1. By this appeal, the order passed by IInd Senior Civil Judge/Rent Controller, Karachi (Central) in Rent Case No.53 of 1989 has been challenged.
2. Briefly the facts are that the present respondent is the owner of Plot No.2/865, Liaquatabad, Karachi, whereon 16 shops have been constructed, each shop being of an area of 4 x 4 feet. It is the case of the respondent that he had rented out, three shops from the-said building which are adjoining to each other to the appellant at a monthly rent of Rs.130 per month for each shop. The respondent filed the present Rent Case for ejectment of the appellant on the grounds of demolition of the walls dividing-the three shops and thus converting the same into one big shop, being cause of nuisance, subletting and for personal requirement to run the business by himself and for his two sons.
3. The rent case was resisted by the appellant. The case of the appellant is that the application has been filed with mala fide intentions; and that he had taken these shops on rent long before on payment of Pugree of Rs.50,000. He had denied the allegations made in the rent application and also claimed that in the same building other shop was vacant but the same was not occupied by the respondent.
4. The parties filed their affidavits-in-evidence. The respondent had also filed the affidavit-in- evidence of his two sons Raees Ahmed and Sultan while the appellant filed the affidavits-in- evidence of Shamsul Haque and Rustom. The Rent Controller heard the arguments of the Advocates and framed the following points- for determination:
(1) Whether opponent has unauthorisedly demolished the partition of two shops and has converted all the three shops into one?
(2) Whether opponent without consent of the applicant has taken some other person into the business with him and they are carrying business with the opponent and it amounts to subletting?
(3) Whether opponent has unauthorisedly converted the shops for the residence of some person who use to sleep in the said shops at night and some complaints for nuisance have been raised by the residence of the locality?
(4) Whether shops are required by the applicant in good faith for himself and his son and he wants to carry on the business in the said shops with his children?
(5) What should the order be?
5. First three points were answered irr negative i.e. In favour of the appellant while on the fourth point, the Rent Controller holding that the respondent required the shops in good faith for personal use for himself and of his sons directed the appellant to hand over the vacant possession to the respondent within 60 days from the date of the order. Being aggrieved, the appellant has preferred this appeal.
6. I have heard the learned counsel for the parties. The only point contested in this appeal is with regard to personal requirement of the respondent/landlord for himself and for his sons. Mr. M.G.
7. Dastagir, the learned counsel for appellant has at the very outset pointed out that this rent case was filed in the year 1989 and order of ejectment was obtained by fraud through a compromise, which was ultimately set aside in an application moved under section 12(2), C.P.C. And that the matter is pending before this Court for prosecution of the respondent under section 476, P.P.C.; and that after setting aside the said compromise, the matter was directed to proceed afresh on merits.
8. The learned counsel has, therefore, argued that the respondent has not come to Court with clean hands; and that the matter involves mala fides and the requirement of the respondent cannot be said to be in good faith. He has referred to the provisions of section 15(2)(vii) of Sindh Rented Premises Ordinance, 1979 which 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) ..................................................................................................................
(i) ..................................................................................................................
(ii) ...................................................................................................................
(iii) -------------------------------------------------------------------------------------- - (a)
(b) ..................................................................................................................
(c) ..................................................................................................................
(iv) -------------------------------------------------------------------------------------- -
(v) ..................................................................................................................
(vi) ..................................................................................................................
(vii) the landlord requires the premises in good faith for his own occupation or -use or for the occupation or use of his spouse or any of his children."
(3) -------------------------------------------------------------------------------------- ---- He has also placed reliance on the following cases:
(i) Mst. Begum Jan v. Abdul Rasool 1984 CLC 755.
(ii) A & B Oil Industries v. Abbas 1993 CLC 1815.
(iii) Syed Nasir A.I v. Muhammad Haleem 1993 CLC 1807.
(iv) Amjad Khan v. Mst. Mariam 1993 CLC 175.
(v) Atiya Badar v. Haji Munshi Khan 1994 CLC 1875.
(vi) Abdul Majid Karim v. Orient Pakistan Ltd. 1994 M LD 1026.
(vii) Mst. Zohra Bai v. M/s. Standard Industries Ltd. PLD-1994 Kar. 209.
(viii) Fasahat A.I v. Mst. Noor Jehan Begum 1991 CLC 1902.
9. 1993 CLC 262 the words `good faith' and `mala fides' have been discussed and it has been held that `good faith' means bona fides which, should show reasonableness of requirement of landlord and as against this `mala fides' would mean that the case had been brought by the applicant for some ulterior or collateral purposes. In this view of the matter, it has to be seen as to whether from the evidence brought on record the landlord has been able to substantiate his claim of personal requirement in `good faith'. It is on the record that the respondent has two sons, namely, Races Ahmed and Sultan. He has also stated that he needs these particular shops for running his business of milk-selling. There is no evidence from the other side to show that these facts did not exist. However, Mr. M. G. Dastagir; learned counsel for appellant has argued that it is an admitted position that another shop which is one of the shops in the same building on same plot is used for business where the grandson of respondent, namely, Kamran sits. However, it has been clarified in cross-examination of the landlord that the said business is being run by Kamran and his father Fayyaz jointly. Fayyaz is the third son of the respondent. The appellant has further argued that during the pendency of this matter one shop had fallen vacant which was rented out by the respondent to other tenant whom he had sought to examine as witness but his such prayer was disallowed by the Court. This aspect will, however, be dealt with hereinafter. However, at present the question under consideration is as to whether this letting out of the shop is a bar to claim of the respondent in the present case. Although this fact is denied by the respondent but assuming the same, I am of the view that it has to be seen if the premises required by the landlord are suitable for his needs. In the case of National Bank of Pakistan v. Shaikh Muhammad Sharif 1993 CLC 2072 it has been held that suitability or sufficiency of accommodation was the prerogative of the landlord and not of tenant. In the present case, it is an admitted position that the shops are quite small being 4 x 4 feet of area; and that as regards the present three shops, the intervening walls have since been demolished and converted into one bigger shop. Thus obviously the respondent has chosen the same for his business and he cannot be deprived of his such right. Similarly, in the case of Haji Abdul Majeed v. Khawaja Kamaluddin 1994 M LD 958 it has been held that here a landlord owns more than one property the choice as to which one he would like for his needs would lie with owner/landlord; and that choosing of his premises for his personal need was the prerogative of the landlord who is the best judge of suitability of premises for his requirement and option cannot be given to the tenant to choose as to which premises would be suitable for the needs of the landlord.
10. In these circumstances, I am of the view that the findings of the Rent Controller on this point cannot be taken exception to and are maintained.
11. Mr. M.G. Dastagir, learned counsel for appellant has taken two other grounds. The first ground taken by the learned counsel is that only one application has been moved for ejectment with regard to three shops and, therefore, the 'same is not maintainable and the respondent should have instituted three separate rent cases.
12. As against this Mr. Mubarak Hussain Siddiqi, the learned counsel appearing for respondent has stated that all the three premises are situated in same building and the same person is the landlord and the same person is tenant. He has further submitted that the landlord requires all the three shops which now have been converted into one bigger shop for his personal need and, therefore, the said application is maintainable. He has placed reliance on the following cases: ---
(i) Khurshid Ahmed v. Nadeem Iqbal 1985 SCM R 40.
(ii) Ahsanul Haque v. Abdul Rahim 1979 SCM R 338.
(iii) Anwar Ahmed v. Ghulam Qadir 1988 CLC 2338.
13. Lastly, the learned counsel for the appellant has argued that in the present case he had applied for summoning of three witnesses on 2-4-1994 and such application of his was rejected. He has placed reliance on the provisions of section 20 of Sindh Rented Premises Ordinance, 1979 as read with section 19(3) and (4) of the said Ordinance. Before considering this point, it would be appropriate to reproduce the said provisions which read as under: "19. --(1) ............................................................................................................
(2) ..................................................................................................................
(3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence first of the applicant and his witnesses and then to the respondent and his witnesses.
(4) A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such other party shall have the right to cross-examine the witness on such affidavit and if the witness has been cross-examined the party producing the witness may re-examine him.
14. (5).....................................
15. 20.Power of Civil Court.---(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) in respect of only the matters namely:---
(a) summoning and enforcing the attendance of any person;
(b) compelling production or discovery of documents; .
(c) inspecting the site; and
(d) issuing commission for examination of witnesses or documents."
16. The learned counsel for appellant has argued that it is the right of the party to have the witnesses summoned through the, Court; and that the Rent Controller is under obligation to allow such prayer. He had further submitted that only limitation of a Rent Controller in summoning the witnesses is to see that tendering of affidavits is not possible; and that a person demanding the witness to be summonc3 has cogent reasons available. He has placed reliance on the case of Messrs Fakhri Traders v. Mst. Batool Fida Hussain Shaikh 1985 CLC 283. There is no cavil about this legal proposition. However, in the present case it may be observed that at the very initial stage the opponent had moved an application for summoning three witnesses. This application was allowed by an order passed on 1-4-1990 but these witnesses were never summoned, as the summons were not got issued. Again an application was moved under section 151, C.P.C. By the opponent seeking certain questions to be asked in cross-examination of the applicant. This application was disallowed as the questions sought to be asked pertained to the matter of proceedings prior to the application under section 12(2), C.P.C. Which matter is pending before the High Court. Thereafter another application was moved by the opponent on 23-9-1993 for summoning 10 witnesses. This application was dismissed as premature. Thereafter, again another application was moved by the present appellant for summoning three witnesses on 2-4-1994, the date on which the cross- examination of the appellant was over. Mr. Mubarak Hussain Siddiqi, the learned counsel for respondent has argued that it is obvious that on conclusion of the cross-examination of the appellant, he found certain lacunae or defects in his evidence and the purpose of summoning these witnesses was only to cover up the same and thus the application was mala fide. He has further submitted that the scheme and the procedure as laid down in section 19 of the Rent Ordinance as mentioned above is that all the affidavits-in-evidence are to be filed simultaneously by the concerned party and the copies are to be given to other side so that the other side is put on notice as to what is the evidence brought against them. He has further submitted that accordingly if any of the party to the rent proceedings intend to get any witness summoned through the Rent Controller then also the same has to be notified or applied for at the time the affidavits-in- evidence are filed; and that such indulgence is not to be allowed in order to cover up the lacunae left in the case of the said party. I have no hesitation to agree with the contention of the learned counsel for respondent. Accordingly, this plea taken by the learned counsel for appellant is also rejected.
17. Thus the result of the above discussion is that I find no grounds to interfere with the orders passed by the Rent Controller, which are maintained and the present appeal is dismissed with no order as to costs.