1. ' The appellant Abdul Majeed Karim filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 against the respondents in respect of Bungalow No,38-W, Block 6, P.E.C.H.S., Karachi 29 in his capacity as administrator and one of the heirs of one Mst. Emna whose estate devolved on him and other heiRs, The said deceased during her lifetime filed a Rent Case No,3575/75 against the respondent No,2 namely Ishaq Adil, Manager Shah Nawaz (Export) Limited on the grounds of default, personal need and causing damage and impairing the utility of the property. Respondent No,2 denied the relationship and stated that the said M/s. Shah Nawaz (Export) Limited now known as Orient (Pakistan) Limited on whose account the rent had been paid was the tenant right from the very inception of the tenancy. Accordingly both M/s Shah Nawaz (Export) Limited and M/s. Orient (Pakistan) Limited were made opponents in the said rent case in order to avoid complication and multiplicity of the proceedings. However, this case was dismissed for default on 29-10-1979 due to the demise of Mst. Emna.
2. ' Subsequent to the demise of the said Mst. Emna, the appellant through his counsel served a notice under section 18 of the Sindh Rented Premises Ordinance on the respondents namely M/s Orient (Pakistan) Limited and Ishaque Adil their Manager. Some time thereafter the appellant filed the ejectment application on the grounds that the respondents had converted the residential demised premises into a godown/warehouse, without permission in writing of the appellant and have also misused and abused the property thereby impairing the value and utility thereof. It is further averred that the bungalow in question was required by the appellant and his brother Yousuf Qasim for their personal use and occupation.
3. ' The respondents in their written statement rebutted the various averments made by the appellant. They first referred to the earlier ejectment application filed by Mst. Emna about ten years back against them which contained the same grounds as now urged by the appellant. It was denied by them that the appellant required the premises in good faith, for himself or his brother as according to them the legal heirs of the deceased Mst. Emna own posh bungalows. It was further denied that the demised premises was ever used as godown. It was submitted that although the premises was rented out for office-cum-residential use, it was being used for residence only.
4. ' On the pleadings of the parties, the following issues were framed by the learned Controller:- "(1) Whether present rent application is maintainable after dismissal of First Rent Application No, 3575/75?
(2) Whether opponent has impaired the utility of house and damaged the same by converting the residential building into godown?
(3) Whether applicant wants the premises in question for his personal use and use of his brother Yousuf Karim?
4. What should the order be?"
5. ' The learned Controller replied issue No,1 in affirmative whereas issues Nos,2 and 3 were replied in negative. Consequently the ejectment application was dismissed.
6. ' In so far as the third issue relating to personal bona fide use is concerned it was contended by Mr. M.A.M. Namazie learned counsel for the respondent that the contents of legal notice served by the appellant are vague and do not contain any details as to the alleged personal requirement of the appellant and his brother. So also there are no details in respect of personal requirement in the ejectment application which contains a statement simpliciter in para (9) thereof that 'the bungalow is required by the legal heirs A. Majid Carim and Yousuf Carim for their personal use and occupation in good faith.' This according to Mr. Namazie was purposely done so as to deprive the respondent to set up his defence. It was further pointed out that the appellant in an attempt to improve the case on this ground has produced a so-called notice (Exh.C) dated 28-4-1988 from the landlady of the house in his occupation viz. 6-D, Gizri Boulevard, Defence, who is none elso but his own wife demanding increase in rent from Rs,7,000 per month to Rs,15,000 per month from his employer or to vacate it.
7. ' There indeed was material concealment of the fact that the landlady of bungalow in appellant's occupation was his own wife. Further three months prior to the date of filing of the ejectment application, the alleged notice dated 28-4-1988 was served by her on the appellant's employer namely M/s. AgfaGaevert Pakistan Ltd. For which reason the contention of the learned counsel for the respondents that the demand to vacate this house by the appellant's own wife was collusive cannot be ruled out. I also agree with him that neither in the legal notice nor in the ejectment application any details or particulars whatsoever were given by the appellant as to the alleged personal bona fide requirement. It is now well-settled law that on the basis of a statement simpliciter without justifying the requirement for personal bona fide requirement, a landlord is not entitled to an eviction order against his tenant. In order to justify such requirement, it is incumbent upon him to refer to the circumstances which led him to filing the ejectment application. At the same time the tenant cannot be taken by surprise at the stage of evidence, so as to deprive him to set up his proper defence. Failure on the part of a landlord will tantamount to material concealment of facts on the basis of which the Rent Controller may refuse ejectment order. Hence the ground for personal requirement in good faith fails.
8. ' Issue No,2 relates to impairing the value of utility of the house by the respondents by converting the residential building to a godown. According to Mr. Abdul Samad, learned counsel for the appellant, the finding of the learned Controller that the statement of the appellant in this regard has remained uncorroborated suffers from error on the face of record and misreading of evidence.
9. In order to support his contention he first brought to my notice, para. 11 of the affidavit of evidence of the appellant (Exh.A/W1) which states as follows:- "11. That the opponents have converted the residential property into a warehouse without permission in writing and have extensively damaged the property, its structure, garden, lawns, kitchen cabinets, windows, doors, windowpanes, grills etc. (I produce copies of the letters dated 15- 12-1977 and 24-6-1978 as the building is being used as warehous and marked as Annexures F and G)."
10. ' It was next pointed out that both 'F' and `G' are the letters from respondent No,1 which were produced by the appellant. These letters have not been challenged by respondents in which at the bottom is found in printed letters: WARE HOUSE: 38-W, Block 6, P.E.C.H.S., Karachi 2902, which is the address of the premises in question. Reference was also made to the deposition of the appellant to this specific allegation which has gone unrebutted.
11. ' In support of their respective contentions, learned counsel for the parties placed reliance on 1975 SCMR 435 PLD 1979 Lah. 751, PLD 1990 SC 394, 1988 MLD 2747, 1989. SCMR 1366, 1988 CLC 2310; PLD 1967 Kar. 233, PLD 1980 (?) 1611, 1989 SCMR 525, PLD 1978 Kar. 188, 1984 CLC 755 and 1986 CLC 2628.
12. Reference here may also be made to a latest judgment of the Supreme Court reported in Habibur Rehman v. Ali Zafar Siddiqi 1992 SCMR '2351 which was not in print when the appeal was argued by the learned counsel for the parties.
13. ' The case of the respondent was that although the premises was rented out for office-cum- residence use, it was being used as residence only. What evidently is an error on the face of record and misreading of evidence is that the respondents' own documents Exhs.'F and G' disclose that the respondents have been wing the premises as a godown. It is also pertinent to note that the deposition of the appellant in this regard had gone unrebutted. I accordingly hold that the learned Controller closed his eyes to the material on record. The respondent by converting the premises into a godown has impaired materially the value and utility of the house. Accordingly the impugned order of the learned Controller is set aside and the appeal is accepted with costs.