1. ' This Judgment will dispose of F.R.As. Nos. 152 and 158 of 1992 in which common question of law and facts are involved.
2. ' In both these appeals Mst. Nafeesa Khatoon, who is a widow, is the respondent. She is the owner of the building which is on Plot No,HC/8 (SNCC17) Block No,3, Bahadurabad, Karachi. Muhammad Amin is the appellant in F.R.A. No,152 of 1992 (Rent Case No,1006 of 1989). He is the tenant in Shop No,1 of said building. Muhammad Hameed alias Abdul Hameed is the appellant in F.R.A. No,158 of 1992 (Rent Case No,1005 of 1989) and is the tenant in Shop No,2 of said building. Monthly rent of Shops Nos. 1 and 2 is Rs,225 and Rs,175 respectively.
3. ' Respondent Mst. Nafeesa Khatoon on 20-11-1989 had filed abovementioned rent applications against the appellants, before the learned Rent Controller for their eviction from said shops on the grounds of default in payment of rent and personal bona fide use. She had purchased said property by way of registered sale-deed dated 11-7-1988 and informed the appellants through notices about the change of ownership, as per section 18 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, and asked them to pay her rent in respect of these shops accordingly. These notices were served upon the appellants on 7-8-1989. Said building has an area of only 72 sq. Yds. It is ground plus one storey building having shops in question on the ground floor and the residential flat on its first floor. It is alleged that the appellants had paid her rent for the months of August, September and October, 1988 and stopped payment of rent from November, 1988. She has claimed that she requires both the shops one for herself for running boutique therein and the other for her son Mansoor Elahi for starting the business of General Merchandise.
4. ' The appellants in their respective written statement have denied the assertions of the respondent and maintained that neither they have committed default in payment of rent nor the respondent requires said shops in good faith for herself and for her son. It is their case that they had regularly deposited the rent in Miscellaneous Rent Cases Nos. 391 and 392 of 1989 in the name of previous owner namely, Pervez Akhtar.
5. ' In F.R.A. No,152 of 1992 the respondent filed her affidavit-inevidence and that of her son Mansoor Elahi and they were cross-examined. Appellant Muhammad Amin filed his affidavit-in-evidence and was cross-examined. In F.R.A. No,158 of 1992 the respondent and appellant Abdul Hameed had filed their affidavit-in-evidence and were cross-examined.
6. ' On assessm ent of the evidence learned Rent Controller, in both the cases, decided that the appellants had committed default in payment of rent and that the respondent requires the shops in question for her use and for her son. Consequently, by two separate orders dated 27-1-1992, the learned Rent Controller allowed the eviction applications and directed the appellants to hand over vacant possession of said shops to the respondent within 60 days from the date of the said orders, which have been impugned in these appeals.
7. ' On 20th February, 1990 the respondent in these two cases filed the applications under section 16(1) of the Ordinance for directing the appellants to deposit monthly rent in the Court at the rate mentioned earlier. While disposing these applications, Rent Controller in his order dated 19-3-1990 observed that the tenancy and the rate of rents were admitted. The appellants were directed to pay monthly rent before the 10th of each calendar month and the arrears within a month from the date of said order. The appellants on 19-4-1990 deposited rent in the name of the respondent.
8. During the course of argument learned counsel for the respondent did not say anything about this order, which means that it was complied with by the appellants.
9. ' Mr. Shamsuddin Khalid Ahmed learned counsel for the appellants contended that the finding of the learned Rent Controller on the point of default is incorrect and skips over the circumstances which on analysis prove otherwise. The contention is sound and must prevail. Admittedly, notice under section 18 of the Ordinance was sent to the appellants after about 13 months of purchasing the property. According to the respondent, the appellants had paid rent to her for August, September and October, 1988. There is, however, no reliable evidence in support of this contention and learned Rent Controller rightly disbelieved this plea of the respondent. Even otherwise, above assertion by itself is outside the frame of this case of the respondent. Admittedly, she had first time sent notices about the change of ownership and demand of rent to the appellants on 7-8-1989 and it being so there was no question of paying rent to the respondent prior to said date. Although the respondent has also alleged about payment of rent of three months viz. August, September and October, 1988 by the appeliants in time in her notices dated 7-8-1989, but the same was denied by the appellants in their reply, dated 24th August, 1989. In any case the burden of proof of this payment was upon the respondent, which she had failed to discharge.
10. ' Learned Rent Controller, however, found the appellants defaulter on the ground that first time they deposited rent in Court on 9-4-1990 and according to section 18 of the Ordinance they were required to pay the same within 30 days after having such intimation from the respondent. Learned Rent Controller on this point relied upon the case of Mst. Muhammad Nisa v. Anwar Ali 1989 CLC 157, where the tenant had full knowledge of sale of premises and still continued to deposit rent in Court in the name of previous landlord even after notice of ejectment application was served on him. It was held that such mistake could not be termed as "technical default". Further, it was observed that intention of the tenant, under the circumstances, was not bona fide in depositing rent in the name of previous landlord. The facts of this case are distinguishable. In the instant case, the respondents' plea that even prior to sending intimation regarding change of ownership to the appellants, they had paid rent to the respondent was found incorrect and it created doubt about the correctness of the ground of default. It is significant to note that the respondent in her cross- examination stated that she did not know if the appellants were depositing rent in Court since August, 1988 in Miscellaneous Applications Nos. 391 of 1989 and 392 of 1989. During the course of arguments also, it was not disputed that the appellants had deposited rent in Court through the miscellaneous applications referred to above since August, 1988. Had the appellants paid rent for the months of August, September and October, 1988 to other respondent, they would not have deposited the rent of these months again through the miscellaneous applications referred to above. The respondent in Application dated 20-2-1990 had prayed for directing the appellants to deposit rent from 1-11-1988 and the appellants had deposited rent in Court up to the month of June, 1990. They have complied the order dated 19-3-1990. Under the circumstances, no default was committed by them. Accordingly, the finding of learned Rent Controller on this point is reversed.
11. ' Learned counsel for the appellants next argued that the plea of the respondent that she requires the shops in question in good faith for her own use and that of her son is mala fide. He submitted that neither the respondent nor her son requires the shops for their personal use. The respondent, in her affidavit-inevidence, stated that she is a widow and has no source of income. She also stated that the property in question is situated in the residential area of Bahadurabad. She maintained that she has got sufficient experience of stitching and intends to run the business of boutique in said shop. Further, she stated that her elder son is married and is not supporting her.
12. Appellant Muhammad Hameed stated that the respondent does not require the shop in question for her use nor it is suitable for boutique, as it is surrounded by shops of Mechanics, Carpenter, Dainters, Painters and other shops of similar nature. The respondent in respect of her son Mansoor Ellahi mentioned that he is without any job and the shop is required for him for running the business of General Merchandise. Mansoor Ellahi, in his affidavit-in-evidence asserted that he wants the shop for said purpose and he belongs to a business community and all his relatives have avowed to help him in establishing his business.
13. ' Learned counsel for the appellants argued that the son of the respondent is engaged in the business of Leather Craft and has two shops one in Panorama Centre and the other in Taj Mahal Hotel. This allegation has been refuted by the respondent. She, however, stated that her elder son has just started business at Panorama Centre. Mansoor Ellahi has denied that he was doing the business under the name and style "LOOK and LOOK" at Taj Mahal Hotel. Admittedly, the appellants have no documentary evidence to show that respondent or her son Mansoor Ellahi is the owner of any shop at Panorama Centre or Taj Mahal Hotel and the oral evidence to this effect is not worth relying.
14. The expression "requires the premises in good faith" is not capable of being confined to precise, identical, and invariable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular facts and circumstances of the cases. Therefore, the parameter of each case would be primarily its facts, which have to be taken into consideration for deciding the point if the landlord requires the premises in good , faith or not. When both the parties have taken contrary pleas i,e, landlord alleges good faith and the tenant calls it mala fide, the proper course would be to examine all the facts relating to. The contrary allegations. The main objection of the appellants is that both the shops are not suitable for the business, the respondent wants to start therein. The respondent and her son belong to the business community. They have to do something to earn their livelihood. It appears that the only object of the respondent and her son in seeking eviction of the appellants is that they, in all fairness, want to start their own business. Once the bona fide requirement is established it is for landlord to decide if the proposed business could be carried out in that particular premises or not.
15. Neither Court nor the tenant can suggest to the landlord otherwise. Bona fide requirement is seen with reference to the need of a person to do any business. The respondent and her son are citizen of Pakistan, as such it is their inalienable, valuable and basic right to conduct any lawful trade or business, subject to any qualification as may be prescribed by law. Presently, they want to engage themselves in the business indicated above. At any time if they want to change their business they can do so, as it is their fundamental right to conduct any lawful trade or business. A bona fide requirement cannot be turned down simply on the assumption of the tenant that the proposed business could not be carried out profitably in the premises in question. Accordingly, I hold that both the shops are required by the respondent for her bona fide use and that of her son. This issue is decided in favour of the respondent.
16. ' Learned counsel for the appellants also argued that these two appeals be remanded to the Rent Controller for deciding afresh as that they had moved the applications for site inspection, but the learned Rent Controller dismissed those applications without any justification. Learned Rent Controller while rejecting those applications by order dated 16-11-1991 had observed that no cogent reason was shown in support of the prayer made in the applications. I think on the point of personal requirement the evidence of respondent and that the appellants was sufficient and there was no need for site inspection.
17. ' In consequence, both the appeals are dismissed with no order as to costs. The appellants are, however, granted four months' time for handing over vacant possession of the shops in question to the respondent.