ZAFFAR HUSSAIN MIRZA, J.--This petition for leave to appeal arises out of judgment dated 24th October, 1984, whereby a learned Judge in the Sind High Court affirmed the order of eviction against the petitioner-company earlier passed by the Rent Controller on the ground of bona fide personal occupation by the respondent /landlord.
2. The tenancy comprised in the present case consists of two shops situated in a building known as Wahid Market, at Nazimabad, Karachi. The petitioner which is a banking company was initially inducted in the premises under the tenancy agreement dated 15th May, 1973, for the period of five years on a monthly rental Rs.1,250. It was stipulated in the agreement that the lease (tenancy) will be renewable for a further period on the same terms and conditions at the option of the lessee. The agreement further provided that if the lessor was unwilling to renew the lease on its expiry he would be required to serve a notice to that effect on the tenant at least six months prior to the date of the termination of the existing lease. It is the case of the landlord that such a notice dated 10th December, 1977, was sent to the tenant intimating it that the lease will not be renewed. Upon receipt of this notice, the tenant replied refusing to vacate the premises. However on 20th May, 1980, the landlord filed application for eviction of the tenant on the ground that the premises were required in good faith by the and lord for his personal occupation and for the use of his son.
3. The petitioner resisted the landlord's application and contended that by virtue of the renewal clause in the agreement of tenancy, the tenant had exercised the option to the renewal of the tenancy and also controverted the landlord's plea for personal requirement. According to the petitioner the action for eviction was filed mala fide in order to compel the tenant to submit to the exorbitant demand for increase of rent. The Rent Controller after hearing the evidence of the parties found in favour of the landlord. He held that before the exercise of option for renewal on the part of the tenant, the landlord had already terminated the tenancy by notice which was proved by evidence. He further held that as the landlord wanted to establish a medical store in the premises, to be run by his son who had appeared in his final examination for a degree course in Pharmacy, there was sufficient evidence of the good faith on the part of the landlord to require the premises for personal use. On these findings the Rent Controller ordered the eviction of the petitioner on 21st February, 1981.
4. The learned Single Judge in the High Court affirmed the findings recorded by the Rent Controller and repelled the tenant's argument that the plea for eviction was male fide on the following reasoning:- "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. In his evidence he has stated that his son Zahid Hasan was doing graduation in Pharmacy and has completed his practical gaining, 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 fulfil the requirement of his B. Pharmacy degree course. Zahid Hasan further stated that on 10th March, 1980, he has finalised 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 has 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."
5. In support of this petition it was contended by Mr. Mansoor Ahmad Khan, learned counsel appearing for the petitioner, that neither the Rent Controller nor the learned Judge in the High Court had correctly applied the law in determining the question whether the demand of the landlord for personal use was bona fide and in Wood faith. He submitted that the learned Judge in the High Court has misread and misdirected himself so far as the evidence on record is concerned, in arriving at the conclusion that the landlord had established his requirement to be bona fide. In this connection learned counsel referred to the admission made by the landlord to the effect that one time he had demanded the increase of rent from Rs.1,250 to 5,000 per month, the fact that in the notice dated 12th October, 1978, the landlord made no mention of personal need and that landlord carried out negotiation for increase of rent with the tenant.
6. These contentions have been elaborately considered by the learned Judge in the High Court in the following passage from the impugned judgment:- "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 demanding 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 demand 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 respondents 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 afore-stated 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 male fide. In this regard reference can be made to Syed Abdus Sattar Chishty v. Aftab Malik 1980 SCMR 742. Peerzada Rafiq Ahmad v. Ch. Abdul Rehman 1980 SCMR 772. The landlord's demand for higher rent by itself does destroy the bona fides but if does not the tenant proves that the ejectment application has been filed as he has not increased the rent and the demand for personal requirement is colourable 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 colourable device."
7. After hearing the learned counsel at length and perusing the judgment of the High Court we are satisfied that the learned Judge upheld the finding of the Rent Controller on sound and valid grounds which do not warrant interference. In the result this petition fails and is accordingly dismissed. These are the detailed reasons for the short order passed by us on the conclusion of the hearing of this petition, which was in following terms:- "For the reasons recorded separately this petition is dismissed.
Learned counsel for the petitioner requested that some time may be allowed to the petitioner bank to make alternate arrangements for shifting their business. The request being reasonable we were inclined to grant six months' time to petitioner to vacate the demised premises and pass an order to this effect but learned counsel for the caveator gave the undertaking that the caveator shall not execute order of ejectment for six months from today.
In view of the undertaking given by the learned counsel for the caveator, no order is necessary except the direction that petitioner shall continue to deposit future rent regularly in Court and any failure in this regard shall entail their eviction even before six months from today."