1. JUDGMENT M.L. SHAHANI, J.- The landlord has assailed judgment passed by. The Vth Senior Civil Judge, Karachi East dated 28.8.1991 dismissing the Rent Case No. 329 of 1991 filed by the appellant for the ejectment against the respondent, on the ground of personal bona fide need, and parting possession to respondent No. 2 without written consent.
2. Brief facts of the case are that the disputed property is a petrol pum site which was allotted to the mother of appellants, the predecessor-in-interest who entered into an agreement with the respondent No. 1. The respondent No. 1 is a company dealing in marketing petrol and petroleum products. Vide agreement dated 4.2.1979 and this agreement was renewed for another ten years in exercise of the option conferred on the respondent No. 1 under clause 3 id) of the said agreement.
3. Vide clause 4(a) the tenant was given liberty to under let the demised premises or any pan thereof to any dealer or agent for the use of any* of the purposes agreed, without any written consent of the landlord. Before the expiry of second term i.e. 4.2.89 the landlord gave notice to the respondent No. 1 that they would not agree for further extension and that they needed the premises for their on. Use. The respondent No. 1 did not agree and it is the case of the landlord that the respondent No.'l unilaterally extended the period for another 10 years. They filed application on the grounds of personal bona fide use and. On the grounds of subletting the premises to the respondent No. 2 without written consent of the landlord.
4. The respondent filed written statement denied the need and the grounds of ejectment and maintained that the application is not maintainable. On behalf of the appellants Muhammad Younas and Abdul Rehman were examined as witness while on behalf of the respondent No. 1 Muhammad Essa Sheikh was examined and the respondent No. 2 examined himself. The leariftd Rent Controller framed the following issues:
(1) Whether the application is not maintainable, under the provisions of Sindh Rented Premises Ordinance, 1979?
(2) , Whether the applicants require the demised premises for their personal bona fide need?
(3) Whether the opponent No. 1 has sub-let the demised premises to opponent No. 2 without consent of the applicants?
(4) What should the order be?
5. Learned Rent Controller on the strength of pleadings and evidence came to the conclusion that the application wras maintainable. He came to the conclusion that the applicants have not proved their personal bona fide need and he further came to the conclusion that the premises have not been sublet without consent of the appellants and consequently dismissed the rent application, The landlords have filed this appeal assailing the said judgment.
6. Before me the findings of issue No. 1 wrere not pressed by the parties nor they assailed the same, as such I am not disturbing such findings.
7. Mr. Abdul Majeed Khan, learned counsel for the applicants assailed the impugned order on the grounds that the learned Rent Controller did not appreciate that it is not incumbent upon the landlord to disclose the nature Of his business. It is sufficient that the landlord steps into the witness-box and deposes that the premises are required for personal bona fide need and that the deposition should be sufficient for the purpose of ejectment of the tenant.
8. Mr, Khalid M. Ishaque, learned counsel appearing for the respondent No. 1 contended that it is incumbent upon the landlord to establish the need on the basis of pleadings and through evidence regarding good faith before he succeeds to obtain the order of ejectment. He further contended that the premises as stated by landlord are needed for the commercial purpose and for the residential purpose but no permission has been obtained from any authority, to convert the petrol pump site for the use. Of commercial-cnm- residehtial purpose and until and unless the authorities permit the landlords to convert the site for some other use for which it was n6t leased, the ejectment application for the personal need could not be granted. He further contended that the respondent No. 1. Has not sublet the premises to the respondent No. 2. The respondent No. 2 is only as agent or a dealer under licence from the respondent No. 1 and he is not a sub-tenant: Mr. Muhammad Anis, learned counsel appearing for the respondent No. 2 contended that the premises have not been sublet to the respondent No. 2 as he is only a dealer and not a sub-tenant and there was no necessity to obtain written permission of the landlord before putting the respondent No. 2 in possession as the agreement between the landlord and the tenant specifically so mentions, and the dealer could be put in possession without written consent from the landlord. According to him neither the personal bona fide need was proved nor the sub-letting has been proved.
9. I have given anxious consideration to the various contentions urged by the learned counsel appearing before me and have gone through the record with the assistance of the learned counsel.
10. The applicant mentioned personal need in para 6 of his application which is reproduced: "6. That the said plot of land is needed to the applicants No. 2. 4 & 5 for their business purpose and for residential purpose of two sons of applicant No 2. And one son of applicant No. 2 namely. 11)
11. Imran s/o Ibrahim, (2) Asif son of Ibrahim. (.3* Shahid son of * Muhammad Younus for their personal use arid occupation in good faith and have sufficient funds to start any business."
12. These requirements of the applicants have been controverted by the respondent No. 1 in para-9 of his written statement. Apart from denying the need it has been stated that the Society' has leased that plot to the appellants fov the purpose of petrol pump only and it could not be converted to any other commercial or residential, use. The respondent No. 2 has also denied the need of the landlords and he has stated that their allegation is vague and inconsistent and in the absence of the conversion of the petrol pump site into a commercial or residential site for which the permission of the authorities is necessary', such application is not maintainable. v Reverting to the evidence the attorney of the appellants and appellant No. 3 himself examined as a witness about the personal bona fide need. He has in his affidavit-in-evidence deposed as follows: "8. I say that we have already shown our bona fide requirement of the plot in question by showing our option, not to give lease o| the said plot for further period vide our letter dated 16.8.1988 as stated above. I say, moreover the said plot was an open plot of land at the time of granting the lease thereof to the opponent in 1969 and unless the same is returned to use in the same shape (after removing all the fixtures by the opponents) the planning of . Construction thereon, or the planning of carrying on business, thereon, is possible absolutely consequently thus no question arises for obtaining and sanction from K.D.A, or any other authority in the given circumstances till the plot is vacated by the opponents. The allegations of opponents in this regard is false, so denied.
13. I moreover say, a long period of 20 years has passed since 1969. So all the minor children of that day have grown up by now and need bona fiidely to settle themselves in life-Lsay that the plot in question, thus is required bona fidley for personal use of applicant Nos. 2, 4 and 5 for their business purposes and for residential purposes of two sons of applicant No. 2 and one son of deponent namely (1) Imran son of Ibrahim, (2) Asif son ofv . Ibrahim, (3) Shahid son of Muhammad Younus, for their personal use and occupation and have got sufficient funds to carry out their planning. I and other applicants have no other plot or the premises to establish their business except the plot in question."
14. In cross-examination he has conceded that no plan has been approved by any authority for construction of residential or commercial nature on the disputed plot. He has not disclosed the nature of the business that he intends to start if the plot in question if it is reverted for the use of the landlord.
15. The witness of respondent No. 1 in paragraph No. 6 of his affidavit-in-' evidence has stated that the plea of use for business purpose is vague and false. The appellants have neither stated the nature of business nor satisfied the amount required to be spent or the actual funds available with them for the purpose. He further averred that the plot has been leased as a petrol pump site and could not be used for any other purpose except for the petrol pump. He was cross-examined at length but his such averments were unshaken. Equally the dealer who was made party as sub-tenant examined himself denied the need. On the strength of this evidence the learned Rent Controller came to the conclusion that the personal bona fide need was not proved.
16. Section 15(2) (vii) of the Sindh Rented Premises Ordinance, 1979 reads as follows: '15. Application to Controller. <1 > Where a landlord seeks to evict the tenant otherwise than in accordance with S.H he shall make such application to the Controller.
(2) The Controller shall, make an order directing premises within such period as may be specified in the order, if he is satisfied that- (viii)the landlord requires the premises in good faith for his on.
17. Occupation or use or for the occupation or use of his spouse or any of his children."
18. In F.R.A. No. 989 of 1989 decided by me on 25.3.1997. I have held that it is imperative on the part of the landlord to establish good faith and further held as follows: "18. This brings me to the ground of personal bona fide need. I have extensively quoted the plea as well as the evidence of the parties in the earlier part of this judgment. It is well-settled that the landlord has the option to seek ejectment of his tenant for his personal use but the. Personal use of the landlady is clipped with the words "good faith". The word good-faith has been dealt with by Hon'ble Supreme Court in the case of Mst. Sara Bai v. S. Anisur Rehman (1989 SCM R 1366>. Hon'ble Supreme Court incorporated the definition of "good faith" in West Pakistan General Clauses Act.
19. 1956. Which reads as follows: "A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not."
19. In order to ascertain whether good, faith is established on record, following the dictum of the Hon'ble Supreme Court the Courts have to probe the record and to find out whether honest intentions are available, and spelled out from the record itself. This is all the more needed as word good faith is not defined in the ?Indh Rented Premises Ordinance. 1979. Apart from above definition Good Faith has been given dictionary meaning, which inter alia is as follows: "Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept, of his on. Mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone."
20. Good faith is to be established on record as sine qua none before the passing of the ejectment order by the Rent Controller. I quoted the entire evidence led by the parties in this judgment. In my view until and unless the landlord establishes on record with tangible evidence that the premises are needed for the purpose stated in the application which may lead to the honest intentions of the landlord the ejectment cannot be granted. The respondents stated the said property leased to the predecessor-in-interest of the appellant is only petrol pump site and unless the authorities which have leased the petrol pump site allowed modification for the use of property for qther purpose, it cannot be used for the purpose and the need stated by the landlord. It is admitted by the landlord in the witness-box that plan has been proved by any authorities for converting the site for commercial-cwm- residential use.
21. Mr. Abdul Majeed Khan, learned counsel for the appellants contended that no permission is necessary because the landlords would use the site as petrol pump and would start the business of petrol pump and the petroleum products. I am afraid such plea cannot be entered because there is neither such pleading nor such evidence which may have been given in the trial Court. If that was the need the landlord would have said so. The landlord has % stated in paragraph 6 that the premises are needed for the business purpose as well as for the residential purpose. Even in his affidavit-in-evidence he has not stated that he intends to start business of petrol pump and petroleum products. In absence of such need expressed by the landlord I am afraid I cannot presume such requirement. Although it has been held by superior Courts that it is not incumbent upon the landlord to state the nature of business which he intends to start in the premises needed by him, yet that cannot prevent the landlord for not mentioning such requirement in the pleadings, and it will be incumbent upon the landlord to establish the good faith through evidence which is essential requirement for the ejectment relating to the personal need. Moreover having stated one need in the pleadings and for which evidence was laid, the appellant cannot turn around and say that he needs the premises for such commercial use during the course of arguments for which no factual basis exist on record. Even if I were to agree with the learned counsel for the landlord that the appellant needs premises for running petrol pump, then there is no evidence that the premises will be used for residential purpose for other appellants. From the evidence on record I have came to the conclusion that the landlord has failed to establish his need or requirement for personal need in good faith. The findings of the trial Court on this issue are maintained.
22. On the issue No. 3, I find that in paragraph No. 4(a) of the lease agreement it has been specifically as follows:
4. "............................. (a)" The tenant shall be at liberty to under-let the demised premises or any part thereof to any dealer or agent for use for all or any of the purpose aforesaid without any consent of the landlord".
23. The witness of the respondent No. 1 has placed on record an agreement executed by them with the respondent No. 2. The respondent No. 2 is a dealer and not sub-tenant. He is an agent to whom the premises can be under let. He is licensee working on the petrol. Pump for which entire investment has been made by the respondent No. 1 and they are responsible for all maintenance and expenses for running the petrol pump. Since the respondent No. 2 is a licensee and not a sub- tenant and he could be inducted into the premises as a dealer, therefore, no written permission is needed in terms of Section 15 (2)(iii)(a) in view' of the agreement quoted supra as no sub-tenancy has been created. Consequently, therefore, the respondent No. 1 has adopted lawful course which is permissible in the agreement quoted above. On this score also the findings of the Rent Controller are maintained.
24. The upshot of the above discussion is that this appeal has no merit and it is dismissed. However, in view of the questions of law involved the parties are left to bear their costs.