1. This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979, hereinafter referred to as 'Rent Ordinance', directed against an order dated 22-12-1993 passed in Rent Case No.340 of 1992 (Iftikhar Hussain v. Muhammad Sharif) by IIIrd Senior Civil Judge and Rent Controller, Karachi Central whereby an application under section 15 of the Ordinance filed by the respondent/landlord was allowed and the appellant/tenant was directed to hand over the possession to the respondent/landlord within sixty days, hence this appeal.
2. The brief facts of the case are that the respondent/landlord filed an ejectment application under section 15 of the Ordinance against the appellant/tenant in respect of Shop No. 12 situated in Faiz Abul Fazal Market on Plot No.877-C, Block No.2, Liaquatabad Karachi which was on the rent at the rate of Rs.200 excluding electricity charges since 1975 with the appellant/tenant, on the ground that the respondent/landlord required the said shop for his son Naseem Hyder who has become major and wanted to establish his own business. The appellant/tenant filed written-statement stating therein that rent receipts were issued by the respondent/landlord in respect of Shop No. 13 and that he had paid an amount of Rs.4,50,000 towards 'Pagri' for the said shop and initially the rate of rent was Rs.50 per month but thereafter it was enhanced to Rs.200 per month. The appellant/tenant further stated that the alleged need of the respondent's son Naseem Hyder is not bona fide as other shops fell vacant from time to time and the respondent/landlord re-let out the same after charging handsome share in the ' Pagri' amount from the outgoing tenants. On the pleadings of the parties learned Rent Controller settled the following issues: (1)Whether the applicant required the premises in question for his personal bona fide use for his son Naseem Hyder?
3. (2)What should the order be?
4. The respondent/landlord filed an affidavit-in-evidence of Syed Ghulam Raza and his own affidavit- in-evidence and. Of his son Naseem Hyder who produced a counterfoil of rent receipt dated 2-7- 1989 Exh.A/4, rent receipt dated 3-9-1989 as Exh.A/5, Rent Receipt No. 104/dated 2-2-1991 Exh.A/6.
5. The appellant/tenant filed his own affidavit and produced Photostat copy of agreement Exh.0/2, receipt dated 17-8-1984 Exh.0/3, filed affidavits of Sheikh Din Muhammad and of Muhammad Hussain. The Rent Controller after recording the above evidence and hearing the, learned counsel for the parties passed the impugned judgment.
6. I have heard the learned counsel for the parties, perused the record and proceedings of the case and case-law cited by the learned counsel for the respective parties.
7. Mr. Faisal Arab, learned counsel for the appellant's contention is that the need of the respondent/landlord for his son is not bona fide as two Shops Nos.3 and 4 fell vacant prior to the filing of the present case against the appellant but the said shops were let out by him and further respondent has filed Ejectment Application No.843 of 1992 against another tenant and the respondent has suppressed the material, facts from the Court. He has placed reliance upon 1991 CLC 1236, 1985 CI.C 892 at 897, 1976 SCMR 459, 1995 SCM R 146, 1991 CLC 1047, 1982 CLC 1106, 1991 SCM R 2337 in support of his contention.
8. Mr. Javed Raza, learned counsel for the respondent, has argued that the respondent/landlord has proved the personal requirement in respect of the shop in possession of the appellant for his son sand the finding of the learned Controller is based on proper appreciation of the evidence on record. He has contended that Shop No. 14 was in possession of his son Waseem Haider who is married and was carrying out his business independently since 1980 whereas he needed the Shop No. 12 in possession of the appellant for his another son Naseem Haider who has now become major. He has further contended that Shops Nos.3 and 4 were not vacated and re-let-out during the pendency of the proceedings and no evidence has been produced by the appellant to prove the abovesaid fact. He has placed reliance upon 1987 SCM R 307; 1985 SCM R 522; 1981 SCM R 709 in support of his contentions.
9. The respondent has in his ejectment application stated that he needed the Shop No. 12 in possession of the appellant/tenant for his sen Naseem Haider who has become now major where he would open his own business. The statement made in the application is reiterated by the respondent Iftikhar Hussain Khan in his affidavit-in-evidence. Naseem Haider has also in his affidavit-in--evidence stated that he has become major and would establish his own business for his livelihood and for that purpose he needed the shop in question which was most suitable place for the establishment of his business. The appellant/tenant in his written-statement as well as in his affidavit-in-evidence has denied the requirement of the respondent/landlord for his son Naseem Haider to be a bona fide one and has stated that Shops Nos.3 and 4 fell vacant but then the same were re-let-out and further that he had paid ' Pagri' of Rs.4,50,000 to the respondent/landlord and further that he had filed ejectment application against his tenant A. Latif under section 14 of the Rent Ordinance.
10. The,main points for consideration in this appeal are that whether the alleged payment of ' Pagri' to the respondent (ii) the Shops Nos.3 and 4 which fell vacant and were re-let-out by the respondent and (iii) the filing of ejectment application under section 14 of the respondent would negate the bona fide need of the respondent's son.
11. There is nothing in law, which bars the ejectment under Rent Ordinance for personal bona fide need in case where payment of 'Pagri' is alleged by the tenant. Reference is made to Shaikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others 1987 SCM R 307. In case the appellant/tenant wants refund of alleged payment of Pagri he could file suit for the recovery of the same in the Civil Court in accordance with law. Mere fact that the Pagri has been alleged to have been paid to the respondent/landlord would not debar him from seeking eviction of the appellant on the ground of personal bona fide need of his son. So far the plea that the Shops Nos. 3 and 4 fell vacant and the same were re---let-out, there is no sufficient evidence to show that the said shops fell vacant during the pendency of the proceedings and the same were re-let-out by the respondent. It will not be out of place to state here that the shop or the premises for which Pagri is to be paid, the possession of the same is generally passed on from tenant to tenant and the same is not put into possession of the landlord and only landlord is paid a share in the Pagri for the change of receipt, therefore, it could not be said that the shops fell vacant and he was in a position or authority to keep it for the use of his son. Accordingly the said contention has also no merit. So far the filing of ejectment application under section 14 of the Ordinance by the respondent against his tenant A. Latif which fait has been admitted by the respondent but the ejectment application filed under section 14 of the Rent Ordinance if allowed by the Rent Controller, the benefit of the same would go to the specified persons mentioned in the said provisions of law where under son of the respondent would not get any benefit. In the circumstances the filing of the said eviction application would not negate the personal bona fide need in good faith of the respondent for his son. Mere fact that one of the sons of respondent is having shop in his occupation where he iscarrying on his business would not mean the respondent should not think for his livelihood of another son who has ultimately to lead his independent life, e therefore, the shop in occupation of Wasim Hyder would not react to the bona fide need of another shop for respondent's another son.
12. On the whole the testimony of the respondent as well as his son Nasim Hyder could not be shaken in cross-examination by the appellant's counsel and thereby bona fide need m good faith has been proved by the respondent, considering that it is the C prerogative of the landlord to have possession of the shop of his choice and it has been stated that the shop in question was most suitable for the personal need of Nasim Hyder, the son of respondent. Reference is made to Abdul Karim v. Abdul Karim 1992 SCM R 1300, Muhammad Sharif v. Nisar and others 1988 SCM R 1587, Mst.
13. Tauheed Khanam v. Muhammad Shamshad 1980 SCM R 593 and Haji Majid v. Haji Imamuddin 1981 CLC 1091 and Dildar Hussain Niyyar v. Niaz Muhammad Dar 1985 SCM R 1769.
14. In view of the aforesaid evidence, reasoning and settled proposition of law the contentions of the learned counsel for the appellant has no merit.
15. So far the cases relied upon by the learned counsel for the appellant, in Mst. Razia Khatoon v. Abdul Razzak 1991 CLC 1236 case, the appellant/landlady had got one shop vacated through the ejectment application on the ground that the tenant had made alteration and addition without the consent of the appellant/landlady which had materially effected the value and utility of the shop and she had also asked for another shop of the respondent which was also adjacent to the shop the ejectment of which was granted but the appellant/landlady failed to justify the requirement in respect of another shop and it was held by my brother learned Judge in Chambers that the shop was now available to the appellant which was sufficient to carry on the business of general store and medical store therefore the facts of the cited cases were quite different and distinguishable to the facts of the instant case. In Abdullah v. Hasan Abbas 1985 CLC 892 case my learned brother Judge in Chamber observed that the landlord has to satisfactorily explain how the existing premises was not sufficient for his business. In the instant case the respondent/landlord has brought evidence to show that one of his son Waseem Haider was married and was carrying out his business independently while the shop in question was needed for his another son Naseem Haider who has become major and wanted to start his business, therefore, has satisfactorily explained that the shop already in possession of Waseem Haider could not be used for the business of another son who has to start his own business. In Allah Ditta v. Mst. Rasoolan Bibi and 7 others 1976 SCMR 459 case the observations made in the cited case supports the case of respondent rather than the appellant. In Abid Masood and others v. Dilshad Khan 1995 SCM R 146 case, the facts were that petitioners/landlords owned numerous shops in the building and during the pendency of the proceedings got vacated some shops which were let out to tenants and after remand of the proceedings the petitioners/landlords had opportunity to lead evidence to show that the shops which fell vacant during the pendency of ejectment proceedings were not suitable for their use but led no evidence in that behalf but in the instant case there was no evidence about the shops having fallen vacant during the pendency of proceedings and that respondent's son has stated that the shop in question was most suitable for him which has neither been challenged in the cross-examination nor evidence in rebuttal has been adduced by the appellant. In Mukhtar Ahmad v. Muhammad Saleem Bakhsi 1991 CLC 1047 case my brother learned Judge in Chamber has observed that landlord is required to give full particulars of his proposed business, availability of the capital that may be needed for the purpose, his experience or knowledge of business in such details that a Court can come to the conclusion that it is needed bona fide for the use of the landlord. With due respect to the observation of my learned brother. I may state the Supreme Court of Pakistan in a number of cases has held that it was not necessary for the landlord to give details about the proposed business and his experience in respect of the business. Reference is made to Qamaruddin v. Hakim Mahmood Khan 1988 SCM R 819 and Mst. Saira Bai v. Syed Anisur Rehman 1989 SCM R 1366. In Kaniyalal v. Muhammad Ismail 1982 CLC 1106 case the facts of the cited case are quite different and distinguishable to the facts of the instant case as in the cited case there was no plausible explanation given by the respondent/landlord to prove the personal bona fide requirement when he let out the shop on 17th August, 1977 and needed the shop in 1980 for personal requirement.
16. Considering the evidence on record and the case-law above cited the appeal has no merits which is hereby dismissed. However, the appellant is-given sixty days' period to vacate the premises subject to condition that he would deposit the rent for the said period in the office of learned Rent Controller.