1. ' This First Rent Appeal is directed against the judgment dated 30-3-1986 passed by the VlIth Senior Civil. Judge/Rent Controller, Karachi (South) whereby dismissing the eviction application of the appellants.
2. ' The appellants filed the eviction application under Section 15 (2) (vii) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) alleging that they required the godown bearing No, G.K.8/11/1 situated at Ghulam Hussain Quarters, Kharadar, Karachi, genuinely and in good faith for their own personal use for business purpose. The appellants by notice dated 6-6- 1982 asked the respondents to hand over the vacant and peaceful possession of the godown but the respondents failed, hence they filed the above eviction application.
3. ' The premises in question was let out to the respondents under an agreement of lease dated 1-7- 1986 at a monthly rent of Rs,2,500. The respondents contested the application. The respondents intended that the rent upto January 1978 was Rs,2,500. The appellants approached them and asked to vacate this premises as they required for their own personal use and occupation but when the respondents offered to enhance the quantum of monthly rent by Rs,1,000, the appellants withdrew their demand for vacating the premises in question and started collecting the rent at the rate of Rs,3,500 per month. Thereafter the appellants again in April 1981 came out with the same plea that they required the premises in question for their own personal use and once again when they offered enhancement in the quantum of monthly rent by Rs,1,000, the appellants withdrew their request for vacating the premises and started collecting the monthly rent at Rs,4,500 with effect from 1-6-1981 as agreed. The appellants have become habitual of advancing the threat of getting the premises vacated on the plea of need of the premises for their personal use to get the quantum of monthly rent enhanced. The respondents alleged that the present application has also been filed with the same motive to pressurize them to further increase the quantum of monthly rent. The respondents also denied the appellants' contention that they required the premises in question bona fide use and occupation.
4. ' The appellant No,2 filed his affidavit-in-evidence in support of the eviction application. The respondents filed the affidavit-in-evidence of their Managing Director, Syed All Kousar Zaidi in rebuttal. They were cross-examined by the learned counsel for the respective parties.
5. ' The Controller, on scrutiny of the evidence (oral and documentary), dismissed the eviction application as stated in the earlier part of the judgment. The appellants, being aggrieved by the said order passed by the Controller, have filed the present appeal.
6. ' Mr. Abdul Mateen, learned counsel for the appellants contended that the appellants have established their bona fide requirement. He further contended that the Controller has not dealt the matter in its proper perspective.
7. ' On the other hand, Mr. Nasimuddin Shaikh, learned counsel appearing for the respondents supported the impugned judgment. He submitted that the judgment is in accord with the evidence on the record.
8. ' I have heard the learned counsel for the parties at length and perused the impugned judgment. I have also gone through the R & P of the case.
9. ' The appellants had sought the eviction of the respondents from a godown in question on the ground of their personal use. The appellant No,2 stated in his affidavit-in-evidence that he and his brother are carrying on their business of hardware, tools and mill stores under the name and style of M/s. S.A. Mohsin & Co. In a shop at Marriot Road, Karachi which is in their tenancy. In support of that plea, they filed one original rent receipt No,83 dated 6-11-1983 in respect of the said tenancy premises issued by their landlady Mst. Rashida d/o Yousuf Ali. He stated that the said shop at Marriot Road, besides being rented, is too small to meet their requirements for transacting business and also for storage of their goods therein. According to him, it has only one opening and that too of 9'-2" only in width and its total area is about 430 square feet only. Consequently, they are unable to store and deal in mill machines and tools of medium and larger varieties such as illustrated in the five photostat copies of literature on "Korean Machinery Now" were annexed to the affidavit. He further stated that they had decided to expand their business range and as the said premises was quite inadequate, they had requested the respondents to vacate the godown in question for their bona fide personal use through their advocate's letter dated 6-6-1982 but they refused.
10. ' He further stated that in the past, the rent had been revised upwards mutually and never under any threat as falsely alleged by the respondents. Then there was no question of their asking the respondents to vacate the case premises since their decision to expand their business range was quite recent. Merely increase of rent in the past by mutual agreement cannot deprive them of their ownership premises required by them for their personal bona fide use. He stated that their previous counsel had inadvertently prepared and filed joint affidavit which was not considered proper by the Controller on the last date and so the same be treated as substituted by this affidavit.
11. ' To a question in cross-examination, he replied that he and his brother both wanted to get the premises vacated. To another question he replied that the annexures to his affidavit were received by them direct from Korea. These documents were sent to them by their indentor from whom they got it. To another question, he replied that they had not imported that machinery but they wanted to import one or two machineries from Korea. To another question, he replied that the distance between their premises and the premises in their occupation would be about one mile. To a question he replied that he did not remember how much income tax they paid to the Income Tax Department. To another question, he replied that he could not tell as to how much profit they earned during years 1980, 1981 and 1982 and in the year 1983. To a suggestion, he replied that he did not know the amount of bank balance in the name of partnership firm. To another question, he replied that he did not know the amount of his bank account.
12. ' As against the above evidence, the respondents filed affidavit-in-evidence of their Managing Director who reiterated the same facts in their affidavit-inevidence, that is, increase of rent from Rs,2,500 to Rs,3,500 in 1978 and again from Rs,3,500 to Rs,4,500 in 1981. They stated that in May 1983 the appellant No,1 visited their factory and had agreed to enhance Rs,1,000 per month. The said Fakhruddin did not agree to bear litigation charges, the same was also settled. They stated that Fakhruddin told them that his brother Najamuddin was not accepting the agreement between them. They stated that the rent application was filed with the same motive to pressurize them to further increase the quantum of monthly rent.
13. ' To a suggestion in cross-examination, he replied that he has no personal knowledge of the affairs of the case property prior to his appointment as an attorney for this case. To a question, he replied that he did not know that the appellants are doing business of hardware and tools and mills store.
14. To a suggestion in cross-examination, he replied that "I do not remember that the shop at Marriot Road in occupation of applicants is narrow and too short".
15. 'The Controller while dismissing the eviction application observed that the applicants examined Najamuddin and did not examine any other witness from the neighbourhood to support his version. The applicants intended to import machinery but no import licence for the purpose of importing machinery from foreign country and no permission letter from Government has been brought on record' so as to conclude that the applicants' requirement is bona fide and genuine". He further observed that "the mere desire of applicants will not make the requirement genuine and in good faith". In that view of the matter, he , came to the conclusion that the appellants have miserably failed to prove this issue whereas the respondents have succeeded in proving the mala fide intention.
16. ' In the instant case, the appellants had sought the godown in question on the ground of personal use. Firstly the shop in their occupation is rented premises. Secondly, the shop in their occupation is small. Thirdly, they wanted to expand their business. The respondents resisted the application on the grounds firstly that the appellants had enhanced the rent firstly in 1978 and secondly in 1981.
17. Secondly, the appellants had no resources for expansion of business. Thirdly, the appellants had not produced import licence or any letter from Government permitting them for import of machinery.
18. The Controller dismissed the application on the ground that real object of the appellants in seeking the eviction of the respondents was to enhance the rent. This conclusion was arrived at on the basis of the submission made by the respondents that originally when the godown in question was let out in 1966 vide agreement of tenancy dated 1-7-1966, the rent was Rs,2,500. This was firstly enhanced to Rs,3,500 in 1978 then to Rs,4,500 in 1981 per month.
19. ' It was held in the case of Badruddin Hasan Farooqui v. Manghi Industrial Home (PLD 1976 Karachi 620) that a demand of higher rent by itself does not cast any doubt about the personal bona fide requirement if the factum of bona fide requirement is independently proved. This dictum was approved by the Hon'ble Supreme Court in a case reported in 1980 SCMR at page 772.
20. ' In Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. (1985 SCMR 1996), it was held as under:- "The desire of landlord to seek the maximum income from his property by itself does not furnish negation of bona fides. In this case it was ignored by the High Court that the landlord had both the options available. Either to seek more income by increase of rent and let the tenant stay or if that does not materialise as it happened, to evict the tenant so as to have the disputed premises for his own hotel which is adjacent to it. There was nothing illegal or improper about it."
21. ' In Muhammad Ishfaque v. Asghar Ali and others (1989 SCMR 1315) it was held as under:- "We are of the view that the contentions raised by the learned counsel have no force. No period of limitation or time limit can be prescribed for change of circumstances nor for personal need.
22. Circumstances may change abruptly or may not change at all. It depends upon the facts of each case. A reasonable explanation has been given for changed circumstances which the High Court took notice of. Similarly, we do not think that the petitioner can avail of section 14 of the Ordinance.
23. A second application was filed because of a fresh cause of action."
24. Another reason given by the Controller to negate the claim of the appellants is that no other person from neighbourhood was examined to support the claim or assertion of the appellant No,1.
25. It is well-settled legal position that the assertion or claim of the landlord on oath that he required the premises for his personal use, should he accepted by the Controller as bona tide if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal.
26. The evidence in this case fully justified the claim by the appellants that they required the godown in question bona fide for their own use as they were occupying a rented shop which is small or short and they intended to expand their business. Their partner Najamaddin, the appellant No,2 filed his affidavit-inevidence. His evidence was not shaken in cross-examination or disproved in rebuttal. To have dismissed this plea as not proved, merely because they had not produced another witness to support their assertion or they have not brought on record import permit or letter from Government, was arbitrary and contrary to law. Thus the reasons given by the Controller for negativing the claim of the appellants for their own personal use or occupation for carrying on their business, are erroneous and cannot be accepted.
27. ' In Hasan Khan v. Mrs. Munawar Begum (PLD 1976 Karachi 832) it was held as follows:- "....The assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal."
28. ' In Bhaledino v. Din Muhammad and 6 others (1986 CLC (Karachi) 395) it was held:- "As the statement made on oath with regard to personal requirement is in consonance with the pleadings and has remained unchallenged and unshaken and further that two more witnesses have supported the respondents' claim, and there, being no evidence on behalf of the appellant or respondent No,7 in rebuttal, in view of PLD 1976 Karachi 836 the respondents have succeeded in establishing their claim for bona fide use and occupation."
29. The appellants have brought sufficient evidence on record that they are occupying rented shop which is short. It has come on record that the area of shop is 430 square feet. Syed Ali Kausar Zaidi admitted in his cross-examination that the premises in their possession consists of ground floor and half mezzanine floor.
30. ' In Abdul Salam Akhtar v. Dr. Najam Parvez (1976 SCMR 52) the Hob'ble Supreme Court held as follows:- "The next contention advanced on behalf of the petitioner is that since the landlord was living in rented premises, he was in occupation of another residential building suitable for his needs in the same urban area and, therefore, he was not entitled to evict the petitioner. The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view, extend to cover rented premises, for otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation, which the landlord is occupying at the time, must he shown to be his own and not merely rented premises."
31. ' There is nothing to indicate that the filing of the application for eviction of respondents is, in any way, motivated or has been done with any other oblique purposes. On the evidence of Najamuddin which has not, in any manner, been I challenged, it is obvious that the petitioners are genuinely desirous of carrying On their own business in their own premises. On a consideration of all the relevant aspects, the conclusion is irresistible that the appellants require the premises in the occupation of the respondents for their own use and occupation.
32. ' I may mention that the learned counsel for the parties have cited a number of decisions on those points. For these propositions, it is not necessary to cite decisions although I have been taken through the cases by learned counsel on both sides.
33. ' Having regard to the conclusion arrived at on the question of personal requirement of the appellants, the order of the Controller dismissing the application for eviction cannot be sustained and is set aside and there will be an order of eviction against the respondents. The appeal is allowed with no order as to costs. However, the respondents will have two months' time from today to vacate and hand over the vacant possession of the godown in their occupation but this will be subject to continuing to depositing the rent in Misc. Rent case.