' The appellant has challenged the order dated 5-1-1989 passed. By Vth Senior Civil Judge and Rent Controller, Karachi (East) in Rent Case No,269 of 1986 (Mst. Shahida Rafi v. Muhammad Kamal), by which order her application under section 15 of the Sindh Rented Premises Ordinance, 1979 for eviction of the respondent from the shop in disputed has been dismissed.
2. The facts in brief are that on 1-4-1986 the appellant filed an application under section 15 of the Ordinance against the respondent seeking the ejectment of the latter from Shop No,3, 204/C, A.V.O.
Electronics, Central Commercial Area, Block-2, P.E.C.H.S., Karachi, on the ground of default in payment of rent and for the bona fide personal need of appellant's son. This application was contested by the respondent, who filed written-statement on 7-5-1986 and contended that the respondent was depositing rent in Court after refusal by appellant to receive the same. He also contended that the shop was taken by the respondent from the previous owner Commander Yousuf, from whom the appellant had purchased the shop in the year 1983. Twice in the past the rent was enhanced, first time at Rs,30 per month and second time at. Rs,20 per month. It was also stated that appellant wanted further increase of rent by Rs,100 per month and since the respondent refused to agree to such enhancement, the rent was sent to the appellant, which was refused and the respondent deposited the same through Misc. Application No,1673/82 since March, 1982. The personal requirement of the shop by the appellant for her son was also denied and it was stated that the husband of appellant was running business of decoration on service in Shop No,1 of the said building and the disputed shop was quite away from the said shop. It was also stated that since the date of purchase of building by appellant, three other shops were let out by her to various tenants and the eviction of respondent is sought only as a measure to pressurise him to increase the rent.
3. It was also stated by the respondent that another Rent Case No,1305/79 was filed by the appellant against the respondent which was dismissed.
4. Appellant filed her own affidavit-in-evidence and the affidavit of her son Adnan in support of her case. The respondent filed his own affidavit-inevidence and the affidavit-in-evidence of one Azhar Ahmed Khan. On perusalof the pleadings the learned Rent Controller framed the following points for determination:- "(1) Whether opponent committed default in payment of rent?
(2) Whether applicant requires the shop for her personal use, for the use of her son?
(3) What should the order be?"
5. On assessm ent of evidence, the learned Rent Controller held that the respondent was not a defaulter and that the premises were not required by appellant for the use of her son and consequently dismissed the application.
6. Mr. Zamiruddin Ahmed, learned Advocate for the appellant, contended that the ground of default taken by the appellant was given up and she has pressed ejectment of respondent on the sole ground of personal requirement of the appellant for her own son. This ground of personal requirement was proved by appellant through her own evidence and the evidence of her son Adnan, but the learned Rent Controller fell into an error not to appreciate the same and that this has resulted into miscarriage of justice. It is also contended by the learned Advocate that although the ground of default was not pressed yet the Rent Controller has given a detailed finding on that issue which shows that the Rent Controller has not applied his mind properly to the facts of the case. It is also contended that when the building was purchased by appellant, her son Adnan was 8 years of age and by the time eviction of respondent was sought, the said son had come up of age and requirement of appellant in good faith for the bona fide need of her son was not disproved. In these circumstances, it is contended that the Impugned judgment is liable to be set aside.
7. Mr. Muhammad Jamil, the learned Advocate for the respondent, contended that previously in 1979 .Appellant had filed ejectment case against the respondent on the ground of damage, which was not proved and her application was dismissed. This time although she knew that there was no default, she sought eviction of respondent on the ground of default as well as personal requirement. The ground of personal requirement was a secondary ground while the main ground was of default which was not pressed. It is also contended that the evidence of personal bona fide need of a landlord should not be shaky and incoherent. It is lastly contended that in view of the previous conduct of appellant, who enhanced the rent twice, the assertion of the respondent/tenant that the landlady has sought eviction of respondent so as to harass him to enhance the rent, could not be without force. Learned Advocate referred to Akhla-ub-Nabi v.
Nawab Ahmed Shamsi and 6 others 1986 CLC 1100, where it was held that the mere assertion on the part of landlord for requirement of non-residential accommodation in occupation of tenant for starting/continuing his own business would not be decisive and the word "required" would signify that mere desire on the part of the landlord would not be enough. It was further held that element of need and genuine requirement for the purpose of starting/continuing his own business would have to be proved by the landlord. It was also held that burden to establish bona fide requirement of premises would be on landlord which must be supported by valid reasons as to how such requirement was genuine. He then referred to Tariq Mehmood v. Muhammad Asghar 1990 CLC 1214, where it was held that the landlord's only statement in examination-in-chief relating to personal use of premises was, that he requires the same for his personal need and for the need of his son, the same did not inspire confidence as to personal bona fide requirement of landlord. He then referred to Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Karachi 624, where it was held that the mere wish, convenience, whim or fancy of landlord would not be enough to show that landlord, "requires the premises in good faith".
8. I have heard the arguments of the learned Advocates and perused the evidence adduced by the parties at the trial. It is an admitted fact that previously, eviction of respondent was sought on the ground of damage to the diaputed shop but such ground was not established and appellant's rent case was dismissed. It is also not in dispute, that since the purchase of building, where the disputed shop is situated 3 other shops were rented out by the appellant at different times to different tenants. The increase of rent twice in the past has also not been disproved by the appellant. It is also admitted during cross-examination by appellant that she has not sought ejectment of another tenant Nasim Tailors, who had enhanced the rent to Rs,400. The respondent's son Adnan, for whose requirement the shop was sought to be vacated, was not produced for cross- examination and the requirement of the shop for the said Adnan was not proved through the solitary evidence of appellant herself. Although the ground of default was taken in the rent application giving particulars of the date and months since the respondent was in arrears of rent, yet was not pressed. These circumstances negate the bona fides of appellant seeking respondent's eviction from the disputed shop. I am in respectful agreement with the observation of this Court in the case reported in PLD 1985 Karachi 624 that mere wish, convenience, whim or fancy of landlord would not be enough to show that he requires the premises in good faith. The element of good faith in the instant case has not been proved and the reasons given by the learned Rent Controller on this issue are unexceptionable.
9. For the aforesaid reasons no interference with the order of the Rent Controller is called for, the Appeal merits no consideration and is dismissed with no order as to costs. These are the reasons for the short order dated 25-5-1992.