1. Through this appeal, the appellant has challenged the order, dated 31-5-1994, passed by learned 5th Senior Civil Judge and Rent Controller, Karachi (South), Karachi, passed in the proceedings of Rent Case No,1272 of 1991 Dawate-Madiya v. S. Muhammad Siddique & Co., whereby the eviction application of the respondent was granted and the appellant was directed to vacate the demised premises within 60 days of passing of the impugned order and for handing over its physical possession to the respondent.
2. The brief facts of the case are that the respondent on 5-8-1991, instituted against the appellant application under section 15 of the Sindh Rented Premises Ordinance, 1979, on the ground that appellant is the tenant of respondent in respect of Tenament No,5 of Building built on Plot No,MR- I/66, Altaf Hussain Road, Karachi, at the rental of Rs,150 per month and the respondent is a Religious and Charitable Trust created through its temporal and spiritual Head, his Holiness Syedna Tahir Saifuddin Sahib of Dawoodi Bohra Community and that the demised premises is required by the respondent in good faith for establishing the Trust Office in order to carry out and advance it's aims and objects in the larger interest of the Trust and its purposes.
3. In reply to the aforesaid eviction case the appellant filed its written statement, admitting the relationship of landlord and tenant between the parties and quantum of rent but disputing that either Amir Ali son of Ahmad Ali Burhani is the authorised Trustee of the respondent or that the demised premises is required by it in good faith. It is stated in the written statement that the respondent Trust have 50/60 buildings in the city and about 8/10 buildings in the adjoining area of the disputed building and further that three offices and 8 shops in the building are also situated and as such it was denied that the eviction application has been filed in good faith. Reference was also made to previous litigation as to non-payment of water charges etc., and the restoration of amenities. It is also stated in the written statement that at the time of commencement of tenancy in the year 1952 exorbitant amount of Pugree was paid to the outgoing tenant and the respondent for the transfer and change of tenancy. Hence it was prayed that the eviction application be dismissed.
4. In support of case of respondent, Amir Ali son of Ahmad Ali Burhani, Managing Trustee of the respondent has filed affidavit-in-evidence, reiterating the statements made in the eviction application and denying the incorrect statements made by the appellant in its written statement.
5. In support of the case of appellant one Muhammad Saeed filed his affidavit-in-evidence, reiterating the statements made in the written statement of the appellant and denying the adverse allegations made against it. Both the said witnesses were cross-examined by the learned Advocates of the respective parties.
6. The witness of respondent in his cross-examination stated that he is the Managing Trustee of the respondent trust since 1967-68 and as per authority letter (filed as Annexure "A"), having been issued by Syedna Muhammad Burhanuddin Sahib. He stated that he has not written any letter to the appellant or to any other tenant to the effect that he has been appointed as Managing Trustee but stated that all along he has been accepted by all the concerned as a Managing Trustee of the respondent. He admitted that prior to the case in hand he had filed rent case against the appellant on the ground of default in payment of rent but the said cases were dismissed. He admitted that there are eight shops on the ground floor of the building and on the first floor there are two offices and that he wants to establish his office in the demised premises now occupied by the appellant.
7. He denied that he was conducting business of respondent trust in his personal office, he also stated that the present case has been filed against the appellant as demised premises is convenient place for running the affairs of the respondent trust as the staff of 15 persons is to be accommodated.
8. The witness of appellant in his cross-examination has stated that he did issue Exhs.O/4 and 0/5 to Mr. Amir Ali Burhani addressing him as the Managing Trustee of respondent trust and even a telegram Exh.O/2, was also addressed to him as Trustee of respondent. He also admitted that from beginning he knew that Amir Ali is the Managing Trustee of respondent which is a registered body, and he has been paying rent to Amir Ali as Managing Trustee of respondent and two of such receipts are on record as Exh.O/3. He admitted that the respondent has no office in its occupation, but he has come to know that respondent has five offices in the city at different places. He admitted that earlier litigation between the parties was on the point of default in payment of rent only. He admitted that his statement as made in the affidavit-in-evidence regarding the respondent having five offices in the city and having six shops in their possession, is an improvement in the case of appellant as such facts were not mentioned/disclosed in the written statement.
9. On the pleadings of the parties the learned Controller formulated the following points for determination:--
(1) Whether the applicant has no other property except demised premises of their personal need of carrying out objects of the religious and charitable purpose?
(2) What should the order be?
10. Learned Advocate for the appellant has assailed the impugned order on the ground that there is no tenancy agreement between the parties as the tenancy was created on payment of Rs,10,000 by the appellant to the respondent for change of rent receipt in the year 1952 and in fact the case was not maintainable as the Managing Trustee did not possess letter of authority from competent person to institute present case against the appellant and that according to the Trust deed property cannot be got vacated for personal use of the Managing Trustee. The learned Advocate has contended that the Issue No,1 is misguiding and finding thereon is unwarranted and illegal and since earlier cases were filed by the respondent against the appellant on the ground of default in which the respondent did not succeed, therefore, the filing of the present case reflects mala fide on the part of the respondent. His other contention is that vide letter, dated 20-10-1986 (Exh.O/4) the appellant had required the Managing Trustee (Amir Ali Burhani) of the respondent to restore water supply to the demised premises on failure of which the appellant would approach the Court of law for restoration of the water supply. He submitted that again on 26-11-1986 the appellant served upon Amir Ali, Managing Trustee of the respondent, legal notice (Exh.0/5) again calling upon him to restore the water supply and adjust 20% amount yearly from the future rent failing which legal action would be taken against the respondent. On the basis of the telegram and two letters (Exhs.0/4 and 0/5) it is contended by the learned Advocate for the appellant that the service of these notices made the Managing Trustee angry and he has filed the present case by way of retaliation. He has also contended that since the demised premises is situate on 2nd and 3rd floors of respondents' building, therefore, it is unfit to be used as an office and as such the claim of the respondent to have the demised premises vacated is mala fide. In this behalf, learned Advocate has placed reliance on the case of Nisar Hussain Rizvi and 3 others v. Mst. Aisha and 5 others reported as 1998 CLC 349, wherein it has been held that:-- "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."
11. The learned Advocate for respondent submitted that undoubtedly earlier the respondent had instituted against the appellant cases on the ground of default and such cases were disposed off long ago. He has further submitted that the present case was instituted against the appellant on 5-8-1991 on the ground of personal requirement to establish office of the respondent Trust to run its affairs by its Managing Trustee and under the law there is no bar to institute such a case. He further argued that though it had been urged on behalf of appellant that at the time of creation of tenancy in respect of the demised premises high price/Pugree was paid by the appellant for change of receipt from the name of the previous tenant in the name of the appellant who had also paid certain amount of money by way of Pugree to the previous tenant has no bearing on the present case as the Pugree is not recognised by the Sindh Rented Premises Ordinance, 1979 and the same being an arrangement between the parties would not be bar for the respondent/landlord from instituting eviction proceedings on the ground of bona fide personal need. As to the authority or the competence of the Managing Trustee of the respondent to institute present proceedings against the appellant, as contended, the learned Advocate has drawn my attention to Exhs.O/2, 0/4 and 0/5 on record, wherein the appellant has dealt with Mr. Amir Ali Burhani as the Managing Trustee of the respondent requiring him to perform certain obligations in respect of the demised premises, therefore, learned Advocate for respondent has contended that appellant cannot blow hot and cold in the same breath and cannot dispute that Mr. Amir Ali Burhani is not the Managing Trustee of the respondent. As to the good faith in requiring the demised premises for personal use of the respondent Trust, the learned Advocate has submitted that the evidence on record lead on behalf of respondent has not been shattered in any manner and appellant failed to adduce any evidence to show that either the demand of the respondent is mala fide or that it does not require the case premises for establishing its office therein. It is argued by the learned Advocate for respondent that "all that is required by the landlord is to prove that the premises are required by him in good faith for his own occupation or for the occupation or use of his spouse or any of his children and the intention of the Legislature in bringing about the change in the Sindh Rented Premises Ordinance, 1979 against the similar provision of West Pakistan Urban Rent Restriction Ordinance, 1979 is meaningful and is to be given effect accordingly". He has also argued that sufficiency or insufficiency of accommodation was prerogative of the landlord and he was not expected to make sacrifice to facilitate his tenant who has been able to establish his business in the premises after spending money and putting up hard labour". In support of his such submission the learned Advocate for the respondent has placed reliance on the cases of Haji Muhammad Rafiq v. Shahanshah Jehan Begum PLD 1987 Kar. 180, Mst. Fatima Bai v. Shaikh Muhammad Zai and six others 1990 CLC 1064, Haroon Qasam and another v. Azam Suleman Madha PLD 1990 SC 394 and Mrs. Chung Ying Msiung v. Mst. Seema Saeed 1993 CLC 505.
12. I have carefully perused the record of the case and the judgments cited by the learned Advocates for the parties and find that the appellant has failed to show any irregularity, misreading of evidence and/or any other legal flaw in the impugned order. In the case 1998 CLC 349, relied upon by the learned Advocate for the appellant it has been laid down that mere desire, wish or whim on the part of the landlord was not sufficient and adequate to justify the ejectment of the tenant on the ground of personal requirement; but from the evidence on record it is apparent that the respondent has not sought eviction of the appellant from the demised premises for a wish or on whim but cogent reason has been given and good faith is apparent in such demand. In this behalf I may refer to the reported case of Mst. Sara Bai v. Syed Anis-ur-Rehman, 1989 SCM R 1366, where Honourable Judges of Supreme Court keeping in view the provisions of section 2(27) of the West Pakistan General Clauses Act, have interpreted and described "good faith" as "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". The other objection of the learned Advocate for the appellant as to the authority of the Managing Trustee to institute the case and filing of some earlier case against the appellant to my mind cannot be a bar for seeking eviction on the ground of personal requirement as the principle of "res judicata" is not attracted in this case. I find that as against the case cited by the learned Advocate for the appellant in support of his submissions the cases cited and relied upon by the learned Advocate for the respondent are attracted and are applicable to the present proceedings and I place reliance on them.
13. The Legislature in its own wisdom visualising the implications and difficulties arising out of Sindh Rented Premises Ordinance, 1979 as to the eviction of tenants from the rented premises has taken care of the mala fides and ill intentions of the landlords, inasmuch as that section 15-A has been incorporated in the said Ordinance, reads as under:-- Section 15-A. Penalty for use of premises other than personal use.--- Where the landlord who has 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 years, rent of the building or the premises, as the case may be, payable immediately before the possession was so obtained.
(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."
14. The above provision of law is a safeguard for the tenant against the landlord who after obtaining possession of the rented premises on the ground of personal requirement fails either to occupy the same or relets it to any person other than the tenant then the tenant has been given a right to approach the Controller for punishing the landlord and to put him back into the possession of the same premises.
15. For the above discussion I hereby uphold the impugned order, dated 31-5-1994, passed by the learned 5th Senior Civil Judge and Controller, South Karachi and dismiss this appeal; but with no order as to costs. It is further directed that in view of the fact that the demised premises is a commercial premises a period of six months is granted to the appellant for vacating and delivering the vacant and peaceful possession of the demised premises, being Tenament No,5, Building No,MR-I/66, situate on Altaf Hussain Road, (North Napier Road), Karachi subject, however, to payment of past and future rent, of the demised premises to the respondent.
16. Appeal dismissed with no order as to cost.