1. ' This appeal under section 21 of Sindh Rented Premises Ordinance, 1979, hereinafter called the Ordinance, is directed against the order, dated 25-4-1988, passed by the then learned Vth Rent Controller, Karachi, West, in Rent Case No. 2220/85, whereby, the eviction application of appellant was dismissed. The facts relevant for decision of this appeal are as follows:--- ' Appellant Mst. Farrukh Sultana filed eviction application against the respondent on the grounds of default in payment of rent and bona fide personal use. It is said that the respondent is her tenant in respect of Shop Nos.42 and 43, situate in Khalid Cloth Market, Liaquatabad, Karachi on monthly rent of Rs,90 and he did not pay rent since, July, 1975. She has claimed that she requires the shop in question for her husband and her two sons for carrying on their own business in said shop. The respondent resisted the claim of appellant and maintained that he is a tenant in said premises since, 1961, 1962 and that he never committed default in payment of rent. He mentioned that the appellant had filed an eviction application against him in the year 1971 bearing No.808/7 and it was dismissed in default on 19-12-1974. He stated that he had deposited the rent in said rent application till November, 1975. According to him on 11-6-1975 he sent registered letters to the appellant at her, residential address and also at the business address of her husband, asking her to accept the rent from him direclty. It is alleged that though the appellant received those letters but did not give any reply. Thereafter, he tendered the rent for December, 1975 through money orders bearing Nos. 4333 and 4527 on 1-12-1975 and 10-12-1975 respectively. Those money orders were refused, as such, he had no option but to deposit the rent in Court from December, 1975 onwards. Accordingly, he deposited rent in Case No. 17 of 1976.
2. ' The appellant filed her affidavit-in-evidence and that of her two sons namely, Muhammad Arif and Muhammad Asif. Her counsel dropped her affidavit and her two sons, of whom Muhammad Arif is also her attorney, were cross-examined by learned counsel for the respondent. The respondent filed the affidavit-in-evidence of his son and attorney Mukhtar Ahmad and he was cross-examined by learned counsel of appellant.
3. ' From the pleadings of the parties, the following issues were settled.
4. "(1) Whether the Opponent has committed wilful default in payment of rent with effect from July, 1975?
(2) Whether the shop in question is required for the use and occupation of the two sons of the applicant, in good faith?
(3) What should the order be?"
5. ' For Issue No.1 learned Rent Controller decided that the respondent had not committed wilful default, but the default, if any, committed was of "Technical Nature". For Issue No.2, the finding of Rent Controller is that the appellant has failed to establish that she requires the premises in question for bona fide personal use. Consequently, he dismissed the eviction application by the order which has been impugned in this appeal.
6. ' It is contended on behalf of the appellant that learned Rent Controller erred in holding that the respondent did not commit any default in payment of rent. Learned counsel also argued that, though the learned Rent Controller recorded finding to the effect that technical default was committed but still he exonerated the respondent from the legal consequences of default. He argued that the normal consequence of the default is eviction from the premises. Above contentions have got no force. It is clear from the record that no default was committed by the respondent. It is true that the appellant had collected rent after a long time, but for this delay the appellant was herself responsible. The appellant has claimed that she was not paid rent since, July 1975. It has come on record that earlier rent application of the appellant was dismissed on 19-12- 1974 and the respondent had deposited rent in said matter till November, 1975. Thereafter, he tendered rent for the month of December, 1975 by money order. Thereafter, he deposited the rent in Rent Miscellaneous No.17/76 up to 30-6-1987, which was withdrawn by the appellant. On record there is a letter of respondent, dated 11-6-1975, which has been marked as B/1 and also as 0/2. It is clear from this letter that the respondent wanted to pay the rent to the appellant directly, but the latter did not accept it. "This letter was received by the appellant, as per acknowledgement due 0/4 and 0/5 (also marked as B/4 and B/5). Besides, the appellant's witness Muhammad Arif, in cross- examination, admitted that respondent's letter, dated 20-11-1980 (ExhA/3) was received by the appellant. In this letter, the respondent had given the entire details about the rent. Thus, it stands proved that, as back as June, 1975, the respondent had made all possible efforts to pay the rent to the appellant directly but the latter for one reason or the other declined to accept the same.
7. Through letter, dated 20-11-1980 (Exh.A/3) it had come to the A knowledge of the appellant that rent was being deposited in Rent Case No. 17/76. Therefore, the conclusion would be that no default was committed by the respondent and I order so accordingly.
8. ' This brings me to the next ground of personal bona fide use. The appellant, in eviction application, mentioned that the premises in question is required for her above-named two sons. Muhammad Arif, in his affidavit stated that he wants to start the business of Zari and embroidery clothes and or any other allied business in the shop in question. The respondent resisted the claim of the appellant by raising the plea that Shops Nos. 57 and 58 in the same building were in actual possession of the appellant before this eviction application was filed and she rented out Shop No.57 to one Rauf and in Shop No.58 she is still doing the business in partnership with one Muhammad Zahid Khan. The respondent has also mentioned the husband of the appellant is doing business in the name and Style `Cine Photo Studio' in Hussain Manzil, near Paradise Cinema.
9. It is alleged that the appellant's husband is also running a shop in the name of 'International Book Stall' in P.E.C.H.S., Karachi, and both above-named sons of appellant are doing business with their father on the said shop. The appellant's case is that, abovementioned shops neither belong to her nor to her husband and nor to her sons and that these shops are on rent. When this fact was confronted to the respondent's witness Mukhtiar Ahmed, in cross-examination, he simply stated that he does not know if these shops are on rent. In fact, impliedly he admitted that these shops are on rent. Had the appellant or her husband or her sons, been the owners of those shops, the respondent specifically would have taken such plea and would have produced the title documents of those shops. Thus, it stands proved that the appellant is not the owner of any of the shops in which presently her husband and sons are doing the business. It has come on record that for Shop No.58 there is a dispute between the appellant and said `Zahid and the latter is claiming possession of said shop as a tenant. It has also come on record that appellant's son Muhammad Arif wants to start the business of Zari and embroidery clothes and the shop in question, is suitable for this purpose. Mere fact that three or four months prior to filing of the eviction application the appellant had rented out two shops in the same building would not deprive the appellant from seeking possession of a particular shop, which she considers as suitable for her requirement. In this connection, reliance is placed on the case reported in PLD 1990 SC 394, Haroon Kassam and another v. Azam Suleman Madha. In this reported case, which was for the residential premises, it was observed by the Hon'ble Supreme Court that question as to which portion of the building would suit the landlord better must be left to his discretion and there was nothing unreasonable in the landlord's insisting that a particular portion of the building should be made available to him. In the Ordinance, the premises has been defined as a building or land let out on rent but does not include a hotel. Under section 15(ii)(vii) of the Ordinance, the landlord is entitled to possession of the premises if he requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. In the Ordinance, there is no distinction between commercial and residential premises so far the ground of personal bona fide use is concerned. Therefore, the principles laid down in aforesaid Supreme Court case is applicable to the instant case.
10. ' Accordingly, I hold that the appellant is entitled to the possession of the shop in question on the ground of personal bona fide use. The appeal is allowed and the order of the Rent Controller is set aside. The respondent is directed to hand over the vacant possession of said shop to the appellant within 4 months from now. Under the circumstances, the parties are left to bear their own costs.