1. By this common judgment I will dispose of three First Rent Appeals being First Rent Appeal No.236 of 1995, First Rent Appeal No.237 of 1995 and First Rent Appeal No.238 fo 1995 as the appellant/landlady in all the above three F.R.A.s. is common and consolidated evidence was recorded.
2. Admittedly, the three disputed Shops bearing Nos.1,2, and 3 are situated in a house constructed on a plot measuring 120 sq. yards bearing No.1/11/E, Nazimabad, Paposh Nagar, Karachi. The shop bearing No.1 (FRA No.236/95) and No.2 (FRA No.237/95) were let out to respective respondents 'No.1 in August, 1966, while shop No.3 (FRA No.238/95) was let out to the respondent No.1 on 5-4-1976. (All the three shops will be referred to as 'Premises'). The Appellant/landlady in the first instance requested the Respondents to vacate the premises and hand over vacant possession of the same as she needed the premises for the personal bona fide use of her sons and on refusal of the respondent tenants filed Rent Case No.613 of 1991 on the grounds of personal bona fide use for her two sons and for sub-letting the disputed premises to Respondent No.2. The other two Rent Cases bearing No.615 of 1991 (FRA No.237/95) and No.614 of 1991 (FRA No.238/95) in respect of shops Nos.2 and 3 were filed on the only ground of personal bona fide use for the two sons.
3. Notices were issued to the respondents who filed their written statements and affidavit-in- evidence denying the personal bona fide need of the two sons of the appellant and in respect of shop No.1 sub-letting also. The appellant filed affidavit-in-evidence of her three sons namely Syed Sajid Amir Zaidi, Syed Hussain Amir Zaidi and Syed Ali Amir Zaidi, who were cross examined while respondent Muhammad Ajmal (in respect of Shop No.1) and Abdul Aziz Shaikh (Shop No.2) also filed affidavit-in-evidence and were cross-examined. In case of shop No.3 although Mr. Fateh Muhammad had filed his affidavit-in-evidence but was not cross-examined while Barket, attorney of Respondent was cross-examined. The learned Rent Controller framed issues/points for determination and other hearing both the parties, passed the impugned judgment dated 6-2-1995 dismissing the applications. The three issues/points are as under:-- "(1) Whether the demised shop is required alongwith two other shops with other tenants by the applicant for conversion of all three shops after demolishing intervening walls into one shop to run General Store by her two sons bona fidely and in good faith?
4. (2)Whether the Opponent No.2 is sub-lettee in demised shop? (only in FRA No.236/95)
5. (3)What should the order be?"
6. Mr. Ansar Hussain, the learned counsel for the landlady/appellant, stated that the question of sub- letting though is reflecting in the impugned judgment but is not being pressed by him. In the circumstances, the only issue which remains is the personal bona fide need for the two sons of the appellant. The learned counsel further stated that the landlady was living on Martan Road during the lifetime of her husband and in 1978 after his death she shifted to the present house. According to him, the shops were very small and roughly measures 10' X 4', 10' X 6' and 5'X 3' respectively. In Shop No.1, the Respondent No.2 is running the business in the name and style of SAC Machine which is an outlet for him as he is manufacturer of the said machines. In Shop No.2 the Respondent, who is a Hakeem, is running a clinic and in Shop No.3 the Respondent is carrying on a repair shop for watches and clocks etc. The learned counsel did not deny the fact that earlier the landlady had demanded vacant possession of the premises but the dispute was settled after enhancement of rent but affording to him, this is no bar to the claim of the landlady to obtain vacant possession of her property for the personal bona fide use of her children. His next contention is that under the law an owner is only required to state on oath that the property is needed for the purposes mentioned in section 15 of the Sindh Rented Premises Ordinance, 1979 and it is also the prerogative of the landlord to decide the efficiency or insufficiency" of the premises. He further stated, the shops are so small that all the three shops will he needed to make the premises enough to run a general store.
7. Mr. Mirza Moazazam Baig, the learned counsel for the respondents denied the personal bona fide need of the sons of the appellant/landlady. According to the learned counsel, the appellant/landlady has filed cases to put pressure on the respondents to increase rent as was done in the past.
8. I have heard the contentions of both the counsel and perused the pleadings and evidence and the case-law relied upon by them.
9. Syed Ali Amir Zaidi, one of the sons of the landlady/appellant in his affidavit-in-evidence clearly stated that they want to convert the three shops into one after removing the common walls to set up a business of the general store. In cross-examination, he admitted that a meeting did take place between the tenants/respondents and his maternal uncle, Nazar Abbas, and during the said meeting all the related issues were discussed but denied that they demanded enhancement of rent upto Rs,1,000 per month. He also rebutted the suggestion that the case was filed to put pressure on the tenants for enhancement of rent. He admitted that his brother Raza is permanently residing in U.S.A. but denied that one of his brothers is working in Ziauddin Hospital as Technician and other brother Hussain is working with his uncle as Estate Agent. Similarly, the other two witnesses i,e, Syed Sajid Amir Zaidi and Syed Hussain Amir Zaidi who had filed their affidavit-in- evidence and were cross-examined, stated that they need the premises for their personal bona fide use wherein they want to start a general store. He denied that he was working in Ziauddin Hospital as a Technician and that the cases have been filed as pressure tactics for enhancement of rent. Mr. Hussain Zaidi also stated that he is unemployed and want to start business by establishing a general store in the premises after the same is vacated by the tenant. He denied the contentions of the respondents/tenants that during the meeting held between them and his uncle, enhancement of rent was demanded.
10. In First Rent Appeal No.236 of 1995 Muhammad Ajmal, tenant in respect of shop No.1, denied that he is a sub-lettee without consent and approval of the apellant/landlady. According to him, he has been paying rent directly to the appellant/landlady. He denied that he had paid any fixed deposit to the appellant/landlady. He also denied that the appellant/landlady had asked him on several accasions to vacate the shop because her sons are jobless. He stated that appellant's brother Nazar Abbas had approached him for enhancement of rent. In cross-examination he confirmed the contents of affidavit-in-evidence and denied that all the three shops are required by the appellant/landlady for the use of her sons.
11. In First Rent Appeal No.237 of 1995, Abdul Azim Shakeel Faisal, tenant in respect of Shop No.2, in his affdavit-in-evidence stated that the rent was enhanced from time to time by the appellant/landlady and that in the year 1966 he had paid an amount of Rs,40,000 as fixed deposit.
12. According to him, demand by the appellant/landlady to vacate the premises is to increase the rent. He denied the suggestion that it was only Rs,2,000 as security deposit which he had paid to the appellant/landlay. He further siated that during the meeting between tenants and Nazar Abbas brother of the appellant/landlady rent at the rate of Rs,1,000 per month was demanded from him which he refused and, as such, they are being asked to vacate the premises. In his cross- examination he confirmed the content of the affidavit-in-evidence and on a question replied" I have not vacated the shop as I was not asked by the appellant to vacate the same." He denied that both the sons of appellant are jobless and stated that they are working in Ziauddin Hospital and with his uncle as estate agent and also driving a yellow cab taxi after the working hours. When asked to produce any proof of their service he stated that " I have no document in this respect but the two sons themselves had stated this to him".
13. In First Rent Appeal No.238 of 1995, Fateh Muhammad, the tenant though filed his affidavit-in- evidence but did not appear for cross-examination as such his evidence cannot be dealt with.
14. However, his brother/attorney Barket Ali filed his affidavit-in-evidence and was cross-examined. He stated that he had paid Rs,30,000 to the appellant as fixed deposit amount in 1976 which was refundable at the time of termination of the tenancy. He denied the personal bona fide need of the appellant's two sons and stated, that this plea is taken to put pressure to enhance the rent. He admitted that after the expiry of the tenancy agreement it was not extended but they continued to occupy the premises. He also stated that one of the sons of the appellant is working in Ziauddin Hospital and the other is working as a Estate Agent with his uncle and that they also drive a yellow cab taxi after the working hours.
15. The learned counsel for the appellant relied on the case of Abdul Ghaffar v. Abdul Qadir (1986 MLD 1636) wherein it was observed "that the balance of authority is that the statement of the landlord showing personal need should prima facie be a good ground for ejectment of the tenant unless the tenant succeeds in creating doubts in the story of personal need either by cross-examining the landlord or by producing evidence in rebuttal. As owner of the property it is the right of the landlord to use his property in the manner he chooses".
16. The next case relied upon by the learned counsel was Qamaruddin through LRs v. Hakeem Mehmood Khan (1988 SCMR 819) wherein the subject shop was required for personal bona fide use of the landlord and his son. In the said case also the landlord had stated" want to run a general store in the disputed shop to earn my livelihood. I have two grown sons also. I want to engage one of my sons in the business." The statement was not challenged in the cross-examination nor rebutted by any evidence produced by the respondents, as such, the appeal was allowed.
17. Mr. Mirza Moazam Baig, learned counsel for the respondents, relied upon the case of Sher Afghan v.
18. Shaikh Anjum Iqbal (1997 MLD (Kar) 98) wherein it was held that a landlord ordinarily was entitled to use his property to the best of his discretion and choice and without any restrain on his right to hold, acquire and possess a property which right is even guaranteed under the Constitution except in the circumstances where it is shown that requirement of premises for personal use was not coupled with good faith.
19. In the present case, the three sons of the appellant stated in their affidavit-in-evidence as well as confirmed in their cross-examination that they need the shops to establish a general store for the two brothers who are jobless. The respondnets/tenants though challenged the said statement but did not produce any evidence to the effect that the said sons were employed in Ziauddin Hospital or working as Estate Agent with his uncle. They also failed to produce any independent evidence to show that the said sons were employed or were running yellow cab taxi to earn their livelihood. The respondents also failed to prove any mala fides in filing of the rent cases.
20. Considering the evidence produced by the parties, it appears to me that the appellant has sufficiently established the requirement of the premises for the personal bona fide use of her sons.
21. No doubt, earlier notices were issued to the respondents but the cases were settled on enhancement of rent but that is no bar to initiate fresh proceedings when the need of the appellant arose again. The circumstances establish that the landlady/appellant, who is a widow now, needs financial support and, as such, intends to acquire the premises to converted it into a shop to run a general store for her two sons.
22. In the result, I allow the appeals, set aside the impugned judgment dated 6-2-1995 passed by the learned Rent Controller and order the respondents/tenants to hand over vacant peaceful possession of the shops to the Appellant/landlady.
23. ' However, since the respondents are running their businesses in the premises, I allow them three months' time to vacate the premises and hand over vacant physical possession of the same to the appellant/landlady.