1. The appellant has assailed and order of Rent Controller and 1st Senior Civil Judge, Jecobabad dated 28-8-1994 whereby he allowed the rent application filed by the respondent praying for ejectment of the appellant from the premises/shop bearing S.No,412/2, which was purchased by the respondent on 15-1-1992, or the grounds of personal bona fide need.
1. Briefly the facts of the case are that the respondent purchased shop No,412/2 from its original owner while the appellant was statutory tenant. After giving notice that the respondent is the new owner, he requested the appellant to vacate the premises as he intends to do his own business.
2. Respondent earlier was doing business in an adjacent shop bearing City Survey No,413/1 alongwith his brothers, which is jointly inherited by respondent belonging to other 7 brothers, 2 sisters and mother. He stated further in his application that it is not convenient for him to continue in that business on account of his domestic problems. In paragraph-6 of his application, respondent alleged as follows:-- "6. That the Applicant requires the disputed shop bearing City Survey No,412, Ward No,2, Jacobabad bona fidely for his personal use and occupation to run his own business in disputed shop and since the Opponent has not given the vacant possession of the shop despite of the service of the legal notice and, therefore, the applicant has every reason to believe that the opponent shall not vacate and hand over the vacant possession to the Applicant unless the Opponent is ordered by this Honourable Court hence this application."
2. The need of respondent was denied and refuted by the appellant. It was stated that the respondent was conducting business in adjoining property independently and in his personal capacity to the exclusion of others, who are only joint owners in the property. It was further alleged that the appellant is in association with Allah Wasayo and Abdul Razzak and they deal in sale and purchase of property. It is alleged that the respondent wanted the ejectment to sell the property to one Mr. Ateeque. Appellant and his above-named associates approached the respondent and offered Pagri of Rs,50,000, which was refused by him. For these reasons, the need of the respondent was opposed vide Paragraph-6 of the written statement. Respondent examined himself and his witness Haji Allah Wassayo while the appellant who died in the meanwhile his son Syed Rafique Zaman and his witnesses Ayaz son of Ateeque Ahmed and S. Aslam son of Nazim Ali were examined. Respondent in his affidavit in evidence averred the facts produced sale-deed of the property extract from the property register Card, legal notice, reply to the legal notice and was cross-examined by the counsel appearing for the appellant. Haji Allah Wasayo his witness deposed that the respondent made complaint to him that it was not possible to continue in the joint business with his brothers and was on a look out to purchase the shop to establish his own business. He is witness to the registered sale-deed. He was cross-examined. The respondent then closed his side.
3. On behalf of the appellant, Syed Rafique Zaman deposed that the respondent has formed an association of persons with Haji Allah Wassayo and Abdul Razzak as they purchase and sell the property. He alleged that the disputed shop was purchased so that it could be sold at higher price after getting the ejectment of occupant tenant. He stated that shop was purchased by them at Rs,100,000 and they have already contracted to sell the said shop to Mr. Ateeque Ahmed from whom they have taken Rs,50,000 as earnest money. It is alleged that the shop was to be sold for Rs,2,50,000 as such personal need therefore was denied and mala fides were attributed. In support of his assertions that the appellant has entered in an agreement with Ateeque Ahmed, his son Ayaz was examined. He further stated that because appellant was not in a mood to vacate the premises, therefore, his father cancelled the deed on 1-5-1992. He was also cross-examined.
3. Another witness of appellants S. Aslam deposed that respondent alongwith Haji Allah Wasayo and Abdul Razzak approached him to intervene and prevail upon the appellant to vacate the premises after getting Rs,50,000 as Pagri. According to this witness, respondent Abdul Ali and others declared that they had accepted Rs,50,000 as earnest money. According to him, he approached Mr. Ateeque Ahmed and he affirmed about the deal. According to this witness, he persuaded Shaukat Ali to receive the amount but he refused, therefore, it is only after that event the respondent filed the case. He was also cross-examined. In cross-examination he, however, admitted that opponent Shaukat Ali was his cousin.
4. In nut shell the case put-forth by the appellant was as follows:-- 1.The claim of respondent is fallacious.
4. 2.He is in competition with the appellant as he is doing the same business which is being done by the respondent in his family concern.
5. 3.His contention that he intends to do separate business, is not correct.
6. 4.The ejectment has been sought to get the vacant possession and then to sell the same.
7. 5.The learned counsel appearing for the appellant apart from raising above contentions, stated that in relation to the family dispute, no evidence was led and none of his brothers, who are alleged to be in the joint business with him, were examined, as such on the face of record he alleged that the respondent failed to establish his bona fide need. He has relied upon the following judgments:- - (1)Jahangir Rustam Kakalia v. State Bank of Pakistan.. (1992 SCMR 1296).
8. (2)Syed Muzaffar Hussain Jafri v. Khawaja Fazal Ahmed. (1993 MLD 1707).
9. (3)M/s. United Bank Ltd. v. Haji Abdul Razzak & Co. (1993 MLD 2575).
10. (4)Anisur Rehman v. Mst. Sharifa Khatoon and another (1986 CLC 448).
11. (5)Akhlaq-un-Nabi v. Nawab Ahmed Shamsi and 6 others (1986 CLC 1100).
12. (6)Noor Ahmed and another v. Khawaja Imran Ahmed (1988 CLC 1041).
13. (7)Water and Power Development Authority through Chairman and another v. Muhammad Hussain (1991 MLD 538).
14. (8)(Bhagwandas Chawala v. Kishanchand Parwani and others (1997 CLC 605).
15. 6.He has further stated that provisions of section 15-A will have no applicability in the case of appellant as the appellant may not re-let the premises and has relied upon the following cases:--
1. Dr. A.R. Khan v. Muhammad Ishaque (1972 SCMR 437).
2. Razia Sultana v. Water and Power Development Authority (1993 MLD 477).
7. Reverting to the case of Jahangir Rustam Kakalia v. State Bank of Pakistan (1992 SCMR 1296), the Honourable Supreme Court came to the conclusion that on the facts of the case that the personal need was not established. However, their lordships were pleased to observe as follows-- "In the impugned judgment (page 14 of paper book) while discussing evidence on the question of proof of bona fide requirement reliance is placed on the case of Hassan Khan v. Mrs. Munawar Begum reported in PLD 1976 Karachi 832, which view was subsequently confirmed in case of Mst.
16. Toheed Khanam v. Muhammad Shamshad reported in 1980 SCMR 593. Rule laid down in the cases mentioned above is that on the issue of personal need, assertion or claim on oath by landlord if consistent with his averments in his application and not shaken in the cross-examination, or disproved in rebuttal is sufficient to prove that need is bona fide."
8. Reverting to the case of Syed Muzaffar Hussain Jafri v. Khawaja Fazal Ahmed (1993 MLD 1707), one of the Judges of this Court ruled that the personal bona fide need of landlord in good faith was to be established by producing strong evidence.
9. In the case of M/s United Bank Ltd. v. Haji Abdul Razzak & Co. (1993 MLD 2575) late Mr. Justice Qaiser Ahmed Hamidi of this Court ruled that the personal bona fide need of landlord was not established.
17. 10.Reverting to the case of Anisur Rehman v. Mst. Sharif Khatoon and another (1986 CLC 448), this Court on the basis of evidence came to the conclusion that landlady did not establish the need. Mr. Justice Haider Ali Pirzada was pleased to hold that the terms "requires" meant that there must be element of need and went on to hold that reasonableness is relevant in deciding the bona fides of the landlord and that in deciding bona fide of landlord in good faith reasonableness of need was relevant. In this case since the genuineness of landlady was not established, therefore, ejectment was refused.
18. 11.In the case of Akhlaq-un-Nabi v. Nawab Ahmed Shamsi and 6 others (1986 CLC 1100), it was held that the bona fide requirement of witness must be supported by valid reasons.
19. 12.Reverting to the case of Noor Ahmed and another v. Khawaja Imran Ahmed (1988 CLC 1041), this Court rejected the evidence of the landlord and ruled that the landlord must succeed on the strength of his own case rather than the weakness of defence.
20. 13.In the case of Water and Power Development Authority through Chairman and another v.
21. Muhammad Hussain (1991 MLD 538), it was held that if the statement made in examination-in- chief if not questioned in cross examination it would deem to be correct.
22. 14.In the case of Bhagwandas Chawala v. Kishanchand Parwani and others (1997 CLC 605)
23. Election Tribunal Sindh ruled that the plea not taken in the pleading could not be allowed to be raised in evidence.
24. 15.In the case of Dr. A. R. Khan v. Muhammad Ishaque (1972 SCMR 437) it has been held by Honourbale Supreme Court that the provisions of section 13(4) of the Ordinance of 1959 which were enacted in favour of the tenant and constitute a salutary check to restrain landlord from prosecuting ejectment proceedings on the basis of his bona fide requirement do not relieve landlord of the basic onus on him to prove affirmatively that he requires the premises for himself.
25. 16.Reverting to the case Razia Sultana v. Water and Power Development Authority (1993 MLD 477), Mr. Justice Mukhtar Ahmed Junejo (as his lordships then was) pleased to hold that the premises be required by the landlord in good faith and must be supported by valid reasons as to how his requirement was genuine.
26. 17.The ratio of all cited cases is the principle which is now time-honoured. It is for the landlord to establish his personal bona fide need and assign reasons for such need. If the need of the landlord as mentioned in application and duly established through evidence, for which the landlord must enter in the witness box and depose on oath about the personal bona fide need and assign reasons for such need, the Court would normally not question such need as was held by the Honourable Supreme Court in the case of Jehangir Rustam Kakalia v. State Bank of Pakistan (1992 SCMR 1296), and the portion has already been quoted in the earlier part of this judgment. It is also well-established that notwithstanding the protection afforded to the tenant for re-claiming the premises under section 15A, the landlord is bound to establish his such need. In the light of these principles of law, I would, therefore, scrutinize the evidence laid by the parties.
27. 18.The respondent in his application has stated in Paragraph-2 that he is not in a possession, of any shop and it is not convenient for him on account of his domestic problem to continue in the joint business with his brothers. In his application he further stated that he has got no other shop of his own in his own name except the shop bearing City Survey No,412, which was in possession of the appellant. While in Paragraph-6 he stated that he needs the shop bona fidely for his personal use and occupation and to run his own business in the disputed shop. In his evidence he stated that he purchased the property on 15-1-1992 while the appellant was already in possession of the said shop before the purchase of said property, he was running joint business in the inherited shop.
28. He further stated that he is not in a possession and it is not convenient for him on account of his domestic problem to continue with joint business with his brothers. He further stated, that he had got no other shop and he purchased the shop with the sole object to run his own business of selling utensils/crockery independently. He further stated, that the requires and needs the disputed shop bona fidely for his personal use and occupation to run his own business. He has denied the allegations levelled in the written statement. He specifically stated that he did not offer Pagri nor he entered into any contract for the sale of shop with Ateeque Ahmed nor he obtained Rs,50,000 as earnest money from Ateeque for the sale of said shop nor he asked the appellant to raise the rent.
29. He further stated that he had already told Haji Allah Wasayo that it was not possible for him to continue in joint business with his brothers. In the cross-examination he stated that his father was also running the same business. He further stated that his relation-ship with his brothers namely Shaukat and Ashraf was not good. He repudiated suggestions of selling the property at Rs,2,50,000.
30. He also repudiated suggestions that he offered Rs,50,000 as Pagri to the appellant. His witness Haji Allah Wassayo deposed that the respondent has informed him that it is not possible to continue joint business. He has denied suggestions that he went to Shaukat Ali and offered him Rs,50,000 as Pagri.
31. 19.As against above evidence of the landlord, the appellant/tenant, who expired in the meantime and contested the case through his legal heir: Rafique Zaman examined himself. He brought Ayaz Ahmed son of Ateeque Ahmed as his witness. Ateeque Ahmed was the person, who also died in the meanwhile and for whom it was alleged, that the respondent Haji Allah Wassayo and Abdul Razzak, who are jointly engaged in purchase and sale of the property, offered to sell the shop which he had agreed to purchase at Rs,2,50,000 and paid Rs,50,000 as earnest money. To that extent there is also the deposition of his other witness Ayaz Ahmed. Ayaz Ahmed in his cross-examination stated that .Abdul Ali executed receipt for obtaining earnest money. According to this witness it was his father Ateeque who approached the trio of respondent and nis 2 associates for the purchase of shop, who according to him, were well-known property dealers, in the last days of January. There was no agreement to sale between respondent and Ateeque. As regards other witness S. Aslam he has stated that he is the cousin of appellant. In other words the burden of evidence laid by the tenant is that the ejectment proceedings, have been initiated so that the vacant possession be obtained and that with vacant possession the property should be sold. These are the mala fides, which are attributed to the landlord.
32. 20.Analysis of above evidence would reveal that the landlord was successful in establishing his need and requirement bona fide for running his own business. In cross-examination he has stated that his terms with his brothers are not good, and i,e, the reasons he wants to start his own business. He further deposed that he needs the premises for his bona fide need. Against, this case of landlord, the appellant has stated that landlord contracted Ateeque and entered in contract in selling the shop to him for Rs,2,50,000 and obtained earnest money of Rs,50,000 which was offered to him as Pagri to vacate the shop, which offer the appellant refused. Such assertion of the tenant was denied on oath by the landlord. His witness also stated that he did not go to the tenant nor offered Rs,50,000 as Pagri for vacating the shop. The deposition of the appellant and his witness regarding the sale of shop to Ateeque was not established through any cogent evidence which may reflect on the bona fides. Even the son of Ateeque, who was examined as witness could not produce any document regarding the alleged agreement of sale. The evidence of the tenant is hearsay and even otherwise does not inspire confidence. I would, therefore, hold that the landlord was successful in establishing his need bona fide and assigned reasons for starting his own business in the disputed premises.
33. 21.Assuming for the sake of arguments the defence which has been set-up by the tenant that the premises are needed in bad faith by the landlord as he wants to sell the same to some other person, legislature has taken care of such mala fide need of landlord by enacting the provisions of section 15-A of Sindh Rented Premises Ordinance, which read as follows:-- "15-A. Where the landlord who obtained the possession of a building under section 14 or premises under clause (vii) of section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession.-- (i)he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained.
34. (ii)the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly."
35. (Underlines is mine)
36. 22.The legislature has empowered the Rent Controller to restore the possession of the premises to the tenant if the landlord put in use the premises other than for his personal use for which ejectment application was ordered, and such is complete safeguard granted to the tenant. In other words, if the landlord does not occupy the premises himself or puts it to the use other than the personal use (including selling the same) he shall be not only prosecuted but also the tenant will be entitled to recover possession.
37. 23.After hearing the parties in open Court on 18-8-1997 and 22-8-1997 the above 1st Rent Appeal No,51 of 1994 was dismissed and it was further ordered that 3 months time is allowed i,e, up to 30- 11-1997 for vacating the premises. If the tenant does not vacate the premises by then the writ of possession will be issued without further notice to the tenant.