1. ' This first rent appeal is directed against the order dated 22-11-1986 in Rent Case No,4612/82 whereby the learned Vth Senior Civil Judge & Rent Controller, Karachi (West) allowed the rent application and directed the appellant to vacate the premises in question within sixty days.
2. ' Facts of the case briefly stated are that the respondent is the landlady of commercial premises in dispute, namely, Shop No,I-K-47 and I-K-48 situated in the Commercial Area, Block No,1, Nazimabad, Karachi, and the opponent is her tenant in respect of these two shops since 1st July 1973 at a monthly rent of Rs,150.
3. ' The respondent filed the rent Application No,4612/82 under section 15 of the Sindh Rented Premises Ordinance, 1979 for the eviction of the appellant on the ground of default in payment of rent from the month of June, 1982, and also on the ground that she required the premises in good faith for the use of her husband and son. The case was contested by the appellant who in his written statement disputed both the grounds taken by the respondent in her application for eviction.
4. However, it appears that at the time of arguments before the learned Rent Controller the first ground relating to the default in payment of rent was not pressed on behalf of the respondent.
5. ' The learned Rent Controller, as stated above, by the impugned order dated 22-11-1986 allowed the application and ordered eviction of the appellant. Being aggrieved of the said order the appellant has come in appeal.
6. ' I have heard Mr. Abdul Latif A. Shakoor and Mr. Shafi Mohammadi, learned counsel for the appellant and the respondent respectively.
7. ' Mr. Abdul Latif A. Shakoor has submitted that on the basis of the record of this case the impugned order of the learned Rent Controller cannot be sustained. The learned counsel contended that three conditions were required to be established for making out a case of personal requirement of the premises in good faith by the landlord as contemplated in Section 15 (2) (vii) of the Ordinance.
8. These conditions according to him were, (i) assertion by the landlord that he required the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children; (ii) the landlord was not occupying any other similar premises in that particular locality, and (iii) the landlord did not vacate any such premises without sufficient cause. For this proposition the learned counsel referred to the cases of Mst. Sadiqa Begum Waheedudin v. Crescent Pak Industries Limited (1986 MLD 1788) and Dr. Shaukat Bokhari v. Shabih Fatima (1986 MLD 1803). He submitted that the aforesaid three ingredients would be fully attracted also in a case where the landlord was occupying or, as the case may be, vacated a rented premises.
9. ' For the first of the three conditions referred to above, the learned counsel stated that it was necessary that the landlord should in his main application for eviction give the nature and other details of the proposed business for which the premises is required. In the present case, he stated, that in the mai application the respondent neither disclosed the nature of business that she proposed to carry on in the premises in question nor did she disclose that he husband was carrying on business at another place nor the fact that a shop wa vacated by her husband recently. The learned counsel contended that th respondent merely expessed her desire to start business which was not enough t establish the requirement in good faith provided for under clause
(vii) subsection (2) of Section 15 of the Ordinance and in this regard he refers to para 5 of the main application to show that a mere desire to carry on business in the premises has been expressed by the respondent without disclosing the nature o business and its details. A reference was also made to para. 4 of the affidavit evidence of the appellant wherein while denying that respondent required the, premises for personal use he stated that "I say that husband of the applicant I running a general store in the name and style of "Haji General Store" in the same locality and the same is admitted by her son Muhammad Ayazuddin in his cross examination. I further say that said Muhammad Ayazuddin is also working in the said general store and as such their case of personal requirement of the shop in question is in fact fabricated with mala fide and dishonest intentions to evict m illegally'. It was stated that the other two witnesses of the appellant has supported the assertion of the appellant. Appellant's witness, Sajjad Khan, in para. 2 of his affidavit-in-evidence, apart from stating that the respondent was running the Haji General Store, also stated that the respondent was a shareholder of Globe Travelling Agency and that three sons of the respondent had permanently settled in the United States of America from where they sent substantial amount every month to the respondent and as such Shafiuddin Qureshi (respondent's husband) is not at all required to have any shop premises for running a general store. As regards Mohammad Ayazuddin, the son of the respondent, this witness stated that he is a full time student and has no time to carry on any business. The third witness of the appellant referred to by the learned counsel is Mohammad Ibrahim whose affidavit-in-evidence is almost verbatim repetition of that of Sajjad Khan.
10. ' In support of his contention that the respondent failed to give nature and details of the business to be carried on in the premises in question which were necessary in such cases the learned counsel has relied on the cases of Abu Bakar v. Ch. Muhammad Abdullah (1986 M LD 227), Samiullah v. Mst.
11. Begum Jahan (1986 CLC 2628), and Anisur Rahman v. Mst. Sharifa Khatoon (1986 CLC 448). Mr. Abdul Latif A. Shakoor argued that the intention of the Ordinance was to protect the tenant from arbitrary eviction and, therefore, the provisions of the Ordinances have to be strictly followed and the conditions laid down for eviction on the ground of personal requirement have to be proved to the hilt.
12. ' Mr. Shafi Mohammadi, learned counsel for the respondent while supporting the impugned order stated that the respondent had established her case in full, and the three conditions referred to by the learned counsel for the appellant have been met in the present case. The counsel stated that it was not at all necessary to give the nature and all the details of the proposed business in the main application. An assertion by the landlord to the effect that he required the premises in good faith for personal use with a general description of the proposed use at that stage would be sufficient.
13. Necessary details of the proposed use of the premises could be brought out in evidence so as to enable the learned Rent Controller to determine the bona fides of the landlord. It was argued that in order to gather the details one has not only to look at the application but also take into consideration the deposition of the witnesses and other material placed on record. In this regard he referred to para. 7 of the affidavit-in-evidence of Mohammad Shafiuddin, the husband and attorney of the respondent and stated that in this para the witness clearly stated that he was unemployed, that he had no other source of income, that he had decided to start the business of general store in the premises in question, that his son Mohammad Ayazuddin was to help in this business and so also his wife, that he had no other shop in any locality in Karachi, that the premises in question was most suitable for his business as it was situated near his residence and that he had done similar business in the past in which he was assisted by his son, and, therefore, had necessary experience of the same. In his cross-examination the witness had stated that previously he was working with his brother after whose death the business was wound up. He denied that he was still in occupation of the shop. The learned counsel also referred to para. 3 of the affidavit-in- evidence of the other witness of the respondent, Mohammad Ayazuddin, the son of the applicant who corroborated the statement of Shafiuddin Qureshi. In his cross-examination he stated that he used to sit in his father's shop in the name and style of Haji General Store and that the said shop was vacated about 3/4 years back.
14. ' Mr. Shall Mohammadi, learned counsel for the respondent, submitted that as against clear and specific evidence of the respondent the evidence produced by the appellant is vague, unspecific and conflicting. He referred to para 4 of the affidavit-in-evidence of the appellant wherein he alleged that respondent's husband was running a general store in the name and style of Haji General Store in the same locality and respondent's son Muhammad Ayazuddin was also working at the said general store. However, in his cross-examination on the point the witness stated that "I have not seen the store. Nor from my known persons has seen the said store. I do not know who is the owner of Haji General Store. I do not know where the shop is situated." Mr. Shafi Muhammadi, learned counsel for the respondent, submitted that appellant's witnesses Sajjad Khan and Mohammad Ifrahim went further and alleged that in addition to the said Haji General Store the respondent also had a share in Globe Travelling Agency but in their cross-examinations they were not only unable to substantiate their allegations but showed ignorance of relevant facts and made conflicting statements. It was pointed out that the appellant in his cross-examination had stated that the respondent had three sons of whom two were out of country but according to his witnesses, Sajjad and Ifrahim the respondent had four sons and three were settled in United States of America, who were earning handsomely and sending substantial sum to the respondent and therefore the respondent did not require any shop. These witnesses, however, failed to give details of the alleged business of respondent's sons in U.S.A. Or the amount sent by them to the respondent. The two witnesses did not tally even on the names of these sons. Similarly, while the appellant in his deposition had stated that respondent's so Mohammad Ayazuddin was working at the general store of the respondent appellant's two witnesses deposed that he was a full time regular student and has no time for doing business. Thus, it was stated that the evidence produced by th appellant was unworthy of belief.
15. ' As to the contention of the learned counsel for the appellant to the effect that the giving up some of the grounds originally taken would give rise to presumption that all the grounds taken by the respondent in the evict application were based on mala fide, the learned counsel for the respondent rightly submitted that no such presumption is called for if the ground of perso requirement is independently established and for this he relied on 1984 CLC (para. 9 at page 95).
16. ' It is true that in the main application the respondent had not given the details of the business proposed to be carried on in the premises in question in para 5 had mentioned that her husband was unemployed, that there was other source of income, that her sons had grown up and they intended to carry business in the demised premises. In the affidavit of Mohammad Shafiuddin Qureshi the husband and attorney of the respondent sufficient details of the proposed use of the premises in question were provided. In para. 7 of his affidavit-in-evidence Mohammad Shafiuddin Qureshi clearly stated that he wanted to start a general store in the premises where his son and wife would help him, that he had experience in that kind of business, that the premises was most suitable and that it was at a very short distance from his residence. In his cross-examination Shafiuddin Qureshi remained unshaken and in fact most of his statement made in the aforesaid para. 7 of his affidavit-in-evidence went unchallenged. The second witness Mohammad Ayazuddin who happened to be the son of the respondent supported Shafiuddin Qureshi and in his cross- examination, about the Haji General Store, he stated that he used to sit in the shop of his father run in that name which was vacated and the business wound up about 3/4 years hack.
17. ' As against clear and convincing evidence of the respondent the evidence produced by the appellant does not inspire confidence and as rightly pointed out by the learned counsel for the respondent was conflicting on material points. There was nothing to substantiate the allegations that the respondent had any other similar premises or that her husband or son were running a general store or travelling agency.
18. ' The allegation that the respondent had not disclosed that her husband had been running a general store in the past is also not well founded for in the affidavit-in-evidence and the cross- examination both Mohammad Shafiuddin Qureshi and Mohammad Ayazuddin fairly disclosed that they had experience in running a general store but that general store had been closed about 3/4 years back after the death of Shafiuddin Qureshi's brother, as such no adverse presumption can be drawn on this ground. It is no body's case that the premises in which the said business of Haji General Store was being done was owned by the respondent or that she had let it out prior to the filing of the eviction application.
19. ' All in all I am not impressed by the evidence of the appellant produced before the Rent Controller and it seems to me that the respondent has been able to successfully establish that she required the premises in question in good faith for her own use and that of her husband and son.
20. ' In the result the appeal must fail and is hereby dismissed with no orders as to costs. However, in view of the fact that the premises in question is being used as commercial premises, it would be fair to allow reasonable time to the appellant to vacate the premises, as such the appellant is directed to vacate the premises and hand over possession thereof to the respondent within four months. The appellant is, however, directed to continue to deposit the monthly rent regularly in Court.