' This judgment shall dispose of both the above-noted appeals as the facts, pleadings and evidence in both the cases are the same.
2. The respondents are the owners and landlords of a commercial building known as "Intizar Chamber" located in Block 6 P.E.C.H.S. Karachi and Appellant Muhammad Hussain Fatavi in F.R.A.
No,807/1989 is tenant in respect of a "restaurant" in the said building on a monthly rent of Rs,400 whereas Appellant Moinuddin in F.R.A. No,808/1989 is tenant in respect of a Pan Cabin in the hotel on a monthly rent of Rs,80. The respondent filed eviction applications in February, 1987 on the grounds of personal requirements of Respondent No,6 and materially impairing the value of the demised premises. It was stated that Respondent No,6 Iqbal Mehdi (who is son of Respondent No,1 and brother of Respondents Nos.2 to 5) had completed his education and wanted to establish business of his own to provide livelihood to his sisters and widowed mother. It was stated that the respondents were not in possession of any other commercial premises. The appellant contested the ejectment petition and in their written statement denied the bona fides of the personal requirements of Respondent No,6. According to them Respondent No,6 was still getting education.
Appellant Mohammad Hussain also raised an objection that he and late Haji Muhammad Taqi were joint tenants in the demised premises and after the death of Haji Mohammad Taqi in July 1981, his legal representatives, that is, his widow, daughters and sons Mohammad Ali, Muhammad Sadiq, Raza Ali and Qasim Ali "are in possession of the demised premises and running the said restaurant business therein and they became statutory co-tenants."
22. It is interesting to note that respondents had not claimed default in payment of rent as one of the grounds for ejectment but learned Rent Controller has framed an issue to. That effect. However, issue of default was decided against the respondents, issue about impairing the value of the premises was not pressed and issue as regards personal requirements was decided in favour of the respondents and vide judgment dated 15-11-1989, order of eviction was passed against the appellants. Hence, this appeal. Learned counsel of the parties have been heard and record perused.
23. First point raised by learned counsel of the appellants in Appeal No,807 of 1989 is that it was a joint tenancy in the name of appellant Muhammad Hussain Fatavi and late Haji Mohammad Taqi who died in July, 1981 and was succeeded by his legal heirs who were his widow and daughters and sons Muhammad Ali, Muhammad Sadiq, Raza Ali and Qasim Ali but the legal heirs had not been impleaded in the ejectment petition and therefore the petition was defective. Unfortunately for him, the appellant could not produce any evidence in support of his claim except some rent receipts issued by Respondent No,1. These receipts are ExA/1 to Ex.A/7 and they were produced through Respondent No,2 in her cross-examination wherein she admitted that they were issued by her mother (Respondent No,1) under, her signatures. They however only prove that Haji Muhammad Taqi was a co-tenant alongwith the appellant in 1981 when these receipts were given. These receipts are:-
24. Ex A/1 dated 2-5-1981 for May, 1981.
25. ExA/2 dated 10-6-1981 period not given but apparently for June, 1981.
26. ExA/3 dated 1-7-1981. Figure 7' is overwritten and appears to have been changed from '2' period not given.
4. Ex. A/4 dated 5-7-1981. Figure '8' is overwritten period not given.
5. ExA/5. Dated 1-9-1981. Period not given.
6. Ex.A/6 dated 5-10-1981. Period not given.
7. Ex.A/7 dated' 5-11-1981. Period not given.
5. These receipts do show that Muhammad Taqi was a co-tenant upto the year 1981. Since the appellant himself states that Muhammad Taqi died in July 1981, it follows that first three receipts were correctly given to the two co-tenants but the last four receipts incorrectly mentioned the name of Muhammad Taqi. He being dead could neither tender rent nor obtain receipts and it is apparent that his name appears in the last four receipts because Respondent No,1 being a household lady had no means to know about his death and the appellant had also not informed her that Muhammad Taqi had died. Learned counsel of the respondents had conceded to this position at the outset when ,he stated that Muhammad Taqi was a co-tenant no doubt but after his death-the 2partnership between him and the appellant came to an end and none of the legal heirs of Muhammad Taqi succeeded him in the joint business and remained completely dissociated from the joint business and after the death of Muhammad Taqi, the appellant ramained the sole tenant in the demised premises. Now, what evidence has been brought on record by the appellant to show that the legal heirs of Muhammad Taqi succeeded him in the partnership and became his partners in his restaurant business. To begin with, who are his legal heirs ? None of them came forward to defend their interests before the Rent Controller by filing an application under Order I, Rule 10, C.P.C. Nor they filed appeal against the inipugned judgment. Even though they were not party to ejectment proceedings, they were nevertheless the affected parties and had a right to prefer appeal. Even the appellant is not sure who they are. He names four sons but does not name the widow and the daughters. It is not possible to believe that the appellant did not know the names of his partners in business and his co-tenants. In the written statement he refers to Muhammad Taqi's "widow and daughters" which means that one widow and two or more daughters plus the four sons succeeded the deceased in the partnership business and the joint tenancy. Howeverin the cross-examination of P.W. 1 Miss Zehra Syed (Respondent No,2) a suggestion was put to her and she answered it as follows: "I do not know that Haji Muhammad Taqi left behind three sons and one daughter. So, by now, the four sons had been reduced to three and two or more daughters were reduced to one daughter and the appellant claims that all are his partners in business. This cross-examination was done in January, 1988. When the appellant filed his affidavit in evidence one year and nine months later, in September, 1989, he again 'changed his instance in this regard and gave the names of four sons of Muhammad Taqi as his legal heirs and appellant's partners in business and co-tenants alongwith "widow and daughters" of Mohammad Taqi. Names of the widow and daughter or daughters have not been given anywhere. The appellant has also not tendered any document pertaining to his restaurant business to show that it was a partnership business. The business must have been filing returns with Labour Department and with Income Tax Department. Various purchases must have been regularly made by the business and the business must have been obtaining receipts for such purchases. None of these receipts has been produced. If the business had so many partners, it can be expected to maintain a bank account which can legitimately be expected to be also operated by at least one of the heirs of Mohammad Taqi. No evidence as regards such bank account has been produced. I am satisfied that none of the legal heirs of Muhammad Taqi joined the business of appellant Mohammad Hussain and never succeeded the deceased in co-tenancy and had nothing to do with the demised premises and since the death of Muhammad Taqi in July 1981 appellant Muhammad Hussain became the sole tenant of the respondents. There is thus no force in the contention of the said appellant that legal heirs of Muhammad Taqi are his partners in business and co-tenants in the demised premises and the ejectment petition is not maintainable for non-joinder of necessary parties. The contention is rejected.
27. We now come to the personal requirement of Respondent No,6, which is the sole ground on which eviction of the appellant is ordered. The respondents are one widow, four daughters and one son of late Syed Intizar Mehdi from whom they have inherited the demised premises. Paras 4 and 5 of the ejectment application are relevant in this regard in which it is stated that the demised premises are required by Respondent No,6 Syed Iqbal Mehdi who had completed his education and wanted to establish himself in business to earn livelihood for himself, his sisters and widowed mother and that the Respondents were not in possession of occupation of any other premises. In reply to these averments, the appellants stated in their separate written statements that earlier the respondents had claimed to require the premises for personal use and occupation and for reconstruction as per notice given to them in 1981 but since now only personal requirements were pleaded and ground of reconstruction was given up, therefore ground of personal requirement was not bona fide. It was also stated that Respondent No,6 had not till then completed his education and was not yet ready to establish himself in business. According to him the respondents merely wanted to enhance rent.
28. In support of their claim, the respondents examined A.W.1 Miss Zahar Syed Respondent No, 2 and Respondent No, 6 was later examined in this Court by way of further enquiry under Section 21 of the Ordinance and both of them produced a number of documents. Miss Zahra Syed stated that her brother Respondent No,6 Iqbal Mehdi had completed his education and had established his own fumigation and pest-control business under the name of Wembledon Enterprises and due to non-availability of accommodation was running his business in rented premises bearing No,83/G, Block VI P.E.C.H.S., Karachi and in support of her claim produced the following documents:-
29. {{TABLE}}
30. Ex.A/2 Matriculation Certificate. (P.99).
31. Ex. A/3 Intermediate Examination marks sheet. (P.101).
Ex. A/4. Higher Secondary Certificate. (P.103).
ExA/5. Blank receipt form of the Firm. (P.105).
ExA/6. Blank bill form or voucher of the firm. (P.107).
Ex.A/6-1. Blank letter-head of the firm. (P.109).
Ex.A/7. Blank form of work-completion certificate. (P-111).
ExA/8. And ExA/9. Rent receipts of premises in which the Responents are living and where also the business of Respondent No, 6 is located. (P-113) and (P.115).
' It was further stated that the respondents had no other income except the rent of the demised premises (Rs,400 and Rs,80 and rent of Rs,800 from another building which also they had inherited from late Syed Intizar Mehdi.
32. Respondent No,6 Syed Iqbal Mehdi deposed that he was the only male member of the family and was carrying on his own business of pest-control and fumigation under the trade name of M/s. Wembledon Enterprises and owing to non-availability of office accommodation he was running the business in the residential house of the family which was also a rented house. He produced a number of documents some of which are listed below:-
33. Ex.Z/2 to Z/5. Membership certificate of the firm issued by Chamber of Commerce and Industry from 1988 upto the year ending 30th June 1991.
34. Ex.Z/8. Quotation of work dated 11-3-1985 sent by M/s. Wembledon Enterprises to M/s. Fairy's Bakers and Confectioners, Karachi.
35. Ex. Z/9 to Z/11. Letters dated 10th, 21st and 24th July, 1985 from M/s. Hotel Midway House to M/s. Wimbledon Enterprises.
36. Ex.Z/12. Letter dated 8-3-1988 from M/s. Yates Export of Sydney, Australia, to M/s. Wimbledon Enterprises.
(c) Z/13. Letter dated 9-3-1988 from M/s. Hellaform of Athens, Greece, to M/s. Wimbledon Enterprises.
(I) Z/14. Letter dated 4-4-1990 from M/s. Concord of Glasgo, England addressed to M/s. Wimbledon Enterprises.
(g) Ex.Z/15. Certificate of work done dt.18-9-1986 issued to M/s. Wimbledon Enterprises by M/s. Duty Free Shops (Pvt.) Ltd.
(h) Ex.Z/16 and Similar certificates dated 24-12-1987 from M/s. Z/17. Ashrafi Garments, and dated 12- 8-1987 from M/s. Zahooria Travel Ltd.
(i) Ex.Z/18. Certificate of enlistment dated 2-1-1988 issued by P.P.W.D. To M/s. Wembledon Enterprises.
37. Ex.Z/19 Letter dated 29-10-1990 of M/s National Petro Carbon (Pvt.) Ltd. Karachi forwarding a cheque (Ex. Z-20) for Rs,3,000 for work done, by M/s. Wimbledon Enterprises.
38. Ex.Z/24. Certificate dated 23rd December, 1987 of Habib Bank P.E.C.H.S. Branch Certifying that M/s. Wembledon Enterprises have account with them since 2-7-1985
(1) Ex.Z/25. Enlistment Certificate dated 26-12-1987, issued by Income Tax Department to M/s. Wimbledon Enterprises.
(m) Ex./26. Legal Notice dated 2-7-1990 from M/s Wimbledon Enterprises to a defaulting client.
10. In rebuttal, the appellants filed their own affidavit-in-evidence in which they denied the bona fides of the requirements of Respondent No,6 on the ground that they were at variance with the requirement claimed by the respondents at some earlier occasion. It was denied that Respondent No,6 had completed his education and wanted to establish his business. It was claimed that the respondents owned several other properties and had in their possession other premises suitable for business purpose. The appellant also produced in evidence the following documents through A.W.I Miss Zahra Syed in her cross-examination.
39. ExA/1 to Rent receipts issued by Respondent No,1 during ExA/7.
1981.
40. ExA/8. Notice dated 10-11-1981, given by Respondents to the appellant.
41. Ex. A/9. Reply dated 21-11-1981 sent by appellant.
42. ExA/10. P.T.I. Form in respect of other building owned by respondents (and referred to in para 8 of Affidavit in evidence of Respondent No,2). {{TABLE}} Note:--Learned Rent Controller has duplicated exhibit numbers since documents produced by Respondent No,2 with her affidavit in evidence had already been marked Ex. A/1 to ExA/9).
11. Now, the first argument of learned counsel of appellant was that Respondents had served notice dated 10-11-1981 Ex.A/8 upon the appellant in which re-construction and personal requirement are both pleaded as grounds of eviction whereas now ground of reconstruction is not taken and therefore ground of personal requirement must be regarded as mala fide. Learned counsel also pointed out that A:W.-I Miss Zahra Syed in her cross-examination conceded that Respondent No,6 had no diploma in fumigation and pest-control and this showed that his desire to establish fumigation and pest-control business was false and mala fide. It was then pointed out that A.W-I Miss Zahra Syed had also stated that she could produce tenancy agreement of the rented house in which the respondents were living but she did not produce the same and therefore this indicated that they owned this house as well and therefore they were not entitled to seek ejectment of the appellant. Learned counsel then referred to ExA/10 which is P.T-I form in respect of another property "Intizar Mansion" also owned by respondents and claimed that it falsified the claim of respondents that they did not own any other property. According to learned counsel all this indicated that the claim of respondents as regards their personal requirements is not bona fide.
12. In my view, contentions raised by learned counsel of the appellant have no force. In 1981 when notice ExA/8 was given, the respondents might be contemplating to construct a new building after demolishing the present premises but they have every right to give up the reconstruction plans with the passage of time. They may no longer be able to bear the cost of demolition and reconstruction, considering the escalation of the construction costs. They had not stated in the notice that the demised premises were dangerous or dilapidated. As such, if they give up the reconstruction plan, this in itself is no ground to suspect the mala fides of the personal requirements of Respondent No,6. As for Respondent No,6 having no diploma in fumigation and pest-control, I would only point out that learned counsel of appellant did not indicate whether the University of Karachi or any other reputable institution was holding classes and giving diplomas in fumigation and pest-control. So far as I could find out, no institution in Pakistan gives such diploma and none is necessary to engage in the business of fumigation and pest-control. It is also no argument that Respondent No,2 Miss Zahra Syed had offered to produce the rent agreement in respect of the residential house in which the Respondents are living but she did not produce the same. Firstly, she was not asked by the Court to produce it and. Secondly, its production was irrelevant. It is, at any rate, a residential unit and requirements of respondents are of commercial nature. And, thirdly, the respondents have produced two rent receipts ExA/8 and Ex.9 from their landlady Mrs. Choudhri and this evidence has not been rebutted. The appellants could have rebutted this evidence by producing P.T.I form of this house which would have shown who its owner was. Appellants have not denied in their affidavits-in-evidence the assertion of the respondents that they are living in rented house. As for the arguments that the respondents had denied that they owned any other property but the contrary was proved by P.T.I. Form ExA/10, I fail to see where the respondents had denied this. All they had stated in the ejectment petition is that "they had no other premises in their possession and occupation" and in her affidavit-in-evidence Respondent No,2 had clearly stated that they owned another building whose rent was Rs,800 which rent and the rent of demised premises was the only income of the respondents.
' It was further stated that the respondents had no other income except It is, as a matter of fact, not a case in which Respondent No,6 intends to establish himself in the business of fumigation and pest-control. There is sufficient evidence on record that he established himself in that business as long ago as 1985. His business is registered with Chamber of Commerce and Industry, Karachi vide certificates Ex.Z/2 to Z/5, letter Ex.Z-11 dated 24-7-1985 from a reputable hotel, M/s. Midway House Ltd. Shows that Respondent No,6 had undertaken fumigation job of the hotel in 1985, Ex.Z/13 shows that in March, 1988 Respondent No,6 was negotiating import of fumigation material from M/s Hellaform of Athens. Ex.Z/15 shows that Respondent No,6 had done fumigation job for M/s. Duty free shops in 1986. Ex.Z-16 and Ex.Z-17 prove the same things in respect of Ashrafi Garments and Zahooria Travels Ltd. Respondent No,6 was registered in January, 1988 with P.P.W.D. As D Class contractor for fumigation work. Ex.Z/9 is letter dated 29-10-1990 from M/s. National Petrocarbons forwarding cheque for Rs,3,000 for services rendered by Respondent No,6 who is also maintaining bank account in the name of his firm in Habib Bank since 1985 vide Ex.Z/24 and who is also registered with Income Tax Department as assessee since 1987 vide Ex.Z/25. If he has not been given any work so far by P.P.W.D. Or has not so far paid any income tax, it makes no difference. This is evidence enough to show that Respondent No,6 is doing business of fumigation and pest-control under the name of M/s. Wembledon Enterprises since about 1985. All the documents referred to above also show that the address of M/s. Wembledon Enterprises is "83-G, Block, 6 P.E.C.H.S., Karachi'. This is the address of the house in which the respondents are admittedly living. In view of these facts, it cannot be denied that Respondent No,6 requires office accommodation for his firm. I find no substance in the claim of learned counsel of appellants that all these documents are forged. I am satisfied that the respondents have proved the bona fides of the personal requirements of Respondent No,6..
I would therefore agree with the view of learned Rent Controller on issue No,2, uphold the impugned judgment and dismiss the appeals and direct the appellants to deliver the possession of the demised premises to the respondents within four months. No order for costs.