' The appellant has called in question the order passed by the learned Second Senior Civil Judge and Rent Controller, Karachi dated 15-4-1990 declining to order the respondent's ejectment from the premises in question.
2. The appellant who admittedly is one of the legal heirs of the deceased landlord alongwith eight others instituted ejectment proceedings against the respondent on the ground that the premises were required by her in good faith for her own use and occupation. The application filed by the applicant was resisted by the respondent who first denied the relationship of the landlord and the tenant between the parties and also the fact that the premises were required for personal use of the appellant. According to the respondent, he was in possession of the premises since about 26 years prior to the filing of the ejectment application and the tenement had been taken by him on Pugri. Admittedly, the premises are being used by the respondent for business purposes.
3. During the proceedings of the case, the appellant herself gave evidence before the learned Controller and examined one witness, namely, Muhammad Yousuf in support of her case. In the affidavit filed in evidence by her she stated that she was not in possession of any commercial property of her own and that she had no means of livelihood and wanted to start a business of her own in the demised shops with the assistance of her son and that the said premises were required by her in good faith for her personal use. This evidence was not found to be sufficient by the learned Rent Controller to establish her good faith and consequently, her application was dismissed vide the impugned order. The main reason which appears to have weighed with the learned Controller was that the respondent in his evidence had affirmed on oath that all the sons of the applicant were minors and no question had been put in the cross-examination to rebut such evidence.
4. I have heard Mr. Zia Perwez, learned counsel for the appellant and Mr. Abrar Hassan, learned counsel for the respondent.
5. Section 15 of the Sindh Rented Premises Ordinance, 1979, subsection (2), clause (vii) provides that:-- "(vi) The Controller shall, 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--
(vii) the landlord requires the premises in good faith for his own occupation or use or the occupation or use of his spouse or any of his children."
' In the present case, no doubt, the appellant failed to furnish complete particulars about her requirement and the nature of business she wanted to start in the premises or the funds available with her to start the business. She did not even state whether she wanted to start the business alone or with any of her children although in her affidavit-in-evidence, as has been pointed out earlier, she stated that she wanted to carry on business with the assistance of one of his sons. In view of the evidence, the main contention of Mr. Abrar Hassan, learned counsel for the respondent has been that the ejectment application was liable to be dismissed as the same did not initially disclose any cause of action but improvements were subsequently made by the appellant in the affidavit-in-evidence on her behalf. Reliance in this regard has been placed by the learned counsel upon the case of Mst. Jana Bai v. Gulshan (1984 CLC 1061). In this case, the eviction application filed by the landlord although was silent on the point whether the premises were required by the landlord for personal need but subsequently, at the time of filing of the affidavit-in-evidence such a case was made out by the landlord. When the appeal came up for hearing before my learned brother Haider Ali Pirzada, J. The landlord was not permitted to take such a plea which she had earlier failed to take in the pleadings. In my opinion, the facts of the reported case are clearly distinguishable inasmuch as in the present case the plea that the premises are required by the landlord for her personal use and occupation was specifically taken. It may be pointed out that in the eviction application the landlord is required to state only such facts which constitute cause of action. The landlord has then to build his case subsequently by leading evidence in support of the pleas taken by him in the application and unless the evidence led by him is contrary or inconsistent with the pleas earlier raised in the eviction application, the landlord cannot be held guilty of any improvement in the case. In the present case, the statement made by the appellant in her affidavit-in-evidence in no way can be said to be inconsistent or contrary to the pleadings earlier filed by the appellant before the learned Controller. Consequently, the contention of Mr. Abrar Hassan appears to be devoid of force.
6. The second contention of Mr. Abrar Hassan was that the appellant has failed to establish good faith as required by section 15(2)(vii) of the Rented Premises Ordinance. Reliance in this regard was placed by the learned counsel on the case of Sultan Press Ltd. v. Muhammad Hasan (PLD 1985 Kar.
624). In this case, once again my learned brother Haider Ali Pirzada, J. While interpreting the expression "requires in good faith" has observed that what is meant by such expression is "that the landlord requires the premises for his reasonable needs and that he is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realizing some extraneous purpose". In my opinion, reference to this case is completely misconceived because neither from the affidavit-in-evidence filed on behalf of the appellant nor her cross-examination it cannot be spelt out that the eviction application was filed by the appellant with a view to requiring additional accommodation or with a motive of realizing some extraneous purpose. Such inference cannot be drawn unless there is clear evidence to lead to such an inference. Nothing can be spelt out from the evidence adduced on behalf of the appellant to suggest that the premises are not required in good faith or bona fide by her. The respondent's counsel even had failed to shatter her case during the cross-examination. Except for the fact that the appellant stated during her cross- examination that she was not aware of the amount received by one Shoukat Ali as goodwill from the respondent but such statement neither can give inference to the fact that goodwill had been received from the respondent by the landlord nor such a plea can be of any avail to the respondent. Goodwill is not recognized by the law and the plea of the tenant that he had paid goodwill for the premises in no manner can succeed as a C ground of defence when eviction of the tenant is being sought by the landlord. This position has now been made clear by the recent pronouncement by the Supreme Court on the point. Therefore, one need not dwell further on this issue.
7. Mr. Abrar Hassan has also placed reliance on the case of Abu Bakar v. Ch. Muhammad Abdullah (1986 M LD 227) wherein the observations made by Saleem Akhtar, J. (as he then was) show that in a case based on the plea of personal requirement the landlord is required to furnish details in respect of his business and the nature of his business or is required to furnish details in respect of his children for whom he requires the premises in question. However, this view does not find support from the case recently decided by the Supreme Court and reported in 1989 SCM R 1366.
8. It, therefore, clearly appears that the learned Controller has failed to take these important factors into consideration while dismissing the ejectment application of the appellant. In my opinion, from the evidence on record, her case against the respondent has been fully established. The mere fact that respondent was not cross-examined on the question whether all the sons of the appellant were minors cannot defeat the appellant's case when otherwise her case has been fully established and nothing came out in the cross-examination to shatter her evidence or that of her witness Muhammad Yousuf.
9. In the result, I allow this appeal and direct the respondent to hand over vacant possession of the premises to the appellant. By consent, six months' time is allowed to the respondent to vacate the premises in question subject to his depositing of rent with the learned Controller for such period.
The parties are left to bear their own costs.