1. KAMAL MANSUR ALAM, J.- This first rent appeal is directed against the order dated 22.12.88 passed by the 1st Senior Civil Judge & Rent Controller, Karachi, (Central) in Rent Case No.356/88 (Old Rent Case No.1158/87).
2. The facts of the case are that the respondent is owner/landlady of Shop No. 2, Garage and Godown (attached to each other) approximately 1200 soft, constructed on Plot No.8/15 situated' in Firdous Colony, Karachi, and the opponent is a tenant of these premises. Respondent's husband, Obaidur Rahim, was doing business in partnership with the appellant up to 31st December, 1984, and thereafter up to 30th June, 1985, he worked as Manager of the appellant. It is alleged that the said husband of the respondent was jobless and therefore the respondent required the aforesaid premises in question in good faith for personal requirement to be used by her husband for starting the business of sale and distribution agency as he had experience of that business and necessary funds to establish the same. As such the respondent filed aforesaid Rent Case No.1158/87 (subsequently renumbered as Rent Case No.356 of 1988) for the eviction of the appellant on the ground of personal requirement of the said premises by the husband of the respondent/landlady.
3. The application was resisted by the appellant who alleged that the respondent did not require the said premises in good faith for starling business by her husband but had filed the eviction application only because the appellant did not agree to the increase of monthly rent of te said premises from Rs.3500/- 13 Rs.5000/-. The parties led evidence before the learned Rent Controller who ultimately allowed the eviction application of the respondent by order dated 22.12.88 and directed the appellant to handover vacant possession of the premises to the respondent within sixty days.
4. Mr. Khalilur Rahman, learned counsel for the appellant has argued that the learned Rent Controller misread the evidence in the case and erred in accepting the application of the respondent. The learned counsel stated that the respondent had failed to establish a case of personal requirement of the premises and had merely made vague statement about her requiring the premises for the establishment of her husband's business therein. The learned counsel emphasised that the very admission of the respondent's witness, Ubaidur Rahim, who happens to be her husband too, in his cross examination that, "he had no agency from any company" would go to show the lack of good faith and that the said husband had no business to start in the premises. The learned counsel stated that not only that there was no agency from any company with the respondent's husband, but also that the respondent failed to produce in the lower court any correspondence that her husband might have had with different companies with regard to the obtaining of agency. The learned counsel contended that it was a case of mere wish of the respondent to occupy the premises as distinct from her requirement. A mere wish or fancy of the respondent, the learned counsel argued, would not entitle her to the benefit of clause (vii) of subsection (2) of Section 15 and the respondent having failed to prove that she required the premises in good faith for her occupation or that of her husband the learned lower court ought to have dismissed the rent case.
5. Mr. Khalilur Rahman has referred to the cases of Sultan Press Ltd. v. Muhammad Hasan (PLD 1985 Kar.624), Akhlaq-un-Nabi v. Nawab Ahmed Shamsi (1986 CLC 1100), Mohammad Aslam v.
6. Mohammad Aslam (1987 CLC 686).
7. In the first case it has been observed that "Broadly stated mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord 'requires the premises in good faith".
8. It is further observed at page 627 of the Report that "The landlord must allege and prove certain circumstances or facts which go to prove his requirement. The law does not require a landlord to establish need or absolute requirement without which he shall have no shelter over his head. What is meant by "requires in good faith" is that the landlord requires the premises for his reasonable needs and that he is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realising some extraneous purpose. The term 'requires' means that there must be an clement of need before a landlord can be said to require premises for his own use and occupy the premises".
9. In Akhlaq-un-Nabi's case the view expressed by the court was that, the burden of establishing the bona i.e requirement of the premises is on the landlord and that the "Controller must be satisfied about the reality of the claim made by the respondents, and this can only be established by looking at all the surrounding c circumstances, whether they have experience in such kind of business and the means".
10. In the last case the court took the view that the burden of proof that he requires the premises in good faith was on the landlord and that "There can be no doubt, that the person concerned would be in the best knowledge of his own requirement but his mere knowledge of such requirement is not sufficient to obtain eviction on the said ground but he has to satisfy the Rent Controller that he requires the premises in good faith. This condition has been incorporated by the legislature to safeguard the interests of the tenant. Such safeguard is more necessary in the case of the tenant who has for years established his business and goodwill in a particular place or area."
11. On the facts of each of the above referred three cases, the court came to the conclusion that the landlord had failed to establish the requirement of the premises in good faith.
12. There can be no doubt that the burden to establish that the premises is required in good faith for personal use rests squarely on the landlord and unless that burden is discharged he cannot succeed, lt is also true that a mere vague statement by the landlord regarding the personal requirement or a mere desire to that effect may not be enough. However, it will also not be fair to expect the landlord to plead and prove every minor detail of the proposed business in order to succeed.
13. Mr. Munir-ur-Rahman, learned counsel for the respondent in reply has submitted that the respondent had, right from the start, honestly disclosed sufficient details about her requirements of the premises in good faith and till the end her case remained unshaken. The learned counsel referred to various paras of the respondent's eviction application to show that she had throughout been consistent in her assertions that her husband was jobless and therefore the respondent required the premises for personal use of the said husband who intends to start the business of sale and distribution agency, that he had sufficient funds for the purpose, that she was not in possession of any shop/commercial , premises and that the appellant owns six shops on plot No. 3/13, Firdous Colony, Karachi. The learned counsel then referred to the affidavit in evidence of Ubaidur Rahim, where he made similar averments and remained unshaken in the cross examination. He reaffirmed that up to 31.12.1984 he was doing business with the appellant and after that till 30.6.85 he worked as Manager with the appellant. Since then he was jobless and therefore the premises in question was required by the respondent where he intended to establish the business of sales and distribution agency. He further deposed that neither he nor his wife were in possession of any shop/commercial premises and that the appellant owned six shops in Firdous Colony. He denied the allegation that increase in rent from Rs.3500/- to Rs.5000/- was demanded from the appellant. The learned counsel stated that as against the honest and fair stand taken by the respondent right from the beginning and maintained throughout, the appellant has been making wild allegations against the respondent without substantiating the same. The learned counsel has referred to the case of Mst. Saira Bai v. Syed Anisur Rahman (1989 SCM R 1366) wherein their lordships of the Supreme Court have in para 7 observed as follows: " The appellant made an application under section 15 of the Ordinance. Under this provision the Controller has to make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order if he is satisfied that the landlord requires the premises in good faith for his occupation and use or for the occupation and use of his spouse or any of his children. Therefore, the only condition to be satisfied by a landlord is that he requires the premises in good faith. Good faith has not been defined in the Ordinance but it has been defined in section 2, subsection (27) of the West Pakistan General Clauses Act, 1956, as follows:- "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not".
14. And again in para 8 their lordships have observed: " Therefore, we have to examine whether the appellant had made the application honestly. The appellant in her application stated that she required the shop for use and occupation of her son which use is covered by the provision. Her son Khozaim Hussain, in his deposition, has stated that his mother has four sons, out of them two are studying while the remaining two are married and have got children and that he was one of her married sons, and that he has completed his studies and wants tb start his independent business and intends to settle independently from his father.
15. The appellant has deposed that she has funds and could provide rupees one lac to her son to carry on business. No evidence was led to controvert these facts, and, therefore, it cannot be said that the requirement of the shop for the use of the son of the appellant is not honest "
16. I see much force in the contention of the learned counsel for the respondent that the respondent has been able to establish that she required the premises in good faith for the occupation of her husband for running the said business of the sale and distribution agency. This plea was raised in the eviction application itself thereafter it was reaffirmed in the affidavit in evidence of Ubaidur Rahim the witness of the respondent and remained unshaken during the cross examination. The contention of the learned counsel for the appellant that in the absence of any agency from any company would give rise to the presumption that the respondent had failed lo establish good faith is not well founded for it will be only reasonable to assume that in business like the one proposed by the respondent one cannot expect to acquire agency from companies unless the business itself is properly established at some place. In para 6 of his affidavit in evidence respondents husband Ubaidur Rahim has stated he will get agency from Tobacco Companies as soon as he gets the premises. Similarly, the allegations of the appellant that the respondent had two shops and a godown lying vacant in the same building or that her husband had a sweetmeat shop in North Nazimabad remained unsubstantiated. The burden lay on the appellant to establish these allegations, all the more when no such plea was taken in written statements. Merely, by making suggestions in that regard to the respondent's witness during his cross examination, which suggestions were, in any case, vehemently denied by the witness, the burden cannot be said to have been discharged.
17. As to the contention that the proposed business can be carried on in one of the three premises, suffice it to say that it is settled by series of decisions of superior courts that normally in such cases the landlord has the discretion to decide the area required by him. There is nothing on record of the present case to deviate from the above principle.
18. The upshot of the above discussion is that this appeal fail and is hereby dismissed. The premises in question being commercial premises, the appellant is directed to handover vacant possession of the same to the respondent within four months. There will be no order as to costs. The appellant, however, is directed to continue to deposit the monthly rent regularly.