1. ' This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the said Ordinance) is directed against the order, dated 12-11-1983 passed by the XIth Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to hand over the vacant possession of the disputed shop to the respondent within 60 days of the said order.
2. ' The facts which give rise to this appeal are that the respondent is owner of a building on Plot No, A/D 69, Haidary Memorial Market, Barkat-eHaidary, North Nazimabad, Karachi and the appellant is tenant in respect of a shop on ground floor of the said building since November, 1967 and the rent of the disputed shop was Rs, 250 per month which was subsequently increased to Rs, 300 per month. The respondent filed eviction application being Rent Case No, 2510 of 1981 in about May, 1981 against the appellant on the ground that she required in good faith the disputed shop for use and occupation of one of her son Khozaim Hussain Rangwala, who had completed his studies and wanted to start his independent business. The appellant resisted the application and denied the good faith, and contentions and claims of the respondent. He pleaded that because of goodwill and rental value of the disputed shop had greatly increased and her husband had asked the appellant to increase monthly rent from Rs, 300 to 450 and upon his failure to concede to this unjust and illegal rent increase, the respondent had contrived frivolous eviction proceedings in the matter.
3. ' The learned Rent Controller considered the case on the following two issues after recording evidence of parties :-
(i) Whether the disputed shop is required in good Path for the use and occupation of the son of the applicant, namely Khozaim Hussain ?
(ii) What should the order be?
4. ' The respondent/landlady examined her son Khozaim Hussain and herself on her own behalf while the appellant examined Muhammad Sharif and himself in support of the defence.
5. ' The learned Rent Controller on the basis of the evidence produced by the parties and taking into consideration the argument advanced by the learned counsel for the parties, decided issue No 1 in the affirmative and allowed the eviction application vide his order, dated 12-11-1983.
6. ' The appellant above named, being aggrieved by order, dated 12-11-1983 of the learned Rent Controller has preferred this First Rent Appeal, on the grounds mentioned in the memo. Of appeal.
7. ' Mr. Abdul Aziz Khan, the learned counsel for the appellant/tenant, has contended that the evidence produced before the learned Rent Controller was not properly evaluated and further that if the evidence is properly appraised, it would show that not only the need of the respondent is not bona fide but is mala fide because there is evidence on the record that in addition to other things, the intention of the landlady was just to increase the rent and harass the tenant.
8. ' On the other hand Mr. Mubarak Hussain Siddiqui, the learned counsel for the respondent has submitted that the learned Rent Controller had properly assessed the evidence. The landlady had done her duty by producing satisfactory evidence in support of the plea that the disputed shop was required for use and occupation of her son Khozaim Hussain.
9. Landlady is to prove only good faith and if bad faith is alleged, the' same is to be proved by the appellant/tenant, which means that landlady is to prove on a fides and the tenant is to prove mala fides if the same are alleged by them.
10. ' In the instant case, appellant has taken up the plea that the need of the landlady is not bona fide and has given reason for it. First the ejectment proceedings are merely device to achieve unconcern able gain in terms of increase in rent. The landlady appeared before the Rent Controller and stated that the appellant is her tenant since last ten years. Previously the rent was Rs, 250 which was enhanced to Rs, 300. To a question in cross-examination she stated that it is incorrect that prior to filing of the case, her husband demanded for enhancement of rent.
11. ' I am of the view that the increase in the rent from Rs, 250 to 300 stretching over a period of about ten years which apparently is not compatible with the marked fall in the money value, undergone during this period, in the circumstances of this case, can hardly be considered a ground weighing enough to warrant an inference that in the instant case ejectment proceedings are intended to be used as a lever for increase in the rent.
12. ' Reverting to the second contention that the ejectment proceedings are ma/a fide attempt for taking over of developed and running business and thus deprive the appellant of the hard-earned fruits of his investment toil and goodwill in an unjust and inequitable manner which the law cannot permit.
13. ' On the other hand Mr. Mubarak Husssain Siddiqui, the learned counsel for the respondent has submitted that mere statement of the landlady that she needs the disputed shop for the bona fide use is sufficient, unless rebutted or disproved by the tenant.
14. ' The question which I have to consider is whether the respondent required/needed the disputed shop for her son Khozaim Hussain. The respondent can prove bona fide requirement only by adducing her evidence and that of her son. The challenge before me is as to the credibility of the witnesses who have come forward to say that she needed the disputed shop and the credibility of witnesses who have come forward to say that application is mala fide. In order to judge the credibility of the witnesses' the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. This point cannot be determined by considering the evidence a deduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence.
15. ' Mr. Siddiqui has urged that the witnesses examined on behalf of the respondent have been effectively cross-examined by the counsel for the appellant. It is also true that the appellant bad not adduced any evidence in rebuttal but that does not mean that the Court is bound to accept their evidence. In the case of Chaturbhiy Pande and others v. Collector Raigargh (1) Mr. Hedge, J., spoke for the Supreme Court of India and observed that "the Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities".
16. ' The landlady says that she needed the disputed shop for her son. Therefore, the question is whether she has satisfactorily proved requirement. In the case of Commissioner. Of Income-tax W.
17. B. v. D. P. More (2) the Supreme Court of India observed as follows :- "Science has not yet invented any instrument to test the realibility of the evidence placed before a Court or Tribunal. Therefore, the Courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliabilty of a piece of evidence. But in that spnere the decision of the final fact finding authority is made conclusive by law."
18. So far as the proposition of law are concerned, by now they are well-settled. On account of the conditions which the World War Il had created, there was great demand for accommodation, particularly in big cities like Karachi. After partition there was efflux of refugees from India, as such there was great demand for accommodation. In those days it became apparent that the landlords were exploiting the situation to their advantage. Not only the rent racketing was in vogue, but several malpractices were employed to enhance the rent and evict the tenants, if they are not amenable to their pressure. In order to check such exploitation and to bring the situation under control, the Government of Sind promulgated Ordinances from time to time. In the year 1979 the Governor of Sind promulgated an Ordinance in pursuance of the proclamation o
(1) AIR 1969 SC 255 (2) AIR 1971 SC 2439 ' the fifth day of July, 1977 and the law (Continuance in Force) Order, 1977. This Ordinance was known as Sind Rented Premises Ordinance. 1979 (Ordinance XVII of 1979). The preamble to the said Ordinance clearly indicates that it was promulgated to make effective provisions for regulation of relations between landlords and tenants and protect their interest in respect of rented premises within urban areas. Therefore, it is obvious that the Legislature wanted to make a provision for better control of premises and to prevent unreasonable eviction of tenants therefrom.
19. ' The whole object of the said Ordinance is to prove for control of rents and eviction. Sections 14 and 15 of the said Ordinance specifically enumerate the grounds which will entitle the landlords to evict their tenants. Clause (vii) of subsection (2) of section 15 contains one of such grounds namely, that the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. Then section 15-A of the said Ordinance provides that when the landlord who has obtained the possession of the premise under section 14 or under clause (vii) of section 15, relets the building or premises to any other person other than the previous tenant or puts it to a use other than personal use within one year of such possession :-
(i) he shall be punishable with fine which shall not exceed one year' rent of the building or the premises as the case may he, payable immediately before the possession was so obtained.
(ii) the tenant who has been evicted may apply to the Controller of an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly.
20. ' It is clear that these provisions have been enacted solely for the benefit of the tenants, who having regard to the lack of adequate accommodation were left at the mercy of the landlords.
21. From the phraseology used in clause (vii) of subsection (2) of section 15 of the said Ordinance, it is further clear that the landlord has to prove that he requires the premises in good faith. The expression "requires in good faith" has been considered by superior Courts on several occasions.
22. Broadly stated mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord "requires the premises in good faith". The landlord must allege and prove certain circumstances or facts which go to prove his requirement. The law does not require a landlord to establish need or absolute requirement without which he snail have no shelter over his head. What is meant by "requires in good faith" is that the landlord requires the premises for his reasonable needs and that he is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realising some extraneous purpose. The term 'requires' means that there must be an element of need before a landlord can be said to require premises for his own use and occupy the premises. What is necessary is that he should need them for his own use and occupation. The need has to be reasonable and bona fide. The onus of proof of this is certainly on the landlord. Although the word 'reasonable' does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fides of the landlord. Gross unreasonableness may in proper circumstances lead to the Controller to reach a conclusion that the landlord's requirement is not in good faith. Therefore, while deciding the question of good faith, the reasonableness of the need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely, "requires in good faith". The words 'good faith' mean honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord is not sufficient to give him a right to evict the tenant. As already observed the Ordinance is promulgated with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlords will be entitled to get the possession of their premises on the grounds enumerated therein. One of such grounds is that a landlord requires the premises in good faith for his own occupation. Subsection (2) of section 15 further enjoins a duty upon the Controller to enquire into the requirement of the landlord and if on enquiry the Controller is satisfied that the requirement of the landlord will be met by occupation of the premises then he has to pass an order of eviction. Therefore, all the relevant factors will have to be objectively considered before such a question is decided by the Controller.
23. ' In the application for the ejectment a vague ground was given that her son had completed his studies and wanted to start his independent business. It has not been stated as to what kind of business he wanted to do or the kind of business he was doing. The respondent filed affidavit in- evidence. It has not been stated as to what kind of business he wanted to do. She denied the suggestion and stated that "it is incorrect that he is doing job with his father". She further stated that "Khozaim Hussain spends his free time in his father's shop. For the remaining period he sits in the house. Khozaim will start business under the advice of his father but I do not know the nature of his intended business. Khozaim has no money but I have got the money. I can give Rs, one lac to Khozaim for his business". Her son Khozaim filed affidavit-in-evidence. In his affidavit he stated that "I have completed my studies and want to start my independent business. I want to settle independently from my father. I have expressed the desire to my mother long before". It has not been stated as to what kind of business he wanted to do.
24. ' In his affidavit he stated that he expressed the desire to his mother long before. If he expressed desire long ago about starting business, his mother should not have waited for a long period before taking action to recover possession of the disputed shop from the appellant. She ought to have approached the Rent Controller immediately. Moreover, Khozaim had no experience in the business Even he had no experience in business of paints which he disclosed for the first time in his cross-examination. He had no funds with him.
25. I am of the humble opinion that reading of the above provisions as a whole, it is obvious that if the requirement of landlady be genuine and she satisfies the Rent Controller, she can obtain possession of the disputed shop. Clause (vii) clearly shows both affirmatively and negatively that the landlady must satisfy the Rent Controller about her claim, before she can obtain an order in her favour. The Rent Controller has to be satisfied about the genuineness of the claim. To reach this conclusion obviously the Rent Controller must be satisfied about the reality of the claim made by the landlady, and this can only be established by looking at all the surrounding circumstances, such as kind of business, whether he has experience in such kind of business and the means of Khozaim. It is not enough that the landlady comes forward and says that she wants to settle her son Khozaim who expressed or entertains a particular intention however, strongly, said to be entertained by her son. The clause speaks net of the bona fides of the landlady or landlord, but says on the other hand, that the claim of the landlady that she requires the shop in good faith; that is to say honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Rent Controller should be confined only to the existence of an intention in the mind of her son to start independent business. This intention must be honestly held in relation to the surrounding circumstances and as to the suitability of the place for starting business. In the application a vague ground was given that shop is required for her son for starting business. No details have been given in the application as to whether it was required for what kind of business. It has also no been stated as to what kind of business he wants to do or the kind of business he has been doing.
26. For this purpose he must put before the Controller all the necessary details which are required for granting relief. On such vague allegation as made in the ejectment application the respondent cannot expect to get relief on the ground of requiring the premises in dispute for the occupation of the son. In the application, she takes one stand, vague stand, without giving any details. In the cross-examination her son has taken second, stand, that is, paint business. That itself shows that the application is lacking in bona fides and it cannot be said that the respondent has established her bona fides need for her son's occupation. A mere ipse dixit of the respondent that she requires the premises in dispute for her son is not enough. It must be supported by valid reasons as to how her requirement is genuine. That is lacking in the present case.
27. In my humble opinion, the learned Rent Controller has not considered the material placed before him. Therefore, in my humble opinion, the order passed by the learned Rent Controller cannot be sustained.
28. ' In the result, therefore, the appeal is allowed. However, in the circumstances of the case there will be no order as to costs.