1. ' This appeal is directed egainst the order of the VIIIth Senior Civil Judge, and Rent Controller, Karachi, dated 8th August, 1982, dismissing Rent Application No. 1339 of 1980 filed by the appellant against the respondents.
2. ' The facts of the case, briefly stated, are that the appellant filed an application under the provisions of section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") for ejectment of the respondents from the property situated on Plot No. 205/2, Tannery Road, Bihar Colony, Karachi. It was averred in the application that the respondents were the appellant's tenants in respect of a portion of the said property at monthly rent of Rs. 300 and were running a ,business there in the name of Universal Pickers. It was further averred that the appellant was jobless and required the premises for his own occupation *and use and for that reason asked the respondents to vacate the premises, but the respondents had refused to vacate the premises despite repeated demands of the appellant. Under such circumstances the application before the Rent Controller was filed.
3. ' The respondents filed written statement wherein, it was denied that the appellant was the landlord in respect of the property in question. It was contended by the respondents that they had taken the premises in question which consisted of a shop and a room from its then owner, namely, Khawaja Muhammad Abdul Rasheed, in the year 1963 at a monaily rent of Rs.
200. Consequently, on the extension of the shed made by the respondents and delivery of possession to them of another room, the rent was increased to Rs. 300 per month which was being regularly paid by the respondents. The respondents further averred that after the death of Khawaja Muhammad Abdul Rasheed on or about 17-7-1969, his six daughters sent an intimation in the shape of General Power of Attorney, asking the respondents either to pay rent to them or to their authorised agent Mr. M. Saeed. Thereafter, the rent was being paid to Mr. M. Saeed on behalf of the sisters. It was further averred that no intimation had ever been received by the respondents in respect of devolution of any right in the demised premises either by inheritance or operation of law in favour of the appellant. It was also denied that the premises in question were required in good faith by the appellant for his bona fide personal use.
4. ' The learned Rent Controller, although decided the issue qua the relationship of landlord and tenant between the parties in favour of the appellant, but dismissed the application holding that property in question was not required by the appellant in good faith for his personal use. The reasons which weighed with the learned Rent Controller to arrive at such finding are stated in the impugned order as under:- "Since the applicant has not deposed that he required the premises in question in good faith for his own business and he has also not disclosed the nature of the business which he intends to start and he has not disclosed that he had funds to start the business and he has offered to sell the plot, clearly proved the mala fide on the part of the applicant and he has failed to prove that he requires the premises in good faith to start his business. In the circumstances, I have no hesitation in deciding the issue in negative, holding that the premises are not required by the applicant in good faith for his own use."
5. ' The contention ,of Mr. A.F.M. Mokarim, the learned counsel for the appellant is, that good faith and bona fide need of the appellant have been sufficiently established from the evidence recorded by the Rent Controller and therefore, the Rent Controller was in error while holding that bona fides of the appellant had not been proved. The learned counsel further argued that the appellant was not required to specifically mention the business which he wants to do in the premises in question or to disclose the sufficiency of funds possessed by him to start his business, therefore, the findings of the learned Controller were erroneous. The learned counsel pointed out that it had not been disputed by the respondents that the appellant was jobless or that he was not living in the house of a relative. Reliance was placed, on Sher Muhammad Khan v. All Jan Khan 1983 CLC 2222 wherein it was held that it was not necessary for the landlord to disclose the nature of his business while seeking ejectment of the tenant on the ground of personal requirement. The learned counsel also relied upon. Haji Majid v. Haji Imamuddin 1981 CLC 1091 wherein it was observed that a landlord is not required to produce evidence regarding availability of funds unless a plea is taken by the tenant specifically in his written statement necessitating recording of evidence on the point. It was further held that it was not incumbent upon the landlord to produce such evidence voluntarily.
6. Reliance was also placed by the learned counsel on Rajab All v. Darius B. Kandawalla and another PLD 1984 Kar. 14 wherein it was held that the desire of the landlord to live in his own house is quite natural and cannot be lightly ignored.
7. ' The contention of Mr. Abdul Satter Memon the learned counsel for the respondent was, that the burden of proof to establish good faith was on the appellant who had completely failed to discharge such burden. Therefore, the learned counsel fully supported the order of the Rent'
8. Controller. Reliance was also placed by the learned counsel on the following observations made in Barkat Ali v. Sughra and another PLD 4980 Kar. 223, decided by this Court: Mr. Saeeduzzaman, the learned counsel invited my attention to the landlords' application in which all that was stated was that four of the applicants were unemployed and they wanted "now" to start their own business. He also referred to the deposition of witness Noor Hassan on behalf of the landlords and made a justifiable grievance that this evidence did not as much as state as to what was the business which the applicants/landlords wanted to start, whether they had the means to start it or that the existing accommodation where export import business was being carried on was insufficient. The learned counsel complained that the finding given by the First Appellate Court that the applicants wanted to carry on import export business from the shop premises is devoid of evidence for the witness Noor Hassan has not so stated. His statement merely is that he carries on import export work, the Office of which is situate in his residence and that this business did not fetch much income. He further complained that the onus was all the more on the applicants/landlords to prove that they had intended to start a particular business and had the financial capacity to do so, for as late as 1966, they had re-constructed the building and let out the shop to >the appellant on condition that the tenant will not be evicted so long he continues to pay rent and abide by the terms and conditions of the tenancy. In this state of the evidence, I am in agreement with the learned counsel for the appellant that the landlords had failed to prove that they required the premises for their personal use for that burden cannot be said to be discharged by bare and bald statement in the evidence that some of the landlords were unemployed and they wanted to start some unspecified business."
9. ' The question, therefore, precisely is, whether the appellant has been able to establish his bona fide requirement?
10. ' In the application to the Controller the appellant stated that he required the property in question for his personal use as he was jobless. The appellant did not even specify the purpose i.e. Whether such premises were required by him for commercial or residential purposes. Nevertheless, since the appellant had stated in para. No.3 of his application that he was jobless, therefore, reading para. No.3 of his application as a whole, the best case that can be put forth by the appellant was, that he required the premises for commercial purposes. When the affidavit of the appellant was filed in evidence, he stated therein that he had no other place either residential or commercial except the property in question. This was again re-affirmed by him in his cross-examination as he stated that he wanted .To use the premises for residential as well as commercial purposes. The appellant also failed to disclose in his affidavit the nature of the business he proposed to do in the premises in question. In his cross-examination the appellant stated that he had taken a shop in Bihar Colony on a rent of Rs. 175 per month where he was doing business of sweetmeat. The appellant further stated that two years prior to that he was doing the same business near Hoti Market but later he went out of business. The appellant also stated that once again his business was not flourishing and he had almost gone out of business. This evidence appears to be a clear departure from the earlier stand taken by the appellant in his application where he had stated that he .Was jobless. Furthermore, the business of the appellant, admittedly, is to sell sweetmeat while the premises occupied by the respondents are being used for carrying on a manufacturing process. There is no evidence on the point whether the appellant wanted to do the same business of selling sweetmeat or wanted to utilise the premises for some other purpose. It was also not made clear by the appellant whether he had sufficient funds available with him to start any other business as no evidence had been led by the appellant to show that the premises in question were suitable for the purposes of sweetmeat business. The evidence produced by the appellant before the Controller, on the point, therefore, does not inspire confidence. The legislature places burden on the landlord to establish good faith before a tenant can be required to vacate the demised premises. Such burden can only be discharged when the bona fides of the landlord are clearly established. The evidence adduced by the appellant needs much to be desired and on the basis of such evidence, the respondents cannot be deprived of their right to continue to occupy the premises. The cases relied upon by the appellant's counsel are distinguishable as in those cases the landlord had succeeded in establishing his bona fides. In the instant case, apart from the statement of the appellant that the premises were required in good faith for his personal use, no other material was placed before the Rent Controller to establish good faith or bona fides.
11. ' Next, coming to the claim of the appellant, that the premises are required by him for residential purposes, such dal Clearly amounts to a departure from the original stand taken by the appellant in the pleadings. It has been held time and again that a party cannot be permitted to build up its case beyond its pleadings. The ground o residential requirement was not pleaded by the appellant in his pleadings, therefore, it was rightly refused to be considered by the learned Controller.
12. Moreover, this ground appears to be male fide and not taken in good faith as admittedly, the premises are being used for commercial purposes and consist only of a shed and two rooms which are being used for office purposes. The claim of the appellant, therefore, is not bona fide. Mr. A.F.M. Mokarim the learned counsel for the appellant has argued that under the Ordinance the distinction between the residential building and the non-residential building has been done away with. Be that as it may, but the appellant, in any case ha failed to establish good faith and thus discharge the burden which the legislature has placed upon the landlord.
13. ' For the foregoing reasons, there is no force in this appeal and, therefore, it is dismissed. There will no order as to costs.