' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is directed against an order dated 20-12-1993 recorded by Miss Riffat Shaikh former Controller Hyderabad, dismissing ejectment application filed by the appellants against the respondents on the ground of wilful default in payment of rent and requirement of the shop by appellant No,3 for his personal bona fide use.
2. Appellants who are real brothers filed the ejectment application against the respondents with the averments that the demised shop premises bearing No,F/375 situated near Rahat Cinema was gifted to them by their uncle Raza Imam Rizvi on 23-2-1991. Respondents are the legal representatives of deceased Muhammad Umar who was the tenant of the said donee by virtue of a written tenancy agreement dated 12-3-1971. After the demise of Muhammad Umar tenancy devolved on the present respondents. Pursuant to gift in favour of the appellants they served a notice dated 14-5-1991 under section 18 of the Ordinance on the respondents intimating them about the change of ownership and calling upon them to pay rent at the rate of Rs,300 per month w,e,f, 23-2-1991 but without any response. It was in these circumstances that they filed eviction application on the ground of default in payment of rent and personal requirement for the use and occupation of the shop by appellant No,3 who was jobless and without any source of income and wanted to run his business.
3. Respondents in their written statement filed through respondent No,1 namely mother of respondents Nos.2 to 6 admitted the tenancy but denied the default in payment of rent and personal requirement by appellant No,3 bona fide. With regard to default they explained that on receipt of notice they sent rent for the month of May 1991 by money order dated 2-6-1991 but the respondents refused to receive the same. Subsequently they filed a miscellaneous rent case under section 10 of the Ordinance on 10-7-1991 and they were depositing rent in the office of the Controller. They pleaded that before this round of litigation Syed Raza Imam Rizvi had filed eviction case being R.A. No,524 of 1982 through his brother and general attorney Syed Muntazir Imam Rizvi father of the appellants on the ground of default in payment of rent, requirement of the premises in good faith by the landlord himself and for impairing the value of the property against the original tenant Muhammad Umar. The said eviction application was dismissed on 24-2-1985 against which uncle of the appellants filed F.R.A. No,130 of 1995 which was pending before this Court. They further averred that ancle of the appellants having failed in the earlier ejectment application to seek the eviction of their predecessor-in-interest on concocted grounds has attempted to make out a case of their ejectment by gifting the property to his nephews through his own brother i,e, father of the appellants.
4. In support of their case appellants examined Nisar Hussain Rizvi and Asad Abbass Rizvi while the respondents examined their attorney Muhammad Ramzan.
5. On assessm ent of the evidence on record learned Controller came to the conclusion that there was no default in payment of rent on the part of the respondents. On the issue relating to personal requirement she held that the shop premises in question were not genuinely required by appellant No,3. Consequently ejectment application was dismissed hence this appeal.
6. At the hearing Mr. Anwar Zaheer Jamali, learned counsel for the appellants did not press the finding on issue relating to default in payment of rent on the part of the respondents and confined his case to the findings on the issue with regard to personal requirement of the premises for appellant No,3.
7. In order to reinforce his submissions learned counsel referred to the evidence of appellant Nisar Hussain Rizvi and Asad Abbass Rizvi who in their respective affidavits in evidence pleaded that appellant No,3 being one of the landlords was in need of rented shop in good faith for his personal use as he wanted to start and establish his own business in it. They further added that for the last more than two years Asad Abbass Rizvi was jobless without any source of income and thus he was in acute need of rented shop for his personal use. Learned counsel assailed the evidence of Muhammad Ramzan attorney for the respondents who had appeared in the witness box in rebuttal. Learned counsel emphasised that the respondents' witness had no personal knowledge of the facts leading to this appeal inasmuch as he had never come across Asad Abbass Rizvi and the facts about latter's stay at Multan and Karachi were disclosed to him by the brother of Muhammad Umar (since dead). Since this witness had not personally verified the abovesaid facts about residence of Asad Abbass Rizvi at Multan and his employment at Karachi learned counsel vehemently urged that the respondents failed to shatter the evidence of the appellants in support of their requirement of the premises in good faith. Learned counsel also seriously assailed the observation of the Rent Controller while rejecting the plea of the appellants for the reason that they had failed to disclose the nature of business to be commenced by appellant No,3 in the demised premises. It is true that it is not the requirement of law to disclose the nature of business in the pleadings or in evidence for establishing the requirement of the premises for self-occupation in good faith and this view was upheld and approved in Khawaja Imran Ahmed v. Noor Ahmed and another (1992 SCM R 1152) and Juma Sher v. Sabz Ali (1997 SCM R 1062).
8. The fact of the matter, however, remains that during the pendency of the F.R.A. Arising out of the earlier round of litigation commenced by the uncle of the appellants through their father act of gifting away the property and immediately after the service of statutory notice approach to the Controller for eviction of the respondents smacks foul play on the part of the appellants and their requirement cannot be considered to be bona fide and in good faith. Dismissal order passed in earlier ejectment application (Exh.43) on record tends to show that eviction of the predecessor-in- interest of the respondents was sought on the grounds of default in payment of rent, personal requirement, damage to the property and use of the premises for the purpose other than for which it was let out. No doubt the validity of the gift in favour of the appellants could not be challenged before the Controller as it is a transfer of interest between the uncle of the appellants and themselves, the fact remains that this was a device to restart the second round of litigation in the names of appellants against the respondents being the legal heirs of the original tenant even during the pendency of F.R.A. Against the dismissal order. It was incorrectly stated at the bar that the earlier F.R.A. Was withdrawn before the institution of the rent case by appellants but on verification from the office it is noticed that the said F.R.A was actually dismissed as not pressed as later as 1-8-1993 by which time parties in this case had closed their evidence. In fact and in law it was most unfair and inappropriate on the part of appellant's predecessor-in-interest to have continued with the prosecution of F.R.A. After the gifting away of the property in favour of the appellants.
9. Ordinarily, a landlord has the right and privilege to use his property in the manner he likes but the requirement of law is that when he seeks to uproot an old tenant he must come to Court with clean hands and to establish his requirement in perfect good faith and bona fide. Mere desire, wish or whims on the part of the landlord have never been considered to be sufficient and adequate to justify the eviction of a tenant on the so-called ground of personal requirement.
10. It may be conceded that the appellants were not legally required to disclose the circumstances leading to earlier litigation between the predecessor-in-interest of the appellants as well as propositus of the respondents and the fact of pendency of earlier F.R.A. Before this Court on the date of instituting the rent case as well as the date of their evidence but avoidance on the part of appellants to admit the earlier litigation in their evidence give rise to a reasonable and legitimate inference that they were not telling the truth and concealing material facts with a guilty conscience and ulterior motive. It further tends to show that their need of the premises is neither genuine nor in good faith.
11. There is another aspect of the case. Property was gifted in favour of the appellant on 23-2-1991 whereas notice regarding intimation of transfer was sent to the respondents on 14-5-1991 which might be received within a couple of days by them. In law respondents were required to remit rent within thirty days of the receipt of notice and they actually remitted rent by money order (Exhs. 17 and 18) on 2-6-1991 which was dishonestly refused leaving the appellant with no option but to approach the Controller with a request to permit the deposit of rent in Miscellaneous Rent Case No,140 of 1991. This circumstance also reflects upon the mala fides on the part of the respondents who concocted a ground of default in payment of rent although they themselves seemed to be responsible for not accepting the rent offered by the respondents. From the evidence it appears that even before the transfer of property in favour of the appellants they had been depositing rent in Rent Case No,448 of 1982. All these circumstances clearly manifest dishonest motive on the part of the appellants to seek eviction of the respondent by fair or foul methods which can hardly be appreciated.
12. Learned counsel for the appellants referred to the cross-examination of the appellants to show that Asad Abbass Rizvi had done his graduation in Mechanical Engineering from Mehran University and was without any job He further urged that the respondents' attorney failed to show that this appellant was gainfully employed at Karachi as alleged. I am of the definite view that appellants should stand on their own feet to establish their case rather than pointing out weakness in the case of other side. Since I have found that the requirement of the appellants was neither bona fide nor in good faith it is difficult to accept that the eviction application was wrongly dismissed.
13. For the aforesaid facts and reasons I see no merit in this appeal which must fail and in hereby dismissed with costs.