' The appellant filed an application under section 17(4) of the Cantonments Rent Restriction Act, 1963, seeking eviction of the respondent from a shop situated on Plot No,72-B, Pakistan Defence Services Officers Cooperative Housing Society, Karachi. The case of the appellant was that he had retired from active service in the Armed Forces and as he had no other occupation the disputed premises were required by him, in good faith, to start a business therein.
2. The application was resisted by the respondent, according to whom, the appellant continued to be in the service of the Government. It was further contended on behalf of the respondent that the appellant was in possession of another shop on the ground floor of the same building adjacent to the disputed shop, which he had got vacated since 2-3-1978. Further, according to the respondent, the application had been filed with an object to enhance the rent for the premises and the same was, therefore, liable to be dismissed.
3. The case proceeded before the learned Additional Controller of Rents and vide order dated 31-5- 1988 the respondent was directed to hand over vacant possession of the premises to the appellant.
However, on an appeal, the order of the Controller was set aside on technical grounds and the case was remanded to the learned Additional Controller for passing of a fresh order. Thereafter, the case has been decided by the learned successor of the Additional Controller of Rents who had dismissed the eviction application, holding that no case could be made out by the appellant and there was nothing from which his good faith or bona fides could be spelt out. The reasons which appeared To have weighed with the learned Controller have been stated in his judgment thus:- "In terms of section 17(4)(b)(ii)(iii), it is the liability of the applicant to prove his bona fide requirement in good faith for his personal use of the premises in dispute for running a business. The applicant has failed to show his intention to start any business in the premises in dispute. Till as late as December 1987, he was not certain as to what business he wishes to start though in his cross-examination he says that he intends to open a departmental store. The applicant has, similarly, by his very act, in not commencing his business in the shop which has remained vacant since 1978 not shown his intention to run any business in the shop in disputer to the extent that preliminaries for operating a business like obtaining of licence for trade etc. Or registration of firm also could not be completed."
' It was further observed that:- "In case the applicant had any intention of running a business by enjoining the two shops, he should have completed preliminary requirement for running any business which he has failed to produce and prove. I, therefore, do not find the requirement of the shop in dispute by the applicant in good faith though I agree that the rent of the premises should have been revised upward in order to bring it in conformity to the prevalent market rent."
4. After hearing Mr. N.R. Dubash, learned counsel for the appellant and Mr. Ghulam Ali Khokhar, learned counsel for the respondent, I find that the order of the learned Controller cannot be sustained. The case of the appellant, as pointed out earlier, was that he had retired from active service in the Pakistan Army and had no other occupation, and therefore, he required the disputed premises to start a business of his own to make a living. The case put-forth by the appellant was resisted by the respondent mainly on the plea that the appellant continued to be in service and that another shop adjacent to the shop in dispute had been lying vacant since 1978 which had not been utilized by 'the appellant and consequently, the application had been filed by him only to harass the respondent and his requirement was not bona fide. No doubt, during his cross- examination the appellant admitted that he had retired from service in the Army on 10-11-1983 and at the time of giving evidence before the learned Controller in 1987 he was serving with Tourism Corporation as General Manager but the mere fact that the appellant had taken job during the intervening period after his retirement from the service of the Army cannot defeat his case unless it is shown that he had no intention to start the business as earlier proposed by him after getting the said job as General Manager. No such evidence. Can be found on the record of the case. The fact that the appellant had got another shop vacated on the ground floor which was adjacent to the shop in question, although was not controverted by the appellant during A his cross-examination but the position in this regard has been explained by the appellant in paragraph No,9 of his affidavit-in-evidence as, according to him, he wanted to make use of both the shops for starting his proposed business. The observations made by the learned Controller in the impugned order that the appellant was not certain as to the nature of his business that he wanted to start in the said premises also appeared to be unjustified because the appellant was under no obligation to disclose the nature of his business in the ejectment application or affidavit-in-evidence. However, when cross-examined on the point the appellant appears to have clearly stated that he intended to open a departmental store in the said premises. The further observations made by the learned Controller that the appellant having failed to start his business in the vacant shop in 1978 was not entitled to eject the respondent from the premises in question because in case the appellant had any intention of joining two shops for the purpose of his business, he should have at least completed the preliminaries in this regard, also appear to be unjustified under the circumstances of the case. The appellant, therefore, had a cause of action which was supported by further evidence produced by him before the learned, Controller. On the other hand, there was no substantial evidence produced on behalf of the respondent in rebuttal of the appellant's case which could render the bona fides of the appellant's claim questionable.
5.In the result, this appeal is allowed and the order of the learned Controller is set aside and the respondent is directed to hand over vacant possession of the premises in question to the