1. By this appeal the order of Ist Senior Civil Judge and Rent Controller, Karachi Central passed by him on 1-12-1992 has been challenged. The facts in nutshell are that the appellant Noor Ali is the landlord of the two shops bearing Nos.1 and 2, situated on ground floor of the building No.9-B, Usmania Colony, Nazimabad Karachi-18 while the respondent Saleem is the tenant. The landlord lived in Kuwait alongwith his sons had returned to Pakistan after invasion of Kuwait by Iraq in the year 1990. He filed Rent Case No.657 of 1990 in respect of the two shops described above for ejectment of his tenant Saleem, the respondent on the ground that his sons namely Aijaz Noor Ali and Nizar Noor Ali who had come back to Pakistan with him from Kuwait, required these shops for their personal occupation. He stated in the rent application that his sons intend to establish a General Store in both these shops. The tenant/respondent Saleem challenged the contention of the landlord in his written statement by stating that the landlord was not true in his statement and that neither he had filed the case in good faith nor the personal need of -his sons was bona fide.
2. He further pleaded in written statement that the landlord wanted enhancement of the rent and also wanted further amount of the deposit from the tenant and on refusal of the tenant he had fabricated the ground of the personal need of his sons. It was pleaded that at the time of the first agreement of lease dated 26-9-1978, a sum of Rs.6,500 was received by the landlord as a deposit.
3. On expiry, another agreement, dated 3-9-1980 took place between the parties, and another sum of Rs.6,500 was paid by the tenant as the further deposit and again there was demand of the appellant to execute a fresh agreement and make a further deposit. The tenant also pleaded that shops were not suitable for General Store as they were situated in the line of the shops where motor mechanic, denter, painter and other works connected with the automobile were carried out and the area had developed specially as market for motor vehicle repairs. The tenant further claimed that the landlord was in possession of other shops which were lying vacant. Earlier to this application on the ground of personal need an ejectment application was filed by the landlord on the ground of default which was pending at the time when this rent case was filed. Before the Rent Controller, the landlord led the evidence comprising his own affidavit on which he was cross- examined while the tenant also filed his personal affidavit and was cross-examined. No other evidence by the parties was led before the `Rent Controller and the Rent Controller found that the only point for determination was whether the disputed shops were required by the landlord for the use of his sons Aijaz Noor Ali and Nizar Noor Ali. On discussing the evidence, the Rent Controller decided this point in negative and therefore, dismissed request of the landlord for ejectment of the tenant. By this appeal the learned counsel for the appellant has challenged the above finding of the Rent Controller. Mr. K.B. Bhutto, the learned counsel for the appellant while arguing the case of the landlord has stated that evidence of the landlord alone was sufficient for the Rent Controller to have come to the conclusion that the shops were bona fidely needed by the landlord for the use of his sons and that therefore, the order dismissing the ejectment application was not based on the sound principles of law and was therefore, liable to be set aside. Mr. Zafar Hadi Shah, learned counsel appearing f6r the tenant/respondent on the other hand pointed out that bona fide use of the landlord was moot point to be decided in this case and the circumstances of this case suggested clearly that the appellant had not filed this application with bona fide intention. In order to appreciate the arguments of the learned counsel I have gone through the evidence of the landlord as well as the tenant which has been read in the Court with the help of the learned counsel. In his affidavit the landlord Noor Ali has stated that he and his sons had come to Pakistan on account of invasion of Kuwait by Iraqi forces and that his sons had no work or employment to earn their livelihood. He stated that he wanted his sons to establish a General Store in these shops.
4. In his cross-examination he stated that the other two shops in the same line belonging to him, are situated in the same building and those two shops are in occupation of the tenants Tabraiz and Hamza Khan and that Tabraiz works in his shop as a motor mechanic while the other shop in possession of Hamza Khan, was being used as godown. He also stated that his sons had returned back to Kuwait for settlement of their outstanding dues with their employer and he denied suggestion that he wanted to pressurize the tenant for enhancement of rent by filing this application. On the other hand the respondent/tenant Saleem stated in his evidence before the Rent Controller that the two sons of the landlord had returned back to Kuwait and that they were employed there and that they had returned to Pakistan on annual vacation. He stated that the landlord and his sons were working in Kuwait since three decades and that there was no bona fide intention on part of the landlord to get the shops vacated for the use of his sons. He also stated that earlier case for ejectment was filed on the ground of default in which the landlord did not succeed as the tenant has been paying the rent regularly. He stated that he was tenant of the appellant since 1968 and he started paying rent from Rs.75 per month and the present rent was Rs.450. Last enhancement took place in the year 1980.
5. Although landlord had specifically pleaded that his two sons want to establish business of General Store in the disputed shops he has not produced them before the Court as witnesses. Their appearance before the Court as witnesses appears to me very important in the circumstances of this case as bona fide use of the sons of the landlord is to be established by the landlord. Of course the sons could not wait in Pakistan for indefinite period for getting their evidence recorded as generally lot of time is wasted in proceedings of this nature for valid reasons but to me if the sons of the landlord could not appear personally, they Could have examined themselves on commission or at least they could have appointed some attorney on their behalf with full instructions so that it could have been established after cross-examination if the need of the sons of the landlord was genuine and bona fide or not. Although landlord himself was a good witness to prove this fact but the circumstances which compel me not to believe his word alone are that lie had filed an earlier ejectment application on the ground of default in which he did not succeed. That litigation is pending side-by-side of these proceedings. It is stated at the bar by the learned counsel for the respondent/tenant that the earlier rent application on the ground of default was dismissed on merits by the Rent Controller and even First Rent Appeal No.726 of 1991 challenging that order of the Rent Controller failed. A copy of such judgment was also produced by the counsel at the time of arguments. Learned counsel for the landlord admitted the facts that the appellant have failed to get relief from the appellate Court and stated that the landlord had again approached the Supreme Court in an application for Special Leave to Appeal, challenging the two orders viz. That of the Rent Controller and High Court and Mr. K.B. Bhutto stated that such leave had been granted. In view of the fact that both these litigations are being carried out by the appellant/landlord, I feel that there should have been some corroboration of his statement by way of some another evidence so that his sole statement could have been relied upon for the personal use. There being no such corroboratory evidence, I do not feel inclined to believe statement of the landlord alone and hold that the order of the Rent Controller dismissing the ejectment application could not be set aside. Learned counsel for the appellant has relied on the case of Fakhruddin and another v.
6. Messrs Gestetner (Pakistan) Ltd. 1991 CLC 1367, in which, it has been held that demand of higher rent by itself does not cast any doubt on the personal bona fide requirement of landlord if factum of his bona fide requirement was independently proved. I am in full agreement with the principle laid down in this case but even in this judgment it has been held that the factum of bona fide requirement should be proved independently. In this case such proof is lacking. Other case relied by learned counsel for the appellant is the case Nisar Ahmed Khan v. Noor Muhammad Khan and 6 others 1990 SCM R 544, in which it has been held that the demand for higher rent per se, cannot be held as basis for finding of landlord's mala fide against the tenant. I am also in respectful agreement with the principle decided in this case but in this case mere demand of higher rent is not being made basis of disbelieving the bona fides of the landlord. It is the actual proof of the personal requirement of the sons of the landlord which is not proved by independent evidence.
7. Lastly, the learned counsel for the appellant argued that section 15-A of the Sindh Rented Premises Ordinance, 1979 provided a safeguard in favour of the tenant to get back the possession from the landlord if he fails to occupy the same after succeeding in the case of personal use by way of filing a case. I do not agree with the learned counsel that merely because such safeguarding provisions in the Sindh Rented Premises Ordinance was available, evidence of the appellant should be accepted under all circumstances. The evidence of the landlord will have to be scrutinized and justified under the principles of appreciation of p evidence led by the Superior Courts. The case of Shahnaz Begum v. Ikhlas Ahmed 1990 CLC 904, has been relied upon by learned counsel for the respondent in which it was held that landlord must prove that he requires premises genuinely for his requirement and this bona fide requirement must be proved.
8. Under these circumstances, I agree with the finding of the Rent Controller that appellant/landlord had failed to establish the bona fide requirement of his two sons in respect of the disputed premises and therefore, this appeal has no force and the same is dismissed.