1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, hereinafter called the Ordinance, is directed against order, dated 3rd December, 1990 passed by the then learned Vth Rent Controller, Karachi, East, in Rent Case No,21 of 1987, whereby, he directed appellants to hand over vacant possession of the premises in question to respondent within 60 days from the date of said order. The facts relevant for decision of this appeal are as follows:-- ' Respondent Begum Ashraf Burney, on 6-1-1987, filed eviction application against appellants Bata Pakistan Limited Company, on the ground of default and personal bona fide use. It is her case that she is owner of the shop constructed on Plot No,39-D, Nursery Commercial Area, P.E.C.H.S. Karachi, hereinafter referred to as the premises, and the appellants are her tenant in the premises at monthly rent of Rs,1,200 payable on 15th of each calendar month and that they did not pay rent since Ist July 1985. She alleged that she requires the premises for her personal use for running children's clothing and Boutique therein. She stated that prior to this she had filed an eviction application against appellants, but said matter was compromised and appellants had agreed to vacate the premises within 5 years, therefore, fresh tenancy agreement for said period was executed. According to her, the appellants after 5 years, taking advantage of amendment in clause (1), subsection (2) of section 15 of the Ordinance, which was about tenure of tenancy and was omitted by the Sindh Rented Premises (Amendment) Ordinance, IV of 1984, declined to vacate the premises. The appellants resisted the claim of respondent and maintained that neither they committed any default in payment of rent and nor the premises is required by respondent for her personal bona fide use.
2. ' At trial the respondent filed her affidavit-in-evidence and she was cross-examined at length. The appellants filed affidavit-in-evidence of Arshad Siddiqui who is a Manager in Lease and Rent Department of appellants. He was cross-examined by learned counsel for respondent.
3. ' Learned Rent Controller settled the following issues:--
(1) Whether the applicant requires the demised premises for her personal bona fide need?
(2) Whether any wilful default has been committed in payment of rent on behalf of the opponent, as alleged?
(3) What should the order be?
4. ' On assessm ent of evidence brought on record learned Rent Controller decided Issues Nos.1 and 2 in affirmative and consequently he allowed the eviction application and directed appellants to hand over vacant possession of the premises to respondent, which order has been impugned in this appeal.
5. ' The respondent, in her affidavit-in-evidence, besides, reiterating the facts, which she mentioned in eviction application, also stated that before expiry of tenancy agreement she had informed appellants that she was not interested in extension of tenancy, as she needed premises for her personal use and requested them to vacate it by 31st July, 1985. On the point of personal bona fide use, she maintained that she has experience, capabilities, and funds etc. to start her business.
6. Appellants' witness Arshad Siddiqui, in his affidavit in-evidence stated that appellants are tenant in the premises since Ist January, 1962, and during this period four tenancy agreements were executed by them. He stated that first floor of said building (Flat) was also let out to appellants as per agreement dated 1-7-1964 and on 15th May, 1967 a jonit tenancy agreement for said flat and the premises in question was executed by the appellants for 10 years and the rent was increased from Rs,700 to Rs,800. He added that in order to pressurise the appellants for further increase in rent, the respondent, on 15-3-1978, filed Rent Case No,1292 of 1978, which, as stated earlier, was compromised and the possession of flat was handed over to respondent, and at the same time rent of the premises was enhanced to Rs,1,200 p.m. He has also stated that after expiry of period of 5 years, the respondent filed Execution Application No,179 of 1985, which was dismissed vide order dated 27-8-1986. He also mentioned that, in fact the respondent does not require the premises and she only wants increase in rent.
7. ' It is contended by learned counsel for the appellants that finding of learned Rent Controller on the point of default is contrary to the material available on record. Also, he argued that the appellants had sent rent in advance and the same was refused by respondent. Money Orders Coupons are on record at ExhsA/7 to A/21 and all these money orders admittedly were refused by respondent. The respondent has admitted that, as a practice, the appellants used to send rent for three months in advance. She also admitted that she had written a letter to appellants, which is on record at ExhA/6. Through said letter, she returned back a cheque dated 1-7-1985 for Rs,3,600 which was sent to her by appellants with the remark that she had decided not to extend the tenancy period and demanded rent for the month of July, 1985 only. Learned Rent Controller, while dealing this point, observed that though the money orders/cheques were sent by appellants but these money orders mostly were for three months and every subsequent money order did not include the rent of previous money order and in this way the amount of arrears of rent accumulated as such it was a wilful default. It is an admitted position that rent from Ist July, 1985 to 31st July, 1987, amounting to Rs,22,800 was deposited by the appellants in Misc. Rent Case No,153 of 1987. It is also admitted that advance rent which was for three months from July to September, 1985, was not accepted by the respondent. Likewise, she did not accept rent for six months from Ist July, 1985 to 31st December, 1985. She is on record to have stated that rent after July, 1985 was not acceptable to her. If the rent for first six months would have been accepted by her the question of its accumulation would never have arisen. She cannot be permitted to blow hot and cold at the same time. On the 'one hand she is pleading default and on the other declining to accept the rent which was offered in time. She therefore, was partly responsible for said default. In fact, the default was due to her act and conduct. When the default is the result of planning and manoeuvring of A landlord the discretion may be excercised in favour of tenant. Accordingly, alleged default is condoned. The finding of learned Rent Controller on this point is incorrect and is reversed.
8. ' This brings me to the second point of personal bona fide use. Learned counsel for the appellants submitted that ground of personal requirement is only decorative and the real purpose behind is to increase the rent. He submitted that where it was established that personal requirement was for oblique motive the eviction could not be allowed on such plea. Also, he contended that in absence of essential requisite of business it could not be held that the ground was genuine. In support of these contentions he cited (1) PLD 1982 Kar. 790 Fakhruddin v. Syed Asadullah Shah, (2) PLD 1985 Kar. 624 Sultan Press Ltd. v. Muhammad Hassan, (3) PLD 1985 Kar. 639 Mst. Furrukh un-Nisa v. Safdar Ahmed and 6 others, (4) PLD 1985 Kar. 714 Syed Anisur Rahman v. Mst. Saira Bai, (5) PLD 1986 Kar.
9. 84 M/s. Eastern Express Company Ltd. v. Tariq Hameed. The ratio of these cases is that mere wish, convenience, whim, or fancy of landlord is not enough to show that landlord requires the premises in good faith. Also, it is necessary that landlord must prove requirement of premises for reasonable needs and the object of seeking eviction must not be crowded with oblique motive for getting it some other extraneous purpose.
10. ' As against this, learned counsel for respondent strenuously argued that respondent requires the premises for her personal bona fide use and this was the reason that immediately after expiry of last agreement of 1985 she repeatedly requested appellant's to vacate the premises, but with no result. In support of this contention, he cited (1) NLR 1980 UC 37 Syed Abdul Qadeer v. Mst. Naseem Akhtar, (2) 1989 SCM R 1366 Mst. Saira Bai v. Syed Anisur Rehman, (3) 1993 SCM R 67 Agaria Amir Ali v.
11. Abdul Majid. In Syed Abdul Qadeer case an offer was given by tenant to pay double rent but it was refused by landlord. It was held that it supports plea of personal requirement. In Mst. Saira Bai case, it was held by Hon'ble Supreme Court that landlord has to state in his application the material facts i.e. facts which constituted cause of action alongwith those facts which, prima facie, showed that requirement was according to law and was made in good faith and landlord was not required to state the nature of business which he intended to carry on as same was neither essential nor formed part of cause of action. In Agaria Amir All case it was held by Hon'ble Supreme Court that landlord is not required to give fullest possible description of personal use in eviction application.
12. Further, it has been observed that to mention in eviction application that he needs premises for his personal use as he has no such place which could be used by him in his work as Building Contractor would be sufficient description of personal need. Coming back to the facts of the instant case, it is noted that in eviction application and more particularly in affidavit-in-evidence, the respondent has provided sufficient details about her proposed business of children clothing and Boutique. In para. 8 of affidavit-in-evidence, she stated that she has experience in Public and Business life having been a member of the West Pakistan Assembly, a Director Local Board of State Bank of Pakistan and a Director Karachi Electric Supply Corporation. Although, she was cross- examined at length but her evidence on this point was not shattered. In fact, her testimony on this point was not seriously challenged and the main thrust of appellant's arguments was on the point that respohdent wanted increase in rent.
13. ' Mr. Rehanul Hassan Farooqui, learned counsel for appellants contended that respondent in her earlier application also had taken the plea of personal requirement and dropped it when the rent was enhanced. He argued that a plea which has already been decided cannot be agitated again.
14. Complete answer of this contention is found in the case reported in 1989 SCM R 98 Abdul Salam v.
15. Banaras Khan. In this case, it was held by Hon'ble Supreme Court that since Ist ejectment petition on ground of personal need was withdrawn as parties compromised the matter out of Court and decision on plea raised was not given on merits therefore, under such circumstances, second ejectment petition on the same plea was not barred.
16. ' The appellants witness in cross-examination admitted that personally he did not know respondent and nor he knew anything regarding her financial/technical position. From this reply, it is clear that he was not in position to say anything about personal requirement of respondent. Mr. Rehanul Hassan Farooqui, learned counsel for appellants has laid much stress on the point that respondent wants increase in rent and for this purpose she has started these proceedings. It is noted there is nothing on record to show that she demanded increase in rent. Even if for the sake of argument it is assumed that she did so, yet, this by itself cannot be regarded as an act of mala fide. On this point, reliance is placed on the case reported in (1) 1980 SCM R 772 Pirzada Rafiq Ahmed v. Chaudhry Abdul Rehman, (2) 1985 SCM R 1996 Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd., (3) 1986 SCMR 046 M/s. Allied Bank of Pakistan v. Syed Wahid Hussain and (4) 1989 SCM R 1366 Mst. Saira Bai v. Syed Anisur-ur-Rahman.
17. ' It stands proved that respondent requires the premises for her personal bona fide use. The finding of learned Rent Controller on this point is perfectly correct and no exception can be taken to it.
18. ' Accordingly, the appeal is dismissed with no order as to costs. The appellants are directed to hand over vacant possession of the premises in question to the respondent within four months from now.