' This appeal arises out of an order, dated 26-3-1995 passed by learned Controller Hyderabad dismissing the prayer for ejectment of the respondent from the shop of the appellant situated in Khokhar Mohalla Hyderabad.
2. Facts leading to the litigation between the parties briefly are that the appellant let out the shop in question to the respondent vide agreement of rent, dated 1-10-1992 with effect from 7-10-1992 for a fixed tenure of eleven months at monthly rental of Rs,1,200 coupled with security deposit of Rs,1,00,000 received by her in cash. As one of the terms and conditions of the agreement was that the shop could be got vacated even prior to the expiry of the tenancy subject to notice to the respondent, appellant served a legal notice, dated 25-4-1993 requiring the respondent to vacate the shop for the use and occupation of her son Muhammad Altaf. This notice was replied by the respondent through his counsel stating that he had invested huge amount in the business undertaken by him and that he had supplied goods to his customers on credit basis which would be impossible to recover within short period: It urged that appellant's son Muhammad Altaf was still employed with his elder brother Muhammad Farooq, therefore, the shop was not at all required in good faith for his use. Exchange of notice was followed by institution of the ejectment application on 18-7-1993 leading ultimately to the impugned order.
3. In his reply respondent urged that appellant's son was gainfully employed with his brother Muhammad Farooq who is a builder; that the appellant in fact did not require the shop for the use of her son and wanted to jet out the came to someone else at nigher amount of rent and for inflated amount of security and that he having invested huge amounts in his business it was difficult to vacate the shop within a short span of time.
4. In support of her case appellant examined her son and general attorney Muhammad Haneef and other sons Muhammad Farooq and Muhammad Altaf while he respondent examined himself besides examining Syed Zahid hussain and Muhammad Ali.
5. On assessm ent of the relevant evidence on record learned Controller came to the conclusion that the requirement of the appellant was not bona fide. Therefore. He declined the prayer for ejectment giving rise to this appeal
6. At the hearing Mr. Hassan Mehmood Baig, learned counsel for the appellant contended that the tenancy being for a fixed tenure having expired and the appellant or her son neither owning nor possessing any other shop was entitled to seek ejectment of the respondent from the tenanted premises for the use and occupation of her son who had left his job with his elder brother after his marriage which took place on 15-1-1993.
7. Conversely, Syed Masood Ali, learned counsel for the respondent urged that the requirement of the appellant for the tenanted premises was neither in good faith nor bona fide; that Muhammad Altaf son of appellant was gainfully employed in the construction business of his brother Muhammad Farooq; that the respondent having invested huge amounts in the business set up by him and having advanced goods to his customers on credit, it would be harsh and unjust to uproot him from the premises and lastly that the appellant's son admitted in his evidence that he had no funds to commence the business relating to sale and purchase of old and new motocycles which requires considerable investment.
8. There is no dispute between the parties that the tenancy in favour of the respondent was for a fixed period of eleven months commencing from 7th October, 1992 on the terms and conditions incorporated in the rent agreement Exh.16. It is followed by an stipulation that on expiry of the tenure, fresh agreement may be executed by consent on fresh terms and conditions. Admittedly there is a clause in the agreement to the effect that in case the landlady intends to get the said shop vacated before expiry of this agreement or tenant intends to vacate the said premises before expiry of eleven months, they shall have to serve one month's prior notice to other party and on expiry of notice period, the tenant shall hand over vacant physical possession of the shop to the landlady who shall return the security amount to the tenant after adjustment of electric and telephone charges and damages to the shop if any. It is thus obvious that the respondent was fully aware of the terms and conditions of the agreement between the parties and in law he bound himself to abide by the stipulation contained in the mutual agreement. It was urged that after about seven months of the commencement of the tenancy, appellant served a legal notice on the respondent expressing her desire that she intended to have the shop vacated as the same was required in good faith for the use of her son Muhammad Altaf who after his marriage on 15-1-1993 wanted to establish his own independent business as dealer of old and new motorcycles. In law there is nothing wrong with this notice as the landlady acted within rights notifying her intention to the tenant that since the shop was required for the use of her son, she needed its vacant possession. By this notice, she further intimated the respondent that her son had left the service about a month back because after his marriage his relations became strained with his elder brother Muhammad Farooq. It was contended on behalf of the respondent that as admitted by Muhammad Altaf he was young when the shop was let out on rent to the respondent. There is a further admission on the part of this witness that even at that time he could do his business in the shop. This admission on the part of this witness is neither fatal to the case of the appellant nor does it militate against her bona fides as her son was serving in the construction business of his own brother and it was only soon after his marriage that relations between the two brother turned out to be strained which is not unusual in our society on account of lack of equation and understanding between the two brothers. The circumstance that at the time of letting out the shop on rent, Muhammad Altaf could start the business is dependent on various factors namely his aptitude for the business, confidence of his mother in his capabilities to start a business independently and the need for commencing of such business. By letting out the shop on rent, I think appellant did not commit any blunder nor does the demand of vacating the shop tantamount to mala fide or ulterior intent. Learned counsel for the appellant strenuously submitted that the word "young' incorporated in the deposition of the witness was a misnomer on the part of the Controller and what was intended to be said by the witness was that he was not minor at the relevant time, which circumstances by itself did not mean that he was capable enough for commencing of an independent business or that the need for starting such business was imminent. The submission of the respondent, therefore, is not of much substance and in any event does not detract from the fact that the requirement of the shop was asked for in good faith.
9. Adverting to the second limb of argument put forward by the learned counsel for the appellant, it may be observed that there is consistent and reliable evidence in support of the plea that appellant's son after his marriage continued to be associated with his brother Muhammad Farooq which he left in March, 1993 due to lack of equation and understanding between the two brothers.
This fact stands established not only from the sworn testimony of Muhammad Altaf but by the evidence of Muhammad Frooq with whom he was employed as well as Muhammad Hanif who appeared in the witness-box as attorney of the appellant. It was contended that in the event of strained relations between the two brothers Muhammad Farooq would not have supported the case of the appellant by filing his affidavit in evidence and stating that his relation with Muhammad Altaf had become strained. The argument on the face of it, is devoid of any material substance. This witness categorically stated that Muhammad Altaf was employed with him for more than three years; that after his marriage perhaps under the influence of his wife his work and attitude in the office was not satisfactory and on his admonition, their relations became somewhat strained and he left the job in March, 1993. Evidence of this witness as well as other witness is not shattered during the course of cross-examination and all suggestions to the contrary were expressly controverted with the natural consequence that there is no apparent reason to discard the position taken by the appellant's son. The case set up by the appellant in this regard is neither unusual nor cooked up. Even otherwise if one of the grown up sans of landlady is rendered jobless, it is her privilege and absolute right to eject a tenant and to rehabilitate her son which is a moral and parental obligation of every person. To my mind, no exception can be taken to the appearance of Muhammad Farooq before the Controller without issuance of any summons or his support to the case of the appellant which again is not at all unnatural and unrealistic. Even otherwise in law, parties are entitled to produce their own witnesses without the summons from a Court and this practice had not been disapproved by the Courts so far in civil disputes. There is, thus, no warrant for the view that the requirement of the shop for occupation of the appellant's son was not justified or that her desire was tainted with mala fides
10. Adverting to the third contention of the learned counsel for the respondent that the latter has invested huge amounts in the business set up by him and. Therefore, he is not in a position to vacate the same. Suffice it to say that establishment of a business naturally would require financial investment and larger the business higher the amount of investment is the natural phenomenon There may he no cavil with the factual aspect of this plea. The fact remains that a landlord cannot be lawfully deprived of exercising his right to use and occupy the property for his own use and occupation. Indeed this right is guaranteed by the Constitutional provisions as well and is well- recognized in law. Dislocation of a person is a natural consequence for establishment of a business of another which alone may not be a strong ground to decline the relief which may be otherwise available to a person. The respondent having agreed to occupy the premises for a fixed tenure in law cannot appropriately urge that he is not in a position to vacate the premises since his business would be disturbed or his interest prejudiced. Since the law does not recognize this ground, I am of the view that the ejectment plea is not liable to be dismissed on this account as misunderstood by the counsel. This question arose before this Court in Shahzada Sultan Humayoon v. Zainab Bai (1989 CLC 1338) and Tariq Shafi v. Mrs. Shamshad Begum (1990 CLC 698) which fully support the view taken by me in the case in hand because the landlady has quite satisfactorily established her bona fide need for the tenanted shop in order to enable her son to start his business as aforesaid.
The plea taken by the tenant cannot be appropriately entertained for difficulties and inconveniences to be faced by the tenant is quite natural. This circumstance cannot be permitted in juxtaposition to the personal requirement of the landlady and any amount of display of emotion of sentiment is not desirable under the law. Truly speaking in every case of seeking eviction of a tenant on the ground of bona fide personal requirement, some amount of inconvenience and discomfort would be certainly caused to him which cannot be imported while deciding an eviction plea because law does not recognize compassionate approach by the Controller or the appellate authority, I have already expressed this view in F.R.A. No,481 of 1988, decided on 29-1-1995.
11. Taking up last contention of the learned counsel for the respondent that the appellant's son has no finance as to establish the huge business of dealing in old and used motorcycles, it may be observed that no such plea was taken in the written reply before the Rent Controller. It was only at the spur of moment and during the cross-examination that a question was posed to appellant's witness Muhammad Farooq who innocently admitted that Muhammad Altaf has no money to start the business in the shop in question. No such question was, however, directed to Muhammad Altaf who would be the best judge to take up a definite stand and make a proper reply. Even the attorney of the landlady was not questioned on this point with the result that there was no occasion for him to explain the factual position. It may not be impertinent to point out that appellant's witness Muhammad Farooq in his re-examination clarified the position by stating that his mother will finance the business of his brother Muhammad Altaf in the shop in dispute. In my view the controversy is set at rest by this explanation which is a complete answer to the argument advanced at the Bar. Even otherwise, it is not the requirement of law that a landlord must establish his resources and finances for setting up his business in the premises in respect of which he seeks an order of ejectment, more particularly when no such plea has been raised by the tenant in his written statement. This view was affirmed in Majeed v. Imamuddin (1981 CLC 1091) authored by Sajjad Ali Shah, J. Siitting a, as a Judge in this Court. An identical issue was raised in Abdul Hussain Khan Muhammad v. Muhammad Younus Khan (1987 CLC 499) before Zahoorul Haq, J. (as he then was) in which it was held that where landlord has sufficiently established that he wanted premises bona fide to start business of his own, he would not be forced to prove that he had made necessary preparation for the purposes of starting his business or . That he obtained licence for that business or that he had sufficient experience of that business.
12. Before parting with this judgment, I find it necessary to observe that the landlady having no other shop to accommodate her son suitable for the needs, the period of tenancy having come to an end long back and the tenanted shop situated in a locality known for the business of old and new motorcycles has demonstrated her good faith and bona fide for the occupation of her own property. Learned counsel for the respondent, however, persistently expressed his apprehension that entire exercise was with a view to let out the shop to someone else on higher amount of rent and for collection larger amount of security. Indeed in the entire evidence it has not been hinted as to who could be the prospective tenant to whom the appellant would like to induct in order to charge higher amount of rent as well as security deposit. Sufficient protection has been postulated in section 15-A of the Sindh Rented Premises Ordinance, 1979 which in the event of use of premises other than personal use nor only postulates punishment for the landlord but also provide an effective mechanism for restoration of the possession to the evicted tenant before the Controller who would be entitled to exercise such authority on due consideration of the facts. Since the law provides an alternate and effective remedy to defuse the impression of the respondent, I think the apprehension is not well founded in the present state of circumstances. Perhaps in appropriate cases, Controller would be justified to order restoration of possession even at interlocutory stage of the proceedings by an interim order should the landlord adopted delaying tactics.
13. In view of what has been stated above, the order of the Controller cannot be sustained at law and must be recalled. Accordingly this appeal is allowed and ejectment application granted. In view of the business activities of the respondent in the demised premises, he is allowed six months' time to vacate the premises subject, however, to regular payment of rent to the appellant as before. Parties shall bear their own costs.