This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred as the Ordinance) is directed against the eviction order dated 7th December, 1994 passed by learned Controller, Karachi East, directing eviction of the appellant from a shop situated on Plot No.807-C, PECHS, Karachi on the ground of bona fide personal requirement for the use and occupation of the respondent
2. It is the case of the respondent that he constructed two shops on ground floor and one residential flat each on the first as well as second floor of the plot in question. He dealt with the import and exports business and was stile agent in Pakistan for H & R. Johson Limitec, England. He was the sole Proprietor of the firm named M/s. A.H. Shah & Ca. Registered with the Chief Controller, Import and Export, Since he had the office of the company at a different place, he let out two shops to two different tenants for business purpose. On 23-7-1977 he left for Saudi Arabia and returned to Pakistan on 20-5-1987. Owing to his absence from Pakistan, his business collapsed and he tried to start a new business but without any success. In 1988 he was operated for both eyes and improved his vision after a lapse of more than 1-1/2 years. The respondent had authorised Mirza Farukh Kashyani to act as attorney and to deal his property in his absence. According to him after the vacation of shop No.1 by the previous tenant, his attorney let out the said shop to appellant. On his return to Pakistan, he came to know about the change of tenancy and the fact that the appellant was misusing the shop for residential purposes. In these circumstances he sought eviction of the appellant for his use and occupation in order to start his business.
3. Appellant contested the prayer and filed a written statement admitting the tenancy of the premises as residential portion since 1978 on a monthly retail of Rs.250 which was later increased to Rs.594. While denying the personal requirement of the premises by the respondent he contended that this ground had been concocted because the premises has turned up to be Pugree-fetching area and the respondent intended to rent out the same to some one else on receipt of Pugree and higher amount of rent. He pleaded that a few months before the filing of rent case respondent demanded enhanced rent and in order to pressurize him sometimes disconnected water supply and electricity to the rented premises. Besides he let out another shop vacated by tenant just before filing the rent case. He added that the respondent has settled his business abroad and has also an office as Karachi where he is carrying on his business. It was further stated that the premises in dispute are meant .For residential purposes and cannot be used as office or for commercial purposes due to short of accommodation.
4. In support of his case, respondent appeared as his own witness whereas the appellant examined himself in rebuttal.
5. On assessm ent of evidence on record and after hearing parties counsel, learned Controller by a slipshod order accepted the contention of the respondent and ordered eviction of the appellant which has been impugned in this appeal.
6. Learned counsel for the appellant vehemently but rightly contended that the respondent failed to establish his genuine requirement of the demised premises in good faith and his desire for restarting his business, was motivated by greed and mala fides. It is admitted that the respondent left for Saudi Arabia on 23-7-1977 and returned to Pakistan on 20-5-1987. Although it was asserted in the eviction application that during his absence from Pakistan his business collapsed and he tried to start a new business but could not succeed, there is hardly any evidence in support of this assertion. Likewise it was claimed that in the year 1988 he was operated for his eyes and he regained his clear vision after more than 1-1/2 years, there is absolutely no evidence worth consideration to accept this view or the explanation for approaching the Controller after a lapse of about 5 years from his return to Pakistan.
7. It is common ground that the respondent was carrying import and export business under the name and style of Messrs A.H. Shah & Company registered in the office of Chief Controller of Import and Export with an office in Shikarpuri Market situated on M.A. Jinnah Road. However he could not explain as to why the said business could not be re-established in the said office situated in Shikarpuri Market which is the hub of the city for carrying on such commercial activities. During his cross-examination, respondent was constrained A to admit that the office of his company at Shikarpuri Market was on rent with him since 1948 till today; where he has been doing his business.
It is significant to observe that in his eviction application, purposely he did not mention the availability of this office while in the evidence he did not account for as to why the said office premises on rent with him are not suited to the business intended to be restarted by him. Had the respondent been serious and sincere in re---establishing his old business he ought to have taken steps to restart his business at least by carrying on correspondence with his old clients and sending for necessary statistics of the items of import from the foreign countries as well as renewal of his import licence but he did not seem to be keen for revival of his business. Needless to point out he was obliged to concede that .The office premises of Shikarpuri Market has the similar area as that in the disputed premises.
8. There is another aspect of the case tending to indicate lack of bona fides and want of good faith on the part of the respondent. On his own showing disputed premises were let out to the appellant by his attorney Mirza Farooq Kashani after falling vacant in his absence from the country. Mirza Farooq Kashani tenant of the respondent on the first floor of the building in question left the premises admittedly after the return of the respondent from Saudi Arabia. The premises so vacated consist of two bed-rooms, drawing room, bathroom, one dining room along with lounge and kitchen as admitted by the respondent himself. It is a matter of common knowledge that the property in question is situated in area now considered and well known for commercial activities in P.E.C.H. Society. Quite conveniently, respondent could restart his business in the first floor premises so vacated by Mirza Farooq Kashani as he himself is putting up on the second floor of the said building which would be more suitable to his business and advantageous to his requirements.
9. From the evidence on record and the admission by the respondent that the area where the disputed premises are situated is Pugri-fetching area one cannot resist the impression that the prayer for ejectment of the appellant was motivated by the circumstance that after getting the same vacated, the same tray be let out on higher rent and on receipt of handsome amount by way of Pugri. Surprising enough, the respondent did not explain in his ejectment application as well as his evidence spread over six pages as to what happened to the first floor premises vacated by his attorney, namely, Mirza Farooq Kashani. In case the premises are still lying vacant, respondent would be within his rights to use the same for restarting his old business or to start a new business whichever be more beneficial to him. However in the event of renting out the said premises to some one else, after his return to Pakistan, he would be guilty of suppressing material facts from the Court and approaching the Controller with unclean hands. Needless to over-emphasise accommodation on the first floor premises would be double the accommodation with the appellant inasmuch as on the plot in dispute according to the respondent himself two shops were constructed on the ground floor whereas one flat each was constructed on first as well as second floor on the plot in dispute.
10. On behalf of the respondent, reliance was placed on Abdul Hussain Khan Muhammad v.
Muhammad Younus Khan 1987 CLC 499 Karachi, in support of his claim to the demised premises for personal requirement but the reported case is of no avail to him in view of entirely distinguishable facts. On the other hand, appellant relied upon Syed Farzan Rizvi v. Khalilur Rehman 1981 CLC 1223 Karachi, which materially supports his case.
11. In Jehangir Rustam Kakalia.v. State Bank of Pakistan 1992 SCM R 1296 the view taken was that landlord has burden to prove bona fides of his personal requirement. Vague and unsatisfactory evidence in proof of personal requirement cannot be made basis for eviction after finding fault with tenant's evidence.
12. For the above facts and circumstances, the impugned order passed cannot be sustained at law.
I, therefore, allow this appeal with no order as to costs and set aside the impugned order.