1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) is directed against an order dated 3-10-1989 passed by V Senior Civil Judge and Rent Controller, Karachi-East in a Rent Case No,66/88, Anis Ahmad and 7 others v. M/s. Habib Bank Limited, whereby an ejectment application filed by the appellants/landlords was dismissed hence this appeal.
2. ' Brief facts of the case are that ground floor tenement having covered area of 2264 sq.Ft., constructed on Plot No,7/174, Delhi Mercantile Cooperative Housing Society, Shaheed-e-Millat Road, Karachi, was rented out to the respondents/tenants by the appellants/landlords at the monthly rent of Rs,3,750 as per lease agreement dated 2-6-1985 when the first floor of the building was under use and occupation of appellant No,1 whereas appellants Nos.2 to 7 who were residing at Lahore after winding up their business wanted to shift to Karachi, the first floor premises being even insufficient to cater needs of appellant No, I who was residing with his family required the ground floor premises in occupation of appellants in good faith for respondents Nos.2, 3 and 4 who wanted to live with their families independently. The respondents' case is that they are in occupation of the ground floor tenement under lease agreement "dated 21-4-1976 with an option to renew the lease and the same was renewed from time to time on terms and conditions mutually agreed between the parties and that the original owner Haji Atiq Ahmad expired on 9-4-1983 whose legal heirs as per letter dated 20-4-1983 through their counsel demanded rent and stated that Anis Ahmad was given general power of attorney by them to collect rent of the premises and that as per tenancy agreement dated 2-6-1985 rent of the premises was increased from Rs,1,200 to Rs,3,750 and the period of the said lease also expired and to fresh lease has been executed so far by the appellants.
3. It has further been stated that the need of the appellants/landlords not based on good faith and that tenement being commercial situated in the commercial area could not be used for the residential purposes and that the appellants as per letters dated 31-7-1986 and 28-2-1987 had made a demand for enhancement of rent by 30% and had promised to execute fresh lease deed but the execution of the fresh lease deed could not be made for want of the mutation of names of the legal heirs of the deceased the original owner in the relevant record.
4. ' On the pleadings of the parties the Rent Controller settled the following issues:---
(1) Whether the demised premises is required by the applicants for their personal bona fide use?
(2) What should the order be?
5. ' The appellants/landlords filed affidavit-in-evidence of Anis Ahmad who has produced photostat copies of general power of attorney, photostat copy of agreement of lease. Respondent filed affidavit-in-evidence of Mujtaba Rizvi as attorney who has produced photocopy of agreement of lease Exh.0/10, photocopy of letter written by Shaikh Shahid Ahmad Kamran to the Zonal Chief, Habib Bank Limited, photocopy of letter dated 18-9-1984 to Mr. Sh. Shahid Ahmad Kamran, photocopy of general power of attorney, photocopy of undertaking Exh.0/4 dated 2nd June, 1985 from Kamran Motors to The Zonal Chief, Habib Bank Limited, photocopy of letter dated 21-5-1985 of Shahid Ahmad Khan to Senior Vice-President, Habib Bank Limited, photocopy of letter dated 9th February, 1986 to Zonal Chief, Habib Bank Limited from Kamran Motors, photocopy of letter dated 31-7-1986 from Shahid Ahmad Kamran to Zonal Chief of the respondent, photocopy of letter dated 28-2-1987 from Kamran Motors to the Manager of the respondent, photocopy of mutation of the names of the legal heirs of the deceased original owner dated 7-4-1987 issued by Delhi Mercantile Muslim Cooperative Housing Society.
6. ' After recording the above evidence and hearing the learned counsel for the parties, the learned Rent Controller dismissed the ejectment application filed by an appellants/landlords against which F.R.A. No,753/89 was preferred which was allowed by this Court as per order dated 19-3-1992 and thereby the respondent directed to vacate the premises within two months. Against the said judgment the respondents preferred Civil Petition No,198-K of 1992 before the Supreme Court of Pakistan where the judgment of this Court was set aside and the appeal was allowed and case was remanded to this Court for disposal of the F.R.A. No,753/89 afresh, after taking into consideration the documents which have been exhibited by the learned Rent Controller.
7. ' I have heard Mr. Khalilur Rehman, learned counsel for the appellants and Mr. Suleman Hamid, learned counsel for the respondents and perused the & P and have also taken into consideration the photostat copies of documents on record.
8. ' The contention of learned counsel for the appellants is that the Rent Controller has erred in holding that since the appellant No,2 as per letter Exh.0/8 had demanded increase in monthly rent for the next three years and in his correspondence with the bank did not ask for the possession of the demised premises for personal requirements therefore the need/requirement of the appellants/landlords could not be said to be in good faith considering that demand in increase of rent at 30% after three years was permissible under the rent laws. He has further contended that the appellants/landlords have proved their need in good faith and appellants' testimony could not be shaken in the cross-examination and no satisfactory rebutting evidence was produced by the respondents/tenants therefore the finding on the issue of personal need of the Rent Controller was erroneous as per evidence as well as in law. He has also contended that learned Rent Controller has erred in holding that because the demised premises were being used as non-residential building/commercial therefore the same cannot be ordered to be vacated for the residential purpose. He has placed reliance upon the cases of Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others PLD 1985 SC 242, Ghulam Hussain v. Mrs. Chaman Sultan Shafi 1980 SCMR 9, Mst. Ahmad un Nisa and another v. Mst. Parveen Siraj 1985 SCMR 2012, Bank of Credit & Commerce International (Overseas) Limited v. Karachi Tank Terminal Limited and 3 others PLD 1988 Kar. 261 and Ghulam Dastagir v. Jumma 1992 MLD 1109 in support of his contentions.
9. ' Learned counsel for respondents Mr. Salman Hamid has argued that Exhs.0/2, 0/5 to 0/9 would show that the appellants wanted to enhance rate of rent and wanted to execute an agreement for a further period of three years and were having no intention to get the possession of the premises for their personal requirement, therefore, the findings of the Rent Controller on the issue of personal requirement was legal and was based on proper appreciation of evidence on record. He has further argued that the premises being commercial one could not be got vacated for residential use for personal requirement by the appellants.
10. ' The learned Rent Controller dismissed the ejectment application of the appellants on the ground that if the appellants/landlords genuinely required the premises in question for their personal use, they would not have asked for the enhancement of rent and would not have asked for the execution of the lease agreement for further three years and further none of the appellants Nos.2 to 7 have been examined for whom the premises in question was said to be required in good faith.
11. ' I have already stated that this appeal was allowed by this Court on 19-3-1992 against which judgment the respondents filed Civil Petition No,198-K/92 before the Supreme Court of Pakistan which was converted into Civil Appeal No,23-K/1992 and the said Civil Appeal was allowed as per judgment dated 20th May, 1992 with the observation:--- "The learned Rent Controller after framing the issues, recording evidence and hearing parties, through his aforesaid order dated 3-10-1989 dismissed the respondent's above Rent Case by holding that they failed to prove their personal bona fide requirement. The above finding was found inter alia on documentary evidence which comprised of certain photocopies of correspondence between the petitioner and the respondents in respect of the suit tenement.
12. ' Against the above order of respondent No,5 aforesaid F.R.A. Which has been allowed through the impugned judgement. The learned Judge in Chamber has discarded from consideration the above photocopies of documents on the ground that the originals of the same were not produced by the petitioners and, therefore, inadmissible.
13. ' It seems to be an admitted position that the above photocopies of the documents were exhibited by the learned Rent Controller without any objection from the side of the respondents. In this view of the matter, the ratio decidendi of the judgment of this Court in the case of Ghous Muhammad v.
14. United States Agency for International Development, Islamabad (1986 SCMR 903) was applicable. If an objection to formal proof of a document is not raised at the earliest point of time, no such objection can be allowed to be raised at the appellate stage. Reliance was placed in the above judgment on an earlier judgment of this Court in the case of Malik Din and others v. Muhammad Adam PLD 1969 SC 136.
15. ' We are therefore of the view that it will be just and proper to convert the above petition into an appeal and allow the same by setting aside the impugned judgment but would remand the case to the High Court for disposal of the above F.R.A. Afresh after taking into consideration the documents which have been exhibited by the learned Rent Controller."
16. The first contention of the learned counsel for appellants is that the Rent Controller has erred in holding that since the appellant No,2 as per letter dated 31-7-1986 Exh.0/8 had demanded increase in monthly rent for next three years by 30% making the monthly rent at the rate of Rs,4,875 in place of monthly rent of Rs,3,750 therefore personal requirement of the appellants/landlords could not be said to be based on good faith. Mere fact that the appellants made demand in increase of monthly rent would not by itself negate the personal bona fide requirement if factum of bona fide requirement was independently proved. Reference is made to Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. 1985 SCMR 1996 wherein Supreme Court of Pakistan observed:--- "We have heard both the learned counsel at some length. The desire of landlord to seek the maximum income from his property by itself does not furnish negation of bona fide. In this case it was ignored by the High Court that the landlord had both the options available. Either to seek more income by increase of rent and let the tenant stay or if that does not materialise as it happened, to evict the tenant so as to have the disputed premises for his own hotel which is adjacent to it. There was nothing illegal or improper about it. Moreover during the hearing the appellant's intention was put to test by offer of manifold increase in rent which was not accepted by him."
17. ' Reference is made to Nisar Ahmad Khan v. Noor Muhammad Khan and six others 1990 SCMR 544 wherein Supreme Court of Pakistan has observed:--- "We cannot accept the very wide argument vis-a-vis, the demand for increase of rent, as presented by the learned counsel. Such a demand per se can neither be a basis for a finding of mala fides nor such like alleged mala fides can be the basis for rejection of an application for eviction, in every case. Nothing has been pointed out in this case, so as to demonstrate that the demand of increased rent even if factually made, would make the subsequent demand for eviction on ground of personal requirement, as otherwise than bona fide."
18. ' Reference is also made to Syed Haq Nawaz v. Mst. Sakina and 9 others PLD 1994 Quetta 84 at page 88 where learned Judge in Chamber observed:--- "At the same time it would be pertinent to notice that mere demand or anxiety for the enhancement of rent by itself does not affect bona fides regarding personal requirement of the premises by landlord."
19. ' Reference is also made to Ghulam Dastagir v. Jumma 1992 MLD 1109 wherein learned Judge in Chamber at page 1115 observed:--- "Syed Inayat Ali contended that the eviction application was filed to pressurise the respondent to charge high rent. This contention is devoid of force. In Pirzada Rafiq Ahmad v. Chaudhry Abdul Rehman 1980 SCMR 772 it was held that a demand of higher rent by itself does not cast any doubts about the personal bona fide requirement if the factum of bona fide requirement is independently proved."
20. It is now settled in view of the above decisions that demand of higher rent by itself would not negate the bona fide' requirements of the appellants/landlords if factum of bona fide requirement is independently proved. In the instant case the building in question consists of two floors viz. First floor which is in occupation of the appellant No,1 for his residence while the ground floor of said building was in occupation of the respondents/tenants which was being used as commercial premises as per tenancy agreement dated 21-4-1976. The appellants have sought eviction of the respondents on the ground of personal need of the appellants Nos.2 to 7 who will shift from Lahore to Karachi and first floor portion in occupation of the appellant No,1 was insufficient for the need of the appellants considering the size of the family of the appellants. It has come in evidence that first floor accommodation consists of one dining room, four bedrooms alongwith attachment, where the appellant No,1, his wife, his four children and Mrs. Hajra Bai have been residing. It has also come in evidence that the appellants Nos.2, 3, and 4 are married when the family of appellant No,1 consists of himself. His wife and his six children while the family of appellant No,3 consists of himself, his wife and two children. It has also come in evidence that the appellants have no other building where they could accommodate their respective families at Karachi. The respondents have examined Mujtaba Rizvi who has shown his ignorance about the requirements of the appellants in the cross-examination and thereby could not shake the testimony of the appellant No,
1. The evidence of the appellant is consistent with the pleadings and the testimony of the appellant could not be shaken in the cross-examination and no satisfactory evidence in rebuttal has been adduced by the respondents to disbelieve the evidence of the appellants. I have already held that mere demand of enhanced rate of rent would not negate the personal requirement of the appellants. The demand of enhancement of rent was made as per letter dated 31st July, 1986 Exh.O/8 and eviction application was filed on 31-1-1988, i,e, after about two years. It is possible that during the period of two years there has been change in the need of the appellants whereby the appellants Nos.2 to 7 decided to shift from Lahore to Karachi in the circumstances which being better known to them and for which they needed the accommodation in occupation of the respondents. The said need of the appellants cannot be termed to be not based on good faith as the same has not been rebutted by the respondents. The contentetion of the learned counsel for respondents is that none of the appellants Nos.2 to 7 has been examined to prove their personal requirements in good faith, therefore, it could not be said that appellants have proved the same.
21. The appellants have examined Anees Ahmad who is the general attorney for rest of the appellants and he has deposed on behalf of the appellants Nos.2 to 7 in respect of their bona fide need of the premises in question. There is no requirement of the law that the person for whose benefit ejectment is sought must be produced in Court to give evidence. The evidence of Anees Ahmad is reliable and same could not be shaken in the cross-examination by the respondents' counsel and the personal requirement of the appellants Nos.2 to 7 stood proved. Reference is made to Zahoor Din v. Mirza Ayub Baig 1981 SCMR 1081 at page 1085 where the Supreme Court of Pakistan has held that there was no requirement in law that the person for whose extra accommodation was needed to be examined as witness. Reference is also made to M. Muhammad Sharif v. M.S. Sultan 1981 SCMR 844 wherein it was held that there is no requirement of law that the person for whose benefit the premises was required to be evicted must be .Produced in support of eviction application.
22. Reference is also made to Muhammad Salim and another v. Mst. Amatus Saboor and 4 others PLD 1989 Kar. 185 wherein learned Judge in Chamber observed that there was no requirement of law that the person for whose benefit ejectment was sought must be produced in Court. In the circumstances, the said contention of- the learned counsel for appellants has no merit.
23. ' It would not be out of place to state here that all the photostat copies of documents though have not been exhibited as required by rule 4 of Order 13, C.P.C. Have been considered by me in view of the order of Supreme Court of Pakistan in this very case and in view of the observations made in case of Mian Tajammul Hussain and three others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137 at page 1139 and also in the case of Khursheed Ali and 6 others v. Shah Nazar PLD 1992 SC 822.
24. The last contention of the learned counsel for respondents is that the premises in question being commercial could not be got vacated under the Rent Ordinance for residential purposes for the personal requirement of appellants. I do not find merit in the said contention.
25. ' It is admitted position that the building in question is a residential one and not commercial but a portion of it was leased out by the predecessor-in-interest of the appellants to the respondents to be used for commercial purposes but it would not alter the nature of the building. Reference is made to Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others PLD 1985 SC 242 wherein it was observed:--- "Notwithstanding the change in the use of a residential unit to a nonresidential unit, with or without the consent of the landlord, it would not amount to the change of character of the building for purpose of eviction under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 as from a residential building and the requirement of the landlord (if it is on that basis) would also have to be for residential use. In the absence of any permission having been obtained from the Controller under section 11 of the Ordinance the house would continue to retain its character as a house notwithstanding its actual use as a commercial unit."
26. ' No other plea has been raised by the learned counsel for parties.
27. ' In view of the aforesaid evidence, reasonings and the case law cited, the finding of Rent Controller on the point of personal requirement of the appellants is erroneous in law and is based on improper appreciation of evidence on record, therefore, the same is set aside. Consequently, impugned order is set aside and appeal is allowed with the direction to the respondents/tenants to vacate the premises within a period of 120 days subject to condition that the rent for the said period will be deposited by them.