NAZIM HUSSAIN SIDDIQUI, J.- This appeal under Section 21 of the Sindh Rented Premises, Ordinance, 1979, hereinafter called the Ordinance, is directed Abdul Fareed Khan V Ferozuddin C.C. 539 (Nazim Hussain Siddiqul, J) against order dated 25-1-1987, passed by the then Vth learned Rent Controller Karachi, West, whereby the eviction application of appellant was dismissed. The facts relevant for decision of this appeal are as follows:-
2. Appellant Abdul Fareed Khan on 22-3-1981 filed eviction application against respondent Ferozuddin on the grounds of default in payment of rent, making addition & alteration in the premises, and personal bona-fide use. The case of appellant is that, on 5th December, 1977, he had purchased the property bearing No. 1/6, consisting of shops Nos. 5 & 6, hereinafter referred to as the premises, on ground floor Liaquatabad, Karachi, which is in possession of respondent as a tenant at monthly rent of Rs. 180/-. It is alleged that respondent did not pay rent although notice dated 1-1-1978, regarding change of ownership was served upon him and also he had sent its reply, as per letter dated 8-1-1978. Further, it is said that respondent has damaged the premises by making alterations without permission. He has asserted that he requires the premises for his personal bona-fide use. The respondent, in Written Reply, resisted the claim of appellant and maintained that neither he committed default, nor damaged the premises, and nor it is required by appellant for his personal bona-fide use.
2. The appellant filed his affidavit-in-evidence and that of his witnesses Ghulam Ghous and Masroor Hussain Khan. The appellant and Ghulam Ghous were cross examined, while Masroor Hussain Khan was dropped. The respondent filed his affidavit-in-evidence and that of his witnesses namely, Muhammad Naqi and Syed Mehfooz Hussain. The respondent also examined Aleem Ahmed Khan, Inspector Post Office.
3. Learned Rent Controller settled the following issues:-
1. Whether the Opponent has committed wilful default payment of rent?
2. Whether the shops in question are required by the applicant for his personal requirement in good faith?
3. Whether the Opponent has damaged the shops in question due to which their value and utility have been impaired materially?
4. What should the Order be?
4. On assessm ent of evidence brought on record, learned Rent Controller decided issues Nos. 1, 2 and 3 in negative and consequently he dismissed the eviction application by order which has been impugned in this appeal.
5. Learned counsel for appellant did not question the findings on the points of default and of damaging the premises. He only challenged the findings recorded on the point of personal bona- fide use.
6. The appellant, in his affidavit-in-evidence, stated that he is carrying on business of Zari and Gota in his residence, which is not suitable for business purposes as such, he requires the premises in question for his personal bona-fide use. In cross examination, he dopssed that there are six shops on ground floor, which are occupied by four tenants. He admitted that the shop which was vacated by tenant Mehmoodul Hassan is, now, in his possession. He stated that his show room is on first floor of the building prior to 1987. He denied suggestion that he wants possession of the premises for letling it out on higher rent. Witness Ghulam Ghous deposed that appellant is doing business of Zari on first floor. In cross, he deposed that the building in question was purchased by appellant for his personal use. Respondent Feroozuddin, in cross examination, denied the suggestion that first floor was not suitable for the business of appellant. He admitted that passage for first floor goes from back side of lane of the premises. When a suggestion was given to him in cross examination that the shop of said Mehmoodul Hassan was small, he remained evasive and simply slated that he could not say anything about it. He, however, admitted that the premises in question is bigger than the shop of said Mehmoodul Hassan.
7. It is contended on behalf of appellant that it was proved by convicing evidence that appellant requires the premises for his personal benafide use, yet, the learned Rent Controller recorded the finding against appellant. Learned counsel also argued that the premises in question, in fact, was purchased by appellant for his own use, as he was feeling difficulties in carrying on his business on first floor, specially for the reason that passage for first floor was from back side of lane of the premises which affected adversely on his business activities. As against this, learned counsel for respondent strenuously argued that the portion presently in occupation of appellant is more than enough for his needs and he can also use the shop recently vacated by said Mehmoodul Hassan.
8. He also argued that mere wish, convenience, whim or fancy of landlord was not enough as to entitle him for claiming possession of the premises. He submitted that necessary facts about personal requirement were not disclosed in the eviction application and in the affidavit-in- evidence as well. In support of above contentions, he cited (1) P.L.D. 1985 Karachi, 714, Syed Anisur Rehman Vs. Mst. Saira Bai (This judgment was set aside by Hon'able Supreme Court as per Judgment reported in 1989 S.C.M.R. 1366, Mst. Saira Bai Vs. Syed Anisur Rahman). (2) 1985 C.L.C, 892, Abdullah Vs. Hassan Abbas. (3) 1986 C.L.C. 561 Messrs John Traders and 3 Others Vs. Ahmed All (4)
1986 C.L.C. 1831, Walumal Vs. Muhammad Mooso. (5) 1987 M.L.D. 2092, Ahmed Tanveer Vs. Hakim Bakers and Confectioners. (6) 1987 C.L.C. 686, Muhammad Aslam Vs. Muhammad Aslam. (7) 1990 C.L.C. 1644, Province of Sindh and 3 Others Vs. Agha Sikandar Ali khan. (8) 1990 C.L.C. 1064, Mst.
Fatima Bai Vs. Shaikh Muhammad Zaki and 6 Others. Ratio of these cases is reflected in the contentions raised on behalf of respondent.
9. On the Point of Personal bona-fide use, the law laid down by Hon'ble Supreme Court is very clear.
In the case reported in 1987 S.C.M.R. 538, Bashir Ahmed Vs. Muhammad Shaft. Hon'ble Supreme Court observed that landlord is the best Judge of his need. In the case reported in 1989 S.C.M.R.
1366, Mst. Saira Bai Vs. Syed Anisur Rahman. It was observed by Hon'ble Supreme Court that landlord in his eviction application is to mention 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. Also, it was observed that landlord was not required to state the nature of business which he intended to carry on as same was neither essential nor impued part of cause of action. In P.L.D. 199Q S.C. 394, Haroon Kassam and another Vs. Azam Suleman Madha.
Hon'ble Supreme Court, while dealing with the point of personal bona-fide use, observed as follows:- 1 "It is by now the settled law that if the landlord possesses more than one house in the same urban area the choice, as to the house in which he could like in, is surely a matter within his prerogative and discretion and the law does not give either to the tenant or the Rent Controller the power to determine where the landlord should personally reside (Sabu Mai v. Kika Ram alias Heman Das, 1973 SCM R 185) Earlier in the case of Nooruddin and others vs. Asghar Ali and others (1968 SCMR 1087) a some what similar situation was noted inasmuch as another flat in the same building had fallen vacant, which the landlords had let out to another tenant and failed to utilize it for themselves. In the circumstances, it was held that the question as to which portion of the building would suit the landlords better must be left to their discretion and there was nothing unreasonable in the landlord insisting that a particular portion of the building should be made available to them. This view has consistently been followed by use as pointed out by the learned counsel for the respondent, the latest authority being the one reported as Sardar Khan Vs. Riaz Ahmed and Others (1986 S.C.M.R. 198l)."
10. It is noted that though in the just above quoted case the property involved was residential, but in view of the fact that in the. Ordinance the premises means a building or land let out on rent and there being no line of distinction between residential and commercial building for the purpose of the Ordinance, the rule laid down in above case will also apply to commercial premises.
11. The factual position which emerged from the evidence is that appellant is on first floor and he wants the premises in question for carrying on his business. It is a proven fact that the premises in question is bigger than the shop earlier occupied by said Mehmoodul Hassan. Since appellant is carrying on business on first floor and passage to it is from back side, there is a justification for him for claiming possession of the premises in question. In congested commercial areas like Liaquatabad, business on ground floor has better chance to succeed, than on first floor of the building. The appellant even asserted that he had purchased the building in question for carrying on his business in the premises in question. Witness Ghulam Ghous has also deposed on the same lines. In fact, personal requirement of appellant was not seriously challenged and it was suggested to him in cross examination that first floor was enough for his trade. Accordingly, I hold that personal requirement of appellant is bona-fide.
12. One of the cardinal principles of interpretation of statue is that mischief should be suppressed and remedy be advanced. Hon'ble Supreme Court by applying the principle of beneficial construction and keeping in view the intention of the legislature and object of the Ordinance to protect the interest of landlord & tenant, has liberally interprelated the phrase "personal use" as is evident front Supreme Court cases cited above. The tenant at his own perception can not visuiatise the feasibility of the landlord proposed business and nor can debate it viability on the basis of assumed facts.
13. In consequence, the appeal is allowed with no order as to costs and the impugned order is set aside. The respondent is directed to hand over vacant possession of the premises in question to the appellant within four months from now.