1. ' This First Rent Appeal is directed against the order dated 14-11--1982 passed by the VIth Senior Civil Judge and Rent Controller, Karachi, dismissing the eviction application filed by the appellant.
2. ' The facts giving rise to the above appeal are that the appellant is the owner and landlady of the building on Plot No,2/230, Commercial Area, Liaquatabad, Sarafa Bazar, Karachi. The building consists of three floors, ground plus two flooRs, On the ground floor, there are nine shops and one godown. On the first floor, there are five rooms where the workers do their work. On the second floor, there are five rooms which are on rent. The respondent is tenant in respect of Shop No,1 thereof at the monthly rental of Rs,70. The appellant filed eviction application on the ground of personal requirement of her son. The respondent resisted the application. The appellant filed affidavits-in- evidence of her husband and constituted attorney Abdul Aziz, her son Abdul Hafiz and one Ghulam Ali. In rebuttal the respondent filed his own affidavit-in-evidence besides the affidavits-in-evidence of Rana Maqbool Ahmed, Muhammad Younis and Muhammad Haroon. They were cross-examined by the learned counsel appearing for the respective parties. _ ' The learned Controller, on assessm ent of the evidence on record,came to the conclusion that the eviction application being without cause of action, is not maintainable and the appellant has failed to make out a case for bona fide personal need. In that view of the matter, the eviction application was dismissed.
3. ' On re-assessm ent of the evidence, I found that the appellant has established bona fide personal need. In that view of the matter, the impugned order dated 14-11-1982 passed by the Rent Controller, was set aside and the respondent was directed to hand over vacant possession of the shop in question within four months from the date of order i,e, 21-10-1986.
4. ' The respondent being aggrieved, filed petition for leave to appeal before the Hon'ble Supreme Court. On 8-12-1987 the petition was converted into appeal and it was allowed, the order dated 21- 10-1986 was set aside and the case was remanded to this Court for rehearing of the appeal and fresh, decision with the following directions:-- "(1) That the parties be allowed to lead additional evidence on the question whether on the date of the filing of ejectment application by the respondent, she was in possession of any other vacant shop in the same building.
(2) That the High Court may itself record the additional evidence or may direct the Rent Controller to do it and remit it to the High Court for decision of the appeal."
5. ' On remand, the respondent filed his own affidavit-in-evidence. The appellant filed affidavits-in- evidence of her husband and attorney Abdul Aziz, her sons Abdul Hafeez and Anis Ahmed. They were cross-examined by the learned counsel appearing for the respective parties. The appellant examined Syed Khalil Hasan, Assistant, Excise and Taxation Officer. The appellant also filed affidavit-in-evidence of Ghulam All who did not submit himself for cross-examination.
6. ' The point for determination is whether on the date of filing of ejectment application by the appellant, she was in possession of any other vacant shop in the same building.
7. ' The case of the respondent is that when the eviction application was filed againt him, four shops were vacant and one more shop was in the occupation of the appellant/landlady. The admitted position is that the eviction application was presented on 25-10-1981.
8. ' The respondent/tenant admitted in his cross-examination that shop No,2 was in possession of Abdul Qadir, Shop No3 was in possession of Haq Jewellers, Shop No,4 was rented out to Zamerrud Begum, Shop No,5 was in possession of Firdous Jewellers owned by the landlady and Ghulam All was her employee in Firdous JewelleRs, On Shop No,6, the board of Shama Jewellers was affixed and the same used to remain closed. According to him, Shop No,7 used to remain closed. He denied the suggestion that Muhammad Umer was doing business as a cigarettes dealer in Shop No,8. To a suggestion, he replied that he does not remember whether Shop No,8 was left open or it was closed. According to him, Shop No,9 was also closed.
9. ' It is pertinent to note that the respondent in his cross-examination recorded on 25-5-1982 admitted that Shops Nos,6 and 7 are lying vacant.
10. ' Muhammad Sadiq has stated that he is tenant in respect of Shop No,1 and carries on business in the name and style of Fancy JewelleRs, He has produced tenancy agreement dated 15-8-1977 (Exh.
11. 2/2). He has also produced rent receipts as Exh. 2/3.
12. ' Muhammad Shafi has stated that he is tenant in respect of Shop No,6 and he was inducted as tenant since July 1977. He has produced original living agreement elected between him and the landlady.
13. ' Syed Khalil Hasan, Assistant, Excise and Taxation Officer has stated that all the details in respect of property are entered in a register known as PT-I. The general survey was carried out in the year 1968 and thereafter the property in dispute was never surveyed by the Excise and Taxation Department. On 2-9-1979 name of tenant Qasim Moosa was entered in respect of Shop No,4-A. On 21-4-1980 name of Muhammad Ayoob was entered as tenant in respect of Shop No3 and form PT-I was issued on 13-2-1980. This form is partaining to the year 1978-79 and this was issued on the basis of PT-I register maintained by the Department.
14. ' He replied to a question in cross-examination that he compared PT-I issued on 2-1-1982 with the original register and say that four shops were vacant on 2-1-1982. According to him, four shops were vacant as per register maintained by the Department.
15. ' Abdul Aziz, Abdul Hafeez and Anis Ahmed categorically stated that Ghulam Ali was carrying on business in the name and style of Firdous Jewellers and Abdul Hafeez was working as servant.
16. According to them, Ghulam Ali became debtor of Haji Haroon and as such he asked for change of tenancy in the name of Haji Haroon which was done. According to Abdul Aziz, Haji Haroon was partner of Ghulam All and tenancy was changed with effect from 4-5-1989. In reply to a question, he said that in 1989 his eldest son. Was learning the work of jewellery and therefore he did not require the shop at that time for him. He admitted that tenancy in respect of Shop No3 was changed in the name of Mst. Nagina Begun,. He admitted that Ijaz Khan was tenant in respect of Shop No3 in the year 1988. Shop No,8 was vacated by the tenant in 1988 and since then Anis Ahmed is doing jewellery business. It is pertinent to note that he filed affidavit-in-evidence in this Court but he did not submit himself for cross-examination. In these circumstances, the evidence of Ghulam Ali cannot be taken into consideration.
17. ' Mr. Syed Ishtiaque All vehemently urged that entries in the register maintained by the Excise and Taxation Department cannot be taken to be proof of the fact that four shops are vacant and one shop is self-occupied. In support of this contention, reliance is placed on the cases reported as Haji Muhammad Ramzan v. Mian Jamil Shah (PLD 1967 Peshawar 380), Gul Dad Khan v. Rahim Shah (PLD 1978 Karachi 19) and Mian Muhammad Amin and 7 others v. Amanat Ali (1982 CLC 1770).
18. ' Mr. Faizullah Khan, J. In Haji Muhammad Ramzan v. Mian Jamil Shah (PLD 1967 Peshawar 380) held at page 382 as under-- "On a careful review of the evidence in the case, I have formed the opinion that the Rent Controller as also the Appellate Authority have misdirected themselves to the real question, and have, if I may say so with respect, misread the evidence in the case. As already stated, the respondent did not base his application for ejectment on the basis of a written lease deed. The respondent also has not led any reliable evidence to show how he acquired this property. As already stated, the respondent tried to spell out the relationship of landlord and tenant on the basis of the fact that in the Excise and Taxation Register he was shown as a landlord and one Ramzan as occupier. This evidence may have some value on the question of title, but I think it is wholly irrelevant to the enquiry whether the relationship of landlord and tenant existed between the parties."
19. ' The observations of Mr. Faizullah Khan, J. Were followed by. Mr. Naimuddin, J. In Gul Dad Khan v.
20. Rahim Shah (PLD 1978 Kar. 19). In Mian Muhammad Amin and 7 others v. Amanat All (1982 CLC 1770), Mr. Abaid Ullah Khan, J observed that "entries in the Department's Register are made without notice to the parties concerned and no presumption of absolute genuineness can be raised in respect thereof'. There is no quarrel with the above proposition that entries in the Excise and Taxation registers are irrelevant in enquiry whether the relationship of landlord and tenant existed between the parties as held by Mr. Faizullah Khan, J.
21. ' I have carefully gone through the depositions of the witnesses examined by the parties and also the documents produced by them.' am of the view that the respondent has prima fade proved that Shop No,5 was occupied by the appellant/landlady and Ghulam All was not inducted as tenant as alleged by the landlady. I am influenced by the fact that Shop NO,5 is part of the building which is owned by the landlady. It has come on record that the building consists of three floors and there are nine shops and one godown on the ground floor. The general survey was carried in the year 1968 and the entries were made in Excise and Taxation register and in the Excise and Taxation record one shop has been shown as self-occupied.
22. ' Ghulam All though filed affidavit-in-evidence, did not submit himself for cross-examination. In view of the evidence of Syed Khalil Hasan, the entries in the record of Excise and Taxation Department have some value on the question of occupation of shop by the landlady when the appellant has not led any evidence as to when Shop No,5 was given on rent to Ghulam Ali.Mr. Ishtiaque All contended that from the evidence led by the appellant, it has been shown that the appellant was not in actual occupation of any of the shops and the appellant has proved that her request is bona fide and she required the shop in question for establishing/settling her son. This argument was countered by Mr. Abdul Hafiz Pirzada. In the first place, he contended that provisions of clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979 would not in terms apply to the facts of the present case because from the evidence it was shown that the appellant was in actual occupation of Shop No,5 and four shops remained with her. In order to appreciate this argument, it may be necessary to examine clearly the language of clause (vii) which may be extracted thus:-- "(vii) the landlord 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."
23. ' The pivotal argument of the counsel for the respondent turns upon the interpretation of the word 'occupation'. This, however, does not present any difficulty because in a recent decision in the case of Muhammad Rifatullah Alvi v. Imran Ansari (PLD 1990 SC 369) the Hon'ble Supreme Court while considering terms 'occupation' and 'possession' observed at page 377 as under:-- "The term 'occupation' has not been defined in the Ordinance. However, the Ordinance uses the term 'possession' in several sections including section 14, subsection (1) of which speaks of the tenant being required to deliver 'vacant possession' of the building to the landlord. Similarly the word 'possession' has been used in subsection (2) of section 15, in connection with the power of the Controller to make an order directing the tenant to put the landlord in possession of the premises.
24. Also the word 'occupation' has been used besides subsection (2) of section 14, in the provisions of section 15. For instance subsection (2)(vii) of section 15 uses the term 'occupation' and indeed the two terms 'possession and 'occupation' appear in this section in juxtaposition. According to this provision the Controller can make an order directing the tenant to put the landlord in possession of the premises, if he is satisfied that 'the landlord requires the premises in good faith for his own occupation or use or for the occupation of his spouse or any of his children'. The perusal of the provision referred to clearly indicates that the law-maker uses the two terms `possession' and 'occupation' to carry two different meanings and not interchangeably. Indeed the two words are used in contrast, rather than to refer to the same state of affaiRs,"
25. ' Again at page 381 it was observed as follows:-- "The factum of occupation is to be determined on the evidence as it exists at the relevant tinie and not on the basis of what the landlord can do to obtain occupation from those who are for the time being in occupation of such premises."
26. ' It is, therefore, manifestly clear that even if a landlord retains control over the premises or a shop, he would in law be deemed to be in occupation of the same. Therefore, I am unable to accept the argument of Mr. Ishtiaque All that the landlady was not in actual occupation of a shop at the time of institution of eviction proceedings. Mr. Ishtiaque All contended that the shop was in occupation of Ghulam All and the same was not in actual occupation of the landlady. Indeed, if the broad argument put forward by the counsel is to be accepted, then that would destroy the very concept of constructive or actual possession or occupation.
27. ' The question which I have to consider is whether on the date of the filing of ejectment application by the landlady, she was in possession of any other vacant shop in the same building. The appellant can prove only by adducing her evidence. The challenge before me is as to the credibility of the witnesses who have come forward to say that the appellant was not in possession of any shop at the time of filing of eviction application and the credibility of witnesses who have come forward to say that she was in possession of four shops. In order to judge the credibility of the witnesses, the Court is not confined only to the way in which witnesses have deposed or to the demeanour of the witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities so that it may be able to form a correct idea of the truthworthiness of the witnesses. This point cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence.
28. ' Mr. Ishtiaque All has urged that the witnesses examined on behalf-of the appellant have been effectively cross-examined by the counsel for the respondent. It is also true that the respsondent had not adduced any evidence in rebuttal but that does not mean that the Court is bound to accept other evidence. In the case of Chaturbhuj Pande and others v. Collector, Raigarh (AIR 1969 SC 255), Mr. Hegde, J. Spoke for the Supreme Court of India and observed that:_ "The Judges are not computeRs, In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities."
29. ' The witnesses on behalf of the landlady say that the landlady was not in possession of any shop at the time of filing of the eviction application. Therefore the question is whether the landlady has satisfactorily proved that she was not in possession of any shop. In the case of the Commissioner of Income-tax, West Bengal II, Calcutta v. Durga Prasad More (AIR 1971 SC 2439) the Hob'ble Judges of the Supreme Court of India observed as follows:- "Science has not yet invested any instrument to test the reliability of the evidence placed before a Court or Tribunal. Therefore the Courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliability of a piece of evidence. But in that sphere the decision of the final fact finding authority is made conclusive by law."
30. ' In Qamaruddin through his Legal Heirs v. Hakim Mahmood Khan (1988 SCM R 819), the Hon'ble Supreme Court observed at page 821 as under:-- "We have examined the contentions of the learned counsel for the appellant and agree that none of the facts would militate against the stand of the landlord to seek eviction of his tenant from the shop, required for his personal use and non-disclosure of this fact in his petition would, in no way, cut at the root of the appellant's case because it is neither requirement of any law nor any rule of evidence that the landlord shall disclose all the properties which he had rented out to other tenants. All that he has to show to the Court is that he requires the shop of a particular tenant for his personal use, and the choice is his as regards the suitability of the said shop which he requires for his personal use. The only question which would disentitle a landlord to such a relief would be a case where he is in possession of other equally suitable shop in the same locality, or had rented out a shop after the institution of eviction case and has contumaciously concealed the fact in his application or statement at the trial."
31. ' I am of the humble opinion that reading of the provisions of section 15 (2) of the Ordinance, it is obvious that if the request of landlady be genuine and she satisfies the Controller, she can obtain possession of the disputed shop. Clause (viii) clearly shows both affirmatively and negatively that the landlady must satisfy the Controller about her claim before she can obtain an order in her favour. The Controller has to be satisfied about the genuineness of the claim to reach this conclusion. Obviously the Controller must be satisfied about the reality of the claim made by the landlady and this can only be established by looking at all the surrounding circumstances, such as she is in occupation of any shop. It is not enough that the landlady come forward and says that she wants to settle her son Abdul Hafeez in the shop. The claim does not speak of the bona fides of the landlady but says, on the other hand, that the claim of the landlady that she requires the shop in good faith that is to say honestly in the circumstances. That is lacking in the present case.
32. ' In my considered opinion, the learned Controller has considered the material placed before him.
33. The order seems to be in consonance with the evidence on the record. From the perusal of the evidence, it appears that the landlady has one shop in her occupation.
34. ' I, therefore, find no justification in the above appeal, and it is, therefore, dismissed. In the circumstances of the case, there will be no order as to costs.