1. This appeal has been filed challenging the orders passed by the Vth Senior Civil Judge and Rent Controller, Karachi (East) in Rent Case No.447 of 1987 whereby the appellant was directed to hand over the vacant possession of the disputed premises to the respondent. Briefly the facts are that the present respondent is the owner of the plot and building constructed thereon bearing No.2-A, Block 6, P.E.C.H.S., Karachi. Originally this plot was residential but later on it was got converted into commercial. The present appellant had initially filed a ,suit being Suit No.86/77 against the present respondent for declaration and injunction while the present respondent had also filed a suit against the present appellant for compensation, injunction, mesne profits and possession being Suit No.1017 of 1979. However, a compromise was entered into between the parties in the later suit whereby the present respondent accepted the appellant as his tenant with regard to premises in dispute at the monthly rent of Rs.2,000 with effect from 10-9-1985 and the present appellant gave undertaking that he will not use the premises for a purpose which may cause nuisance to other tenants of the building and also that he will not carry on the business of denting painting nor he will install any foundry in the premises. This compromise was made on 10-9-1986 and Suit No.1017 of 1979 was decreed in terms of the compromise whereas the suit of the present appellant (86/77) was dismissed as withdrawn on the same date. Thereafter, the present respondent filed the rent case against the present appellant under section 15 of the Sindh Rented Premises Ordinance, hereinafter referred to as the Ordinance. The grounds on which the ejectment was sought are that the respondent required the premises for his personal use and that of his son as he wanted to open a store for sale of general merchandise and medical items. He has also pleaded that appellant had caused damage to the premises and also had committed acts of nuisance. The appellant submitted his reply wherein he denied the above allegations. The case of the present appellant further is that the son of the respondent is a professional pop singer who is gainfully employed in Canada, and therefore, the plea of personal requirement taken by the respondent is not in a good faith. He has also pleaded that the ejectment case has been filed by the respondent with mala fide intention. The respondent filed his affidavit-in-evidence and was subjected to quite a lengthy cross-examination. He also filed affidavit in evidence of his son Khalid Saleem who has not been produced for cross-examination and therefore his affidavit cannot be taken into consideration. The respondent then closed his side. Appellant filed affidavit-in-evidence and was subjected to cross-examination. He then closed his side. The Rent Controller after hearing the arguments has been pleased to allow the rent case filed by the present respondent and directed the present appellant to put the respondent in vacant possession of the demised premises within 60 days on refund of Rs.1,25,000 (one lac and twenty-five thousand). Being aggrieved the appellant has preferred this appeal. However, during pendency of appeal appellant at his request was permitted to bring additional evidence on record in the form of affidavit of one K.M. Sharif who filed his second affidavit also and he was also cross-examined. The matter has now come up for final hearing.
2. I have heard Mr. Z.U. Ahmed, learned counsel for the appellant and Mirza Waqar Hassan, Advocate for respondent. The learned Rent Controller had settled the following issues for determination: -- "(1) Whether applicant requires the demised premises for his personal bona fide need and that of his son Khalid Saleem in good faith?
(2) Whether the opponent is causing any nuisance to the neighbourers?
(3) Whether the opponent has caused any damage to the demised premises?
(4) What would the order be?"
3. As regards the Issues Nos.2 and 3 the finding of the learned Rent Controller is that the same has not been proved. Thus, the only issue to be agitated is Issue No.1 and it is to be determined as to whether the present respondent required the demised premises for his personal need and that of his son Khalid Saleem in good faith. Both the counsel have reiterated their contentions and have referred to the evidence and the cross-examination of the parties. The question to be resolved is as to whether the present respondent has been able to prove his contention or the present rent case is filed with mala fide intention. Now the case of the respondent is that his son Khalid Saleem needs this premises for opening a store where the general merchandise and medical items will be on sale. In his evidence he has stated that his son Khalid Saleem is an Intermediate who discontinued his further education in the year 1969 and from 1969 to 1976 he was doing private service in different factories. He has given the names of one of them to be Liberty Mills, Karachi. He has also stated in his cross-examination that his said son remained jobless from 1976 onwards and went to Canada where also he is still jobless. In cross-examination he has further stated that singing was the hobby of his son and that his son has no concern with the show-business. Of course, he has admitted that his son had gone to Canada with the intention to settle there and his wife and children are also with him. However, the fact that his son is without any job and is not gainfully employed in Canada has not been rebutted. Learned counsel for the appellant has placed much reliance on the evidence of his witness K.M. Sharif who states that he knew one person Saleem Ahmed who lives in Toronto and that he had contacted this Saleem Ahmed and received information from this Saleem Ahmed that Khalid Saleem the son of present respondent is settled in Canada and has acquired a permanent residence there and is carrying on lucrative career by holding musical concerts. This K.M. Sharif has produced a fax letter from the said Saleem Ahmed which is dated 19-2-1993. Relying on this letter the counsel for the appellant has argued that the plea of personal requirement taken by the respondent is not substantiated. It may be observed that the evidence of this KM. Sharif is at tile best a here say evidence as neither the said Saleem Ahmed has been examined in the case nor he has even brought on record his affidavit which could have been sworn in Pakistan Embassy in Canada. It may further be observed that this fax letter by itself also cannot be treated as a conclusive piece of evidence unless proved by its author. In these circumstances I am not inclined to accept this evidence of K.M. Sharif nor I can rely on the said fax letter. The assertion of the respondent that his son is not employed and is jobless does not stand rebutted.
4. Now the second question which requires consideration is whether the respondent requires the premises for his own personal use and that of his son in good faith. A reference may be made to para. 6 of the application for ejectment filed by the respondent wherein it is dearly stated that the applicant desires to set up his son in business in general merchandise and medicinal items and that the said son will manage the business with the assistance of the present respondent. Of course in reply in the written statement the appellant has denied the above contention and then set up the case that the said son of the respondent is a professional singer and that these premises in dispute are not suitable for the purpose of Theatre or show-business. As pointed out above it is not the case of the respondent that his son is singer or that he needs the premises for Theatre or show-business. His case is on the contrary that he needs the premises for the shop of general merchandise and medicine. Mr. Z.U. Ahmad, counsel for the appellant has further argued that it is only on 10-9-1986 that the above-referred compromise was entered into between the parties and that admittedly in consequence of this the respondent had received Rs.1,25,000 (one lac twenty-five thousand) from the appellant. However, it has not come in his evidence as to in what respect this amount was received. In such circumstances, the appellant could sue for refund of the said amount and the order of the Rent Controller has taken care of this aspect by ordering the ejectment subject to refund of Rs.1,25,000. Mr. Z.U. Ahmed has then placed reliance on the case of Malik Islam Akbar v. Mustafa Hussain reported in 1992 CLC 1753 wherein a learned Single Judge of this Court has held that a landlord could not get his tenant evicted on the ground of personal requirement without establishing his bona fides. He has also placed reliance on the case of Mst.
5. Noorun Nisa v. Qamar-ul-Huda reported in 1988 CLC 1833 wherein (Saleem Akhtar, J. As his Lordship then was) has held that personal requirement of the landlord should be bona fide and in good faith and that the rights of the landlord were sufficiently restricted for claiming ejectment of a tenant and that no such ejectment could be granted unless he brought the case within four corners of section 15 of the Ordinance. He has also placed reliance on the case of M.S. Khan v.,S.M.
6. Siraj-ud-Din reported in 1985 CLC 562 wherein it was held that the landlord will not be entitled to get ejectment in a case where the mala fides on his part appeared from the evidence and landlord had concealed the facts from the Court. He has also placed reliance on a number of other cases in respect of above contention. As against this Mr. Waqar Hassan learned counsel for the respondent has placed reliance on the case of Muhammad Anwar v. Muhammad Saeed reported in 1991 SCM R 2337. In this case their lordships while dealing with a similar case have held that the personal need of a landlord would include need of his son who was not gainfully employed and that the landlord could combine his own personal need with that of his adult son and thus primarily such personal need of landlord has to be catered for. He has also placed reliance on the case of Mst. Ghulam Fatima v. Noor Hussain reported in 1991 SCM R 1959 wherein their lordships have held as under: "As regards the second ground, it is not the requirement of law that the landlord/landlady must establish on record that he/she is badly in need of earning livelihood for getting his/her own property vacated for his/her personal use. With the galloping inflation in the country and when every one is free to embark on a profession of his/her own liking, a chance cannot be denied even to those who have not worked so far, from starting a business or participating in an enterprise for the purpose of augmenting their income and fulfilment of their aspirations."
7. Counsel for the respondent has also referred to the case of Muhammad Bashir v. Sakhawat Hussain reported in 1991 SCM R 846. In this case their lordships have held as under: -- "No legal impediment in the way of landlord existed if he wanted to start business in the demised premises in spite of the fact that he was a rich man and had no children ---Landlord could do whatever he liked with his property and if interest of tenant was involved because property of landlord was rented out to him, his rights were protected under the law---If landlord did not contravene the provisions of law, which allowed him the relief, then it was not open to the tenant, or even for that matter to the Court, to make a comment as to what landlord should do or should not do."
8. Learned counsel for the respondent has also referred to the case of Agarya Amir Ali v. Abdul Majeed reported in 1993 SCM R 67 wherein also it was held by the Hon'ble Supreme Court that a landlord was not required to give fullest possible description of personal use of property where he had mentioned that he needed the premises for his personal use for his work. Counsel for the respondent has also referred to a number of other cases on this point. Of course it is settled law that mere ipsi dixit of landlord or his wish to occupy a certain premises is not sufficient unless good faith is proved. However, in view of the above discussion it may be observed that all that landlord is required, in a case where he seeks ejectment on the ground of personal use, to prove his good faith is that he should show that he requires the same for his own use or use of his child and that they are not gainfully employed in any other vocation. However, in such cases where the-landlord intends to extend his business, the situation would be different as in such case his being gainfully engaged in the very trade or business would not come in his way in seeking ejectment. In the present case the reading of the evidence would clearly show that the respondent has been able to establish the fact that his son is not gainfully employed or engaged in any vocation at Canada and thus the obvious inference would be that he would want to start the business mentioned in the present case. There appears to be no denial to the wish of the present respondent who is a retired police officer to start his own business alongwith his son in the demised premises.
9. For these reasons I am of the view that the present respondent has been able to establish his case and there are no grounds to interfere with the judgment of the Rent Controller. Accordingly, I dismiss the present appeal with costs. The appellant will hand over the vacant possession of the premises to respondent within a period of two months from the date of this order.