1. This First Rent Appeal is directed against the order dated 29-8-1984 passed by the Ist Senior Civil Judge/Rent Controller, Hyderabad, whereby he allowed the eviction application filed by the respondent and directed the appellant to hand over the vacant possession of the premises within three months from the date of the order.
2. The facts leading to the filing of the above appeal are that the respondent is the owner and landlord of premises bearing No. D/25, Chooti Ghitti, Hyderabad which was transferred to him by the Settlement Department on the basis of possession. It is the case of the respondent that he reconstructed the aforesaid premises into a shop on the ground floor and a store in the staircase and other upper storeys thereon. It is the case of the respondent that the shop was rented out to the appellant on 2-12-1978 at the monthly rent of Rs. 550. It is the further case of the respondent that the aforesaid store in the staircase was rented out to one Khalid for his residence at Rs. 100 per month. The respondent filed eviction application No. 454 of 1982 against the appellant on the grounds o: personal requirement for respondent's son and the appellant violated the terms of agreement. The appellant resisted the eviction application.
3. On the pleadings of the parties the learned Controller framed the following issues:- "(1) What is the rate of rent of the shop and the store?
(2) Whether the premises is required by the applicant for his own use?
4. (3)Order?"
5. The respondent filed his own affidavit-in-evidence in support of the eviction application besides affidavit-in-evidence of his son Abdul Salam. The appellant filed his own affidavit-in-evidence in rebuttal. They were cross--examined by the learned counsel for the respective parties The learned Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel, for the parties allowed the eviction application vide order dated 29-8-1984. The learned Controller determined the rent at Rs. 650 per month.
6. The appellant being aggrieved against the order dated 29-8-1984 of the Controller, I4yydqabad, has preferred this First Rent Appeal on the grounds mentioned in the memo. Of appeal.
7. Mr. Syed Abbas Zia, the learned counsel for the appellant has raised the following contentions:- "(1)The learned Controller admitted evidence which was not legally proved.
8. (2)The respondent had failed to show that the said premises in his possession were insufficient for him and his son's needs and/or were unsuitable for his son's requirement. .
9. (3)The point for determination on the question of requirement of the premises for personal need is not consistent with section 15 of the Sind Rented Premises Ordinance, 1979."
10. On the other hand Mr. Anwar Jamali the learned counsel for the respondent has submitted that:- "(1)The learned Controller had rightly admitted evidence and the same was duly proved.
(2) The respondent had proved his bona fide. Requirement."
11. (3)The respondent had established his bona fide requirement of the premises in question.
12. As regards first contention of the learned counsel for the appellant that the learned Controller admitted evidence which was not legally proved, the respondent averred in his eviction application that the shop was rented to the appellant on 2-12-1978 at Rs. 550 per month and all other terms and conditions were reduced into a rent deed signed by the parties. The appellant also averred that store in the staircase was on rent with Khalid for his residence at Rs. 100 per month. It was also averred in the eviction application that the appellant managed with Khalid and took possession of the store without consent or knowledge of the respondent. It is the case of the respondent that the appellant assured that he will use the godown only as a store of his shop on the ground floor wherein he was carrying on the business of hotel. The applicant reluctantly agreed for it and the opponent started to pay Rs. 100 per month for this store. The respondent asserted in para. 11 'of his eviction application that "his son Abdul Salam aged about 19 years has qualified as wireman in.1982 and has also learnt the work of refrigeration and air-conditioning and the aforesaid store and the shop are required for their personal bona fide use of the applicant's son Abdul Salam".
13. The appellant filed written statement and denied the allegations made in the eviction application.
14. The case as set out in the written statement is that the respondent himself had rented out the said store to the appellant and also handed over its vacant possession to the appellant. The appellant also stated that the respondent himself had given the store to the appellant on monthly rental of Rs. 100 without imposing any condition for its use and all the allegations to the contrary are denied.
15. The appellant denied contents of para. 11 of the eviction application and further stated that "the applicant has not produced any documentary evidence in support of the contentions made in this para. The applicant be put to strict proof of the same. It is false, baseless and motivated to say that the son of the applicant possesses the alleged qualification or the shop and store in possession of the opponent is required for personal bona fide use of the applicant's son Abdul Salam. These false pleas have in fact been taken by the applicant with a view to coerce the opponent to enhance the rent of the shop for which he had been making demands from the opponent". The respondent in his cross-examination admitted that he did not file any report or any case against the appellant for his forcible possession he would have fled such complaint or F.I.R. With the concerned Police and prudent men will believe that he was receiving the rent of the store without any receipt when the opponent had produced the receipt showing that he was paying the rent at Rs. 650 per month.
16. It is an admitted position that in the beginning the shop was rented out to the opponent at Rs. 550 per month. There is only word of the applicant that the opponent on his approach to vacate the premises himself enhanced the rent of the shop to Rs. 650 per month. The opponent has further produced the money order coupons to prove that the rent was remitted at Rs. 650 per month. He has-also produced true copy oaf the application filed by him for permission to deposit the rent in Court as Ext. 22which also shows that the rent was Rs. 650 per month for both the premises is Rs.
17. 650 per month.
18. Keeping in mind the main object of the enactment namely, to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within urban areas, the principle that emerges from several decisions is that the landlord must allege and prove his requirement. The onus of proof of this is certainly on the landlord. Mere wish or intention of the landlord is not sufficient to give him a right to evict the tenant. Clause (vii) of subsection (2) of section 15 of the Ordinance provides that the landlord requires the premises in good faith for his own occupation for --use of his spouse or son. It is not possible to lay down any hard and fast rule applicable to all cases. But the basic and essential distinction between requirement in good faith and mere wish or intention should be borne in mind and the totality and cumulative effect of all the circumstances should be taken into account and not any particular feature of the case in isolation. In certain cases the conduct of the landlord taking false pleas, that is, demanding enhancement of rent and on refusal or declining to pay enhanced rent filing eviction application may amount to mala fide act. But at the same time, certain pleas raised by the tenant, but negatived by the Controller on assessment of the evidence adduced by the landlord and tenant, may constitute proof of mala fides on the part of the tenant.
19. The appellant took the plea in his affidavit-in-evidence that he purchased fittings and fixtures and crockery worth Rs. 50,000 from previous tenant Muhammad Mujtaba Baig vide agreement of sale dated 1-6-1978, that is, about 6 months prior to date of tenancy. The learned Controller rejected this plea firstly on the ground that this plea was not taken in the written statement and secondly Muhammad Mujtaba Baig was not examined in support of this plea.
20. The Rent Controller says that "it has come from the mouth of the opponent that the applicant is carrying on business in a rented shop. Furthermore there is no evidence from the opponent that applicant owns any other shop and that accommodation with the applicant is sufficient enough for carrying on the business by himself and by his son. Every parent will like to establish his son in business to earn his livelihood. It is significant to note that the respondent did not seek eviction of appellant on the ground that he was carrying on business in the rented shop and his landlord wanted him to vacate the premises in dispute. It is also significant to note that the respondent did not file eviction application on the ground that the place where he was carrying on business was insufficient and as such he wanted to acquire the additional accommodation. The Rent Controller was clearly in error in saying there was no evidence. If the Controller meant it was no evidence applying the same standards it should have been held that the sole interested testimony of the respondent and his son was no better and the application for eviction should have been rejected for want of evidence.
21. The Rent Controller after discussion of the rival versions of the parties regarding personal requirement rejected the case of the appellant/tenant and ordered eviction without pausing to consider whether the personal requirement was proved or not. The ultimate conclusion of the Rent Controller has already been extracted earlier in this judgment, from which it would be clear that he has made no effort to focus his mind on the distinction between mere wish or intention and requirement in good faith and whether in the instant case satisfied the tests pointed out in the several decisions of superior Courts.
22. For correctly assessing the relative value of the oral and documentary evidence of the landlord and the tenant the Rent Controller has not taken into account, that with regard to the other controversy the landlord himself did not give correct version in his eviction application. The allegation of the appellant is that the landlord had even brought into existence the two certificates for the purpose of bolstering up his false case that Abdul Salam wanted to start business of refrigeration and air-conditioning on the disputed premises. The authors of both the certificates were not produced before the Controller. I have no hesitation in holding that the finding of the Controller, that the respondent required the premises for his son, is clearly erroneous. The main background and the probabilities of the case have been ignored, oral and documentary evidence has been misread and misunderstood, and the necessary inference flowing from the conduct of the respondent has been ignored. Above all, there has been a total failure to keep in mind the essential distinction between the mere wish or intention and the requirement in good faith.
23. For all these reasons, the appeal is allowed, and the impugned order is set aside and the case is remanded back to the learned Controller for decision on merits. I think it is unfair to drive parties to a new litigation of unknown duration but direct in the special circumstances of the case that it would be fair to allow the parties to amend the pleadings, to allow the parties to add to the evidence already recorded on the issue whether premises in question are really required by the landlord for the use of his son. The respondent is at liberty to examine the persons who issued the certificates. The appellant is also allowed to examine Khalid and Muhammad Mujtaba Baig. Then full fledged arguments be heard and the parties be allowed to take steps which are permissible under the law and thereafter the decision be given on merits. There will be no order as to costs. The learned Controller is directed to complete the proceedings within four months from the first date of hearing. Office is directed to remit the R & P and copy of this judgment to the Controller forthwith.
24. Before I part with this appeal I would like to make it clear that whatever observations were made by the Controller and by me while disposing of this appeal should not affect in any way the disposal of the rent case/eviction application itself on merits. Whatever observations I have made are only for the purpose of examining whether the learned Controller has applied his mind to the facts and circumstances of the case or not.