' The appellant/landlord has assailed an order, dated 24-10-1988 passed by the learned VIth Senior Civil Judge and Rent Controller dismissing Rent Case No,1464 of 1986 whereby ejectment of the respondents was sought.
2. The case of the appellant set forth in the application is that she has purchased the property from the previous owner and only three tenants were described therein. She filed the rent case on the grounds of default, reconstructions, sub-letting and personal bona fide need.
3. The respondents were served and they filed their written statement. They stated that the premises are not needed by the landlady on any ground so mentioned. Respondents Nos.3 and 4 denied that they are sub-tenants, while respondents Nos. 1 and 2 maintained that the respondents Nos. 3 and 4 were inducted with the written permission of the previous landlord and has placed a letter of the then landlord on record. They specifically stated that no default has been committed in payment of rent. They denied the need of premises for reconstruction and they also stated that she does not require the premises for bona fide need. It was further stated that earlier also she filed ejectment application which was dismissed and the plea of personal bona fide need was not mentioned by her in the rent application.
4. The appellant examined her husband as her attorney while on behalf of the respondents, respondent No,1 was examined. The learned Rent Controller framed the following issues:
(1) Whether the opponents Nos. 1 and 2 are defaulters in payment of rent?
(2) Whether the applicant requires the building for purpose of reconstruction?
(3) Whether the opponents Nos. 1 and 2 illegally sub-let the portion of premises to opponents Nos. 3 and 4 and are thereby liable for the ejectment?
(4) Whether the applicant requires the premises in good faith for herself and for her family members?
5. Before the trial Court Issues Nos.1 and 2 were given up by the appellant and Issues Nos. 3 and 4 were pressed.
6. The grounds for personal bona fide need are mentioned in paragraph 8 of the application and in the evidence the attorney of the appellant stated as follows: "That the case premises is reasonable and in good faith required to the applicant for herself as well as for family members and she was to establish the business for running the Departmental Store therein for which she has sufficient means and funds to run the said business, and in order to avail the reasonable benefits from the case premises purchased by her for the benefit for herself as well as for her family members".
' In cross-examination in relation to the personal bona fide need he stated as follows: ' On ground there is shop in which Abdul Aziz is doing business as my partner. He is doing business in name of 'Dressm en' of Garments. Opponents 1 and 2 also deal in garments business under the name of Rainbow House. I work with Abdul Aziz since last 6, 7 years It is not correct that applicant has no experience of business but we are the business family. Applicant is about 63 or 64 years of age. The applicant has the experience of Departmental Store. She has physically not done the business of Departmental Store. I will also assist her. It is not correct that applicant has no funds to start with business. Applicant does not pay income-tax. Ground of personal need was agitated in previous case. The Pugri and rent might have been enhanced by now".
7. The respondents filed written statement and they denied personal bona fide need. Additionally in paragraphs Nos.14 and 15 it was stated that the power-of-attorney has been unlawfully executed and they stated that the landlady previously filed rent application in 1982 and the grounds of personal needs were not taken in that application. That application was dismissed in default. The present application on the grounds of personal bona fide need is tainted with mala fides. In his examination-in-chief he has stated as follows: "That the contents of para. 8 of the application are denied. It is denied that the case premises is required to -the applicant for herself as well as for her family members in good faith and bona fide.
It is submitted that the ground of personal requirement of the applicant" which was not raised in earlier Rent Case No,1550 of 1982 which was dismissed in default on 6-2-1986 has been falsely and mala fidely raised in his case and as such ground in this case. Besides, the applicant has not appeared in the witness-box to support her case. She did not sign the eviction application. She has no experience of the business. She has no funds for the purpose of the business."
8. The respondent No,1 examined, himself and was cross-examined at length. In cross-examination in relation to the personal bona fide need he stated as follows: "The landlady is mother of one Wasim Bari, Wasim Bari ex-Captain of Pakistan Cricket Team. I do not know if at present Wasim Bari works in P.I.A. I do not know if any son of landlady resides in America. The husband of landlady is doing business in a shop in the same building."
9. As stated earlier before the learned Rent Controller Issues Nos.1 and 2 were given up while on Issues Nos.3 and 4 the learned Rent Controller held that the landlady has failed to establish subletting and personal bona fide need as such the application was dismissed, therefore, this appeal has been filed.
10. In this background of pleadings and the evidence Mr. Shabbir Ahmed Sheikh, learned counsel appearing for the appellant contended that the landlady had established on record the need of premises for her bona fide use and for the use of her spouse and children. Her pleading and evidence are consistent with each other and that she is entitled to the possession on the grounds of personal bona fide need. Learned counsel also stated that even on the ground of sub- letting she has proved her case. On both scores the learned Rent Controller did not read material evidence and his findings are erroneous in law which need to be corrected in the appellate forum.
11. As against the above contention of the learned counsel for the appellant Mr. Suleman Kassim, learned Advocate for the respondents urged that neither the subletting has been established nor the personal bona fide need has been established as such no error has been committed by the learned Rent Controller in dismissing the rent application and the impugned order does not call for any exceptions.
12. Before deciding the issue of personal bona fide need I would like to deal with the issue of subletting. Subletting as such is not stated in the Ordinance itself and the law reads as follows: "15.---(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that---
(i) ..
(ii)
(iii) the tenant has, without the written consent of the landlord---
(a) handed over the possession of the premises to some other person.
13. On the issue of subletting the opponent No,1 has stated as follows: "6. That in reply to para. 5 of the application it is submitted that it is denied that the opponents 1 and 2 have sublet the portion of the said shop to the opponent No,3 as alleged. It is denied that the opponents Nos.1 and 2 have sublet the portion of the said shop to the opponent No,4 as alleged. It is denied that both the sub-tenants are illegally paying monthly rent to the opponents Nos.1 and 2 as alleged. It is submitted that the opponents Nos.3 and 4 are legal and authorised subtenants of the opponents Nos.1 and 2. The necessary permission for subletting was obtained from the previous owner Mr. D.R. Marker vide his letter, dated 16-2-1955 addressed to the opponents Nos.1 and 2. (The original letter, dated 16-2-1955 referred to above is filed herewith and marked as ' N'). The allegations of sublettings are devoid of merits and of no legal substance because such sublettings took place in the year 1955 and whereas the applicant purchased the case building in the year 1976 and that the said sublettings will not be governed and/or regulated under the provision of the Sindh Rented Premises Ordinance, 1979 which was not retrospective and came in force on 21-11- 1970 Mr. D.R. Marker was the original owner of the case building and after his death, Miss Mani Dorabji Marker became the owner of the case building and that she gifted the said property to (i)
Mrs. Soonu F. Kandawalla, (ii) Nari M. Ghenoy, and (iii) Dinyar M. Ghenoy in 1974 and they sold the said property to the applicant in the year 1976, Miss Mani Dorabji Marker had also consented to the said sublettings as evident from the proceedings of Revision Application No,1298 of 1969 which was decided by the Additional Commissioner of Karachi vide his judgment, dated 12-5-1969.
7. That the contents of para 6 of the application are denied. It is denied that the opponents Nos.1 and 2 the premises to any one also including the opponents Nos.3 and 4. It is denied that the opponents Nos.1 and 2 had never been given permission by the previous owner. It is submitted that the question of consent or permission of the applicant to the subletting did not arise in the facts and circumstances of the instant case in view of the fact that the subletting took place in 1955 with the consent of the previous owner as stated above and that the applicant acquired the ownership of the case property in the year 1976. It is denied that the opponents are liable for ejectment."
13. The letter under reference is reproduced as follows: "To, Md. Hanif & Zakariya Yusoof, C/o Rainbow House, Elphinstone Street, Karachi.
' Dear Sirs, ' I am in receipt of your letter of 12-2-1955, I have no objection if you sublet a part(s) of my plot SB- 7140 to any person(s) to whom you choose best. I also permit you for making cabin(s) attaching to my plot No,SB-7/40, Elphinstone Street, Karachi. Further I permit you for making show case(s) in or outside the plot whichever place(s) you choose best for you, for your personal use not for sub- letting.
' Thanking you, Yours faithfully, (Sd)
Karachi, 16-2-1956. (D.R. Marker)".
14. The landlord's attorney in his cross-examination has deposed as follows: "The original owner of case property was D.R. Marker. I was his tenant. I produce 4 receipts as Annexures 0/1 to 0/4. I do not recognise signature of Marker. But these receipt are issued by him".
15. At the relevant time the attorney of the appellant was also tenant of the original landlord Mr. Marker. He produced four receipts issued by Mr. Marker which are on record as Annexures 0/1 to 0/4. Comparing the signatures on Annexures 0/1 to 0/4 with the above-quoted letter the fact which emerges from the record is that the written consent from the landlord was contained before inducting the respondents Nos.3 and 4.
16. It is, therefore, held that the respondents Nos.3 and 4 were given possession of the premises with written consent of the then landlord. The issue of inducting respondents Nos.3 and 4 in shops with written consent from the landlord was therefore, rightly decided against the appellant by the Rent Controller, and such findings do not call for exceptions.
17. This brings me to the ground of personal bona fide need. I have extensively quoted the plea as well as the evidence of the parties in the earlier part of this judgment. It is well-settled that the landlord has the option to seek ejectment of his tenant for his personal use but the personal use of the landlady is clipped with the words "good faith". The word 'good faith' has been dealt with by Hon'ble Supreme Court in the case of Mst. Sara Bai v. S. Anisur Rehman (1989 SCM R 1366).
Honourable Supreme Court incorporated the definition of "good faith" in West Pakistan General Clauses Act, 1956, which reads as follows: "A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not."
18. In order to ascertain whether good faith is established on record, following the dictum of the Hon'ble Supreme Court, the Courts have to probe the record and to find out whether honest intentions are available, and spelled out from the record itself. This is all the more needed as word "good faith" is not deemed in the Sindh Rented Premises Ordinance, 1979. Apart from above definition good faith has been given dictionary meaning, which inter alia is as follows: "Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inter spirit and, therefore, may not conclusively be determined by his protestations alone."
Thus, it will be seen that apart from honesty it is to be also ascertained that there is absence of malice and absence of design to defraud or to seek an unconscionable advantage.
19. With this legal position, on the scrutiny of the above evidence the following facts emerge on record:
(a) The appellant's husband alongwith his partner and respondents Nos. 1 and 2 are in the business competition as both of them are doing garment business.
(b) On the day of deposition (7th May, 1988) the appellant was 63 or 64 years (and now she will be 72 or 73 years). The appellant although mentioned by her attorney that she had experience of departmental store but in the same breath he has stated that she has not done the business of departmental store. According to him (attorney) he will assist her. It is not borne out on record as to how she acquired business experience.
(c) The attorney of the appellant is already partner of Mr. Abdul Aziz, who is doing business of the same nature as opponents Nos.1 and 2, in the same building. Apart from doing business as partner with Mr. Abdul Aziz he wants to establish his own business of departmental store. Her husband is already established in the business.
20. The learned counsel for the appellant urged that previous experience of the business is not necessary. He further contended that old-age is also not a bar for running the business. He further urged that the appellant has the right to establish the business of our own choice which is one of her fundamental rights. Admittedly her husband is doing the business of garments with Mr. Abdul Aziz who is alleged to be her husband's partner. All along during this entire period no evidence has come that she has done any business in that shop where her husband with his partner is doing business. Although age is not bar but it is not understood as to why the appellant has not done any business up to date although her husband was tenant of the landlord and was doing business in the same premises. Now she is 72 years' old and she has no experience particularly for running a departmental store. Even otherwise if she opens the departmental store she will be competing with her husband who is already doing business of departmental store with his partner Mr. Abdul Aziz in the adjacent premises and in the same building. The right to establish business is subject to law which, inter alia, means to be regulated by law or provided that the law permits. For all these reasons I am constrained to hold that honest belief is lacking and good faith is not established through the evidence, which is a condition precedent to get an order of ejectment as personal bona fide use.
' Consequently, therefore, I hold that the personal bona fide need is not established on record and the order of the learned Rent Controller does not call for any exceptions. This appeal is, therefore, dismissed but in view of the points involved in this case, parties are left to bear their own costs.