1. ' By an agreement, dated 15-5-1973 the respondent leased out shops Nos. 1 and 2 Wahid Market 31- A/2 Nazimabad to the appellants for a period of 5 years on monthly rent of Rs,1,250. The agreement provided that the lease will be renewed for a further period of the same terms and conditions at the option of the lessee. It also provided that in the event of the lessor's i.e, respondent's unwillingness to renew the lease on its expiry at least 6 months notice prior to the termination of lease shall be served on the appellants. Consequently the respondent by a notice, dated 10-12-1977 intimated the intention not to renew the lease. It was further stated that a registered A/D notice, dated 4-9-1977 was posted out as the acknowledgement receipt has not been received. The second notice has been served. This notice dated 10-12-1977 was replied on behalf of the appellants and they refused to vacate the premises. It seems that since then, the appellants continued in possession of the premises and on 20th May, 1980 the respondent filed an application for ejectment on the ground that the appellants have failed to tender rent from 17th May, 1978 and further that he requires the premises in good faith for his personal bona fide use and occupation and of his son. The appellants filed written statement and pleaded that the extension of lease was at the option of the appellants which has been exercised by them and even after expiry of lease they continue to be the tenant, till such time they pay the rent. It was denied that the respondent needs the premises in good faith-or requires it for running a medical store. It was further pleaded that the respondent has filed this application with ulterior motive and mala fide intention, and to pressurize the appellants to submit to his illegal demand of exorbitant increase in the rent. It was averred that respondent had meeting with the Manager of PA posh-Nagar Branch, and other officials of the Bank for enhancement of the rent which they were prepared to increase at a reasonable rate, but as the demand was very high and unreasonable the appellants did not agree and consequently the application has been filed. It was also denied that the appellants are in arrears, The learned Controller by the impugned order granted the ejectment application on the ground that premises is bona fide required by the respondent. So far default is concerned, the finding is against the respondent.
2. ' Mr. Zaidi the learned counsel for the appellant has contended that ground for bona fide use and occupation as set up by the respondent is not genuine and in good faith, but it is motivated by the fact that he wants to increase the rent. According to the learned counsel the ground is male fide and merely an alternative ground. From the pleadings, it does not seem that it was an alternative ground. In fact in paragraph 7 the respondent has given material facts regarding his bona fide requirement. In paragraph 8 a simple allegation is that the appellant has failed to tender the rent.
3. Therefore, on the basis of the pleadings, it cannot be, skid that it was an alternative ground or a ground merely for the purpose of forcing appellant to increase the-rent. From the evidence also it is clear that on the issue relating to default the respondent has not led any evidence, therefore, either he has given up that issue or was not serious about it. The entire evidence, and the case has mainly turned on issue relating to bona fide use and occupation. In fact this was the only ground on which the parties have litigated.
4. ' In order to show that the demand of the respondent is not bona fide, the learned counsel for the appellants contended that the respondent had demanded Rs,5,000 as rent, and as it was not accepted the ejectment application was filed. In this regard the learned counsel has referred to the following statement of the respondent in cross-examination:-- "In order to adjust the Bank I had asked the opponents (appellants) to pay rent at Rs,5,000 P.M.
5. Before filing of this case. The opponent did not reply my letter under which I had demanded rent at the rate of Rs,5,000 P.M. It is incorrect to suggest that the Bank had replied me, that they will increase the rent only by Rs,400 or by Rs,500."
6. ' From this statement the learned counsel has endeavored to argue that motive behind the ejectment application was increase in rent. The learned counsel further contended that after this admission made by the respondent, it was not necessary to produce any further evidence to prove lack of bona fides of the respondent.
7. ' Mr. Iqbal Kazi the learned counsel for the respondent contended that as the respondent has independently established his bona fide requirement mere demand of higher rent cannot militate against his bona fides. The learned counsel further contended that as it is the case of the appellants that the respondent has filed the ejectment application with a view to obtain increase in rent, the burden was upon them to prove it affirmatively. The principle relating to onus of proof of good faith of the landlord or the male fides of the landlord, in filing the ejectment application has been set out in Mushtaq Ahmed v. Mumtaz Zohra Rizvi PLD 1978 Kar. 188 in the following terms:-- "This definition of the expression 'good faith' necessarily, therefore, implies that the demand for possession of the rented premises must be honestly made. Honesty is a state of mind and is, therefore, a psychological fact capable of proof or disproof only by evidence or conduct. The word 'bona fide in the context of the provision in question would also appear to mean the same as 'good faith' male fides conversely means' in bad faith'. It has been held that action taken for collateral purposes not authorized by the law under which the action is taken or actions taken in fraud of the law are mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above PLD 1974 SC 151. In actual practice a landlord would be deemed to have satisfied the aforesaid conditions by leading evidence of the reasonableness of his needs and if he succeeds in doing so, the onus would shift to the tenant to prove facts which militate against the existence of good faith or which positively establish the dishonesty of purpose on the part of the landlord to claim possession of the premises on the ground of personal need."
8. ' This principle was followed in Muhammad Asif Khan v. Mubarak Khan PLD 1982 Kar. 557 and Fakhruddin v. S. Asadullah Shah PLD 1982 Kar.
790. Applying the test laid down by the foretasted authorities it has to be considered whether the respondent has led evidence of the reasonableness of his needs and has succeeded in doing so, because only in that case the onus would shift to the appellants to prove facts which militate against the existence of good faith or which establish the dishonesty of the respondent. In this regard both the parties have referred to the evidence on record. The respondent has made a claim that he requires the premises for opening a medical store which will be run by his son and himself.
9. In his evidence he has stated that his son Zahid Hasan was doing graduation in Pharmacy and has completed his practical training, therefore, he has decided to start a medical store in the shop in question., It was further stated that this will not only be sufficient to overcome the financial difficulties he is facing, but his son will have his business. Mr. Zaidi the learned counsel for the appellant contended that at the time when this application was filed the respondent's son had not graduated and the respondent misstated that he has graduated. The contention does not seem to be correct, because in the application he has averred that he wanted his son to accommodate in active life by opening a medical store in the disputed premises. In his affidavit of evidence he has stated that his son 'was doing his graduation in Pharmacy'. The averment made was that he has completed his practical training, and this has been established by the evidence of Zahid Hasan who has not only stated this fact on oath but produced a certificate from Hakim Sons Chemical Industries Ltd., who have confirmed that he has completed his practical training satisfactorily to fulfill the requirement of his B. Pharmacy degree course. Zahid Hasan further stated that on 10th March, 1980 he has finalized his B. Pharmacy examination and only one Semester was left to be completed. These facts establish that the respondent has a son Zahid Hasan who was about to complete his B. Pharmacy degree course in the year 1980 and had completed the practical training. The respondent, therefore, has his son at hand with necessary knowledge about the medicines and in these circumstances the intention to open a medical store was not unreasonable.
10. ' Mr. Zaidi the learned counsel contended that in view of section 28 of the Pharmacy Act unless necessary requirements have been completed or licence has been obtained nobody can work as Pharmacist. The respondent wants to open a medical store which is different in nature and purpose from a pharmacy shop. Pharmacist is required to prepare the medicine according to prescription, but a person having a medical store is only required to sell medicines prepared by the Pharmaceutical companies. The question whether any licence is required or not is not very material to the requirement of the respondent because all such formalities can be worked out later after obtaining the possession. Mr. Kazi, the learned counsel for the respondent has referred to 1982 CLC 1003 and contended that it is not a pre-condition that the landlord has made all requisites preparation for running a business. The licence if necessary or making arrangement to obtain medicines and its sale by qualified persons are such formalities which need not be in possession of a landlord before filing the ejectment application.
11. ' The learned counsel for the appellant then contended that on his own admission the respondent is in financial difficulties, and therefore, it is not possible for him to invest huge amount and open a medical store. The learned counsel has referred to the averment made in the application where the respondent has alleged that in order to overcome his financial difficulties and to accommodate his son he has decided to start a medical store. In the affidavit also he had stated that as he was in some difficulties he made some proposal to accommodate the appellants but they refused to see his requirement. He further stated that by opening a medical store he will overcome his financial difficulties. From this statement it cannot be gathered that the respondent is completely a pauper or has nothing at hand for opening a medical store. The respondent has referred to his financial difficulties and to overcome those difficulties he has planned to open a medical store and to run a business. This is not uncommon that people having limited resources feel themselves in financial difficulty and to over-come it make attempts to start other business for gaining profit. The statement made by the respondent cannot lead to the conclusion that he is in such stringent financial difficulties that he cannot open a medical store. In any event he has explained that finance is no problem for him because he owns a building worth Rs,20 lacs. It is a matter of common knowledge that in commercial cities particularly Karachi, if a person has substantial property he can tap financial resources from the banks and other financial institutions, which are always prepared to advance loans against security particularly for opening or running a business. Therefore, unless it is established that the landlord is on the verge of bankruptcy and is unable to tap the financial resources, mere want of entire amount necessary for opening a business cannot militate against A the bona fides. The respondents have fully established that he has at hand the technical know how, a son who has sufficient knowledge and education necessary for running a medical store and valuable property on the basis of which he can raise loan for investment in the business. It is pertinent to note that the averment made in the application are consistent with the evidence produced by the respondent and none of the witnesses have been shaken in cross-examination. In this regard it would be advantageous to reproduce the observation of Mahmood J. In Hasan Khan v. MRs, Nawab Begum PLD 1976 Kar.
832. While referring to section 13(4) of the West Pakistan Urban Rent Restriction Ordinance it was observed:-- "The effect is that the assertion or claim on Oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal."
12. This rule was approved by the Supreme Court in Pirzada Rafiq Ahmed's case 1981 SCMR 772. It is, therefore, clear that the respondent has independently established his bona fide requirement.
13. ' The question now arises whether the claim has been set up in good faith. The only bad faith alleged by the appellants is that the respondent had demanded rent of Rs,5,000 before filing the application. It is well-settled that mere demand of higher rent is not an act of bad faith. The burden was on the appellant to show in what circumstances and in what term the respondent has been demanded unreasonable increase in the rent. The respondent had intimated the appellants to vacate the premises as far back as on 10-12-1977. Thereafter, for about two years the appellant remained in possession of the premises and it seems that there have been negotiations between the parties. The respondent also addressed a letter demanding increase in rent and certain proposals were made to the appellants. In order to prove that the diamond of the respondent was unreasonable and in bad faith the appellants should have produced the letter in which the terms and conditions put up by the respondent were mentioned. Admittedly, the appellants have not produced this letter although in cross-examination it was suggested to the respondent that a reply was sent by the appellant which was denied. This is not the case of the appellants that no such letter was received from the respondent. Admittedly there have been deliberation and negotiations with the Manager of Paposh Nagar Branch, as well as the officers at the head office, but none of them have been produced to show that the respondent's demand was unreasonable. The witness examined on behalf of the appellants does not seem to have any knowledge about the negotiation between the parties. According to the principle laid down in the aforesaid authorities the burden was on the appellants to establish facts from which it could be inferred that the application filed by the respondent is tainted with malice, but instead of producing all such evidence, which was within the possession of the appellants, they only relied on the statement of the respondent. In such circumstances, it has been held by various authorities that if the landlord proves his bona fide requirement by independent evidence, the demand for higher rent cannot be termed as an act of bad faith or mala fide. In this regard reference can be made to Syed Abdus Sattar Chishty v. Aftab Malik 1980 SCMR 742, Peerzada Rafiq Ahmed v. Ch. Abdul Rehman 1980 SCMR 772. The landlord's demand for higher rent by itself does not destroy the bona fides but if the tenant proves that the ejectment application has been filed as he has not increased the rent and the demand for personal requirement is a colorable device for seeking ejectment then ejectment cannot be granted. It is to be noted that to prove these facts the burden is upon the tenant. And if the landlord independently establishes his bona fide requirement it will be difficult to hold that the ground of personal requirement is a colorable device.
14. The demand for increase of rent is some .Times motivated by genuine grounds. If a landlord after a long period of tenancy requires the tenant to reasonably increase the rent it is not unjust. The sharp fall in money value, and growing inflation may be such factors which call for increase in rent. In the present case the appellants have not led any evidence to show that the demand was unreasonable and unjust. Mere reference to the respondent's demand without producing the letter containing such offer and examining the persons who had negotiated with the respondent cannot establish his lack of good faith particularly when he has independently established his bona fide requirement. In this regard it is pertinent to note that the law has afforded sufficient protection to the tenant in case the landlord does not occupy the disputed premises or lets it out to any person other than the tenant.
15. ' The appeal is, therefore, dismissed. The appellant is allowed six months time to hand over vacant possession to the respondent within period of six months.