1. ' Appellant M/s. Habib Bank Ltd. Has challenged dismissal of its Rent Application No,4482 of 1980, ordered by VIIth Senior Civil Judge and Rent Controller, Karachi South on 28-7-1987.
2. ' Admittedly respondent is tenant in the premises in litigation viz. Rooms Nos.7 and 8 on fifth floor of Bank House No,2 Habib Square, MA. Jinnah Road, Karachi. Rent of the disputed premises was admitted Rs,200 per month plus betterment tax of Rs,5 per month.
3. ' Eviction of the respondent was sought on the grounds, that the respondent had defaulted in payment of rent from September, 1979 till 9-8-1980 when the rent case was filed, and that the premises in litigation were required by the appellant for its own use and use of its branches in the area.
4. ' The rent case was contested by the respondent who in his written statement admitted being tenant in the premises in litigation but contended that the same were let out by Habib Bank Limited and Habib Executors and Trustees Co. Limited. It was admitted that after nationalization of the banks, the rent receipts were being issued in the name of Habib Bank Limited only. Both the grounds put further for eviction of the respondent, were controverted.
5. ' After recording evidence of the parties learned trial Court under the impugned judgment dismissed the Rent Application, after finding that the respondent had not committed default in payment of rent and that the tenancy premises were not required by the appellant in good faith for personal use or use of the branches. Hence this appeal.
6. ' Mr. Zahid Husain Borhani learned counsel for the appellant gave up the ground of default and did not challenge finding of the trial Court on that ground. However, he vehemently urged the ground of personal requirement, and referred to para 4 of the Rent Application which reads as below:- "4. That without prejudice to the above it is submitted that the aforementioned rented premises is required by the applicant for its use and for the use of its branches in the area."
7. ' In support learned counsel for the appellant cited the case of M/s. Habib Bank Limited v. M/s. Thal Jute Mills Limited (1988 CLC 2310).
8. Mr. M.Farooq Hashim learned counsel for the respondent defended the impugned order and argued that in para 4 of the Rent Application the appellant had not given details of his requirement and it was nowhere mentioned, as to, for what purposes the premises in litigation were required.
9. Learned counsel for the respondent referred to a letter Exh.9 dated 22-8-1979 received by the respondent from the appellant calling upon the former to pay the monthly rent of the disputed premises at the enhanced rate of Rs,1,447 per month. Reference was also made by learned counsel, to another letter Exh.12 dated 11-10-1979 received by the respondent from the appellant. In said letter the appellant informed the respondent that the disputed premises were required by the appellant for its own bona fide use. Appellant was required to vacate the premises by the end of October, 1979. In view of such letters learned counsel for the respondent contended that need of the appellant was not genuine and bona fide. It was further argued that the appellant had in the recent past let out certain premises to Pakistan Paper Sack Corporation Limited and to Bawany Waqf. It was added that there was no mention of personal requirement in the letter Exh.9 where demand for enhancement of rent was accompanied by a threat. There was no mention in the Rent Application, as to, why the premises were required, as further argued. Learned counsel for the respondent next argued that contentions raised in the written statement were not challenged in affidavit of the appellant and that the trial Court had disallowed an application for summoning of certain record, which could show that some premises were let out by the appellant after filing of this case. The notice Ex.12 was given on 11-10-1979 while the rent application was filed on 9-8-1980 and this indicated that there was no urgent need, as further argued, learned counsel for the respondent lastly argued that paras 8 to 15 of the affidavit filed by the respondent was not challenged in the cross-examination and that the case of Habib Bank Ltd. (1988 CLC 2310) was not applicable. In support learned counsel for the respondent cited the cases of:- National Bank of Pakistan v. Wadhumal and others (1985 CLC 1053).
10. Mst. Hajiani Ghulam Mustafa v. Mst. Hajiani Allah Bachai (1985 CLC 1943).
11. Associated Sales Agencies v. The Standard Insurance Company Ltd. (1985 CLC 2419).
12. M/s. John Traders and others v. Ahmed Ali (1986 CLC 561).
13. Ahmed Tanveer v. Hakeem Bakers and Confectioners (1987 MLD 2092).
14. A. Hai Usmani v. Qamar Jehan (1987 MLD 2110).
15. ' In (i) above the view taken was that the landlord was obliged to satisfy the Rent Controller that he required the premises for his own use or for use of his male children, in good faith which must be proved from facts and circumstances to inspire confidence in the mind of the Controller for exercise of power in favour of the landlord to such a degree as to deprive the tenant of his statutory protection under the special law. In the same case it was held that each case must be judged on its own merits and too much reliance on the case-law may prove to be dangerous and any attempt to form any code or to hammer out some set of rules to be universally applied may create more problems than it may solve. In (ii) above the landlady had not disclosed that she owned five buildings which contained 43 tenements and as such bona fides of the landlady for requiring single room tenement in occupation of her tenant, was held to have not been established. In (iii) above, the averment made in the ejectment application and the statement made on oath, were different from each other and the view taken was that the requirement of the landlords was not bona fide. It was also held in the cited case that if intention of the landlords would have been to occupy the premises immediately on purchase they would not have given notice to the tenant three years after purchase and would not have filed ejectment application four years after purchase. In (iv) above, the landlord in first two notices to the tenant demanded fresh tenancy agreement and on failure of the tenat to agree to fresh tenancy, the landlord required the tenant to vacate the premises because of landlord's personal requirement and the view taken was that the landlord had not established his bona fide personal requirement. It was also held in the cited case that the burden to establish good faith for requiring premises for personal requirement was on the landlord. In (v) above, the view taken was that a mere desire of a landlord to evict his tenant on the ground of personal requirement, has never been considered to be sufficient for the purpose and a landlord is required to discharge his onus and to satisfy that his requirement was based on good faith and was bona fide. In the cited case the landlord was in the service of Pakistan Insurance Corporation and in his eviction application and in his affidavit he did not disclose that he was in occupation of another portion on the ground floor and he admitted in his cross-examination that he constructed 11 rooms on the ground floor out of which two rooms were left out to tenants. In (vi) above, it was held that any misstatement material to the controversy or suppression of fact whose disclosure would prejudice claim of the landlord, would reflect against good faith and bona fide of the landlord.
16. ' The appellant in its evidence filed affidavit of Hasan Ali Jilani, an Officer Incharge of the Establishment Cell (Properties) Habib Bank Plaza, Karachi. He stated in paras. 2 and 3 of his affidavit as below:- "2. That it is submitted that the applicant Bank is facing great hardship on account of the shortage of space. The applicant-bank which is a pioneer banking institution and a leading bank of Pakistan has enlarged to a great extent since the Habib Square Building was constructed in early fifties. At that time the applicant had 64 branches and the Foreign Exchange Branch was working only on the ground and first floor. Since then there has been a tremendous increase in the business of the applicant Bank specially of its branches situated in the area i,e. Foreign Exchange Branch, Wood Street Branch, Cloth Market Branch, Kochinwala Market Branch, M.A. Jinnah Road Branch, Bombay Bazar Branch, Boulton Market Branch etc. All these Branches are situated within a distance of 100.
17. To 500 yds. The non-public dealing departments of the Foreign Exchange and other Branches will be shifted to the premises presently occupied by the Opponent and other tenants against whom also cases have been filed. The premises when it is vacated by the Opponent will not be re-let to any other tenant and the same will be kept and occupied by the applicant and its branches for its own bona fide use. Annual Report of 1979 showing Bank's progress is annexed as "A".
3. This has been necessitated to the fact that there has been a considerable decentralization in the working of the applicant Bank. Many suboffices/regional offices have been established to cater to the demands of the public and its customers for quick disposal of the loan applications, cash credit facilities, opening of letters of credit, issuance of demand drafts, making available credit information, providing Safe Locker facilities and doing other allied work. As stated above there are a number of branches in the area including Kharadar, Mithadar Branch etc. For the smooth running of these Branches and for an effective control on their working it is necessary for the applicant to open a regional office in this case. For opening of this Regional Office the premises presently in occupation of the Opponent and other tenants is required. When the non-public dealing Departments of the Branches will be shifted to the Bank House, the applicant will be able to open Interest-free counters in the branches as mentioned above. These interest-free counters have been directed to be opened under the instructions of the Government for Islamisation of the economy of our country. At present the interest-free counters could not be opened separately because of paucity of space. This creates confusion among the bank customers and causes embarrassm ent to the applicant and its officers."
18. ' In his cross-examination Hasan Ali Jilani stated that he became incharge of the Property Cell in 1978 and that he was not incharge of the Property Cell on the day of being cross-examined. He added that enhancement in rent was demanded on account of replacement of lift which was requested by the tenants verbally and not in writing. He denied if the personal requirement was not bona fide. He denied if the ground of personal requirement was advanced due to refusal by the respondent to increase rent. He showed ignorance about demolition of two halls on the terrace of the. Bank House No,
2. He showed his ignorance if certain premises were let out to different tenants during pendency of the rent case. He stated that Pakistan Paper Sack Corporation was tenant of the appellant before filing of this case. He did not know if a room was rented out to Bawany Waqf on first floor at the time this case was filed. He denied that this case would not have been filed, if the respondent had agreed to enhancement of rent. Hasan Ali was not cross-examined about the facts given in paras 2 and 3 of his affidavit and it was not suggested to him if those facts were incorrect.
19. ' As against aforesaid evidence, there is affidavit of Mohammad Amin Director of the respondent- company. He stated in his affidavit that total area of the premises in litigation was 450 square feet and such small accommodation cannot be required by various branches of the appellant/bank. It was added that one of the big halls on the same floor was partially in use and another room at the same floor had fallen vacant in 1979 but the same was converted into a canteen. It was added that in Habib Square many new tenants had been inducted in place of old tenants during pendency of the rent case. Muhammad Amin added that on roof of the building one big hall was demolished at the time of filing of this case and that another big hall on the roof was lying vacant. In his cross- examination Mohammad Amin showed ignorance of the fact that Habib Bank was working in rented premises in the Habib Square. He admitted that Habib Bank was working in the Insurance House in Habib Square and that Insurance House belonged to State Life Insurance Corporation.
20. Muhammad Amin admitted that there were 500 employees working in Foreign Exchange Branch of Habib Bank.
21. ' In the case of M/s. Habib Bank Ltd. (1988 CLC 2310) the view taken was that demand of higher rent by itself does not cast any doubt on the personal bona fide requirement if the factum of bona fide requirement is independently proved. In cited case the Habib Bank Ltd. Had filed rent case for eviction of their tenant from room No,5 of the building known as Bank House No,2, Habib Square, Karachi, on the ground of default in payment of rent and bona fide requirement for its own use. In the cited case also, the plea was taken that the Habib Bank Limited wanted to enhance the rent and in order to achieve that end the plea of personal requirement was raised. Such contention was repelled. As in the instant case, so in the cited case, the counsel for the tenant contended that no details of personal requirement were given in the eviction application. In this respect it was held that it was not necessary for the landlord to give all the details in his eviction application. In my view the instant case is identical with the cited case. As in the cited case, so in the present case, nothing has been asked in the cross-examination of Hasan Ali with regard to the tremendous increase in the business of bank and the personal requirement for its own use or for the use of its branches. It was held in the cited case that if some fact is deposed or stated in examination-in- chief, which is not questioned in the cross-examination, the presumption is that that part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. In view of the observations made in the cited case and in view of the evidence that has been discussed, I am of the view that the appellant had made out a case for eviction of the respondents, on the ground of bona fide personal requirement. I, therefore, accept this appeal with no order as to costs, and reverse the impugned order and direct eviction of the respondents from the premises in litigation, after three months of this order.