' This is a first rent appeal filed by the appellants/landlords against the order dated 25-5-1983 of the learned Rent Controller, Karachi, dismissing the ejectment application filed by the appellants for the ejectment of the respondent/tenant. Rent Case No.5241 of 1980 was filed on 16-9-1980 on the ground of default and personal requirement of the appellants. The premises in question are a shop which was rented out to the respondent in November, 1971, at Rs.100 per month by Syed Shabbir Ali, husband of appellant No.1 and father of appellants Nos. 2, 3, 4 and 5. The said Syed Shabbir All died in 1974 and thereafter the respondent became the tenant of the appellants, who are legal heirs of deceased Syed Shabbir Ali. A written statement was filed by the respondent in rent case, in which the allegation of default was denied and the case of the appellants for personal requirement was also resisted. On behalf of the appellants, Saleem All (appellant No.2) gave evidence and one Syed Qaddus Ali, brother of widow, Mst. Shakila Begum, also gave evidence. The respondent/tenant examined himself and one Muhammad Idris, a neighbour, also appeared as a witness on his behalf. By the impugned order dated 25-5-1983, the learned Rent Controller, Karachi, dismissed the ejectment application on both the grounds. Being aggrieved, the present first rent appeal has been filed by the appellants under section 21 of the 1979 Sind Rented Premises Ordinance. I have heard Mr.Muhammad Abdul Karim Siddiqui, learned counsel for the appellants and Mr. Abdul Majid Khan, learned counsel for the respondent.
2. This appeal is not pressed by Mr.M.Abdul Karim Siddiqui on the ground of default. Accordingly this appeal has been argued before me only on the ground of personal requirement of the appellants.
The learned Rent Controller did not accept the case of the appellants for personal requirement on the following grounds:--
(a) The appellants had not stated in their rent application nor in their affidavit-in--evidence about the particulars of business which they intended to start.
(b) Appellant No.2 did not state in his evidence that he had sufficient funds to start the business in the premises in question.
(c) Appellant No.2 had stated that he was jobless, whereas his maternal-uncle (S.A.Quddus Ali) stated that appellant No.2 was selling fruit on a "thela".
(d) the ejectment application had been filed with male fide intention, inasmuch as the ejectment application had been filed after six years of the death of Syed Shabbir Ali and that the appellants had refused to accept the rent tendered by money order by his tenant and there was no explanation for not accepting the rent by money order which shows that the appellants wanted to create a ground for ejectment of the respondent with mala fide intention.
(e) There is no evidence on record to establish that the need of the appellants is genuine.
3. It has been contended by the learned counsel for the appellants that a case for requiring the premises in question in good faith by the appellants had been made out on the evidence on record. According to the learned counsel, the evidence of the appellants had shown the specific purpose for which the shop in question was required. It was also contended that the evidence had established that the funds were available with the appellants and that no false statement was made by appellant No.2 in his evidence. It was also argued that mala fides had not been established against the appellants. According to the learned counsel for appellants a case had been made out for ejectment of the respondent on the ground of personal requirement of the appellants. Learned counsel for the appellants relied upon the judgment of the Supreme Court in the case of Toheed Khanam v. Muhammad Shamshad 1980 SCMR 593 and another judgment given by me in the case of Qamaruddin v. Hakim Mahmood PLD 1983 Kar. 570 for the proposition that an ejectment application filed under the Rent Restrictions Ordinance on the ground of personal requirement of the landlord is not liable to be dismissed solely on the ground that the specific purpose, for which the premises in question are required, has not been specified in the ejectment application.
4. On the other hand, Mr.Abdul Majid Khan, learned counsel for the respondent relied upon the following three authorities for arguing that an ejectment application can be dismissed on these grounds:-
(i) Barkat Ali v. Sughra PLD 1980 Kar. 223 (ii) Muhammad Naseem Yar Khan v. Ata Ullah 1979 CLC 805 and (iii) Nanhey Khan v. Amjadi Begum 1984 CLC 1950.
' None of the three authorities relied upon by the learned counsel for the respondent lays down the principle that an ejectment application on the ground of personal requirement is liable to be rejected merely on the ground that in the ejectment application the specific purpose, for which the premises are required, has not been mentioned. On the facts in each of these three cases, the Courts came to the conclusion that a case of personal requirement in good faith had not been established. The rulings cited by the learned counsel for the appellants support the contention raised on behalf of the appellants that the ejectment application could not be dismissed solely on the ground that the specific purposes, for which the premises were required for personal use, had not been mentioned in the ejectment application or in the affidavit-in-evidence. An objective assessm ent has to be made of the evidence on record and on such assessment a finding has to be given about the personal requirement in good faith of the landlords.
5. As regards the finding of the learned Rent Controller that there was no evidence about -the funds being available, it may be observed that the evidence of the appellant No.2 specifically states that he as saved about two thousand rupees and with that amount, it could have reasonably been expected that the appellants could start grocery business in the shop in question.
The observation in the impugned order of the Rent Controller, that there is misstatement by the appellant No.2 in his evidence, is not correct. Appellant No.2 had stated that he was selling bananas on a "theta" but at the time on account of police action he was not selling fruit on "thela" and he was jobless. The statement made by the maternal-unle of appellant No.2 that the appellant No.2 was selling bananas on a "thela" is not in conflict with the statement made by the appellant No.2 in his evidence.
6. The finding about the mala fides in filing the ejectment application can also not be supported.
The learned Rent Controller has observed that mala fides are apparent from the fact that the ejectment application had been filed after six years of the death of the original landlord. The evidence on record indicates that when Shabbir Ali died in 1974, apart from the widow all the other four children were minors. In para. 3 of the affidavit-in-evidence of P.W Quddus All it has been stated that at the time Shabbir Ali died in February, 1974, appellant No.2 Saleem Ali was a minor.
There is no corss-examination on this point of witness Qaddus Ali. As far as other children of the original landlord are concerned, it appears to be an admitted position that they were minors and even at the time the present appeal was filed they were minors. The evidence shows that after appellant No.2, the eldest son of the deceased, grew older he started selling bananas on a "thela" and with this business he was able to support the family. He has been the sole bread-earner of his family since the death of Shabbir Ali in 1974. It has also come on record that prior to the filing of the ejectment application, a notice had been given on behalf of the appellants, in which, apart from the ground of default, the ground of pesonal requirement was also taken.
' Then it has been observed by the learned Rent Controller that the ejectment application was filed with mala fides which is apparent from refusal of the money order sent by the respondent. 1 have seen the original money order (Exh. 7/D) there is no endorsement of the postal authorities on this money order that the rent sent by the respondent had been refused by the appellant No.2 Saleem Ali. The document produced also does not show the address of the appellant No.2. According to the respondent, only one money order had been sent and it is Exh.7/D. On this document, which does not bear the address of the appellants and which does not have any endorsement by the postal authorities that the appellants had refused to accept this money order, it could not have been held that the appellants had refused to receive money order. After this money order, the respondent started depositing rent with the Rent Controller. From the evidence on record it had not been established that the ejectment application had been filed with mala fide intention.
' It was then argued that by the learned counsel for the respondent that the evidence on record had only established, if at all, a mere desire of the appellants, who required the premises and the requirements of law under the Rent Restrictions Ordinance had not been established. I do not agree. An assessm ent of the evidence on record has established that the premises were required in good faith by the appellants for their requirement. The evidence shows that the original landlord had died in 1974 leaving behind one widow and four minor children. Then at the time of filing the present appeal only one of the children was a major and the other three were minors. The eldest son was selling bananas on a "theta" to earn his livelihood and to maintain other members of his family including his widowed mother and three minor sister and brothers. After having become a major and having saved some money, the appellant No.2 wanted to start a grocery business in the shop in question. Evidence has further established that apart from this property, no other property is owned by the appellants. In my view, an objective assessment of the evidence leads to the conclusion that a case for personal requirement in good faith by the appellants had been established.
7. As a result, F.R.A. No.552/83 is allowed, the order dated 25-5-1983 passed in Rent Case No.5241/80 by the learned Rent Controller is set aside and the ejectment application filed by the appellants is granted on the ground of their personal requirement. The respondent is, however, granted time till 28-2-1985 to vacate the premises. There will be no order as to costs.