1. ' ABDUL KADIR SHAIKH, J---This appeal by leave arises out of an application filed by the appellant for eviction of the respondent-tenant from the demised premises, inter alia, on the ground that he required the premises for his personal use as he was "out of job and wanted to set up an independent business in the shop".
2. ' The respondent in defense denied the aforesaid assertion pleading that it was false, ambiguous and concocted. However, on the basis of the evidence produced by the parties, learned Rent Controller by the order, dated 16th September, 1987 granted appellant's request and directed the respondent's eviction on the ground that appellant has successfully proved that "he required the shop in question for his personal bona fide use and occupation because of the reason that he was stated in the affidavit that he is jobless since 1980, and not doing any business. He has also deposed that he has experience of doing business. This claim of the applicant has neither been disputed during the course of cross-examination by the learned Advocate for the opponent nor rebutted by the opponent in his affidavit".
3. ' On appeal at the instance of the respondent, the learned Judge in the High Court, however, took contrary view and set aside the order of the Rent Controller by the impugned judgment, dated 20th August, 1989.
4. ' Leave to appeal was granted by this Court for the reasons which may be reproduced hereunder: "We have noticed that inter alia the reason which prevailed with the High Court for setting aside the order of the learned Rent Controller was that the respondent had established his business in the disputed shop and his ejectment would uproot his business, for which he might have taken sufficient long time to establish. The other reasons which found favour with the High Court was the factum that another shop in the building in question, of which one Muhammad Yousuf was the tenant was closed and in respect of which an ejectment order had been passed in favors of the petitioner. The learned A.S.C. Mr. Mubarak Hussain Siddiqui has given an undertaking in writing to the effect that the petitioner will have no objection to exchange the shop in question with the shop of which the petitioner has obtained the above ejectment order. We have directed Mr. Shaikh Abdul Aziz, learned A.S.C. For the respondent to file a written reply to the above petitioner's undertaking.
5. However, we grant leave to appeal inter alia to consider the following questions:--
(i) Whether the High Court was justified in taking into consideration the uprooting of the respondent's business while setting aside the order of A the learned Rent Controller which was in favors of the petitioner on the ground of his personal requirement?
(ii) Whether the High Court ought to have considered the petitioner's A personal bona fide requirement without being influenced as to the effect of ejectment order on the respondent?"
6. ' After having heard the learned counsel and gone through the record, we find that the reasons which prevailed with the learned Judge in the High Court for setting aside the view taken by the Rent Controller was that the "appellant in his. Application did not give particulars of the business which he wished to start or continue in the disputed shop" and that "the appellant (respondent herein) also admitted that appellant (respondent herein) was using the disputed shop for (crockery) business and that he had obtained the disputed shop from father of the respondent (appellant herein) who died in December, 1980". On these facts, learned Judge took the view as under: "It thus appears that the appellant (respondent herein) has established his business in the disputed shop and his ejectment would uproot his business for which he may have taken sufficient time to establish."
7. ' Against the above view our attention has been drawn to the decision in the case of Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCM R 593) in which it was observed that undue importance should not be given to the omission of the landlord to state in the application for eviction of the tenant as to the nature of business he wishes to carry on in the premises. In Saira Bai v. Anisur Rahman (1989 SCM R 1366) the question whether a landlord has to disclose the nature of the business he intended to carry on in the premises from which he sought the tenant to be evicted was considered and it was observed as under:-- "Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts i,e, facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise; could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighborhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided.
8. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the applicant must fail."
9. So far as the consideration to be had to the case of a tenant being 'uprooted from the business or being evicted from a shelter of residential premises, in case the landlord successfully proves his entitlement to the premises for his personal use or occupation under the provisions of section 15 of the Ordinance, all that can be said is that howsoever deep sympathies the Courts may have for the tenant in such a case, those cannot override the right of the landlord under the law, and it is to be remembered that if a party to a litigation in Court is to succeed, then opposite-party must fail and face the legal consequence's. This aspect, unfortunately escaped consideration of the High Court.
10. ' For these reasons, the appeal is allowed, the impugned judgment of the High Court is set aside, and order of the Rent Controller directing respondent's eviction from the demised premises is upheld.
11. ' In the circumstances, however, the parties are left to bear their own Costs.