' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, has given rise to some intricate questions, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.
2. The appellant, a banking company, is a tenant of respondents in respect of a portion of ground floor, measuring 1700 sq. Feet, of a building known as "Al-Shaffi Building" standing on Plot Nos,PR- 27/19 and PR-37/20, situated at Nauman Street, Plaza Square, MA. Jinnah Road, Karachi, at a monthly rent of Rs,1,275. It is alleged that the appellant defaulted in payment of rent and was in arrears of three months on 30-5-1984, when the application for ejectment was filed. The respondents who belong to a business and mercantile family required this premises for their own use and use of their sons, namely, Humayun Ikram son of respondent No,2, Arshad Islam son of respondent No,3 and Amjad Inam son of respondent No,4. The respondents who are desirous of setting up their aforesaid sons in business, therefore, filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, before the Rent Controller seeking the ejectment of the appellant on the aforesaid grounds.
3. The appellant has controverted the allegations based on facts. The defence of the appellant as unfolded in the written statement filed on 25-7-1984 is as follows:-
(a) the opponent is in occupation of lawfully renewed lease period, as submitted above,
(b) the parties have already entered into a fresh contract and the applicants are causing a breach of the same,the building in question in which the demised premises is located is a huge four- storeyed building located on the East on Noman Street and on the West, Green Street, on the Eastern side on the ground floor, about half portion is in occupation of the applicants, which portion they got vacated about 3 years back from the Habib Bank Limited and half in occupation of the opponents and the other floors are in occupation of the tenants. On the Western side, the ground floor consists of two portions, similar to the ground floor on Eastern side, out of which half is in possession of Allied Bank and the other half is in possession of the applicants lying vacant and it can be utilised by the applicants and their children. The entire area is a business locality dealing with motor parts,
(d) . The alleged children are under education and do not need the demised premises genuinely,
(e) the applicants with mala fide intentions have advanced this false plea of personal use, as a matter of fact they want to increase rent exorbitantly and have filed this false case just to coerce and harass the opponent."
4. The parties went to trial on the following issues:-
(i) Whether the opponent has committed wilful default in payment of rent?
(ii) Whether the applicants require the premises for personal bona fide use in good faith?
What should the order be?
5. The 'respondents examined three of them, namely, Sh. Muhammad Ikram (P.W.1), Sh. Muhammad Islam (P.W.2), and Sh. Muhammad Inam (P.W.3). To rebut this evidence the appellant examined Syed Shah Jahan, Manager of the Bank (D.W.1), and Nisar Ahmad Ansari, Vice-President of the Bank (D.W.2).]
6. On the assessm ent of evidence, both oral as well as documentary, the learned Rent Controller decided issue No,(ii) against the appellant directing its ejectment from the demised premises within a period of six months. The issue No,(i) was, however, decided against the respondents. It is in these circumstances that the appellant has filed this appeal. During the course of arguments the respondents have assailed the finding of Rent Controller in respect of issue No,(i) also.
7. I have heard Mr. Sahibzada Manzoor Ali Khan, learned counsel for the appellant and Mr. Khalid Latif, learned counsel for the respondents. I have also gone through the record of this case carefully.
8. Sh. Muhammad Ikram, the respondent No,2, as his own witness (P.W.1) has testified the facts making out a case of personal need. Paras. Nos,5 to 9 of the affidavit-in-evidence filed by him are relevant on this issue and for the sake of convenience are reproduced in extenso:-- "That I and the other applicants belong to a business and mercantile family and all of us are engaged in business. I and other applicants are carrying on business under the name and style of Messrs Pioneer Automobiles and Messrs Shaffi Sons in a rented premises at Pilot House on the MA.
Jinnah Road, Karachi. We are also carrying on business under the name and style of Messrs Bearing Sale Centre which has been established in a premises in the Al-Shaffi Building aforesaid which was vacated by Messrs Habib Bank Limited. This business was started after the premises were vacated by the Habib Bank Limited.
' That in or about April, 1984 our business concern of Messrs Shaffi Sons also acquired an agency of Messrs Ghandhara Nissan Limited for the booking, sale and display of Datsun/Nissan vehicles. I file herewith two letters from Messrs Ghandhara Nissan Limited dated 20-44984 and 15-6-1984. We have also acquired an agency of Messrs Pak. Suzuki Motors for the display and sale of Suzuki Motor caRs, We have also acquired Russian Agency for Soviet-made machines, tools and metal-working and wood-working equipment. I produce herewith letter of appointment dated 18-4-1984. All of our aforesaid business as well as our other commercial ventures are being carried on in the rented premises in the Pilot House aforesaid. In the said tenanted premises there are no show rooms and display facilities and the said tenanted premises have become totally insufficient for our rapidly growing business needs. We require the premises under occupation of the opponent for the use of our business concerns as well as for the use and occupation of our children for establishing their businesses. Neither I nor the other applicants own or occupy any other suitable building in the same urban area nor have we vacated any such building.
' That my son Humayun Ikram is now aged about 21 years and has finished his studies. I want him to be engaged in business alongwith myself and his grandfather and uncles, the applicants No: 1, 3 and 4.
' That I have been training my aforesaid son Humayun Ikram in our family business alongwith his education and he is now sufficiently grown up to make a start in business. I have enough resources to set up my said son in business with me.
' That I and the applicants Nos, 3 and 4 are desirous of setting up our sons in business and as such require the premises under occupation of the opponent in good faith for the use and occupation of our children as well as ourselves. Neither my son Hamayun Ikram nor my nephews Arshad Islam and Amjad Inam own or occupy any other suitable building in the said urban area nor have they vacated any such building."
9. Sh. Muhammad Islam, the respondent No, 3; and Sh. Muhammad Inam, the respondent No, 4, as their own witness as (P.W. 2), and (P.W-3) respectively, have fully supported the version of their brother Sh. Muhammad A Ikram (P.W.1). The evidence of all these three witnesses is consistent and the learned counsel for the appellant was not able to pick holes in their testimony. The learned Rent Controller was apparently favourably inclined by the demeanour of these witnesses and the assessm ent of evidence made by him cannot be brushed aside lightly.
10. Mr. Sahibzada Manzoor All Khan, learned counsel for the appellant has referred to several points but eventually confined his arguments in main to the following contentions:--
(i) That the nature of business intended to be carried on in the disputed premises was not disclosed in the application filed under section 15 of the Sindh Rented Premises Ordinance, 1979, which factor strongly militates against the bona fides of the respondents.
(ii) That Hamayun Ikram, Arshad Islam, and Amjad Inam for whose benefits the disputed premises are required were not examined, giving support to the defence of the appellant that the disputed premises was not required in good faith.
(iii) That the respondents have got sufficient accommodation in their possession and control, which can be utilised for the use of Humayun Ikram, Arshad Islam and Amjad Inam, if the respondents are desirous of setting up them in business.
11. As regards the first contention, the learned counsel for the appellant has very little to say. This question was considered by the Supreme Court in the case of Mst. Toheed Khanam v. Muhammad Shamshad, reported in 1980 SCM R 593 and Mst. Saira Bai v. Syed Anisur Rehman, reported in 1989 SCM R 1366. I may usefully borrow the terse observation of Naimuddin, J. (as he then was) made in the latter citation in the following words:-- "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.
' In any case, there is authority of this Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCM R 593) wherein a similar point was raised and it was observed as follows:- `Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application....'
' Further, as mentioned hereinbefore, it was unambiguously stated by the applicant that she requires the shop, in good faith, for use and occupation of her son, and her son, in his deposition, has in clear terms, stated that he would carry on the business of paints in the shop. Therefore, this objection has no force and ought not have been given any weight by the High Court."
12. In the face of such a clear pronouncement it is not necessary for me to add anything further on this subject.
13. The other ground of attack is that the main beneficiaries, namely, Humayun Ikram, Arshad Islam and Amjad ham were not examined before the Rent Controller who should have taken note of this omission. This question was also effectively answered by the Supreme Court in the case of M.
Muhammad Sharif v. M.S. Sultan, reported in 1981 SCM R 844, wherein it was observed: "There is no requirement of law that the person for whose benefit the premises are required to be vacated must be produced in support of the ejectment application. All that has to be seen in the present case is whether enough evidence has been brought on record by the appellant to sustain a finding of the requirement of the premises for the personal use of his son."
14. The cases of Mansoor Ahmad Gaya v. Mian Rehmatullah, reported in 1983 CLC 2332, Nanhey Khan v. Mst. Amjadi Begum, reported in 1984 CLC 1950 and Haji Rashid Ahmad v. Mst. Akhtari Jehan, reported in 1988 CLC 262, also support this view. It may also be added that the respondents need the premises for their own use and the use of their children. Paras. Nos, 5 and 6 of the affidavit-in- evidence filed by Sh. Muhammad Ikram (P.W.1) are self-explanatory.
15. The only other question that faits for determination is whether the respondents have got sufficient accommodation for the expansion of their business. It is contended by learned counsel for the appellant that there is open space in the said building which can be utilised for the purpose for which the disputed premises is needed. This open space has been provided as a parking area in accordance with the approved plan and the statement made to this effect by Sh. Muhammad Ikram (P.W.1) is self-explanatory. Under the existing rules of the construction of any building such space has to be left open. The respondents are, therefore, not supposed to commit an offence only to accommodate the appellant, which happens to be a renowned bank. Likewise the suitability or sufficiency of accommodation is the prerogative of the landlords and not of the tenant. Several rulings can be cited in support of this view, but I abstain from encumbering this judgment by quoting them which, in my opinion, is unnecessary.
16. The word `good faith' used in clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, is in contradistinction to mala fide and the only ground on which eviction of a tenant can be refused by the Rent Controller is lack of good faith. There is overwhelming evidence on record in this case to prove that the respondents honestly need the disputed premises. They had in fact got the premises occupied earlier by Habib Bank Ltd., vacated and it is not the case of the appellant that they had re-let it for earning huge Pugree or getting exorbitant rent. The expansion of the business is certainly a valid ground for seeking ejectment under clause
(vii) or subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, which if found to be genuine, must be decided in favour of the landlord, irrespective of any degree of hardship caused to the tenant.
17. Mr. Khalid Latif learned counsel for the respondents has assailed the finding of learned Rent Controller on issue No, 1, decided in favour of the appellant. It is contended by him that the appellant who had been paying rent at the rate of Rs,1,275 p.m. For a long period has started tendering rent at the rate of Rs,1,181.75 for no obvious reason. The perusal of the record, however, shows that there was a valid cause for tendering rent at the rate of Rs,1,181,75, as the respondents had given possession of an area of 1575 sq.Feet as against 1700 sq. Feet to the appellant. There is also no dispute that the respondents had been receiving the pay orders for the aforesaid amount since long. At any rate the default in payment of rent at the rate of Rs,1,275 p.m., if any, was not deliberate. The finding of the learned Rent Controller on issue No, 1 is, therefore, not open to any exception.
18. Having regard to the above factual and legal position, I see no merits in this appeal which is accordingly dismissed with no order as to costs. Two months' time is, however, allowed to appellant to vacate the demised premises. As a result of this finding C.MA. No, 657 of 1991 is also dismissed.