1. This First Rent Apeal is directed against the order, dated 16th February, 1986, passed by the learned IInd Senior Civil Judge and Rent Controller, Karachi (South) by which he has ordered ejectment of the appellant .On the ground of personal bona fide requirement. The brief facts giving rise to the present appeal are that the respondents filed ejectment application before the learned Rent Controller against the appellant inter alia alleging therein that he was their tenant in shop No. 9 at monthly rent of Rs.
36. The shop was required by them in good faith for the bona Fide use of respondent No.3, Muhammad Hussain. That they had no other shop of their own in the said urban area where Muhammad Hussain could set up his own business.
2. The appellant/opponent filed written statement in which the relationship of landlord and tenant, and the rate of rent was admitted. However, it was denied that shop in question was require by the respondent for 'the personal bona fide use of respondent No. 3 Mohammad Hussain. It was further stated that the respondents/landlords were carrying on business in front of Taj Hotel under the name and style of Ibrahimji Issaji Antaria and the shop in question occupied by him was not required for the personal bona fide use of respondent No. 3. It was further stated that respondent had converted the open space in to commercial unit, and the same was rented out by them on huge pagri to one iron and steel Merchant which shows that they did not require the shop in question for there personal bona fide use. That the respondents were still in possession of one shop in the same building and it was lying vacant. That the application was mala fide and the same was filed in order to harass him. It was further stated that the respondent had served all the tenants with noticed dated 14-11-1979, falsely alleging therein that the building was not fit for residential pruposes, although the building was still in existence and they are now trying to obtain possession on the false grounds. It was further stated in the written statement that the application was not maintainable for want of notice under section 18 of the Sind Rented Premises Ordinance, 1979 regarding the change of the ownership.
3. From the pleadings of the parties, the following issues were framed:--
(1) Whether the application is not maintainable for want of notice regarding the change of ownership under section 18 of Sind Rented Premises Ordinance, 1979?
(2) Whether the applicant No.3 Mohammad Hussain requires the disputed shop in good faith for his personal bona fide use?
4. The learned Rent Controller while taking into consideration the evidence of; produced by the parties decided the issue No. 1 in negative while issue No. 2 was decided in affirmative and consequently the application was allowed. The present appeal is directed against the above order of ejectment.
5. I have heard Mr. Mohammad Ashraf Bhatti, learned counsel appearing for the appellant, Mr. Badraudduja Khan, learned counsel appearing for the respondents, and have gone through the R & P of the case.
6. It was contended by Mr. Mohammad Ashfaq Bhatti, learned counsel appearing for the appellant that the respondents were in possession of another shop situated opposite Taj Hotel where they are carrying on business and they had failed to mention this fact in their ejectment application. It was further contended that the respondent had failed to give particulars about the bona fide requirement of respondent No. 3 and that there was no reliable evidence that the shop in question was required for the bona fide personal use of respondent Mohammad Hussain and, therefore, the learned Rent Controller had erred in allowing the ejectment application. In support of his contention the learned counsel has relied upon 1985 CLC page 892 and 1985 CLC page 1007.
7. On the other hand it was contended by Mr. Badarudduja Khan, learned counsel appearing for the respondents that the respondents had clearly mentioned in the application that the shop in question was required bona fide in good faith for the personal use of respondent No. 3 Mohammad Hussain. It was further contended/mentioned in the application that the applicant had no other shop of their own in that urban area where the respondent Mohammad Hussain could set up his own business. It was further contended that there was a marked distinction between section 13 (3) of West Pakistan Urban Rent Restriction Ordinance and section 15 (vii) of Sind Rented Premises Ordinance, 1979. In as much as according to the provisions of Sind Rented Premises Ordinance it was not necessary to give particulars of the premises which were in possession on rent with the landlord. That the order of the learned Rent Controller does not suffer from any infirmity and therefore., the appeal was liable to be dismissed. In support of his contentions, the learned counsel appearing the respondents has relied upon PLD 1984 Kar. Page 87 and 1986; CLC page 395.
8. I have considered the contentions of the learned counsel. In para. 3 of the application it has been mentioned that the shop premises is bona fide and in good faith required by the applicant No. 3 Mohammad Hussain son of late Fazal Abbas Bhai Antaria for personal and bona fide business requirement. In para. 4 of the application it has been mentioned that the applicants have no other shop premises for their own where the applicant No. 3 Mohammad Hussain could set up his personal bona fide business. In affidavit filed by respondent Mohammad Hussain in evidence it has been mentioned in para. 7 that the applicant No. 3 requires the ease premises for setting up a general store and supply business for his personal bona fide need and required the same in good faith to set up his own business. In cross-examination .He has stated that he became owner of the premises in dispute in 1970. He did not issue notice to the oppenent after he became owner of the premises in dispute. He did not know if he was applicant No.4 in Rent Case No.2896 of 1971 against tenant Abdur Rashid. He has admit--ted that he was applicant No. 3 in Rent Case No. 2238 of 1983 pending against Irbahim Bhai. He has also admitted that he was applicant No. 3 in Rent Case No.2239/83 filed against tenant Abdul Rashid. He has admitted that notice, dated 14th November, 1979 was given by them to the tenants that the building was in dclipidated and dangerous condition, and calling upon the tenants to vacate the same. He did not know if the open space was converted into shops and the same were rented out to Nauman Bhai, Habib Steel, and Shafique, and that one of the shop kept by them in their possession. He did not know as to who was the landlord of Steelwala and Shafiq tenants. Voluntarily stated; that they were their tenants since long.
9. He has denied a suggestion that the application was mala fide, and that he wanted to rent out the premises in disptue on pagri. He did not know that the premises adjoining the premises of Nauman Bhai was in their possession.
10. Nauman witness produced-by the respondent has deposed that there is no shop in possession of the applicants inside the case premsies. In cross--examination he has admitted that adjacent to his shop, there is a shop in possession of the applicants and on the other hand there is stair-case where the applicants are keeping motor cycle. There is water tank in that shop. There is garage of applicants and not a shop. He was denied a suggestion that was not deposing falsely.
11. The appellant/tenant has stated in his affidavit in evidence that on 14-11-1979 the applicants had sent him and other tenants a notice asking them to vacate the buildings it was in dangerous and dclipidated condition and, as such, was unfit for occupation. But uptill today it is in good condition: The applicants have also filed cases against the other tenants. That prior to filing of the present case, the applicant had converted the open space into commercial unit and rented out the same to Nauman A.I, Shafiq and one another person on heavy pagri. They have still one more shop which remains unutilised and they were waiting for some offer of good pagri, and in the meantime they were keeping motor cycle in the said shop during the night. The above facts will show that the shop in question was not required by the applicant for their personal use bona fide. It was further stated that the applicants arc running a very big and lucrative business in front of Taj Hotel in the name and style of Ibrahimji Issaji Antaria and they also reside under joint family system. That the applicants had demanded enhancement in rent from him which he had refused. That the claim of the applicants regarding the bona fide use was false. In cross-examination he has admitted that he has not mentioned in the written statement about payment of Rs. 5,000 as by Pagri him. In 1983 ejectment case was tiled against Ibrahim Bhai. He was minor at that time. He has admitted that no ejectment case was filed against him. He knew the applicant Mohammad Hussain but he cannot say if Mohammad Hussain was born in 1965. I cannot say if there is no mention in my written statement that the applicant demanded Rs. 6,0(10 from him as pagri and also wanted to enhance the rent. He knows that he was doing his business in a rented premises. He did not know if the applicant had no other shop. He had no objection if applicant and his brother wanted to do business separately. He cannot say if there is a roof of iron sheet on the portion where motor cycle is parked. He has admitted that when the open space was changed into commercial, the applicant, was minor. He has refused to exchange his shop with the portion in occupation of the applicant. He was not willing to vacate the shop on, the ground that the applicants will undertake that the they will not rent out the 'hop on pargi nor dispose it off. He has admitted that other brother of applicant have filed those cases on the ground of personal bona fide use.
12. The affidavit filed by Masood Hussain respondent No. 2 in response to the order dated 29-9-1987, shop was that the shop to which they are carrying on business is too old and is in bad condition.
13. That they are in possession of the said shop as tenants and in support of the above contentions he has produced two receipts as Annexures "X-1" and "X-2". He has also produced copy of partnership decd as Annexure "X-3". According to him they were five brothers out of which one Shaukat Hussain has died leaving behind a widow and two children, who are also partners with them. That the rented shop was not sufficient for their business need as they cannot expand their business in the rented shop, and, therefore, all the brothers had decided to have separate business for three brothers viz. Himself, Nasir Hussain and Mehmood Hussain. In the counter-affidavit filed by the appellant Sadiq A.I it is mentioned that the business which they were carrying on was a big and profitable business and requires six to eight persons to handle the same. That the shop is not less than 22' X 50' and all brothers are physically engaged in the said business. In addition thereto, they have employed three more persons in order to control the work. He has denied the assertion that they cannot expand their business in the said shop. That since this fact was not disclosed by the respondents in the application, they were guilty of supressing the true facts.
14. From the above evidence, produced by the parties it is clear that the respondents do not own any other shop in the same urban area and the assertion of the appellant/tenant that the respondents were in possession of one shop situated in the same building appears to be misconceived inasmuch as it is clear from his replies and cross-examination and that of his witness Ghulam that the said shop is small one and is being used for the purpose of keeping motor cycle during night. It is also the case of witness Nauman, that there is water tank in the said shop and that is why the appellant did not agree to occupy the so-called shop when suggested in cross-examination. As far as the shop opposite in front of Taj Hotel, it is clear from the evidence produced by tile respondents, including the two rent receipts, that the same is on rent with them. The appellant has also not denied this aspect of this case. Even in this counter-affidavit filed in this Court he has denied that the shop in which the respondents arc carrying on business was not on rent with them.
15. As far as the first contention of the learned counsel, that the respondents had failed to give particulars about their bona fide requirement in the application and had also suppressed the fact that they were running business opposite Taj Hotel was concerned, it has been proved from ocular as well as documentary evidence that the shop in which the respondents were carrying on business and which was situated opposite Taj Hotel was on rent with them. As regards failure of giving particulars in the application, it is necessary to refer section 13(3)(a) of Sind Urban Rent Restriction Ordinance, 1959 and section 15 of the Sind Rented Premises Ordinance, 1979, which read as follows:-- Section 13(31 (al.
16. A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:-- (i)
17. (ii)
18. (b)
19. (c)
(ii) in the case of non-residential building or a scheduled building or rented land if--
(a) he requires it in good faith for his own use or for the use of any of his male children;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area.
20. Section 15 of S.R.P.O.
21. "Application to Controller (1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in.The, order, if he is satisfied that:--
(i) ... ... ... ... ... ... ... ...
(ii) ... ... ... ... ... ... ... ...
(iii) ... ... ... ... ... ... ... ...
(a) .. ... ... ... ... ... ... ...
22. (b). . ... ... ... ... ... ... ...
(c) .. ... ... ... . . ... ...
(iv) .. ... ... ... ... ... ... ...
(v) .. ... ... ... ... ... ... ...
(vii) The landlord requires the premises in good faith for his own occupation or use of his spouse or any of his children:'
23. As far as the decision relied upon by the learned counsel appearing for the appellant were concerned in the case of Noor Muhammad v. Iqbal Ahmed (1985 CLIP page 1007) it was observed by this Court that:-- "The expression `requires the premises in good faith' is not without significance and it indicates that the landlord has to establish his `good faith'. In other word, he has to etablishment this requirement by tangible evidence and not by only making simple statement that he needs the premises for his own use. Should mere statement of a landlord that he needs the rented premises for his own use be sufficient for obtaining eviction of tenant, the expression `in good faith' would be redundant.
24. Moreover, if that view were to prevail, hardly a tenant can escape eviction on such ground. In the instant case, the respondent did not disclose the circumstances which had prompted him to do any business there."
25. It was further observed that:-- "Even statement of the landlord alone can be sufficient to prove his personal requirement if it can satisfy a prudent mind by objective evidence that such requirement does exist. But bare statement by the landlord that the needs the rented premises for his own use would not be sufficient to bear out element of good faith."
26. 1985 CLC page 892) it was observed by this Court that:-- "Although it is not necessary to give full particulars of personal requirement in- the application, the averment should not be so brief and scanty that hardly the nature of requirement can be spelt out.
27. While making a claim for bona fide use and occupation such necessary facts should be stated from which the bona fide requirement of the landlord could be made out. Mere repeating the languge of the statute is not enough."
28. The learned counsel appearing for the appellant had cited certain other decisions as well, on the same point but it is not necessary to mention all of them in this judgment as there is no cavil with the principles laid down in the said decisions.
29. Mr. Badarduja Khan, learned counsel appearing for the -respondents had relied the following decisions:--
1. Sitaldas and two others v. Haji Mohammad Safar; (PLD 1984 Kar. Page 87); wherein it was observed by this Court that:-- "1n reply to question but to him in cross-examination, Isar Das made certain admissions indicating that apart from the disputed shop, he and his brothers owned other shops, two of which are being used as garage and store room. In view of the above admission the learned counsel contended that the appellants cannot be held to be requiring the disputed shop for genuine personal needs.
30. However, the authority laid down in Abdul Aziz and another v. Mohammad Ibrahim PLD 1977 SC page 442; has furnished a complete answer to his argument. While interpreting the personal requirement in respect of non-residential building, it was held; `accordingly, the requirement in this sub-clause does not extend cover the rented premsies."
2. Nikhat Riaz v. Manzoor Hussain (1985 MLD' 1533); wherein it was observed by their Lordships of the Supreme Court that:- "It is now well-settled that the fact that the landlord is occupying other rented premises or is living with relatives is no ground to disentitle him from occupying his own premises."
3. Bhalcdino v. Din Mohammad and G others (1986 CLC page 395); it was observed by a Division Bench of this-Court that:-- "In any event the observation made in this judgment will precisely be more relevant if the landlord is the owner of the premises in which he i, carrying on business. In that even the landlord should establish that the disputed premises is more suited for him as compared to the premises in his possession and owned by him. But where the landlord is carrying on his business in a rented premises unless it is established that the disputed premises owned by the landlord cannot reasonbly be used for his alleged purpose, and if he has otherwise proved his requirement, merely because he has not, given full particulars and area of the disputed premises which is in his possession, it may not lead to the inference that the landlord has failed to prove his requirement.
31. Such determination is always dependent on facts and circumstances of each case: In this particular case the respondents were only to show firstly that they are carrying on business in a rented premises and secondly, they reasonably and in good faith require the disputed premises in which business can be run by them. These facts -have been established by the respondents. In these circumstances the contentions of the learned counsel that non-disclosure of the accommodation available to the respondent is fatal to the respondents' case cannot be entertained."
32. While considering the distinction between section 13. (3)(1)ta) of Sind Urban Rent Restriction Ordinance and section 15 of the Sind Rented Premises Ordinance, it was observed that:-- "Under section 13 of Sind Urban Rent Restriction Ordinance:-- "Besides the fact that the landlord requires the premises for his own personal, requirement, it was necessary to establish that he was not occupying any building, suitable for his need, nor he has vacated any such building. The two pre-conditions are missing in section 15 (2)(vii) of the Sind Rented Premises Ordinance. In fact section 15 (2)(vii) applies to residential and non-residential premises 'in good faith. In this legit position, if the landlord does not disclose such fact in his application it cannot be struck down. However, if it is established that the landlord is occupying premises of his own in the same Urban area which can meet his requirement or such premises is lying vacant and is suitable for -his need, then it will adversely reflect on the bona fides of the landlord."
33. It was further observed while relying upon the case of Arshad Umar v. Begun Nazarul Askari (PLD 1985 SC page 138) that:- "In the absence of any pre-condition laid down by section 15 of Sind Rented Premises Ordinance non-disclosure in the application that some other premises is in the occupation of the landlord will not be a bar to the maintainability of the application."
34. From the above factual as well as legal position it is clear that the respondents have been abic to prove that they were not in possession of any other premises of their own suitable for their need except a small shop situated in the same building which was big used as garrage and in which there was a water tank as- well. Mere fact that they had not mentioned that they were in possession of the small shop garage., and other shop which on rent with them will not constitute bar to the maintainability of the present application. As far as the second contention of the learned counsel for the appellant regarding bona fide need was concerned, it has come m evidence that three brothers want to separate from the partnership and want to establish there own business.
35. They did not have any suitable shop of their own, in which they could establish their business. Their ascertion has not been shaken any way in cross-examination. The allegation that the rate of pagri had gone up and the respondents wanted to obtain possession from appellant and thereafter they intended to re-let the same to someone else on higher pagri is bald allegation and the appellant had failed to prove the same through any reliable evidence. No evidence has been led to show' that the respondents had negotiated with some one for re-letting the premises in 6 dispute on higher pagri, and thus the appellant has failed to prove that the requirement of respondents was mala fide and not bona fide. I am of the considered view that shop in dispute is required by the respondents for the personal bona fide need of respondent Mohammad Hussain and the learned Rent Controller has rightly allowed ejectment application. He has given cogent reasons in his order, and the order does not suffer from any infirmity, therefore, the order does, not call for interference, and the appeal is accordingly dismissed with no order as to costs.
36. However, I allow six months time to the appellant to hand over the vacant possession to respondent subject to the condition that he continues to deposit future monthly rent regularly. In case the appellant fails to handover vacant possession as directed, the learned Rent Controller shall issue writ of ejectment without issuing any 'prior notice to the appellant if any execution application is filed. I have granted six months' period as at the time when I was dictating the short order Mr. Mohammad Ashraf Bhatti requested for six months' time to vacate the premises to which Mr. Badarduja Khan conceded.
37. I had decided the above appeal on 11-10-1988, by a short order, and these are the reasons for the same.