NAZIM HUSSAIN SIDDIQUI, J.-This appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the order dated 19.1.1987 passed by the learned Rent Controller, West Karachi, whereby he directed the appellants to hand over vacant possession of the premises in question to the respondent within 60 days from the date of the said order. The facts relevant for decision of this appeal are as follows.
2. Respondent Muhammad Yousuf filed eviction application against the appellant for their eviction from the premises bearing Plot No.2 in Block No.3, Sub-Block 'E', Nazimabad Commercial Area, Karachi with construction and covered area thereon, on the grounds of personal bona fide use, and impairing materially the value and utility of the said premises. The case of the respondent is that the premises in question was rented out to the appellants for a period of 5 years, which started from 1.1.1967 at an agreed rent of Rs. 1300 per month, exclusive of all taxes and cess, which were the responsibility of the appellants. It is alleged that, as per agreement, the right to renew the lease vested exclusively with the respondent, and on 16.12.1972 by a notice, the respondent asked the appellants to hand over vacant and peaceful possession of the said premises and the lease expiring on 13.12.1971 was not proposed to be renewed further. The appellants by their letter dated 22.12.1972, on the basis of their plot adjacent to the premises in question, desired to purchase the premises in question, but the respondent declined. Since Dr. Hafiz Muhammad Ilyas, the General Manager of the appellants was out of Karachi and was not available, no progress was made for sufficient time with regard to negotiations that were going on between the parties, and finally through the letter dated 243.1973, the respondent once again reiterated his demand to the appellants to hand over the vacant possession of the said premises to him. Vide letter dated 6.7.1973, the appellants again refused to vacate it. It is alleged that the appellants time and again showed their intention to settle the dispute without resorting to the Court proceedings, but with no result. On the point of impairing the value and utility of the said premises, the case of the respondent is that the appellants have not only made unauthorised alterations and additions, but also have made structural changes without any permission from the respondent and these changes are also against the Building Rules and Regulations. It is alleged that the appellants have completely damaged the law and garden and have constructed sheds thereon.
The appellants, in their written reply, have resisted the claim of the respondent. It is their case that respondent is not the owner of the premises in question, but, in fact, M/s. Gujrat Steel Production are its owner as their name appears in the record of K.M.C, and Excise & Taxation Department. They have maintained that respondent does not require the premises in question for his bona fide personal use. About the allegation of damaging the premises, they have stated that the only thing they had done at the start of their occupation in early 1960 was that some wooden planks were fixed mostly in between R.C.C. Pillars for storage purposes and making temporary removing sheds, which was within their intendment and also in the knowledge of the respondent.
3. From the pleadings of the parties, learned Rent Controller settled the following issues:-
(1) Whether the present application is not maintainable as alleged ?
(2) Whether the applicant requires the tentamen in question in good faith for his own use ?
(3) Whether the opponents have carried out additions and alteration impairing the value and utility of the tentamen in question ?
(4) What should the order be ?
In support of his case, the respondent filed his affidavit in evidence and that of his brother Muhammad Hussain whereas, on behalf of the appellants, Shahab Akhtar, Accountant has filed his affidavit in evidence.
On assessm ent of evidence brought on record, the learned Rent Controller decided all the issues in favour of the respondent, and consequently allowed the eviction application by the impugned order.
Learned counsel for the appellants has not challenged the finding of the learned Rent Controller on the point of issue No.1. He, however, seriously challenged the findings recorded on issues No.2 and 3.
4. On the point of the personal bona fide use, the case of the respondent, as set up in the affidavit in evidence, is that he wants to establish a factory of manufacturing steel furniture, for which he has sufficient funds, proficiency, competency, and also market for his product in the Middle East.
On the point of causing damage to the premises, he stated that after he came to know about the structural changes, he sent a report to Architect (Control) Department of K.M.C. It is alleged that the appellants have constructed R.C.C. Block, inside the existing main shed, and thereby d imaged the premises. They have also damaged the premises by giving heavy grooves in the supporting columns and inserting wooden refers therein. In this respect, he has also submitted a certificate issued by a licensed architect, who had inspected the premises.
His witness Muhammad Hussain has given his affidavit on the lines the respondent has sworn his affidavit. Appellant's witness Shahab Akhtar, in his affidavit in evidence, reiterated the grounds, which have been taken in the written reply.
5. It has been submitted on behalf of the appellants that learned Rent Controller has miserably failed to appreciate the evidence brought on record on the point of personal bona fide use and to such reached wrong conclusion. He also contended that personal bona fide requirement of the respondent was not at all established and learned Rent Controller in fact on totally insufficient evidence allowed the eviction application. He argued that very fact, that since, 1979 and till now, the respondent has not started any business, goes on to establish, that his alleged requirement is not genuine and the eviction application was filed only to harass the appellants and pressurise them for accepting the dictated terms. In support of his above contentions, learned counsel cited (1)
N.L.R. 1981 CLC 98 'Burkat Ali vs. Mst. Sughra Bai and another, (2) 1985 C.L.C. Page No. 1007 Noor Muhammad vs. Iqbal Ahmed, (3) 1986 CL.C. Page No.1100 Ikhlakun Nabi vs. Nawab Shamsi & others
(4) 1987 C.L.C. Page NO. 686 Muhammad Aslam vs. Muhammad Aslam. In Burkat Ali case, it has been held that on the point of personal requirement burden of proof lies upon the landlord and this burden cannot be said to have been discharged by bare and bald statement in evidence that some of landlords were unemployed and they wanted to start some unspecified business. In Noor Muhammad's case the scope of expression, "requires premises in good faith" was considered and it was observed that landlord was required to establish the good faith by tangible evidence and not by only making simple statement that he needs the premises for his Own use. In Ikhlakun Nabi's case, it has been held that mere assertion on part of landlord for requirement of non-residential accommodation in occupation of tenant for purpose of starting his own business would not be1 decisive. Further, it has been observed that word "require" would signify merely desire on the part of landlord and it would not be enough, and the element of need and genuine requirement would have to be proved. In Muhammad Aslam's case, it has been held that in case of personal bona fide requirement or business premises the landlord have to prove bona fide of his requirement first before any burden of proof in rebuttal could be shifted upon the tenant.
6. As against the above contentions, the learned counsel for the respondent argued that bona fide requirement of respondent was proved beyond any doubt and there was unrebutted evidence on this point. He also argued that in fact, material evidence on this point has gone unchallenged. In support of bona fide requirement, he cited (1) 1986 C.L.C. Pace No. 1747 Hameed vs. Muhammad Mashique (2) 1988 S.C.M.R. Page No. 819 Qamaruddin vs. Hakeem Mehmood Khan (3) 1989 C.L.C.
Karachi. Page No. 989 Abdul Ghani vs. Mst. Maryam. (4) 1989 S.C.M.R. Page No. 1366 Mst. Saira Bai vs. Syed Anees-ur-Rehman.
7. In Hameed's case it has been held that on assertion of landlord, on oath, as to requirement of premises for his personal use is to be accepted as bona fide, if consistent with his averment and not shaken in cross-examination are disproved in rebuttal. In Qameruddin's case it has been held that if the statement of landlord is not challenged in the cross-examination nor rebutted by any evidence produced by the tenant such statement is to be relied upon and on such statement eviction was ordered. In Abdul Ghani's case, it has been held that, while the determining question of requirement, the Rent Controller should not ignore new requirements of the landlord.
In Mst. Saira Bai case the following was held at Page No. 1368:- "7. The appellant made an application under Section IS of the Ordinance. Under this provision the Controller has to make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order if he is satisfied that the landlord requires the premises in good faith for. Hi$. Occupation and use or for the occupation and use of his spouse or any of his children. Therefore, the only condition to be satisfied by a landlord is that he requires the premises in good faith. Good faith has not been defined n the ordinance but it has been defined in Section 2, sub-section (27) of the West Pakistan General Clauses Act, 1956, as follows:-- "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not
8. Therefore, we have to examine whether the appellant had made the application honestly. The appellant in her application stated that she required the shop for use and occupation of her son which use is covered by the provision. Her son Khozaim Hussain in his deposition, has stated that his mother has four sons. Out of them two are studying while the remaining two are married and have got children and that he was one of her married sons, and that he has completed his studies and wants to start his independent business and intends to settle independently from his father.
The appellant has defused that she has funds and could provide rupees one lac to her son to carry on the business. No evidence was led to controvert these facts,, and, therefore, it cannot be said that the requirement of the shop for the use of the son of the appellant is not honest. In Section 15 of the Ordinance the word 'reasonably5 has not been used with the phrase 'good faith' as used in Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, yet in its meaning, if it is implied, we find that the appellant requires the shop reasonably and in good faith. The son is grown up, educated, married, without work, in other words unemployed. Enough fund is also available with his mother. These are good reasons to prove the bona fide requirement of the shop for use and occupation of the son."
On this very page, while dealing with the point of non-mentioning the nature on business in eviction application, Hon'ble Supreme Court observed as follows:- "Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts i.e. Facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop the question might arise; could he change the nature of business or not ? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided.
Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail".
8. Coming back to the facts of the instant case, it is observed that the contentions raised on behalf of the appellants have got no force. The evidence brought on record indicates that it is not a case of bare and bald statement of the respondent, but, on the contrary, there is positive evidence to demonstrate that the respondent requires the premises in question for his personal bona fide use.
It is true that the burden of proof of this issue was upon the respondent, but the evidence brought on record shows that he has successfully discharged it. The criterion laid down by the Supreme Court is that the landlord is only required to prove that he requires the premises in good faith.
Following the principle laid down in the above-quoted Supreme Court case, I, now, proceed to examine, that whether the respondent has successfully proved or not his bona fide requirement for the said premises. In fact, the point of bona fide requirement of respondent in his cross- examination was not seriously challenged. In his cross-examination, a question was put up to him that in letters at Exs.6 and 8 he had not disclosed the purpose of requirement. Suffice it to say that Hon'ble Supreme Court, in the case referred to above, has clearly laid down the rule that non- mentioning the nature on business in application is not fatal. In the application the landlord is only required to state the facts, which show the cause of action. It is noted that, though the respondent has not said anything about the business intended to be carried out in the application but in his affidavit in evidence, particularly, in para 23, he specifically stated about it. So the objection of not disclosing about the nature of business in Exs.6 and 8 is immaterial. This, however, is to be noted that the respondent, in Ex.6, clearly stated that the premises in question was required for personal need. Again, the appellants vide their letter dated: 22nd December 1972 at (Ex.7) suggested that they were willing to purchase the premises in question, but this offer was turned down by the respondent. If the respondent had any intention, other than of establishing his own. Business, he would have probably accepted the offer and would have sold the premises at the price of his choice. The very fact that he did not do so is a pointer toward the direction that he has no intention but to establish bus business in the said premises. The plea of learned counsel for the appellants that for about 12 years the respondent did nothing to establish his business provides ample proof that he had no genuine desire to do any business, is without any force. The case was unnecessarily prolonged and for .This delay the respondent was not responsible. The respondent, being the owner of the premises, it is for him to decide that whether the premises suits him for his requirements or not. The record shows that the appellants were keeping the respondent on false hopes for vacating the premises and this is evident by their letter Ex.14 the relevant portion of which is reproduced below: ~ "We fully appreciate your own worry for the building and that is why on our part very honestly and genuinely, we have been trying to find out an immediate solution but as the circumstances do exists it has not yet been possible but we assure you that in our own interest we do wish to vacante the premises as soon as possible, but it is not such a matter that the decision is taken without finding a proper alternate solution. As after occupying the premises for such a long time, appreciate every thing, we just cannot afford to throw the staff on the road and vacate the premises. We assure you that we are making our efforts to find some appropriate solution and as soon as it is available to us, we would immediately vacate this premises and as such except for the assurance that we are very well seized with the problem we are sorry that it is very difficult to commit for an exact time."
It is proved that the respondent requires the said premises for his bona fide use and the finding of learned Rent Controller on this point is perfectly correct and no exception can be taken to it.
9. Learned counsel for the appellants also challenged the finding of learned Rent Controller that the appellants by carrying out the addition and alteration in the premises, have impaired its value and utility. In support of his contention, he cited 1985 M.L.D. Page No. 1530 Buderul Hassan vs. Munawar Hussain, (2) P.L.J. 1987 Karachi, Page No. 393 Zainab Bai vs. Saifuddin (3) P.LJ. 1988 Karachi, Page No. 351 Muhammad Saleem vs. Shabhir Ahmed. The ratio of these cases is that, if details of damages are not disclosed and allegations of impairment of value of property are sketchy and perfunctory, eviction of the tenant on this ground would not be allowed, and minor alterations would not be regarded to have caused material impairment in value and utility. This contention of learned counsel for the appellants has got no force. The appellants witness Shahab Akhter, in his cross examination, on this point stated as follows:- "It is fact that they have constructed shed in the open space.' Voluntarily says that after execution of exhibit 5, no change has been made in the tentamen. It is correct to suggest that R.C.C. Loft has been constructed in the shed, there might be some permission for carrying out addition and alteration from the applicant, but I am not possession of the same at present."
10. Causing damage to lawn and garden plus bringing alteration and addition including structural changes, mentioned earlier, are enough to hold that the appellants have committed such acts, which have impaired materially value and utility of the said premises. These were not minor alterations. Above admission of appellants witness by itself is sufficient to decide this issue in favour of the respondent. The cases cited by the learned counsel for the appellants are distinguished. The finding of learned Rent Controller on this point is also correct and is not open to any exception.
In consequence, the appeal is dismissed with no order as to costs. Three months time from now, however, is granted to the appellants for handing over vacant possession of the promises to the respondent.