1. This rent appeal is directed against the judgment dated 1-12-1988 passed by Additional Controller of Rents, Karachi Cantonment, in Rent Case No. 10 of 1996 granting respondent's eviction application and directing the appellant to vacate the disputed shop within 30 days.
2. The first contention of Mr. Jawed Raza, the learned counsel for the appellant, was that the proceedings before the Additional Rent Controller suffered from several legal flaws, with the result that the impugned order was not sustainable and therefore the case should be remanded to the Controller for fresh trial. He raised the following legal objection,
(i) that the appellant had not closed his evidence before the trial Court and the Controller did so of his own,
(ii) that immediately after closing appellant's evidence the Additional Controller called upon the advocates to argue the case instead of adjourning it to some other date in accordance, with Order 20, Rule 1, C.P.C., with the result that the appellant did not get enough opportunity to submit arguments, and
(iii) that the impugned judgment was not in accordance with Order 20, rule 4(2), C.P.C., in that the issues involved were neither dealt with separately nor reasons for the findings on these issues were stated.
3. As regards the first objection, it is apparent from the trial Court's record that appellant's witness refused to answer question during cross---examination. The Additional Controller recorded the following diary for the proceedings on 3-11-1988:-- "Counsel for the parties are present. Opponent is also present. Cross Examination of opponent by applicant's counsel recorded. During cross examination opponent requested that Haji Muhammad Haji Karim for applicant may be called on oath and he does not want to be crossed under the pressure of oath. Both the counsel agree for adjournment Cross reserved for the next date.
4. Case is adjourned to 1-12-1988 at 10.00 a.m. For further cross Examination of opponent with the direction to applicant that Haji Muhammad Haji Karim should also attend this Court on 1-12-1988."
5. On 1-12-1988 according to the impugned judgment the said Haji Muhammad Haji Karim attended the Court but appellant's witness once again refused to be cross-examined whereupon the evidence of the appellant was closed. It is true that such closure of evidence had not been noted in the diary sheet but this aspect of the case has been fully dealt with in the impugned judgment.
6. Admittedly, appellant had not filed affidavit-in-evidence of any other witness and no other witness was even available in Court on the last date, as such, I see no justification for the appellant's objection about the closure of its evidence. The omission to record the closure of evidence in the diary sheet was at best a mere irregularity which did not affect the findings of the Court. The objection is an afterthought, as is apparent from the fact that no such ground has been taken in the memo of appeal and on the contrary, it appears therefrom that the appellant had acquiesced in the closure of his evidence.
7. Adverting to the next objection, in so far as it relates to the contravention of rule I of Order 20, C.P.C., it would be enough to point out that the provision referred to by the counsel was incorporated in C.P.C., in 1994 much after the impugned judgment and before such amendment the said Rule I read as under:- ---1. Judgment when pronounced.---The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or on some future day, of which due notice shall' be given to the parties or their pleaders."
8. The allegation that the appellant was not allowed proper opportunity to submit arguments, unsupported by any affidavit of the concerned advocate cannot be given much weight. Even otherwise the appellant having been allowed full opportunity to argue its case in this appeal, irregularity, even if any, on that account stood cured.
9. Coming to the last objection, there is no doubt that the Additional Rent Controller decided the three material Issues Nos. l, 2 and 3 jointly in a cursory manner without either dealing with the evidence on the point or giving reasons for his findings. He seems to have proceeded on the fallacious notion that as the appellant did not produce any witness the correctness of respondent's case should be presumed. Eviction application having been filed by the respondent, the burden lay squarely on it to establish its case. However, I agree with the contention of Mr. Abdullah Khatri, the learned counsel for the respondent, that since the necessary evidence is available on the record it would be desirable to dispose of in this appeal the issues involved in the case, rather than to remand the case to the trial Court for fresh decision on the same material. In this regard, reference may be made to following observation in the case of Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCM R 216).
10. "...We have heard the argument of the learned counsel for the parties on the merits of the case as well. There is no dispute that the entire evidence on the issue involved in the ejectment case was on record and even on remand there is no order for recording additional evidence in the matter.
11. The learned Additional Controller has been directed to reassess-the evidence and give his findings again. This clearly shows that the evidence on record is sufficient to give a finding. In these circumstances the remand by the Appellate Court was not proper."
12. Having dealt with the legal objections raised by the appellant's counsel, I will now take up the case on merits. The respondent filed the aforesaid Rent Case No.10 of 1986 against the appellant seeking its eviction from shop No.6 situated on the ground floor of the building known as Panorama Centre, on the grounds, that the appellant had sublet the shop without the written consent of the respondent/landlord that the shop was being used for a purpose other than for which it was let out to the appellant, that appellant had committed act as were likely to impair materially the value or utility of the shop and, that the premises was required by the landlord bona fide and in good faith for its own use, in that order. In the written statement the appellant, apart from contesting respondent's claim on merits also disputed landlord and tenant relationship between the parties, however, subsequently the appellant's counsel filed a statement in the trial Court admitting the respondent as the landlord. Later, the following issues were framed by the Court: "(1) Whether the Applicant requires the disputed premises in good faith for his personal bona fide use?
(2) Whether the opponent has sublet the disputed premises?
(3) Whether the opponent has committed such acts of unauthorised alteration in the disputed premises so as to materially impair value look and utility thereof and,
(4) Relief The first issue pertains to respondent's requirement of the premises for its own use. On this issue the learned counsel for the respondent submitted that the bona fide requirement of the respondent had been fully established on evidence. He argued that in the eviction application the respondent had stated that it required the premises on good faith for its own use and in the affidavit-in-- evidence it disclosed the details of the business that was proposed to be set up in the premises and the availability of finance for the purpose. Reference was made to para. 11 of the affidavit-in-evidence of the respondent's witness which reads as follows:- "11. I say that the Applicant wants to start business of Super-market for sale of household articles, textile fabrics and other articles of daily use. The Applicant has finance of Rs. Five lacs available for this purpose and is in urgent need of the premises to start the business."
13. It was asserted that notwithstanding that the respondent was occupying another premises in the same building, it was entitled to the possession of appellant's premises as the one already in its possession was not suitable for its need. In support of his contention the counsel placed reliance on the cases of Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCM R 1178); Muhammad A.I v. Mumtaz Hussain Lali, Additional District Judge, Sialkot and another (PLD 1989 Lahore 187); Mst. Saira Bai v.
14. Syed Anisur Rahman (1989 SCM R 1366).
15. "The establishment and running of the departmental store by the respondent as stated by him cannot be ruled out. Unless there is cogent evidence and sufficient proof that it is not possible or practicable to run such business, the Court would be inclined to hold that the requirement is bona fide. "
16. "Both the premises are of two different categories. It is admitted position on record that the respondent No.2 does not own or possess any shop within the same urban area except the shop in dispute. The respondent No.2 has also, categorically stated that the factory premises are not suitable for use of that shop. This part of the statement not only remained unrebutted but also not challenged in cross-examination. Therefore, it is a fact proved on record. It is not also the case of the petitioner that the respondent No.2 is in possession or has vacated any such shop."
17. "Regarding the non-mentioning of the nature of business in application it may be observed that an applicant has to state in his application, the material' facts, i.e., facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as itis not part of the cause of action to state the nature of business the applicant intends to carry on." .
18. There can be no cavil to the proposition that mentioning of the nature and details of the business in the eviction application is not necessary or that even if the landlord is in occupation of a premises still he would be entitled to the eviction of a tenant on the ground of his requiring the premises in good faith for his own use, provided that, the premises already in his occupation is not suitable for his needs. However, here, in my view, for the reasons that I will discuss hereafter, the respondent failed to establish its case of requiring the premises in good faith for its own occupation. The cases referred to by the respondent's counsel are not relevant to this case. This ground was taken in para 7 of the eviction application where the respondent stated that, "The premises occupied by the Opponent is required by the Applicant bona fide in good faith for its own use and business. The Applicant is not occupying in the Cantonment Area concerned or in any local area in the vicinity any other such premises suitable for the applicant's needs nor has the applicant vacated such premises."
19. "The applicant is already in occupation of an office on Ground floor of Panorama Centre, where Telephone Numbers 514281 and 524701 are installed. Besides above, the Applicant has in his possession an Office/Business place at 248 Staff Lines, Saddar, Karachi, within Cantonment Area."
20. It was stated that, "I say that at present accommodation in possession of the Applicant is not sufficient for their needs as the Applicant wants to expand their business."
21. It is apparent from a reading of the main application, the written statement of the appellant and the affidavit-in-evidence filed on behalf of the respondent that initially, in its application, the respondent withheld the information about its being already in possession of other premises too at the time the application for the eviction of the appellant was filed, but apparently only after this fact was brought out in the written statement that the respondent accepted this in its affidavit-in- evidence and briefly stated in para. 10 thereof that, "at present accommodation in possession of the applicant is not sufficient for their needs as the applicant wants to expand their business," without in any way explaining as to why the premises in its occupation was not suitable or sufficient for its needs.
22. Landlords entitlement to get his tenant evicted on the ground of his requiring the premises for his own use is governed by subsection (4) of section 17 of the Cantonment Rent Restriction Act, 1963, relevant portion of which may be reproduced as follows:--- "(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession---
(a) ......................................................................
(i) ......................................................................
(ii) ......................................................................
(iii) ......................................................................
(b) in the case of a commercial building, if---
(i) he requires it in good faith for his own use; and
(ii) he is not occupying in the cantonment area concerned or any local area in the vicinity thereof in which such building is situate for the purposes of his business any other, such building suitable for his needs at the time; and
(iii) He has not vacated such a building in the said area or vicinity without sufficient cause after commencement of this Act."
23. It is apparent from the above provisions that landlord's right of eviction of a tenant on ground of his personal requirement of the premises is circumscribed by two conditions, firstly, that he is not occupying any other premises in the same cantonment area or in its vicinity which is suitable for his needs, and secondly, that he has not vacated such premises in that cantonment area or its vicinity without-sufficient cause. It goes without saying that the burden lies on the landlord to satisfy the Court of the bona fides of his requirement of the premises in occupation of the tenant and where the landlord is already in occupation of a premises in the same cantonment or in its vicinity the burden is all the more heavier, for, then he has not only to satisfy of his requirement of the premises in good faith but also that the one in his occupation is not suitable for his requirement. Such burden would not be discharged by a mere bald statement that the premises in occupation of the landlord is not sufficient for his needs.
24. Respondent's statement that the premises in its occupation was not 'sufficient' for its need implied that for the proposed business larger area than that of respondent's premises was required and, therefore, it was necessary for the respondent to have laid information before the Court about the area/size of its premises as compared to that of the appellant, for, if both the premises were of the same size there could be no apparent reasons why respondents` shop was not suitable for the proposed business. If, however, both the premises were to be used for the purpose jointly, then perhaps some explanation was called for about its feasibility, having regard to the location of the two premises. Unlike Muhammad A.I's case PLD 1989 Lah. 187, here the premises already in occupation of the respondent and the one from which it seeks eviction of the appellant do not fall in different categories. Both are commercial premises situated in the same building and on the same floor and, therefore, it was incumbent upon the respondent to have adequately explained the reason as to why the premises in its occupation was not suitable or sufficient to meet its requirement. Withholding of the information about respondent's occupation of another premises in the same building, in the first instance and then failing to explain as to why the premises already in its occupation was not suitable for its needs cast serious doubts on its bona fides.
25. The next issue pertains to the ground of sub-letting of the premises in question. The ground finds mention in para. 4 of the application in the following words, "That the Opponent has without the written consent of the Applicant transferred his right and/or sublet the rented premises."
26. This was controverted in para. 5 of the written statement where the appellant averred that the shop in question was let out to Muslim Commercial Bank Ltd. With the consent of the respondent and in this regard a copy of letter dated 4-7-1978 was filed. This letter was not denied by the respondent in the affidavit-in-evidence of its witness and in his cross-examination too the letter was not denied. Respondent's counsel in the course of his arguments admitted the said letter as having been written by the respondent, but contended that the same did not amount to respondent's consent to the subletting of the premises to the Muslim Commercial Bank Ltd. It would be beneficial to reproduce the letter here, Dated:- July 4, 1978 "Sh. Muhammad Yasin, C/o, M/s. Ebrahim Agencies Limited, Kharadar, Karachi.
27. Re:- Shop No.6, Ground Floor, Panorama Centre, Karachi.
28. Dear Sir, With reference to your letter, dated 25th May, 1978 on the subject we hereby regularise your action in subletting the above shop to Messrs. Muslim Commercial Bank Limited in view of the facts explained by you personally to our Chairman. However. Before proceeding further in this regard, you will submit us the draft agreement to be executed by you with the said Bank for our prior approval.
29. The rent for the premises will be Rs.700 (rupees seven hundred only) will be paid by you regularly p.m. i.e. From 1-7-1978.
30. Thanking you, Yours faithfully, for Panorama Enterprises Ltd.
31. Sd/- Managing Director. "
32. The contention of the counsel was that the subletting was regularised by the respondent under this letter subject to the appellant submitting to the respondent the draft agreement to be executed between the appellant and the Bank and this having not been done the regularisation conveyed under the letter was rendered ineffective. Having regard to the text of the above letter, it is not possible to agree with the line of arguments advanced by the respondent's counsel: The first sentence of the letter leaves little scope for doubt that the consent for subletting the shop by the appellant to the Muslim Commercial Bank Ltd. Was unconditional. The second sentence of the first para. Of the letter in no way controls the first sentence. Provision therein for the sumission of the draft agreement between the bank and the appellant was an independent obligation put on the appellant. There is nothing in the letter which would suggest that in case of non-submission of the draft agreement to the respondent the regularisation of subletting would be rendered ineffective.
33. There is also nothing on the record to show that the appellant had at all entered into any written agreement with the bank after that letter. The fact that this letter was written on 4-7-1978 and the rent case was filed in 1986 and during these eight years the respondent was ail along aware about the bank functioning in the said premises, as is admitted by its witness, yet never raised any objection to the letting out of the premises by the appellant to the bank would also suggest that the regularistaion of the transfer of tenancy was without any condition. The result is that this ground too fails.
34. Coming to the third issue, reference may be made to paras.
5. And 6 of the main application wherein a general allegation has been made that the appellant had "used and/or caused to be used the rented premises for a purpose other than for which it was rented and has infringed the condition of the tenancy" and that the appellant "has committed acts as are likely to impair materially the value or utility of the shop premises". These allegations were denied in paras. 6 and 7 appellant's written statement. In para. 6 of the affidavit---in-evidence of respondent's witness it has been clarified that the use of the premises for banking purposes was not the use for which the premises had been .Rented out to the appellant. Except for this no specific act has been mentioned which may be considered to have impaired the value or utility of the premises. During the course of arguments appellant's counsel stated that the bank has made internal alterations to suit its business and these alterations have materially affected the utility of the shop. As mentioned above, the transfer of tenancy to the bank had been agreed to by the respondent in writing and, therefore, it cannot now be heard saying that the use of the premises in question by the bank had impaired the utility or value of the premises. In so far as the internal alterations by the bank were concerned, the permission to let out the premises to the bank implied the permission to make the premises fit for the use of the bank. When the respondent was consenting to the transfer of the tenancy in favour of the bank it ought to have known that for putting the premises to the use of the bank certain alterations would of necessity be made. In any case, no evidence has been produced to point out the alterations in the premises which may be said to have impaired its value or utility.
35. As such, I do not find any force in this ground also.
36. The upshot of the above discussion is that the appeal succeeds. Accordingly, I allow the appeal, set aside the impugned order/judgment and dismiss respondent's said eviction application.