1. ' None is present for the respondent nor any intimation is received. It is 9-45 a.m. I have, therefore, proceeded to hear the learned counsel for the appellant.
2. ' This appeal has been preferred challenging the orders passed by the IIIrd Senior Civil Judge and Rent Controller Karachi (East) in Rent Case No,249 of 1980 whereby Rent Case filed by the present applicant was dismissed.
3. ' Briefly the facts are that the present appellant is owner of a shop situate on Plot No, 4/755, Main Bazar Shah Faisal Colony, Karachi, hereinafter referred to as the disputed shop, wherein the present respondent is a tenant on monthly rent of Rs,
150. The case of appellant further is that he is a tailor by profession and had been working on salary basis with different tailor shops and that now he has attained the age of sixty (60) years and in this old age he cannot afford to serve with others on salary but requires the present shop to run his own tailor business therein. It is further pointed out that the shop in dispute is situate on the road in main Bazar and is quite suitable for the business which the appellant intends to run therein. It is also' pointed out that in the back portion of this shop the appellant himself resides. In these circumstances the case of the appellant is that this is the most suitable shop which he requires for his personal need. He has also claimed that the respondent has set up a business of cassettes in the disputed shop which has become nuisance.
4. The respondent contested the rent case and filed his written objections wherein he has specifically contended that no nuisance is being caused by him as he has been running this business in the shop and that there was no such condition provided in the Rent Agreement that he will run any specific business in the shop. He has also denied that the present appellant requires this shop for his personal need in good faith. However, relationship of landlord and tenant and the rate of rent stand admitted. On these pleadings of the parties the Rent Controller settled the following issues:-
(1) Whether the opponent is causing nuisance to the residents of the locality?
(2) Whether disputed shop is required in good faith for the bona fide use and occupation of the applicant?
(3) What should the order be?
5. ' The present appellant filed his own affidavit-in-evidence and those of his witnesses, namely 1- lamid Khan, Syed Intazar Hussain and Muhammad Hanif, except for said Intazar Hussain all others were cross-examined. As against this respondent also filed his affidavit-in-evidence and those of his witnesses Muhammad Sharif, Abdul Qayum and Muhammad Mubeen. All these witnesses except Muhammad Sharif were cross-examined. The learned Rent Controller finding both the issues against the present appellant was pleased to dismiss the Rent Case. Hence this appeal.
6. ' I have heard Mr. Suhail H.K. Rana, Advocate for the appellant and perused the order and the record and proceedings of the Rent Controller. The learned counsel for the appellant does not press his appeal as regards issue No,1 but he has pressed his appeal on the ground of requirement for personal need. A very plain reading of the order of the lower Court on this issue would show that the learned Rent Controller has come to the conclusion that the appellant has not come to Court with clean hands inasmuch as the evidence on record is inconsistent with the averments made by the appellant in paragraph No,3 of this Rent Case. It may be pertinent to reproduce the contents of paragraph 3 of the original application for ejectment filed by the appellant before the Rent Controller which reads as under:-- "3. That the applicant is a Tailor by ,profession and he has been doing this job on salary basis in different tailoring shops in Karachi. Now the applicant has become old, aged about 60 years and unable to do service for that reason. The applicant requires the rented shop for establishing and running his tailoring buisness7 This rented shop is suitable for his bona fide requirements as it is on the Main Road and smaller in size. The applicant requested the opponent many a time to vacate the shop but to no effect. On 23-5-1984 a legal notice was served on the opponent and he sent a reply. The photo copies of the Notice and Reply are attached herewith as Annexures "B" and "C" respectively."
7. ' The above contents of paragraph three shows that the applicant has specifically stated that he is a tailor by profession who had been working with other tailors on salary and that now he has become old having attained age of sixty years and, therefore, he requires to open his business of tailoring in the shop in dispute. It is not disputed by the opponent or the witnesses that the applicant is a tailor. The opponent, on the contrary has himself made a statement that he does not know if the present appellant is a tailor which statement itself shows it is the opponent who has not come to the Court with clean hands rather than the appellant. All the witnesses who have been examined by both the parties admitted that the appellant is a tailor and, therefore, obviously his contention that he requires this shop for his personal use to open his own business cannot be denied. The learned Rent Controller has further held that during the period of last sixteen/seventeen years appellant had got vacant possession of one of his other shops which he has rented out to Abdul Qayyum and in case he had required the shop to open his business he would have occupied that shop. In the first instance, it may be observed that this Abdul Qayyum is examined as witness of the respondent and that this Abdul Qayyum has nowhere stated that this shop was rented out to him during last sixteen/seventeen years. The burden to prove this fact was on the respondent which has not been proved. Even otherwise it is the established law that it is the choice of the appellant to seek ejectment on the ground of personal requirements from premises which. He thinks are suitable for his need. It is not open to the tenant to say as to which premises would be more suitable for the requirement of the landlord as it is the landlord who is the best judge of his requirement. Reliance is placed on the case of Haroon Kassam and another v. Akram Suleman Madha PLD 1990 so 394. The learned counsel has further relied on the case of Mrs. Rafia Begum v. Mrs. Mahmood Wahidina (PLD 1987 Karachi 287), wherein Haider Ali Pirzada, J. Held that when the evidence shows that the landlord requires premises for his use in good faith, then the suitability for requirement of landlord could not be questioned. In these circumstances, and the evidence discussed above it has been established by the applicant, which fact goes unrebutted, that he is a tailor master having attained old age and requires this premises for his personal use. A reference to the cross-examination of the opponent may be made wherein he has admitted that at present the appellant is not in possession of any other shop and that he is jobless. It is also admitted by the respondent in his cross-examination that the appellant had never asked for enhancement of rent. In view of these admissions of the respondent and the case-law referred above I am of the view that the present appellant had clearly established his case for personal requirement and that findings of the Rent Controller are based on surmises and inferences.
8. Accordingly, I allow this appeal, set aside the orders of the Rent Controller and further accept the rent case filed by the present appellant and direct the respondent to hand over the vacant possession to the appellant within sixty days of this order. There will be no order to costs.