' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is directed against the eviction order dated 5-7-1992 passed by learned Rent Controller, Hyderabad directing ejectment of the respondent from Shop No,2 situated on C.S. No,2462 Pakha Pir Chari, Hyderabad on the ground of personal requirement of the premises for the use and occupation of Muhammad Ilyas son of the appellant as well as Hafiz Muhammad Yaqoob, her husband.
2. Shop in dispute was rented out to Haji Moin-ul-Haq (since dead and represented by his son Qamar Jamil) in 1974 by Hafiz Muhammad Yakoob husband of the appellant vide a tenancy agreement on a monthly rent of Rs,300 per month. In 1981 Hafiz Muhammad Yakoob gifted away the shop in dispute in favour of Muhammad Ilyas alongwith 4 other shops in favour of his remaining 4 sons. After the service of statutory notice under section 18 of the Ordinance in 1981, Muhammad Ilyas filed an ejectment application bearing R.A. No,69/1990 against the respondent for his eviction on the grounds of subletting in favour of Muhammad Ghufran and for his own bona fide personal use and occupation. Since Muhammad Ilyas gifted out the shop in dispute in favour of his mother and the record of rights was mutated in her name in the year 1990 he withdrew the rent application which was dismissed as withdrawn on 20-8-1990 after notice to respondent.
3. Present case was filed by the appellant for ejectment of the respondent on 22-1-1991 which was contested on a number of grounds the main ground being that the requirement of the premises was neither bona fide nor in good faith.
4. Both the parties adduced evidence. While the appellant examined her husband and attorney Hafiz Muhammad Yakoob, and her son Muhammad Ilyas, the respondent examined his son Muhammad Ghufran, another tenant in the same building Izhar Ahmed Khan, and Record Keeper, Civil Court, Hyderabad for production of the record of earlier rent application.
5. Upon consideration of the evidence on record and hearing learned counsel for the parties learned Rent Controller dismissed the ejectment application on the ground that the requirement of the shop in dispute for the use and occupation of Muhammad Ilyas and Muhammad Yakoob was not in good faith and rather mala fide as Hafiz Muhammad Yakoob had been changing ownership from time to time just to create a ground for ejectment of the respondent.
6. During the pendency of the appeal respondent Haji Moin-ul-Haq expired and on the application of the appellant his son Qamar Jamil was substituted in his place on the averments that he had been looking after the shop in dispute after the death of his father. Subsequently an application was moved on behalf of widow, five daughters and six sons of the deceased tenant for being joined as respondents which was declined vide order dated 24-8-1995 in view of the earlier order dated 4-5-1995 impleading Qamar Jamil as legal representative of the deceased.
7. Mr. Shamsuddin Memon learned counsel for the appellant has contended with vehemence that the conclusions drawn by the Rent Controller are unwarranted by law and irrelevant for the purpose of deciding the point in controversy whether the premises were required in good faith for bona fide use and occupation of Muhammad Ilyas son of the appellant as well as her husband Hafiz Muhammad Yakoob as neither she nor her on Muhammad Ilyas or Muhammad Yakoob was in possession of any other shop in the same locality and that the learned Controller went out of the way in discussing the history relating to the gift of the shop in dispute in favour of Muhammad Ilyas and subsequent gift in favour of the appellant being the mother of. Muhammad Ilyas herself.
8. On the other hand learned counsel for the respondent contended that the requirement of the appellant for the use of the shop in dispute for her son as well as her husband was neither in good faith nor bona fide. He further contended that after the withdrawal of the earlier ejectment application brought by Muhammad Ilyas himself against the respondent on the ground of personal requirement no fresh application on the same ground could be maintained in law. Lerned counsel further contended that the appellant in her notice under section 18 of the Ordinance dated 22-8-1990 had not made a mention of personal requirement of the shop premises therefore, she could not maintain a claim for requirement of the premises for the use and occupation of her son and husband. He also took an exception to the notice under section 18 of the Ordinance issued on behalf of Muhammad Ilyas himself on 1-3-1985 in which his Advocate had referred to the market rental value of the shop from Rs,600 to Rs,1,000 per month in support of his argument that the demand of the appellant was mala fide.
9. There is sufficient force in the submission of the learned counsel for the appellant that the learned Controller grossly fell into error by not appreciating the claim of the appellant for eviction of the respondent by reason of personal bona fide use and occupation of the premises for her son and husband inasmuch as a consistent and definite averment was made in para.8 of the application which was supported in paras.14 and 16 of the affidavit of Hafiz Muhammad Yakoob in which it was specifically stated that the premises were required for the personal bona fide use of her husband and her son for starting crockery business and that she had no other shop except the shop in dispute. It was further stated that neither the appellant nor Hafiz Muhammad Yakoob or Muhammad Ilyas had any other shop except the shop in question. Considerations relevant for eviction of a tenant on the ground of personal requirement are firstly that the landlord has no other shop suitable for his occupation or the occupation of his spouse or children and that he has not rented out a similar shop to anyone else after the institution of the ejectment case. Instead of controverting this factual position tenant had all along called into question the bona fides of the gift of the shop in dispute in favour of Muhammad Ilyas in 1981 and subsequent gift by him in favour of his mother i,e,, the appellant in 1990. Learned Controller appears to have been highly impressed by these acts on the part of Hafiz Muhammad Yakoob and Muhammad Ilyas and treated the evidence in this perspective in order to satisfy himself whether the landlord had made out a case of bona fide personal requirement. From the evidence of Hafiz Muhammad Yakoob and Muhammad Ilyas it can be reasonably and justifiably held that they do not own and possess any other shop suitable for their needs to start any business to earn- a respectable livelihood. There is consistent and satisfactory evidence of Muhammad Ilyas that from 1981 to 1985 he served as a salesman at the shop of his brother but since 1985 he remained jobless. There is also evidence to the effect that since 1988 he has been running a hand driven cart for earning his livelihood which version has not been shattered in the cross-examination. Likewise Hafiz Muhammad Yakoob stated that since 1981 till this day he is unable to perform any business except working in support of his son Muhammad Ilyas on the hand-driven cart. No doubt he conceded that before 1981 he was running business of trunks in Shahi Bazar i,e, Ajmair Trunk House presently conducted by his elder son Muhammad Yousuf, in my view there is nothing wrong with the evidence of Muhammad Yakoob as well as Muhammad Ilyas to infer that their need for the shop in dispute is not bona fide or tainted with ulterior motives. At any rate their urge and desire to start crockery business in the shop in dispute cannot be treated as mala fide or in bad faith. Learned Controller has not appreciated the evidence on record in its proper perspective and thereby committed a gross error of law by deducing incorrect conclusions. Suffice to say in the absence of the evidence to the effect that the appellant, her husband and her son possessed any other suitable shop they cannot be deprived of making use of their own property simply because the business of the respondent shall be uprooted.
10. There is plethora of case-law from the superior Courts to the effect that a landlord is entitled to make free use of his property for his own use and occupation provided his statement is consistent with the facts pleaded and brought before the Rent Controller. In the case of Muslim Commercial Bank, Karachi v. Haji Shaikh Yaqinuddin and others (PLD 1992 Karachi 314), the view taken was that the Rent Controller on being satisfied that the landlord requires the premises in good faith for his own occupation or for the occupation of his spouse or any of his children shall order eviction of tenant. The only restriction which the Legislature has placed for the protection of the rights of the tenant is that the need of the landlord ought to be bona fide or in good faith. In the reported case it was found that sons of the landlord had no place for their business and as such they were forced to sell goods on footpath adjacent to disputed premises. In the case reported as Muhammad Siddik v. Muhammad Sharif (1981 SCMR 784), it was held that the tenant was liable to be evicted where the landlord had proved to have no other shop besides shop in question and his intent to run his own business in the rented premises. In Afzal Hussain v. Mst. Naseem Fatima (1991 CLC 892)
(Karachi) it was held that personal bona fide requirement of landlord in respect of shop in dispute was fully established where son of landlady for whom shop in dispute was claimed to be required was running his business on open land adjacent to building in dispute and that open land did not belong to landlady. In the case of Qamaruddin through his L.Rs, v. Hakim Mehmood Khan (1988 SCMR 819) Honourable Supreme Court observed that the only question which would disentitle a landlord to a relief of ejectment from a shop required for his personal use would be a case where he is in possession of other equally suitable shop in the same locality or he had rented out a shop after the institution of eviction case and has contumaciously concealed the facts in his application or statement at the trial.
11. In the case reported as Muhammad Iqbal v. Mst. Saeeda Bano (1993 SCMR 1559) dealing with the bona fide requirement of the shop premises for the use and occupation of landlady's son their lordships of the Supreme Court observed as under:-- "Therefore, if the landlady wants her son to be established in a business instead of remaining employed, then how it could be said that such a requirement lacks bona fides? It was, then urged that Azizur Rehman was getting a monthly salary of Rs,2,600 and he might not get even that much income from the business of Lathe Machine and Workshop. A Court cannot be a judge in such a matter. It is judgment of the party which matters. If he leaves his job in order to better his prospects but, unfortunately, he is unable to do so, he suffers. No other person, including the tenant, could question such a decision."
12. Adverting to the contention raised on behalf of the respondent that after the withdrawal of the earlier case on the ground of personal requirement by Muhammad Ilyas no fresh case could be brought against the tenant on the same ground I am unable to persuade myself to subscribe to the view of the learned counsel as during the pendency of the earlier rent case ownership in respect of the shop in dispute had changed hands and on account of domestic reasons property had been transferred in favour of the appellant by way of gift. In these circumstances Muhammad Ilyas could not maintain his claim for eviction of the tenant. Even otherwise the requirement of Muhammad Ilyas for the start of a business continued to exist and the rent case brought by the appellant would not be barred by law by any stretch of reasoning. Cause of action in a case of personal requirement depending on the circumstances of each case would arise from time to time and subsequent claim cannot be thrown out on this technical ground alone.
13. Reverting to the second contention of the learned counsel for the respondent a perusal of the notice under section 18 of the Ordinance dated 22-8-1990 on behalf of the appellant tends to show that it was a simple notice of demand of rent after acquiring ownership rights in the property. In my view it is not the requirement of law that a landlord must mention the ground of personal requirement of the tenanted premises in such notice should he desire the eviction of a tenant on a future date. The argument on the face of it is without any merit and I am least impressed by it.
14. With regard to the notice dated 1st March 1985 issued on behalf of Muhammad Ilyas pointing out that the respondent being a businessman knew well that market rental value had increased and the shops of the comparable nature had been rented out at Rs,600 to Rs,1,000 per month does not by itself reflect on mala fide intention on the part of the appellant or her son. In this notice the respondent was called upon to amicably settle the matter and pay proper rent to the landlord failing which a case for fixation of fair rent may be filed against him. It is admitted that actually a case for fixation of fair rent was filed and the Controller had fixed the rent at Rs,600 per month w,e,f, 1-4-1985 which was raised to Rs,660 after expiry of three years in 1988. There is nothing wrong with this aspect of the case and if a landlord after acquiring ownership of the premises had desired the settlement of a fair rent with his tenant no exception could be taken to it. Assuming for the sake of argument that Muhammad Ilyas was interested in demanding higher rent from the respondent the issue has been set at rest in the case Saira Bai v. Anis ur Rehman (1989 SCMR 1366) in which it was held that demand of higher rent by itself would not cast any doubt on the personal bona fide requirement where the factum of bona fide requirement was independently proved.
15. Learned counsel lastly emphasised the point that Muhammad Ilyas in his cross-examination had admitted that his father had five shops which were gifted in favour of his five sons whereas Muhammad Yakoob himself had suppressed and concealed this material fact from the Rent Controller. Contention on the face of it is misconceived inasmuch as in para.16 of his affidavit in evidence Muhammad Yakoob has categorically admitted the existence of four shops in the same building which were gifted in favour of his four sons and the existence of a shop housing Ajmair Trunk House in Shahi Bazar given to his elder son Muhammad Yousuf. Learned counsel has referred to Single Bench Judgments in the case of Abdul Majeed Karim v. M/s. Orient Pakistan Ltd. (1994 MLD 1026), Jamaluddin v. Muhammad Anwer (1993 MLD 876) and Rehmat Khan v. Abdul Razzak (1993 CLC 412) in support of his submission that landlord having concealed material facts and having failed to furnish necessary details as to his requirement his application was liable to be dismissed.
All the three cases being Single Bench Judgments apart from dealing with entirely distinguishable facts and evidence are legally not binding on this Bench. Learned counsel also referred to Single Bench Judgments reported in 1987 CLC 686, PLD 1985 Karachi 639, 1989 CLC 1360, 1994 CLC 1875, 1995 CLC 230 as well as page 452 to contend that the requirement of the appellant was not in good faith but in my humble view all these cases are distinguishable on facts and of no assistance for the decision of this appeal.
16. A complete answer to the above contention of the learned counsel may be found in the case Qamaruddin through his L.Rs, Hakim Mehmood Khan (1988 SCMR 819) in which the view taken was that none of the facts would militate against the stand of the landlord to seek eviction of his tenant from the shop required for his personal use and non-disclosure of this fact in his petition would, in no way, Cut at the root of the appellant's case because it is neither requirement of any law nor any rule of evidence that the landlord shall disclose all the properties which he has rented out to other tenants.
17. For the above facts and reasons I am of the considered view that the appellant had made out a good case for ejectment of the respondent from the shop in dispute and learned Controller wrongly dismissed the same. I would, therefore, allow the appeal, set aside the impugned order and direct ejectment of the respondent from the shop in dispute within 120 days in view of old tenancy. Both the parties shall bear their own costs.