1. ' Appellant Malik Islam Akber has challenged dismissal of his Rent Application No, 316/85 ordered under the impugned judgment dated 19-12-1988 by IIIrd Senior Civil Judge and Rent Controller, Karachi East.
2. ' Admittedly, respondent Mustafa Hussain is tenant of the appellant in the shop in litigation bearing No,1 of the building on Plot No,10-D/6, Nursery Commercial Area, P.E.C.H.S. Karachi on monthly rent of Rs,425. Prior to this the appellant had filed Rent Application No,1601/1976 for eviction of the respondent from the said shop on the ground of default in payment of rent. Said application was dismissed by a Rent Controller on 12-2-1987. Appellant filed Appeal No,179/78 in the District Court where the same was accepted by the then VIIIth Additional District Judge Karachi 13-5-1980, when eviction of the respondent was ordered. Respondent filed IInd Appeal No,250/80 in this Court, where the same was accepted on 12-12-1983 when order of the Rent Controller dated 12-2-1978 dismissing the rent application was maintained and order of the lower appellate Court was set aside.
3. ' It was on 20.3-1984, that the appellant filed fresh Rent Application No,1119/84 (new No,316/85) for eviction of the respondent from the same shop on the ground of bona fide personal requirement.
4. Appellant averred that his son Suleman Malik had grown up and was unemployed and he wanted to set up furniture business in the shop in litigation and that the requirement was genuine and bona fide.
5. ' The rent application was contested by the respondent who in his writtent statement took stand that the appellant had not come with clean hands and that the shop in question was not required by the appellant in good faith. It was also pleaded that the appellant had taken Rs,50,000 as "pugree" besides advance rent of two months at the time of renting out the shop and that in the lease agreement dated 27-11-1973 it was mentioned that the appellant would never seek eviction of the respondent on any ground other than default in payment of rent. It was added that the respondent'wantcd to re-let the shop on `pugree' after getting it vacated, because the rate of rent has been increased and so also rate of `pugree' in the vicinity. Plea was also taken about demand of exhorbitant rent by the appellant and refusal by the respondent.
6. ' After recording evidence of the parties learned Rent Controller dismissed the rent application.
7. Hence this appeal.
8. ' Mr. Usman Ghani Rashid, learned counsel for the appellant argued that the appellant had led sufficient evidence to seek order of ejectment by examining himself and his son Suleman Malik and Tariq Naseer Khilji. In respect of stipulation in the rent agreement that the respondent would not be ejected except on the ground of default, learned counsel argued that such stipulation can not affect the rights given by the Sindh Rented Premises Ordinance. It was also argued that it was discretionary for a landlord to choose the premises which suited him. In respect of payment of Rs,50,000 as `pugree', learned counsel was of the view that such allegation had not been substantiated. In support learned counsel for the appellant cited the cases of:
(i) Sh. Jamilur Rahman v. Akbar Hassan (1985 CLC 922).
(ii) Ghulam Hussain v. Shaukat All and another (1985 CLC 1997).
(iii) Muhammad Ilyas v. Qamaruddin (1984 CLC 757).
(iv) Sitaldas and others v. Haji Muhammad Saffer (PLD 1984 Kar. 87).
9. ' Mr. Abdul Majeed Khan, learned counsel for the respondent argued that para. 4 of the lease agreement between the parties dated 27-11-1973 Exh.O/1 bars eviction of the respondent except on ground of non-payment of rent for two months and as such the appellant had no right to move for ejectment. Learned counsel took exception to the statement made in pari 2 of the rent application to the effect that appellant's son had grown up and contended that appellant's son had already stayed for 5-1/2 years in Saudi Arabia and was married in the year 1976-77 and it was wrong that he had grown up recently. It was next argued that the appellant had not come to the Court with clean hands because he had suppressed material facts about previous litigation between the parties and he had not given the total number of the shops owned by him and possessed by him.
10. Previous litigation between the parties ended on 12-12-1983 when respondent's IInd Appeal No,250/80 was decided by this Court under a judgment reported in 1984 CLC 2869 and within a period of three months the appellant had filed the rent application on a new ground, as further argued. It was further argued that onus to prove the bona fides was on the appellant who had failed to prove the same and the paras. 2 to 4, 6, 8 to 17 of the affidavit filed by the respondent were not challenged in cross-examination. It was also argued that appellant had got possession of another shop which was vacated by one Bashir in consequence of a rent application and that Shop No,6 was rented out to a party after filing of the present rent case. Learned counsel for the respondent cited the cases of:
(i) Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190).
(ii) Ghulam Nabi v. Muhammad Sachal (1986 CLC 2858).
(iii) Mst. Begum Jan v. Abdul Rasool (1984 CLC 755).
(iv) Malik Muhammad Raman v. M/s. General Iron Stores etc. (1984 CLC 2418).
(v) Sultan Press Ltd. v. Muhammad Hasan (PLD 1985 Kar 624)
(vi) M/s. Eastern Express Co. Ltd. v. Tariq Hameed (PLD 1986 Kar. 84).
(vii) M.S. Khan v. S.M. Sirajuddin (1985 CLC 562).
11. (viii)Abdul Ghani v. Ismail Ibrahim Lakhani (1986 CLC 696).
(ix) Manzoor Ahmed and others v. Karim Bux and others (PLD 1986 Kar. 637).
12. ' In his rent application the appellant has not said a word about the previous litigation between him and the respondent although the matter had gone up to this Court where second appeal filed by the respondent was accepted under a judgment which has been reported. The appellant has stated in his rent application that he did not own or possess any premises suitable for setting up furniture business and that the shop in question was required by Suleman Malik who wanted to set up furniture business as he was grown up and unemployed. Similar facts were given by the appellant in his affidavit. In his cross-examination the appellant stated that he was not doing any work and that he had filed rent case against one of his tenants namely Bashir, who vacated the shop in his possession as tenant and that the shop vacated by Bashir was in possession of his son viz. Suleman Malik. This fact was not given by the appellant in his rent application. Surprisingly the appellant stated that he did not know fate of the case filed by him in 1974 against the respondent although he admitted having filed first appeal against the order passed in the rent case. It is noteworthy that in the previous Rent Case No,1601/76 the appellant, did not take the ground of personal requirement. Appellant denied having given advertisement in Daily 'Hurriyae dated 16-10- 1984 to the effect that he would give on rent the demised shop which was likely to be available in March 1985 but admitted that he gave another advertisement in Daily Ilurriyar, as the respondent was leaving the shop for `pugree'. The evidence given by the appellant does not establish if he requires the shop in question bona fide. The evidence gives an impression that the purpose of getting evicted the respondent is to relet out the premises on higher rate of rent. Evidence of appellant's son Suleman Malik does not better the case. In his affidavit he expressed his desire to start furniture business in the shop in litigation after saying that he was unemployed, with no means of livelihood and with a family to support. Suleman Malik conveniently concealed the fact that he was already occupying a shop vacated by Bashir in pursuance, of an order of the Rent Controller. In his cross-examination Suleman admitted that he was doing business in the name of "Bismillah Glass" in a small shop in the building where the disputed shop was situated and that remaining five shops were with different tenants and that one of the shops bearing No,6 was rented out to Mohammadi Furniture after evidence of the appellant was recorded in the rent case filed by the appellant. Renting out of a shop during pendency of an ejectment case militates against bona fides of the landlord seeking eviction on ground of personal requirement. Nowhere the appellant took stand that the shop rented out to Mohammadi Furniture was smaller in size than the disputed shop or that it was not suitable for being used as a furniture shop. Fact that Suleman was already doing business in Shop No,3 under the name "Bismillah Glass" has been surreptitiously suppressed in the rent application and in the affidavit of appellant Islam Akber, where Suleman was shown to be unemployed. Suleman himself in his affidavit claimed being unemployed with no means of livelihood. He was shown to be unemployed by the last witness examined by the appellant viz Tariq Naseer who admitted having cordial relations with the appellant and friendship with Suleman. Tariq's affidavit was not sworn in a legal way as he signed it at his house. And not before an Oath Commissioner. All this shows that requirement of the appellant is not bona fide and the purpose of seeking eviction of the respondent is other than to accommodate Suleman Malik.
13. The respondent cannot be evicted from the shop in litigation merely because the appellant wishes so. In this respect the authorities cited on behalf of the appellant do not help him. In the case of Sh.
14. Jamilur Rahman (1985 CLC 922), preponderance of evidence went in favour of the landlord although there was inconsistency between the case set up by the landlord in his ejectment application and in his deposition and the tenant was ordered to vacate the premises. In the said case the allegation that the requirement for personal use was mala fide, was not accepted in the circumstances of that case. In the case of Ghulam Hussain (1985 CLC 1977) one of the landlords working abroad returned to Pakistan and on the ground of his personal requirement eviction was ordered from a residential house because the plea of personal requirement was not challenged in cross-examination by the tenant. In the case of Muhammad Ilayas (1984 CLC,757), the landlord contended that his three sons were sitting idle and were required to be involved in some work in the disputed shop and the tenant failed to demolish evidence of the landlord and the eviction of the tenant was ordered. In the case of Sitaldas and others (PLD 1984 Kar. 87), the landlord advocate was using as his office an otak, owned by him and his two brothers and such landlord had no alternate accommodation except that he and his brother owned shops two of which were used as garage and store room and in the circumstances bona fide personal requirement was held to have been proved. All these cases had facts materially different from the facts of the instant case. Without establsihing bona fides a landlord cannot get evicted his tenant on the ground of personal requirement. Reference may be made to the case of Sultan Press Ltd. (PLD 1985 Kar. 624) where it was held that a mere ipse dixit of the landlord that he required the premises in dispute in good faith, was not enough and such fact must be supported by valid reasons, as to how his requirement is genuine. In M/s. Eastern Express Co. Ltd., Karachi (PLD 1986 Kar. 84) it was held that mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord requires the premises in good faith and he must prove his requirement of the premises for reasonable needs. In the case of M.S. Khan (1985 CLC 562), the evidence on record showed that need of the landlord was not bona fide and the original intention of the landlord appeared to be to increase the rent and the landlord concealed the material facts from the Court 'and in the circumstances request of the landlord for eviction of his tenant on personal requirement was declined.
15. ' In the case of Abdul Ghani (1986 CLC 696), the landlord who failed to prove any bona fide need for premises in litigation was declined eviction of his tenant on the ground of personal need.
16. ' In his cross-examination appellant Islam Akber admitted that he had filed a case against Bashir who vacated the shop occupied by him as his tenant. He added that the shop vacated by Bashir was small one and was with his son. In his Cross-examination, Suleman who is one of the two sons of the appellant, the other one being in U.SA., admitted that Shop No,3 was in his possession and it was vacated by a tenant after filing of a case against him. In this situation the appellant had to prove that in spite of possession of two shops, he still required the disputed shop, as held in Manzoor Ahmed and others v. Karim Bux and others (PLD 1986 Kar 637). As already mentioned the appellant in his rent application suppressed the facts about the previous litigation and about his possessing five shops and about his son occupying Shop No,3. In the case of Mst. Begum Jan (1984 CLC 755), it was held that a party approaching the Court has to come with clean hands and suppression of a material fact in a rent application filed on ground of personal requirement may not be fatal but when a landlord seeks ejectment on the ground of his personal requirement the law enjoins him to prove his bona fides and any fact which may adversely reflect or cast doubt on his bona fides, will put the Court on guard. In the case of Malik Muhammad Ramzan 1984 CLC 2418 it was held that suppression of material fact by the landlord that he was the owner of other commercial premises, reflects adversely on bona fides of his claim and good faith of his requirement, and that the bona fides of requirement is to be initially proved by the landlord by producing cogent evidence.
17. ' In the lease agreement copy Exh.O/1 between the parties, there is stipulation in para 4 to the effect that the lessee will not be ejected from the premises on any ground including the personal bona fide need, but the lessee will be liable to be ejected if he failed to pay two months rent. This agreement came up for discussion in 1 Ind Appeal No,250/80 which concluded previous litigation between the parties and which was decided on 12-12-1983 by a learned Single Judge of this Court under the judgment reported in 1984 CLC 2869. In respect of the lease agreement copy Ex.O/1 it was observed as below: "Although no period is provided in the agreement of tenancy, the same being executed on a four rupees stamp paper and being unregistered cannot be taken to be an agreement for one year or more. The said agreement of least can be treated as an agreement of lease for a period of less than one year. The period of one year had expired on 30-11-1974 and as such the said agreement cannot be relied upon by the respondent the same have ceased to be in operation."
18. ' In the case of Muhammad Ilyas (1984 CLC 757), the view taken was that where a rent deed ceased to operate the tenancy cannot be governed by the same terms and conditions as given in the agreement. This observation was based on the case of Muhammad Yousuf v. Abdullah (PLD 1980 SC 298) where it was held that rights and liabilities of the tenant, after expiry of the lease are governed exclusively by the W.P. Urban Rent Restriction Ordinance and the lessee is entitled under said Ordinance to remain in possession of the demised premises, after the expiry of the lease, on payment of the statutory rent. Contrary view was taken in the case of Mrs. Zarina Khawaja PLD 1988 SC 190 where it was held that notwithstanding the enactment of the rent laws, the relationship of landlord and tenant, would continue to be determined and regulated in accordance with the general law and the terms of tenancy between the parties and in case of repugnancy the terms of tenancy between the parties shall prevail. Latter view appears to be more in line with the principles of justice and common sense. In Alif Din v. Khadim Hussain (1980 SCMR 767) it was held that it was to avoid all anomalies and absurdities that the rule had been laid down in the case of Muhammad Ashraf v. Muhammad Sharif and others (PLD 1971 Lah. 610) that all the terms continue when a tenant continues to remain in occupation of the property in spite of the termination of the tenancy by efflux of time. In light of the case-law discussed, the parties in this litigation cannot get out of the terms and conditions incorporated in the agreement copy Exh.O/1, unless such terms and conditions are varied through a subsequent agreement in writing. In the case of Ghulam Nabi 1986 CLC 2858 the view taken was that when the terms of an agreement are reduced into writing, the same can be changed only through a subsequent agreement reduced into writing. It would be relevant here to refer the case of Ghulam Hussain (1985 CLC 1997) where a clause in the agreement between the parties precluded the landlord from resorting to remedy of ejectment of the tenant and the view taken was that such stipulation in the rent agreement. Merely emphasised the need for regular payment of rent which in any case is the duty and obligation of the tenant to discharge and if assurance for payment of rent coupled with undertaking not to eject the tenant is treated to be an estoppel for the landlord for not ejecting the tenant on any ground for ever, it would not only be contrary to the concept of ownership of immovable property, but would also be against the scheme and spirit of law which permits such a remedy to a landlord. Moreover, it is statutory right of a landlord to eject his tenant on any of the grounds recognized by Sindh Rented Premises Ordinance and such right cannot be nullified by an agreement.
19. However, since the appellant has not been able to establish if his requirement is bona fide, the impugned order is to be maintained and consequently this appeal stands dismissed with no order as to costs.