' This appeal is directed against the judgment, dated 14-12-1992 in Rent Case No,598 of 1992, passed by the learned IIIrd Senior Civil Judge and Rent Controller, Karachi (South), dismissing the prayer for ejectment of the respondent/opponent from a godown.
1. Briefly stated the facts which lead to this appeal are that the appellants filed ejectment case against the respondents named above, stating therein that the respondent is a tenant in a godown at a monthly rent of Rs,2,900 per month having its door in the lane on a portion of factory building owned and constructed by the appellant, on a plot of land measuring 1336 sq. Yds., bearing Survey No,LY-72-1/2/12, Faqir Muhammad Durra Khan Road, Osmanabad, Karachi-West, purchased through a registered sale-deed by its sister concern M/s. Nusrat Trading Company. The monthly rent has been collected against rent receipts duly signed by the applicant. The opponent/respondent is a regular and habitual defaulter in payment of monthly rent and has not paid rent from 1-1-1992 to 1-3-1992 for 3 (three) consecutive months and thus arrears of rent of Rs,8,700 have accumulated as such the opponent is liable to clear the same. The opponent has also impaired the value and utility of the godown and that the opponent has rendered himself liable to ejectment from the said godown.
2. That the opponent/respondent in denial of the claim of the applicant/appellant filed his written statement. He denied the existence of relationship of landlord and tenant in-between the parties.
He also denied to have paid any rent to the applicant. He further asserted that he is owner of the disputed godown. The copies of the alleged rent receipts are forged and fabricated. In the end, he prayed that the Rent Application is liable to be dismissed.
3. That in support of his case applicant Wakeel Ahmed filed his affidavitin-evidence alongwith copy of deed of partnership (Exh.A/3), deed of conveyance (Exh.A/4), copies of rent receipts (Exhs.A/5 to A/16), affidavit-inevidence of Ehsan Ahmed and S. Jamil Hashmi, who were cross-examined by the respondent's Advocate. In reply one Abdul Mohsin, attorney of Razzaq filed his affidavit-in-evidence alongwith copies of sale receipt (Exh.O/1), sale agreement (Exh.O/2), receipt (Exh.O/3) and General Power of Attorney (Exh.O/4), affidavit-in-evidence of Muhammad Abbas Khan and produced N.I.C.
Of Abdul Mannan (Exh.O/6), Death Certificate of Haji Abdul Mannan (Exh .0/7), Form P .T.1 (Exh .0/8).
4. The learned trial Court after framing and determining the following points dismissed the rent case, hence this appal.
"(1) Whether there is any relationship between the parties as landlord and tenant if so?
(2) Whether the opponent has committed default in payment of rent from 11-1992 to 1-3-1992?
(3) What should the order be?"
5. On 11-1-1996 Mr. S.M. Shafiq concluded his arguments when Mr. Akhlaq Ahmed Siddiqui, the learned Advocate for the respondent, requested for adjournment and the case was adjourned to 21-1-1996, when none was present for respondent and the case was adjourned to 18-2-1996, when Mr. Akhlaq Ahmed Siddiqui left a chit with the reader that he is busy before the Hon'ble Supreme Court. On 23-1-1996 the learned Advocate for the respondent filed his written arguments in the Office, which were taken on record. In rebuttal the learned Advocate for the appellant argued, as such the judgment was reserved.
6. I have heard the valuable arguments of Mr. S.M. Shafiq Siddiqui, Advocate for the appellant, and perused the written arguments of Mr. Akhlaq Ahmed Siddiqui, Advocate for the respondent, and have gone through the entire record of the case and the citations relied in support of their contentions.
7. On Issue No,1, Mr. S.M. Shafiq Siddiqui contended that the learned lower Court has erred in holding that there exists no relationship of landlord and tenant between the parties. He contended that the appellants have produced overwhelming evidence on record in the shape of title documents, and the carbon copies of the rent receipts of the monthly rent received from the respondent etc., to establish the relationship of landlord and tenant between the parties. He argued that the respondent Abdul Razzaq instead of examining himself, malafidely examined his attorney,. As such he is guilty of withholding the important and very relevant evidence. He further argued that the respondent on the basis of forged and fabricated sale receipt and a sale agreement dated 15-7- 1985 alleged to have been executed by Abdul Mannan in favour of Abdul Razzak son of Abdullah claimed his ownership of the godown in question. He drew my attention to the fact that on 15-7- 1985 at 11-00 a.m. The said Abdul Mannan died as shown in the death certificate issued by the K.M.C. And the Register maintained at Sakhi Hassan Graveyard, which fact alone shows that the said sale receipt and the sale agreement in favour of Abdul Razzaq on the face of it appear to be forged and fabricated documents. He also pointed out that the sale agreement is not a registered document, as such it creates no value in the eye of law. Mr. Akhlaq Ahmed Siddiqui, learned counsel for the respondent, has supported the findings of the learned trial Court. He submits that in the conveyance deed the date of death of Abdul Mannan is shown as 15-9-1985 while the respondent purchased the godown in question on 15-7-1985 through the sale agreement and that there exists no relationship of landlord and tenant between the parties. He also contended that the appellant has failed to establish the said relationship. In support of their contentions the learned Advocates for both the parties have referred several authorities but what I feel is that the parties have not produced original documents before the Rent Controller and some documents have been produced in the above appeal so also the carbon copies of rent receipts issued by the landlord to the person tendered and paid the rent on behalf of the tenant and on some of the receipts the signature of the, receipts the signature of the payee has also been obtained, who have not been examined before the Rent Controller, or their signatures have not been got examined by hand-writing expert. Without considering the said aspects of the case, the learned Rent Controller decided the Issue No,1 in negative.
8. Without expressing my opinion on the above aspects of the case, so that it may not prejudice either of the parties I set aside the impugned order, dated 14-12-1992 and remand the case to the lower Court for fresh decision after affording full opportunity to the parties to lead their evidence and to produce documents. The carbon copies of the original rent receipts filed in the above appeal be returned to the appellant, after keeping their photostat copies on record, for producing the same in the trial Court. It is also observed that the learned Rent Controller has not put exhibit numbers on any document nor the same are so mentioned in the case diary. The rent case was filed on 16-4-1992 when it was admitted and process was ordered to be issued for next date viz. 3- 5-1992. The case diary of 16-4-1992 is also not written. The Rent Controller should note that he should keep watch on the maintenance of case diary and the exhibits number, in case. The parties should bear their own costs. The Rent Controller is also directed to give special preference to his case and avoid unnecessary adjournments and to decide the case within 6(six) months.
Order accordingly.
1996 M L 1505 [Karachi] Before Hamid Ali Mirza, J MUHAMMAD SHARIF---Appellant versus IFTIKHAR HUSSAIN KHAN---Respondent First Rent Appeal No,57 of 1994, decide%) on 14th February, 1996.
(a) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S.15(2)(vii)---Bona -fide personal need of landlord---Payment of 'Pagri', effect of---Nothing was in law which would bar ejectment under Sindh Rented Premises Ordinance, 1979 for personal bona fide need of landlord in case where payment of 'Pagri' was alleged by tenant---If tenant wanted refund of alleged payment of 'Pagri', he could file suit for recovery of same in Civil Court in accordance with law---Mere fact that Pagri had been alleged to have been paid to landlord, would not debar landlord from seeking ejectment of tenant on ground of personal bona fide need of his son. [p. 1508] A Shaikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others 1987 SCM R 307 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S.15(2)(vii)---Bona fide personal need of landlord---Ejectment application filed by landlord on ground of personal bona fide need in respect of shop for use of one of his sons, was resisted by tenant alleging that landlord had filed another ejectment application under S.14 of Sindh Rented Premises Ordinance, 1979, against another tenant on ground of personal bona fide need for use of other shop for his second son---Filing of other ejectment application, would not negate personal bona fide need in good faith of landlord for his son---Mere fact that one of the sons of landlord was having shop in his occupation where he was carrying on his business would not mean that landlord should not think for livelihood of his another son who had to lead his independent life--- Shop in occupation of other son of landlord, thus would not react on bona fide need of another shop for his other son. [p. 1508] B 1991 SCM R 2337; 1987 SCM R 307; 1985 SCM R 522; 1981 SCM R 709; Mst. Razia Khatoon v. Abdul Razzak 1991 CLC 1236; Abdullah v. Hasan Abbas 1985 CLC 892; Allah Ditta v. Mst. Rasoolan Bibi and 7 others 1976 SCMR 459; Abid Masood and others v. Dilshad Khan 1995 SCM R 146; Mukhtar Ahmad v.
Muhammad Saleem Bakhshi 1991 CLC 1047; Qamaruddin v. Hakim Mahmood Khan 1988 SCM R 819; Mst. Saira Bai v. Syed Anisur Rehman 1989 SCM R 1366 and Kaniyalal v. Muhammad Ismail 1982 CLC 1106 ref.
(c) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S.15(2)(vii)---Bona fide personal need of landlord---Testimony of landlord seeking vacation of shop for use of his son remained unshaken in crossexamination---Bona fide need of landlord in good faith, thus had been proved---Prerogative of landlord to have possession of shop of his choice if the landlord states that shop in question was most suitable fot personal need of his son, tenant has no right to controvert, his choice. [p. 1509] C Abdul Karim v. Abdul Karim 1992 SCM R 1300; Muhammad Sharif v. Nisar and others 1988 SCM R 1587; Mst. 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 ref. Faisal Arab for Appellant. Javed Raza for Respondent.
Date of hearing: 5th October, 1995.
' 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 Bird 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.
' 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?
(2) What should the order be?
' 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. The appellant/tenant filed his own affidavit and produced photostat copy of agreement Exh.O/2, receipt dated 17-8-1984 Exh.O/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.
' 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.
' 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 CLC 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.
' 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 and 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.
' The respondent has in his ejectment application stated that he needed the Shop No,12 in possession of the appellant/tenant for his son 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-inevidence 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.
' 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.
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 relet-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 fact 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 circumstanses 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 son of respondent is having shop in his occupation where he is carrying 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, therefore, the shop in occupation of Wasim Hyder would not react to the bona fide need of another shop for respondent's another son. 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 in good faith has been proved by the respondent, considering that it is the 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. 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.
' In view of the aforesaid evidence, reasoning and settled proposition of law the contentions of the learned counsel for the appellant has no merit.
' 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 that 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.
' 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.