NAZIM HUSSAIN SIDDIQUI, J.- The facts relevant for decision of this Appeal are as follows:-
2. Respondent Fazal Ahmed Shaikh on 30.8.1971 filed Eviction Application against the Appellants for their eviction from the premises bearing No. MR-No. 6/42-43,1I-B-360, 361, situated in the Market Quarter (Jodia Bazar) Karachi, under section (13) of the West Pakistan Urban Rent Restriction Ordinance, 1959, which matter in view of Sub-section (2) of Section 27 of the Sindh Rented Premises Ordinance, 1979 is to be disposed of in accordance with the provisions of the former Ordinance of 1959, on the grounds of default in payment of rent and requirement of the premises in good faith.
The appellants in their objections resisted the claim of the respondent and maintained that neither any default in payment of rent was committed by them nor the respondent requires the premises in question in good faith.
3. At trial, the respondent examined himself and on behalf of appellants the statement of Muhammad Hafiz was recorded.
4. On assessm ent of evidence brought on record, learned Rent Controller reached the conclusion that neither any default in payment of rent was committed by the appellants nor the respondent requires the premises in question in good faith for his personal use. Consequently, the eviction application was dismissed by learned Rent Controller by dated 30th May, 1978.
5. Being dis-satisfied with the said Order the respondent preferred Rent Appeal bearing No. 415/78 before the 1st Additional District Judge, Karachi, who, by order dated 16.4.1980 allowed the Appeal, set aside the order of learned Rent Controller, and directed the appellants to hand over vacant possession of the premises in question to the respondent within 30 days from the date of said order. Therefore, the appellants filed IInd Appeal before this Court, being Appeal No, 216/80, and a learned Judge of this Court, by Order dated 5.9.1984, allowed the Appeal, set aside the Order of the First Appellate Court, and restored the Order of learned Rent Controller. The Respondent, being dis- satisfied with the order of this Court, preferred Civil Appeal No. 87-K/86 before Hon'ble Supreme Court of Pakistan and the Supreme Court by its order dated 3rd March, 1991, allowed the Appeal, set aside the order passed by this Court, and remanded the case back to this Court for re-hearing the Second Appeal with the following observations: "Since we are inclined to remand the case to the High Court, we have refrained ourselves from expressing our views on the question of appraisal of evidence and the case law cited. From the Judgment of the High Court it seems that the learned Judge in Chambers proceeded on the assumption that the case set up by the appellant was that he wanted to change his business though factually the case of the respondent, was that he wanted to expand his business as he had suffered loss in the business which he was carrying on."
6. It is pertinent to point out here that at the stage of second appeal before this Court Mr. Qamer Muhammad Khan the then learned counsel for the respondent, after examining the receipts produced by the appellants frankly conceded that no default was committed by the appellants.
This position still continues and the only point to be determined is that whether the respondent requires said premises in good faith for his own use or not.
7. It is contended on behalf of the appellants that inspire of the fact that the respondent failed to establish that he requires the premises, in good faith for this own use, yet, the First Appellate Court contrary to the evidence available on record, decided the issue is favour of the respondent.
Learned counsel also submitted that it is a settled principle of law that entire case must be stated in the pleading and the case which is not so stated cannot be set up in the course of Trial. He further submitted that the respondent in the eviction application in Para 7, only stated that he require the premises in good faith for his own use, while in his deposition he mentioned about his alleged import and export business. Learned counsel further argued that the evidence of the respondent, which is not inconsonance with pleading, shall not be taken into consideration. In support of these contentions, he cited (11 Amin Yousuf Nizami Vs. Rashid Ravon Mills SBR 1971 Karachi. 334 (21 Nasim Shah Vs. Muhammad Ali Batalvi 1984 CLC-3157 Lahore (31 Kamran Butt Vs. It.
Col. Syed Iftikhar Ahmad PLD 1991 Karachi-417 (41 Malik Muhammad Ramzan Vs. Messrs General Iron Stores. Etc NLR 1984 Civil 4 (51 Abdullah Vs. Hassan Abbas 1985 CLC-892 Karachi (61 Akhlaq-un- Nabi Vs. Nawab Ahmad Shamsi and 6 Others 1986 CLC 1100 Karachi (71 NoorMuhammad Vs. Iqbal Ahmed 1985 CLC-1007 Karachi (8) Walumal Vs. Muhammad Moosa 1986 CLC-1831 Karachi.
8. In Amin Yousuf Nizami's Case, while discussing of the scope Order VI Rule 7 C.P.C., it was observed that in the Suit the entire case must be stated in the pleadings and case not so pleaded cannot be set up in the course of trial. In Nasim Shah's Case, the Principle Secundum allegata Probata, was considered and it was held that facts never alleged in pleadings could not be allowed to be proved. In Kamran Butt's Case, it was observed that the landlord could not prove a fact which was not pleaded by him in his application for ejectment. In Malik Muhammad Ramzan's Case, it was observed that bona fide of requirement was to be proved by the landlord by producing cogent evidence. Further, it was held that in order to establish his " good faith" a landlord was to come out with relevant facts. In Abdullah's Case, it was held that though full particulars of landlord's personal requirement in ejectment application were not necessary, yet, averments should not be so brief and scanty that nature of personal requirement could not be spelt out. Further, it was observed that while making a claim for bona fide use and occupation, necessary facts should be stated form >which bona fide of landlord could be made out. In Akhlaq-un-Nabi's Case, it was observed that in case of establishing bona fide requirement burden of proof would be upon the landlord; In Noor Muhammad's Case, while discussing the scope of expression "requires premises in good faith" it was observed that good faith must be established by tangible evidence and not by only making simple statement that landlord needed premises for his own use. In Walumal's Case, it was observed that in absence of details of personal and bona fide requirement of landlord eviction application. Could not be granted.
9. As against this, Mr. Manzoor-ul-Arifin, learned counsel for the respondent submitted that the respondent requires the premises in 'good faith' and this fact is established no only by the evidence of the respondent, but also by the admissions made by the appellant's witness in cross- examination. He argued that the proceedings before Rent Controller, in fact, are Quasi-judicial in nature, and it being so technicalities of law cannot be over-stretched as to defeat the very purpose of administering Justice to the parties. In support of these contentions, he cited (1) Punjab Hardware and Machine Tools Ltd Karachi Vs. Wazir Ali PLD 1976 Karachi-233 (21 M. Amin Bhutta and Co. Vs. Malik Abdul Maiid Tiwana. District Judge. Sialkot and Others PLD 199Q Lahore-412 f31 National Bank of Pakistan Vs. Sh. Muhammad Sharif and 3 Others 1997 CLC-2272 Karachi f41 Mst, Saira Bai Vs. Syed Anis-Rehman 1989 SCMR-1366.
10. In Punjab Hardware and Machine Tools Ltd Karachi's Case, it has been observed that proceedings before Rent Controller are Quasi-judicial in nature. (2) In M, Amin Bhutta and Co.'s Case, it was observed that proceedings before Rent Controller being Quasi-judicial in nature were not to be adjudicated Upon from the point of view of mere technicalities. In National Bank of Pakistan's it was held that expansion of business by landlord was certainly a valid ground for seeking ejectment of the tenant irrespective of any hardship caused to the tenant. In Mst. Saira Bai's Case, the dictum laid down by the Hon'ble Supreme Court is that landlord has to state in his application, the material facts i. e. Facts which constituted cause of action alongwith those facts which, prime facie, showed that requirement was according to law and was made in good faith.
Further, it was observed that landlord was not required to state the nature of business which he intended to carry on same was neither, essential nor formed part of cause of action.
11. The expression " requires the premises in good faith" is not capable of being confined to precise, identical, and invariable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular facts and circumstances of each case. Therefore, the Parameter of each case would primarily be its on facts, which have to be taken into consideration for deciding the point if the landlord requires the premises in good faith or not. When the landlord alleges 'good faith' and the respondent calls it 'malafide' the proper course would be to put two different factual propositions together and then determine, taking into consideration all material facts, that which one was realistic and sound. Since the proceedings before Rent Controller are Quasi-judicial in nature the technicalities of law cannot be taken to the extent of defeating the very purpose of administering substantial justice to the parties.
12. Coming back to the facts of the instant case, it is noted that the respondent in eviction application clearly stated that he requires the premises in good faith for his own use. In examination chief, he stated that he deals in export and import business and requires said premises for his personal use. According to him, he sells the imported good in wholesale and as such sustained losses. He maintained that he would store the imported goods in said premises and sell it in retail which would be more profitable to him. He also stated that he would also display his goods in said premises. He categorically stated he has no other shop of his own and was doing business in a small place on the second storey of a building, which was to sufficient for his requirements and that the premises in his possession is rented one. About the premises in question, he deposed that it is situated in Jodia Bazar and it suits to his requirements. He maintained that he imports chemical, dyes, and other allied goods and deals in the same business as a retailer. He also deposed that he deals in import and export business in the name and style of United Hosiery, and he also runs a hosiery factory, which is known as United Hosiery. In his cross- examination, he deposed that he exports hosiery goods and also imports goods on the export payment licence. He denied the suggestion that his import business was not regular. He also deposed that, in addition to above, he also imports goods on Free List and was dealing in import business since 1970. According to him, in the year 1975 he imported goods worth Rs. l,00,000/- (Rupees One Lac) and exported goods worth Rs. 26,00,000/- (Rupees Twenty Six Lacs). Appellant's witness Muhammad Hafiz, in his deposition, admitted that the respondent is doing business of export of hosiery. He also admitted that the Office of the respondent is situated on the second floor in Jodia Bazar. Thus, from the above evidence it is proved that the respondent is doing both import and export business and he is not the owner of any shop except the shop in question, which was purchased by him in the year 1969. It ,is also established that the shop in question would be more suitable for his requirements and he wants to expand his business by using said shop. Accordingly, I hold that bona fide personal requirement of the respondent is established without any shadow of doubt.
13. In consequence, the Appeal is dismissed with no order as to costs. The appellants are directed to hand over vacant possession of the premises in question to the respondent within 4 months from now.