1. ' The appellant filed an application for ejectment against MA. Agha in respect of shop on Plot No, III- A, Nazimabad Karachi which was let out to him on rent. It was alleged that he has sublet the shop to. One Hassan Abbas without the consent or permission of the appellant. The other grounds pleaded were that default has been committed and she requires the shop in question for her personal use and for use of her adult male children for establishing suitable business for earning livelihood for the entire family. The respondent filed written statement and pleaded that as he has refused to accede to the appellant's demand for increase of rent the ejectment application has been filed on false and mala fide grounds. He has regularly been paying rent personally but when it was refused he sent it through money order which was refused and the same has now been deposited in Misc. Rent Case No, 3849/1990. It was pleaded that the respondent is running his business in the disputed shop which is a partnership business from the very inception of the tenancy i,e, the year 1974. The partnership has nothing to do with the tenancy rights of the respondent which is within the knowledge of the appellant who is residing in the same building. The personal requirement was also denied and it was pleaded that appellant's male children are employed abroad who are remitting sufficient amount for her livelihood. Other children are getting education and can hardly do any business. During the proceedings the appellant had filed an application under Order 1 Rule 10 C.P.C. For liupleading Hashim Abbas alleged to be sub-tenant but it was dismissed. The learned Controller dismissed the ejectment application by order dated 1-4- 1984 which was challenged before the High Court. The said order was set aside and the case was remanded with direction that both the parties may be allowed to produce further evidence after which the matter may be decided. The learned Controller recorded additional evidence and by impugned order dismissed the ejectment application.
2. ' During hearing of this appeal by order dated 22-11-1988 the Court had ordered that the District Health Officer Central Government of Sindh, Income Tax Officer Circle W.I and Hashim Abbas may be summoned for evidence as without their evidence proper justice could not be done. The Court examined two witnesses Dr. Mohammad Umer Baloch and Mohammad Aslam, Income Tax Officer.
3. Thereafter by order dated 16-4-1989 Dr. Umer Baloch was summoned for cross-examination by the advocate for the respondent who was also allowed to lead evidence in rebuttal. Dr. Umer Baloch appeared and his statement was again recorded but the advocate for the respondent was not present and did not cross-examine him. The respondent examined Ghulam Mohammad, Manager United Bank Limited and Ghulam Rasool Inspector of Drugs at Karachi.
4. ' As regard subletting the contention of the appellant is that the respondent was the tenant but he had sublet it and the business is being run and the shop is occupied by one Hashim Abbas. From the evidence on record it seems that the respondent is the tenant. He entered into a partnership with one Hassan Abbas photo copy of the deed of partnership has been produced by him. Clause 11 of this deed provides that the tenancy will not be subject-matter of the partnership and it will exclusively invest in the respondent. Clause 12 provides that the partnership shall not be dissolved on account of death of any of the partners but upon happening of such event legal heir of the deceased partner shall be taken as partner who shall abide by the terms of the deed. The respondent has also relied on a letter of the appellant in which it has been stated that if the tenancy is not subject to the partnership then she will have no objection. This letter has been denied by the appellant and the original has not been produced. Therefore, it is excluded from consideration. On the other hand the appellant has produced witnesses to show that Hassan Abbas is in possession of the premises. He is running the business and is the sole proprietor of the business. The appellant has relied on the photo copy of the notice of demand issued by the Income Tax Officer to Haship Abbas in which he has been described as proprietor of Raza Medicos, Nazimabad No,
3. Reference has also been made to the licence issued by the District Health Officer Karachi in the name of Hashim Abbas but it does not prove whether he is a proprietor or partner.
5. Photo copy of an affidavit (Ex.3/2) was produced by Dr. Mohammad Umer Baloch in which Hashim Abbas has described himself as the proprietor of Raza Medicos. Ghulam Mohammad the Manager of U.B.L. Has produced in this Court account opening form (Ex.5/1) in which Hashim Abbas has been shown as partner and the account is in the name of the partnership firm Raza Medicos. The respondent claims that after the death of Hassan Abbas in the year 1975-76 Hashim Abbas became the partner. The only evidence which is against the respondent is the affidavit filed with the Health Department in which Hashim Abbas has described himself as the sole proprietor.
6. Besides this from the Bank account and also from the Income Tax notice it is not established that he is the proprietor. The oral evidence in this regard is that the business is being run by Hashim Abbas. The appellant's witness has stated that a notice on ground of sub-letting was given to the respondent but again he denied that such notice was given. The fact however remains that Hashim Abbas has been running the business in the shop from the year 1975-76. The appellant is residing in the same premises. The appellant had alleged default in payment of rent but it has not been pressed which means that the appellant had been receiving rent from the respondent or from the person who was carrying on the business. It was in June 1980 when the money order was sent and it was refused. Thereafter application for deposit of rent was filed. The same year ejectment case was also filed. This shows that the appellant has been in the knowledge of the partnership and also of the fact that the business was run by Hashim Abbas. In spite of this knowledge she continued to accept rent for about 4 or 5 years. The fact that the appellant did not raise any objection and allowed the rent to be paid leads to the conclusion that either the respondent has not sublet the premises or that the appellant has no objection in respondent's partnership business in which the tenancy remains in the name of respondent while the business is being runby Hashim Abbas.
7. ' Mr. K.B. Bhutto the learned counsel for the appellant has contended that under the Sindh Rented Premises Ordinance 1979 if the possession of the premises has been handed over to some other person then it is sufficient to grant ejectment. Section 15(iii) (a) provides that ejectment can be granted if the tenant has without the written consent of the landlord handed over the possession of the premises to some other person. Therefore if it is proved that possession has been handed over to some other person then the tenant will be liable to be ejected. Handing over of possession means that the rented premises is occupied and used by a person other than the tenant. It will not include cases where business is being run by any attorney or any partner without having any interest in the tenancy itself. On an overall assessment of evidence on this issue the appellant has failed to establish that the respondent has handed over possession to any other person.
8. ' The other issue is with regard to bona fide requirement of the appellant. According to the appellant she wants the shop for running business by her sons. In the ejectment application no further particulars have been given but Khurshid Iqbal, Raees Ahmad and Hafeezur Rahman the sons of the appellant have been examined. Raees Ahmad has stated that he has completed his studies but he is unemployed for about last two years. He was employed in Libya but after termination of his employment he has not been able to get any job. However, according to appellant's witness Badruddin Paracha, Rais has opened a garments shop. Khursheed Iqbal and Hafeezur Rahman have completed their studies and are unemployed. In the disputed shop they would start some suitable business for their livelihood and for their family. The statement of Saeed witness had gone unchallenged as he was not cross-examined on 12-7-1986. After the remand Saeed does not seem to have been cross-examined.
9. ' Khursheed Iqbal another son of the appellant filed a detailed affidavit in which he stated that premises is bona fide required for Raees Ahmad, Hafeezur Rehman and himself as they are educated and unemployed and want to start a suitable business for their livelihood and that the appellant being widow requires ' the premises for the well-being of the family. In cross-examination he admitted that he has eight brothers out of which three are in service abroad but denied that Rais Ahmed has opened a shop of garments. He denied that he or his brothers for whom the premises is required are in service. He denied that their brothers are supporting him.
10. ' The learned Controller has taken exception to the fact that the appellant was not examined and further that Khursheed Iqbal was an attorney having no power to give statement and therefore held that the personal requirement has not been established. It is well settled that in cases where any landlady requires premises for her own personal requirement or for her children, any doss male family member can appear and depose about the facts of the case on her behalf. It is not necessary for her husband or son to hold power of attorney for making statement. Therefore in these circumstances if the landlady does not appear personally and enter the witness box it cannot be a ground for rejecting the application. The question of bona fide requirement is a question of fact and it should be established by cogent and convincing evidence. If the children for whom the premises is bona fide required, appear and depose and are able to prove from their statement the bona fide requirement, the fact that the landlady did not appear could not in any manner discredit the trustworthy evidence of such witnesses.
11. ' The appellant has examined her sons who have deposed that the premises is required for them.
12. The statement regarding bona fide requirement though challenged in cross-examination has not been shaken. The appellant has not given full details of the business required to be carried on but this fact alone will not be sufficient to reject the plea of bona fide requirement. The appellant's witnesses have supported the personal bona fide requirement. It is established that at least two major sons of the appellant are unemployed, one of them has got diploma in electrical science and the other is a graduate and for two years they have not been able to get any job. Their three brothers are no doubt employed abroad but mere employment of brothers does not mean that they should not work or that if they require to do any business it will not be a bona fide requirement.
13. Every person is entitled to do his own business, profession or work and if bona fide requirement is established then irrespective of the fact that he is being supported by his brothers or parents he will not be robbed of his right and requirement to do his independent business and such requirement will be held to be a bona fide requirement. From the assessment of evidence produced by the parties the appellant has established her bona fide requirement for her sons. I therefore set aside the impugned order and grant the ejectment application on this ground alone.
14. As the premises is a commercial premises the respondent is allowed six months time to vacate and hand over vacant possession to the appellant.