1. ' This first rent appeal has been filed by the appellant landlord challenging the judgment dated 29- 1-1991 passed by IV Senior Civil Judge and Rent Controller, Karachi, (East) in Rent Case No,705/87 whereby appellant's application under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the eviction of the respondent-company was dismissed.
2. ' The appellant is an allottee/lessee of Plot No,261/27, situated in Korangi Industrial Area, Karachi measuring 556 square yards, which was leased out by the appellant to the opponent initially on 26-8-1967 for ten years at a monthly rent of Rs,1,500. By its letter, dated 20-11-1977, the respondent offered to hand back possession of the said plot to the appellant but by her letter dated 3-5-1978 she requested for renewal of the lease, whereupon respondent's tenancy continued. It appears that in 1985 the appellant requested for increase in the rent but the respondent refused with the result that the respondent continue to pay unconscionably low monthly rent of Rs,500, settled more than 27 years back, for the said 556 square yards plot, situated in Korangi Industrial area.
3. ' Respondent's eviction from the premises was sought on the ground, that the respondent had sublet the premises, had defaulted in payment of rent, had not used the premises for the purpose for which it was rented out and that the appellant required the premises for the use of her husband.
4. ' The grounds of the default in payment of rent and the premises being used for purpose other than that for which it was let out, have not been pressed before me and submission were made on the remaining two grounds only, namely, that the premises was required by the appellant for the use of her husband and that possession of the premises had been handed over by the respondent to another person.
5. ' On the first ground the submission of Mr. Fariduddin the learned counsel for the appellant, is that the premises is required by the appellant in good faith for the use of her husband for starting his business of oil depot to overcome the financial hardship being faced by the family. He submits that the applicant's husbarid retired from Government service and his pension was wholly insufficient for the maintenance of the family and that they had no other income except the pension and the small monthly rent of Rs,500 from the premises.
6. ' On the second ground, his contention is that according to respondent's admission the possession of the premises has been handed over to another person who is carrying on business there and for that reason too the respondent is liable for eviction.
7. ' Mr. Muhammad Anis, learned counsel for the respondent opposes the appeal. On the first ground his submission is that appellant has failed to establish that the premises was required by her in good faith for the use of her husband. This, he states, is apparent from the fact that in her main application before the Rent Controller she stated that her husband wanted to set up a small industry in the premises but later she changed her position and in the affidavit-in-evidence of her husband he stated that he wanted to start oil depot in the premises. He contends that this inconsistent stand shows that the premises is not really required for the appellant's husband and this ground has been taken only to get the respondent evicted from the plot. He submits that oil depot can be established only through some oil company but in his cross-examination appellant's husband admitted that he had not even contacted any oil company for starting oil depot on the plot. Therefore, according to him, the appellant has failed to prove that the premises was really required by her for establishing an oil depot. Reliance is placed on the cases of Akbar Ali v. Abdul Majid 1988 M LD 1412 and Muhammad Saleem v. Shabbir Ahmed 1988 M LD 1009.
8. ' In the first case the landlord sought eviction inter alia on the ground that he wanted the shop to start his plumbering work and for sale of plumbering goods. However, it was found that he was doing such work for last 25 years and was also occupying a shop in the same building. On the facts of that case it was observed that:- "I am of the view that a mere desire for doing a business is not the requirement of law. The landlord has to prove that he required the premises in good faith and mere wish, convenience, whim or fancy of landlord would not be enough to show that the landlord required the premises in good faith. The mere ipse dixit of the landlord that he required the premises for his personal occupation or use was not enough."
9. ' In the other case where the landlord himself was out of Pakistan, serving foreign employer, since several years and there was no evidence on record showing the period for which he had to serve the employer and whether he could give up his job, and, if so, on what terms, it was observed that:- - "It is thus evident from the facts narrated above that no specific cases with regard to personal bona fide need was made out in the application at the time when it was made. The subsequent effort made to improve the case by producing the letters of the respondent also remained ineffective inasmuch as even these letters do not disclose the exact nature of business sought to be done by him, nor do they prove the availability of the funds with him to set up the same. So also no statement in his deposition. I do not, therefore, feel inclined to agree with the learned Rent Controller that the respondent has succeeded in making out the case of his personal requirement of the shop in question?
10. ' On the second ground, the submission is that the premises is being used as oil depot for storing and selling kerosine oil through dealers. It is submitted that Shafique Brother is only the name of the oil depot while the present dealer who is running the oil depot at the premises is one Saifuddin Ismail. It is explained that the respondent's appointed dealer uses the premises, construction and facilities thereon, as licensee for selling kerosine oil purchased from the respondent. Such dealer has no right in the premises and the legal possession of the premises continues with the respondent. The dealer is in occupation of the premises just to run the oil depot and sell kerosine oil. As such, it is submitted, that this is not a case covered by section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance. In this regard reference has been made to the case of Saeeda Begum v. Shamim Ahmed 1993 CLC 1784. In that case the alleged sub-lettee was found to be a partner of the tenant's firm and it was also found that the possession of the premises had also not been transferred to him exclusively. On these facts it was held that:-- "It therefore, clearly establishes that Ali Muhammad is merely his working partner and the possession of the shop has not been transferred to him exclusively to render the respondent liable for ejectment from the premises under section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance, 1979?
11. ' The other case referred on the point is that of Messrs Jameel Sons & Company and another v.
12. Muhammad Aslam and 3 others, reported in 1992 M LD 1014, where it has been observed that:-- "It is clear from the aforesaid decision that there cannot be a subletting unless the tenant parted with legal possession. The mere fact that another 'is allowed to use the premises or common partners run the business while the tenant, that is, the first appellant retains the legal possession is not enough to create a sub-tenancy?
13. ' It is true that in her eviction application the appellant had stated that the plot was required for setting up of small industry and at the evidence stage her husband stated that he wanted to set up an oil depot, but, this would not be so material as to defeat appellant's case of personal requirement of the plot. No adverse inference can also be drawn from the fact that the appellant's husband had so far not contacted any oil company for the establishment of oil depot on the plot, firstly, as there is nothing on record to show that oil depot can be set up only by an oil company and secondly, as there was no point in contacting any one for the establishment of the depot when there was still no knowing as to when the appellant was likely to get the plot.
14. ' It is important that the appellant had been consistently complaining of her financial difficulties. In her eviction application she stated that her husband had retired and wants to set up a small industry on the plot. Before that, by her letter dated 22-5-1985 (Exh.A/6) while requesting for increase in rent she stated that her family depends on the pension of her husband and the rent.
15. Later, at the evidence, appellant's husband stated that his pension was not enough and therefore he wanted to start oil depot. It is an undeniable right of the appellant to increase her family's income by starting business on the plot in question. Appellant's husband has stated that he has necessary funds for setting up an oil depot and this has gone unchallenged. The respondent has also failed to show that the appellant or her husband were doing any other business and therefore were not in the need of the said plot. Having regard to all the circumstances of the case I am of the view that the appellant has succeeded in establishing her case of personal requirement of the plot.
16. The cases referred to by respondent's counsel are clearly distinguishable.
17. ' In so far as the second ground is concerned, it is admitted by the respondent company that it is not running the oil depot itself. There is also no dispute that under the expired lease deed between the appellant and the respondent-company there was no provision permitting the respondent, company to induct dealers/agents on the premises. Respondent's own case is that Shafique Brothers is the name of the oil depot set up on the premises and is not the sub-tenant and that the said depot is being run by respondent's dealer one Saifuddin Ismail who is in occupation of the said premises for that purpose. It is apparent from respondent's evidence that the said Saifuddin is doing the business of sale of kerosine oil on the plot independently. He purchases kerosine from the respondent on "pre-payment basis" and then sells the same to public. He is exclusively entitled to the profit earned from the business and the loss incurred. The respondent is neither a partner in such business nor shares the profit or loss. Thus Saifuddin is running the business on the said plot independently and is also in the exclusive possession of that plot. The licensee agreement (Exh.6/7) between respondent and Saifuddin shows that the possession of the premises had been handed over by the respondent to Saifuddin. In this regard reference may be made to the following relevant part of section 15 of the Sindh Rented Premises Ordinance, 1979:-
15. Application to Controller.-- (1)............
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that--
(iii) the tenant has, without the written consent of the landlord--
(a) handed over possession of the premises to some other person."
18. ' It is pertinent that in the earlier rent law the provision corresponding to above-quoted provision of sub-clause (a) of clause (iii) read as-- "(a) transferred his right under the lease or sub-let the entire building or rented land or any portion thereof."
19. This amendment is, undoubtedly, for the benefit of the landlord as it has enlarged the scope of the ground available to a landlord for eviction of the tenant. It would appear to cover every case where without written consent of the landlord, possession of the rented promises has been handed over by the tenant to another person for the use .Of such person. In the present case possession of the disputed plot has been handed over by the respondent to Saifuddin, without written consent of the appellant, and Saifuddin is carrying on his business thereon, independent of the respondent. On these facts this case is distinguishable from the cases of Saeeda Begum and Jameel Sons referred by the respondent's counsel. In those cases the tenants had merely taken new partners in the business, otherwise possession of the premises remained with the tenant. In the circumstances in my view the respondent is liable for eviction under section 15(2)(iii)(a) of the Ordinance also.
20. ' Accordingly, on both the above grounds the appeal succeeds. The impugned judgment dated 29- 1-1991 passed by VI Senior Civil Judge and Rent Controller, Karachi (East) is set aside. However, 90 days' time is allowed to the respondent to vacate the premises and hand over possession thereof to the appellant.