1. ' This appeal has been filed challenging the orders passed by the Senior Civil Judge/Rent Controller, Tando Allahyar in Rent Application No,3 of 1991.
2. ' Briefly the facts relevant for the purposes of this appeal are that the present respondent had instituted the said rent case for ejectment of the present appellants mainly on three grounds i.e. Default in payment of rent, personal requirement and subletting. This rent case pertains to a go down/shop situate on the ground floor premises on C.S. Nos.303-304 at Rahib Para, Fando Allahyar.
3. The relevant facts as pointed out by the learned counsel for appellants are that the said premises, hereinafter referred to as 'disputed premises' were owned by one Lakhadino Memon and the present appellant No,1 was his tenant by virtue of a rent agreement executed on 21-10-1989. This Lakhadino made a gift of the disputed premises to the present respondent on 30-4-1991 and consequently mutation was also affected on 8-5-1991. Thereafter the respondent served the notice under section 18 of the Ordinance on appellant No,1 on 6-7-1991 wherein he had called upon the appellant No,1 to execute a fresh agreement of rent and to pay the rent to him from May, 1991. This notice was replied by the appellant No,1 on 24-7-1991 and on the same day the appellants sent two months' rent through money order which fact was mentioned therein. Thereafter on 11-8-1991 the rent case was instituted on the abovementioned three grounds.
4. ' The two appellants filed their written objections contesting the rent case. The case of the appellants is that appellant No,1 is a tenant in possession of the disputed premises which he is using as a go down; and that the same were never sublet to anyone. It is also the case of the contesting appellants that the respondent does not require the disputed premises for his personal use in 'good faith'. The Rent Controller after hearing the arguments of the learned counsel for the parties settled the following points for determination:
(1) Whether the rent application is not maintainable in law?
(2) Whether the opponent No,1 has committed default in payment of rent from May, 1991 to July, 1991 in respect of the disputed premises?
(3) Whether the opponent No,1 has sublet the disputed premises to opponent No,2 without permission and consent of previous landlord Haji Lakhadino or the applicant?
(4) Whether the applicant requires the disputed premises in good faith for his personal bona fide use for storing his agricultural products and fertilizers?
(5) What should the order be?
5. ' The second point was answered in favour of the appellants while on points Nos.3 and 4 the Rent Controller was pleased to hold that appellant No,1 had sublet the premises to appellant No,2; and that the respondent required the same for his personal use. Being aggrieved, the appellants have preferred this appeal.
6. ' I have heard Mr. Hassan Mahmood Baig, the learned counsel for appellants and Mr. Rafique Ahmed, the learned counsel for respondent. The main contention of Mr. Hassan Mahmood Baig, Advocate is that the burden to prove the personal requirement and good faith initially rests with the landlord. He has also pointed out that the burden with regard to subletting is also on the landlord to prove the same. The learned counsel has taken me through the evidence. In view of the above, my conclusions are as under: ' The first point pertains to the personal requirement. It may be observed that the provisions of section 15(2)(vii) reads as under: "15. Application to Controller.---(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.
(2) ............................................................................................
(vii) the landlord requires the premises in good faith for his own occupation or use for the occupation or use of his spouse or any of his children."
7. A plain reading of the above provisions would show that the landlord has to prove 'good faith' where he seeks ejectment on the ground of personal requirement or use for himself or his spouse or any of his children. The word `good faith' has been defined in the case of Nawab Khatoon v.
8. Sadruddin 1990 M LD 1096 wherein the word good faith has been discussed and relying on the case of Mst. Farukh Nisa v. Safdar Ahmed PLD 1985 Kar. 639 and Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Kar. 624 it has been held as under; "From the phraseology used in clause (vii) of subsection (2) of section 15 of the said Ordinance, it is further clear that the landlord has to prove that he requires the premises in good faith. The explanation 'requires' in 'good faith' has been considered by superior Courts on several occasions.
9. Broadly stated mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord 'requires the premises in good faith'. The landlord must allege and prove certain circumstances or facts which go to prove his requirement. The law does not require a landlord to establish absolute need or absolute requirement, without which he shall have no shelter over his head. What is meant by 'requires in good faith' is that the landlord requires the premises for his reasonable needs and that he is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realising some extraneous purpose. The term 'requires' means that there must be an element of need before a landlord can be said to require premises for his own use and occupy the premises. What is necessary is that he should need them for his own use and occupation. The need has to be reasonable and bona fide. The onus of proof of this is certainly on the landlord. Although the word 'reasonable does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fides of the landlord. Gross unreasonableness may in proper circumstances lead the Controller to reach a conclusion that the landlord's requirement is not in good faith. Therefore, while deciding the question of good faith, the reasonableness of the need of requirement is relevant. Full effect will have to be given to the expression used in the clause, namely, `requires in good faith'. The words 'good faith' mean honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord is not sufficient to give him a right to evict the tenant. As already observed the Ordinance is promulgated with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlord will be entitled to get the possession of their premises on the ground enumerated therein. One of such grounds is that a landlord requires the premises in good faith for his own occupation. Subsection (2) of section 15 further enjoins a duty upon the Controller to enquire into the requirement of the landlord and if on enquiry the Controller is satisfied that the requirement of the landlord will be met by occupation of the premises then he has to pass an order of eviction. Therefore, all the relevant factors will have to be objectively considered before such a question is decided by the Controller."
10. ' Similarly in the case of Razia Sultan v. WAPDA 1993 M LD 477 it has been held that before seeking eviction of a tenant on the ground of personal requirement the landlord has to establish his requirement to be bona fide; and that mere is dixit of landlord that he requires premises in good faith was not enough, but it must be supported by valid reasons as to how his requirement is genuine. Keeping this case-law in mind, I proceed to examine the case of the respondent. In the application for ejectment the respondent has stated that he needs the disputed premises for his use for storing the fertilizers and agricultural produce. He has admitted in his evidence that he has the lands which are situate at a distance of 1-1/2 miles from village Bukera and four miles from Tando Allahyar. In the rent case the address shown by the respondent is that of Bukera. It has not come in evidence at all that if the present respondent has any residence or other place such as Otak etc. In Tando Allahyar where he enters into dealings with regard to his agricultural land.
11. Obviously a person who is living in a particular village closer to his lands would store his fertilizers seeds or any other items of agricultural at his such place and would not keep them in a go down in a distant town. It has not been shown in the evidence as to how the disputed premises would be more suitable for the respondents use than the accommodation in his village. As discussed above, it is not mere ipsi dixit of the landlord but he has to show the good faith which includes the reasonableness of the requirement. The other factors which have been referred to by Mr. Hassan Mahmood Baig, the learned counsel for appellants is the notice under section 18 of the Ordinance.
12. It may be observed that the premises in dispute were transferred to present respondent on 30-4- 1991 and on 6-7-1991 he had sent a notice under section 18 of the Ordinance. This notice very specifically calls upon the appellant No,1 to execute a fresh agreement of tenancy and to pay the rent to the new owner. This by itself goes to show that at least on 6th July, 1991 the intention of the respondent was to accept the appellant No,1 as his tenant if he executed fresh agreement. Now if the respondent had required the premises for his own use then why would he call upon the appellant No,1 to execute an agreement of tenancy. There is nothing on record to show that any event has happened subsequent to issuance of notice under section 18 of the Ordinance whereby it has become imminent for the respondent to seek eviction on the ground of personal requirement. In this view of the matter, I am in agreement with the judgment of the Rent Controller'.
13. The other question is with regard to subletting. Mr. Hassan Mahmood Baig, Advocate has once again pointed out that the same ground was not urged in the notice under section 18 of the Ordinance. However, this point has been overcome as is explained by Mr. Rafique Ahmed, the learned counsel for the respondent that in para. 4 of the application for ejectment it has been stated that after serving the notice he came to learn about the subletting. However, it has been pointed out that there is no evidence of subletting as to when and how the subletting had taken place. The respondent in his evidence does not state that as to on what date or about what period this subletting had taken place. A reference to para. 4 of the application for ejectment shows that it is the case of the respondent himself that the, appellant No,2 had also contacted the respondent and was ready and willing to execute the rent agreement at any rate of rent in connection of the premises in question. This contention though stated in affidavit-in-evidence of the respondent did not fad support from any other material on record. In such circumstances, the best evidence for the respondent would have been to examine the appellant No,2 as their own witness and bring this fact on the record but they have not done so. However, the appellant No,2 has filed his affidavit-in- evidence by himself denying the contentions of the respondent but the respondents have not put any question to appellant No,2 in this respect. Now had appellant No,2 contacted the respondent and had been agreeable to execute the rent agreement at any rate of rent then it is obvious that such fact would have been put to him in the cross-examination. The very fact that this was not done gives rise to inference against the respondent. The learned counsel for respondent has further submitted that the very fact that appellant No,2 had filed his written objections, the affidavit-in-evidence and has contested the matter goes to show that interest of the appellant No,2. Suffice it to say that it is not the appellant No,2 who has voluntarily come to the Court but he was dragged in the proceedings by the present respondent who joined him as opponent No,2 in the rent case. In such circumstances, it is not open for the respondent to challenge the fact of appellant No,2's contesting the case. Mr. Rafique Ahmed, the learned counsel for respondent has further submitted that the respondent was not cross-examined on the point that the appellant No,2 had come to him for executing the rent agreement and, therefore, his statement to that extent should be accepted. No doubt it is settled law that the statement of a witness, not challenged in the cross-examination is to be accepted but as, the circumstances in the present case show that initially the burden is on the landlord to prove the subletting which he has failed to prove. Even if I accept the contention of the respondent in this respect then also the same may be binding on appellant No,2 but not appellant No,1 as it pertains to an act of appellant No,2. In the case of Habibur Rahman v. Mehrumal 1993 SCM R 1163 their Lordships have began pleased to hold that in case where the tenant had denied subletting of the premises, the landlord was required to have substantiated his assertions. Similarly, in the case of Akhlaq Hussain v. Abdul Naeem 1986 CLC 1774 it has been held that subletting was not proved in the circumstances where the landlord did not give particulars of subletting nor the time of subletting.
14. ' In view of the above discussion, I am of the view that the orders passed by the Rent Controller cannot be maintained in law. Accordingly, I accept the appeal, set aside the judgment passed by the Rent Controller and dismiss the application for ejectment moved by the respondent with no order as to costs.