' Appellant Atiuddin has by this F.RA. challenged the judgment of III Senior Civil Judge and Rent Controller (East), Karachi dated 21-12-1988, whereby his application under section 15 of the Sindh Rented Premises Ordinance, 1979 was dismissed.
2. The case of the appellant is that he is the landlord of Shop NoA/1 on Plot No.16/A Sol-B-21, Soldier Bazar, Karachi. The respondent is his tenant in the said shop on a rent of Rs.105 per month from 1978. The respondent paid rent up to May, 1982 and thereafter failed to pay the rent. It was further averred by the appellant that he requires the shop for his bona fide personal use in order to start business in the said shop. It was also alleged that the respondent had sublet the shop to some body else without prior consent and knowledge of the appellant.
3. The respondent resisted the application. He admitted the relationship of landlord and tenant between the parties as well as the rate of rent. He, however, denied that he was a defaulter. He alleged that he has paid the rent for the months of June and July, 1982 to appellant's younger brother, but instead of sending the receipt, the appellant has sent a notice requiring the shop for his bona fide personal use. The respondent therefore, suspected foul-play and tendered the rent by money order which was returned unaccepted. Therefore, he sent another money order. The respondent, however, by abundant caution started depositing the rent with the learned Controller.
He has also denied that he has sublet the shop. According to him, during his temporary visit outside the country, his Manager was looking after the shop which is known as 'Ali Medical Store'.
He has also denied that the appellant requires the shop for his bona fide personal use. He has alleged that the appellant's father had offered to sell the shop to him for Rs.35,000 to which he did not agree and offered a sum of Rs.25,000 for the shop. Hence the appellant filed ejectment application in order to pressurise him and to get better price for enhanced rent.
4. The appellant and his father filed their affidavits-in-evidence and were cross-examined by the learned counsel for the respondent. Father of the respondent, who is also his attorney, filed his affidavit-in-evidence and was cross-examined by the learned counsel for the appellant. The teamed Controller, after taking into consideratin, the evidence led by the parties embarked upon the determination of the issues as to default in payment of rent, subletting and requirement of the premises for bona fide personal use of the appellant. He decided all these issues in favour of the respondent and dismissed the ejectment application as shown above.
5. I have heard Mr. A.R. Mirza, learned counsel for the appellant and Mr. Waqar Lodhi, learned counsel for the respondent.
6.Mr. A.R.Mirza has pressed only the ground of requirement of the shop for bona fide personal use of the appellant. The appellant has stated in para. 5 of the application that he requires the said shop for his bona fide personal use in order to start business in the shop. The appellant was jobless and his father wanted to settle him in life. He has no other place of business for his use and occupation, except the shop in question which is at present in possession of the respondent. He has filed such affidavit-in-evidence and in para. 5 thereof he has stated that he has no other premises in his name except the disputed shop. He was jobless and studied up to Inter-Science. Now he wants to start his business. He has further stated in the evidence that his father has a small shop and his elder brother is working with him. They are in all 14 members of family and his father has also not a good health and as such they were in financial difficulties. His father, therefore, wanted to establish him in life. He wants to start the business of cold drinks etc. His evidence was corroborated by the evidence of his father Najmuddin, who has also filed affidavit-in-evidence, which is also of similar nature. Both of them were cross-examined by the learned counsel for respondent.
7. The contention of the respondent was that the appellant was ill and was, therefore, not doing any job, as such he could not have carried on any business in the shop. The contention does not appear to be correct. It was not clarified as to what was the illness from which the appellant was suffering and as to whether it was of temporary nature or permanent. Even otherwise it is a matter of common knowledge that an ailing person may not be able to do any hard job, but he can sit on a shop and carry on business. It was then contended by the learned counsel for the respondent that the appellant's father has a godown which can be used as a shop and the appellant can carry on his business in that shop. This contention does not also appear to be acceptable. The appellant and his father have denied that the godown was suitable for being used as a shop. Moreover the godown belongs to the father of the appellant, while the shop belongs to the appellant himself and therefore, the desire of landlord to carry on business in his own shop cannot be considered to be mala fide.
8. Lastly it was pointed out by the learned counsel for the respondent that the respondent had stated in his written statement as well as in his Affidavit-in-Evidence that the appellant's father had offered to sell the shop to him for Rs.35,000, but he did not accept the offer and made a counter offer of Rs.25,000. No doubt, this was denied by the appellant, but he did not cross-examine the respondent on this point and therefore, the respondent's allegation should be believed as correct.
This contention also does not appear to be correct. The appellant and his father have denied in their evidence that they have made any such offer for the sale of the shop. In their cross- examination also they have denied this fact. Moreover mere desire of a landlord to sell his house was not sufficient to refuse ejectment of the tenant on the ground of bona fide personal use.
Reference in this connection may be made to the decisions reported in 1986 CLC 2577 and PLD 1984 Kar.14 where it was held that where the landlord has succeeded in establishing his case on the ground of bona fide personal need, desire of the landlord to sell the disputed house should not be permitted for getting his tenant ejected.
9. To prove bona fide personal requirement, assertion of a landlord on oath as to requirement of the premises for his personal use has to be accepted, if it is consistent with his averments made in his application and is not shaken in cross-examination or disproved in rebuttal. By now this is the settled law. If any authority is needed, reference can be usefully made to 1986 CLC 395.
10. Mr. Waqar Lodhi, learned counsel for respondent submitted that the appellant had not specified the nature of business that he wanted to carry in this shop in his application. As such his desire cannot be considered bona fide. He relied upon PLD 1985 Kar. 714 (Anis-ur-Rahman v. Sara Bai) and PLD 1985 Kar.624 (Sultan Press Ltd. v. Muhammad Hassan) in his support. The appellant has, as already pointed out above, stated in his Affidavit-in-Evidence as well as in cross-examination that he wanted to carry on the business of cold drinks. Hence the above ruling would not apply to the present case. This is sufficient to prove his bona fides and reference in this connection can be usefully made to the following decisions of Supreme Court:--
(1) 1989 SCM R 1366.
(2) 1991 SCM R 846.
' I am, therefore, satisfied that the appellant requires the shop for his bona fide personal use and the respondent is, therefore, liable to ejectment. Hence I allow the appeal and set aside the order of the learned Controller and direct that the respondent shall hand over the vacant possession of the above shop to the appellant within one year provided he continues to deposit the future rent.