Judge are reproduced as under:- "As regards 'personal requirements' the principles called from certain cases are:-
(1) If a landlord without any plausible reason fails to appear witness before Rent Controller in support of his application for ejectment on ground of personal requirement in good faith, this will be fatal to his application,
(2) Fact that landlord is putting up in a rented house Itself simpliciter will not be sufficient to prove conclusively fact that landlord requires house bona fide for his personal occupation or for occupation of his children, but this will be a material fact to be considered alongwith other facts and attending circumstances,
(3) Landlord's statement on oath in conformity with averments in rent application if not shaken in cross-examination and if not disproved by evidence in rebuttal shall be sufficient to record finding in favour of landlord;
(4) Landlord's failure to examine children for whose occupation he is seeking ejectment of a tenant will not be fatal if landlord's statement on oath is convincing and tenant has failed either to shake his statement in cross-examination or to disprove by evidence in rebuttal;
(5) If a landlord owns more than one residential building or shop which he has rented out, it is for him to decide which of residential buildings or shops he would like to occupy provided such choice is not prompted on account of bad faith;
(6) Landlord in possession of a rented residential building or shop is not required to prove that the said premises are not suitable for his needs at the time of filing of ejectment application on ground of personal requirement nor he is to prove that he has not vacated rented premises after commencement of Ordinance;
(7) In absence of reliable evidence in rebuttal concurrent findings on question of personal requirement cannot be interfered with in second appeal by High Court."
' In support of the above observations the learned Judge had relied on the case of Hassan Khan v.
Mrs. Munawar Begum PLD 1976 Kar.832, Iqbal Ahmad v. Mehraban All PLD 1979 Lah 127, Ghulam Mohyuddin v. Suba Khan PLD 1977 Lah, 1094, Muhammad Bashir v. Vensemal and 4 others PLD 1980 Kar.409 and Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC 422. I am in respectful agreement with the views taken by the learned Judge of this Court in the case of Muhammad Younus which are fully attracted to the facts of this case. The respondents have, therefore, succeeded in fully establishing their case regarding their personal requirement of the shop in question for their own use.
13. So far as the question of default is concerned, much stress has not been laid by the learned counsel for the parties on this aspect of the case. It is not denied that the appellant had sent two money orders which were not accepted by the respondents. It is also proved that the appellant had been depositing rent in the court of Rent Controller in pursuance of an order in miscellaneous rent application.
' However, as the respondents have succeeded in establishing their bona fide requirement, hence the learned Rent Controller was justified in ordering ejectment of the appellant. The appeal is, therefore, dismissed with cost.