1. By this First Rent Appeal the order of ejectment passed by VII-Senior Civil Judge and Rent Controller Karachi, East has been challenged by the appellant/tenant Haji Dost Muhammad.
2. Brief facts concerned to this matter are that respondents Rao Muhammad Khalid and Rao Muhammad Awais who are brothers are the owners and landlords of the premises in dispute which is a shop constructed on Plot No. 436-C, near Masjid-e-Mamoor, Central Commercial Area. P.E.C.H.
3. Society Karachi. This shop was let on rent to appellant Haji Dost Muhammad on monthly rent of Rs.500 per month. The tenant had to pay electricity and water charges in addition. The tenancy had come into effect on 4-3-1984 by 'an agreement on 13-11-1991. Rao Muhammad Khalid and Rao Muhammad Awais tiled rent application under section 15 of Sindh Rented Premises Ordinance. 1979 against Haji Dost Muhammad pleading that applicant No. 1. Rao Muhammad Khalid had become jobless and that he had decided to start his own business of a Provision and General Store in this shop. It was further pleaded that he had no other property or any shop in his possession and the shop in dispute was suitable for starting business of the applicant No. 1, and applicant No.1 required the same for personal bona fide use. It was also claimed in the ejectment application that the tenant had impaired the value and utility of the building as the Sugarcane Crushing Machine had been affixed near the pillar of the building and the tenant was throwing dirty water at the base of the pillar and there being no proper arrangement for the flow of the water to outer drainage or gutter, the foundation of the building had been affected with the said water due to passage of time and that constant accumulation of the water was causing damage to the building thus the value of the property was impaired by the tenant. In the written statement to the ejectment application, the tenant claimed that the applicants had not come to the Court in good faith and their motive was to rent out the premises in dispute after getting the possession on a higher rent, with "Pugree".
4. The causing of the damage to the building was denied and it was expressly pleaded that at the time of the letting out the premises the tenant had paid a sum of Rs.1,25,000 towards "pugree" in presence of witnesses Tahmoor Shah and Muhammad Naeem. It was also claimed that the amount of "Pugree" was not shown in the agreement of tenancy but he acknowledged the same in the evidence to be a fixed deposit. No receipt for the amount of Rs.1,25,000 was obtained by the tenant and he claimed that he had signed the agreement of tenancy believing the landlord in good faith, that there can be no mention of "Pugree" in an agreement of tenancy. It was pleaded that the ground of personal bona fide requirement was not correct.
5. Before the Rent Controller, Rao Muhammad Khalid filed his affidavit---in-evidence and claimed that he wanted the shop for his personal use and he was cross-examined. From the side of the tenant, evidence comprised of his own affidavit and the affidavits of witnesses Mohiuddin and Muhammad Naeem Khan. They were also cross-examined.
6. The learned Rent Controller, settled the followed issues for his decision :--
(1) Whether the premises are required for personal bona fide use of the applicant?
(2) What should the order be?
7. On considering the evidence before him the learned Rent Controller, came to the conclusion that in fact the premises in dispute are required by the applicant for personal bona fide use and that the applicant did not own any other property, therefore, the applicants were entitled to get the possession from the tenant. Sixty days time for handing over the possession was allowed.
8. The learned counsel for the appellant challenged the order of the Rent Controller, mainly on the ground that the tenancy in question was based on payment of "Pugree" and therefore, the Rent Controller had no jurisdiction to entertain this Rent Application and he should have dismissed the application on this ground alone. The learned counsel in support of his argument relied on PLD 1986 Karachi 16. The next ground on which the order of the learned Rent Controller was found defective by the learned counsel for the appellant was that the landlord had failed to prove that he was experienced person to run the business of Provision and General Store, and that he possessed necessary resources, i.e. The amount to be invested in the business. According to the learned counsel for the appellant the proof of the above conditions was lacking in material particulars, therefore, it cannot be said that personal need is proved. Lastly, the respondent No.1, had left the country for good and had settled in Germany, and that, therefore, his ground of personal bona fides need, if any, had come to an end and therefore, the order of ejectment, ought to be set aside.
9. As regards the first argument that the disputed premises were let on the basis of Pugree, and therefore, the jurisdiction of the Rent Controller was ousted, I have examined the evidence minutely.
10. The tenancy agreement does not speak or payment of any amount towards Pugree nor there is mention of the sum of Rs.1,25,000 given to the landlord either as deposit or advanced rent. In the written-statement the tenant expressly mentioned that sum of Rs.1,25,000 towards Pugree was paid to the father of the landlords in presence of witnesses Tahmoor Shah and Muhammad Naeem. In evidence the tenant Haji Dost Muhammad stated that the amount of Pugree was paid in presence of Mohiuddin and Muhammad Naeem, who were also examined but there was no explanation about mentioning of the name of Tahmoor Shah who was not examined in evidence.
11. The case of Muhammad Hanif v. Mumtaz Ahmed, which is reported in PLD 1986 Karachi, P/16, wherein it was held by this Court that when the agreement of tenancy was based on Pugree it was altogether a different agreement than the agreement of tenancy covered by the provisions of tenancy laws and therefore, it was held that the Rent Controller had no jurisdiction. In the above- cited case, "Pugree" is spelt out from the contents of the agreement itself as there was an specific clause in the agreement that "lessor shall not eject the lessee under any circumstances, and the lessee shall have the right to transfer the lease to any person with the consent of the lessor". It was held that such clause was a clear manifestation of the intention of the parties that Pugree was given and executed. There was a proper cover given in the shop that the landlord could not evict the tenant and that the tenant was allowed to transfer the tenancy to another tenant and the landlord had to concede to such transfer. Under such circumstances, in the above cited case it was decided that when the agreement was based on Pugree, it was different kind of agreement and, therefore, the relationship between the parties was different than one which is governed under the provisions of rent laws wherein Pugree is not recognised.
12. 1992 MLD P/1225, it was held by this Court that the plea of Pugree taken by the tenant did not debar the landlord from seeking the ejectment on the ground of bona fide personal use. This case was based on the case decided by the Supreme Court, Muhammad Yousuf v. District Judge.
13. Rawalpindi, reported in 1987 SCM R P/307.
14. Therefore. I am clear in my mind that on one hand the tenant has not proved that the agreement in dispute was based on Pugree, on the other hand in view of the decision in the above cited cases I am not inclined to hold that the landlord had lost the privilege of seeking the ejectment of the tenant on the ground of personal bona fide need, even if it was a case of Pugree-based agreement.
15. The second argument of the learned counsel was also of no force when he stated that the landlord should prove his experience and expertise in running the business of Provision and General Store, for which he was getting the possession. Equally in-effective is the argument that the landlord must prove his resources i.e. The amount to be invested by him in the business before the Rent Controller for the business of the Provision and General Store. There is no hard and fast rule as to how and with that investment a Provision and General Store could be started; therefore, in my view neither the proof of previous experience in such business nor the amount of investment was necessary to be proved before the Rent Controller.
16. The landlord was a businessm an and was jobless at the time he filed the application for ejectment and till now his requirement continues. As held in the cases of Shaikh Muhammad Yousuf v. District Judge Rawalpindi, (1987 SCM R 307) and Muhammad Siddique v. Muhammad Shoaib, reported in (1986 SCM R 1207), the evidence of the landlord in the present case appears to me genuine and convincing. I, therefore, have no hesitation in holding that the personal requirement of the landlord has been adequately proved before the Rent Controller. The last argument of the learned counsel for the appellant was in respect of landlord having shifted to Germany. This allegation was adequately rebutted as the Respondent No.1 himself appeared before the Court and filed his personal affidavit and also produced his passport in presence of the appellant and his counsel.
17. The passport of the respondent No.1, Landlord did not bear any entry in respect of his visit out of the country. In fact the passport showed that the respondent No.1 had never left the country at any time.
18. Therefore, summing up the facts and circumstances of the case I came to the conclusion that no exception could be taken with the order of ejectment passed by the Rent Controller. Consequently, the First Rent Appeal was dismissed by a short order on 21-5-1997 for the reasons which are recorded now.