' MAMOON KAZI, J.---Leave to appeal is sought in respect of the judgment of a learned Single Judge of the High Court of Sindh, dated 25-11-1998, whereby the respondent's appeal filed against the order of the Rent Controller was allowed and the appellant was ordered to be ejected from the premises in dispute.
2. Brief facts of the case are that, the respondent filed an ejectment application before the Rent Controller, seeking the respondent's ejectment from the premises situated in Al-Hussaini Building on Faiz Muhammad Fateh Ali Road, Karachi, where the petitioner, a banking company, had housed one of its branches. Ejectment had been sought by the respondent on the grounds of default in payment of rent with effect from June, 1994 till the filing of the ejectment application and personal bona fide requirement.
3. The ejectment application was contested by the petitioner. However, ejectment was ordered on the ground of default vide order, dated 27-5-1998, but the Controller was not impressed with the respondent's evidence in regard to personal need.
4. Both the petitioner as well as the respondent, therefore, filed their respective appeals before the High Court against the said order. However, the appeal filed by the respondent has been allowed by the impugned judgment.
5. We have heard Mr. Nafees Siddiqui on behalf of the petitioner and Mr. A. Aziz Khan, on behalf of the respondent.
6. The impugned judgment indicates that, the learned Judge in Chambers was not impressed by the line of reasoning adopted by the Rent Controller while rejecting the respondent's claim for personal need as the Rent Controller's order was based on considerations, not germane to the question involved in the case. On this score, we are inclined to agree with the learned Judge in the High Court as bona fides of the respondent were doubted by the learned Controller on the following grounds: (1) That the need of the respondent to start her own business arose after the respondent had been married for nineteen years; (2) That the respondent was a Parda observing woman and she also had no sufficient financial resources or experience to start her own business;
(3) That the respondent had failed to furnish documents to indicate whether she had been paying income tax; (4) That the respondent, who had made a heavy investment to purchase the building in dispute .Had hardly any need to start a business to earn her livelihood; (5) That as the, respondent's husband was doing business of polythene bags and the respondent did not claim that the income coming from such business was insufficient for the needs of the family, her claim for personal need was not bona fide.
7. Not only the learned Judge in the High Court found the above reasons illogical but he further found that the evidence of the respondent before the Rent Controller in respect of personal need had completely remained unshaken in the cross-examination. Consequently, the findings of the learned Controller on the question of personal need were reversed.
8. This Court has laid down through its earlier pronouncements that in the case of personal requirement of the landlord, the initial burden for the landlord to prove his bona fides is very light and what is required to be considered by the Court in this regard is that the evidence adduced on the landlord's behalf is unshakable and consistent with the averments made by him in the ejectment application. In that case the burden would shift to the tenant to establish that the claim of the landlord is not bona fide. In Messrs F.K. Irani & Co. v. Begum Feroze (1996 ,SCMR 1178) it was held by this Court that desire of landlord to establish and run a departmental store in the premises occupied by tenant could not be ruled out unless was cogent evidence and sufficient proof that it was not possible and practicable to run such a business. Otherwise the Court would be inclined to hold that requirement of the landlord was bona fide. It was further held in this case that on the issue of personal need if the statement of the landlord is consistent with ejectment application and the same is not shaken in cross-examination or dislodged in rebuttal, such statement would be sufficient to prove his bona fides. In Juma Sher v. Sabz Ali 1997 SCM R 1062, the requirement for the landlord to disclose nature of business which he intends to start in the premises or to show experience in any trade or business which he intends to set up in the premises after eviction of the tenant was held to be unnecessary.
9. Therefore, although Mr. Nafees Siddiqui is unable to support the said findings of the Rent Controller in view of what has already been laid down by this Court, but the learned counsel has argued that the petitioner had executed a lease agreement with the former landlord of the said premises. According to the terms of the lease, the tenancy, which had commenced from 1-6-1989, although, valid for an initial period of five years, was renewable at the option of the petitioner. The landlord had further undertaken not to eject the petitioner on any ground whatsoever, including that of personal requirement, as long as the petitioner continued to pay monthly rent for the premises to the landlord and abided by the other terms of the lease. Consequently, according to the learned counsel, the petitioner in any case could not have been ejected from the demised premises. Support was sought to be drawn in this regard from the judgment of this Court in the case of Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. (PLO 1984 SC 38).
10. In our view, the said case cannot be of any assistance to the petitioner because in the said case, lease had been executed initially for a period of ten years with two options made available to the lessee to get it renewed, in all for thirty years. It was during the subsistence of the lease that the landlord sought ejectment of the tenant from the demised premises. It was, therefore, held in this case that when the landlord knew at the time of entering the lease agreement that he was bartering away his personal need under the law for a period of thirty years, he could not, by invoking the statutory provisions of the Rent Ordinance, turn back to repudiate the terms of the agreement and seek ejectment of the tenant. The facts of the present case clearly appear to be distinguishable. In the first instance the lease agreement in the present case indicates that after expiry of the initial period of five years, the lease was extendable on terms and conditions to be mutually agreed between the parties. Consequently, option to renew the lease in the present case, did not lie with the tenant alone, as was the case in the case of Burmah Shell. Admittedly, after expiry of the initial lease agreement no other agreement was executed by the parties thereafter.
The said agreement had been entered into between the petitioner and the former landlord from whom the respondent purchased the building in question. No doubt, it had been undertaken by the former landlord that he would not seek ejectment of the petitioner on any ground and even on the ground of personal requirement, but after the expiry of the lease agreement, when no other such agreement had been executed by the parties, or even by the former landlord, the relationship between the parties would be governed purely by the statute. It was held by this Court in Habib Bank Limited v. Dr. Munawar Ali Siddiqui (1991 SCM R 1185) that, a renewal clause in a lease agreement purporting to create a lease in perpetuity without specifying a period and thereby depriving the landlord from filing an ejectment application on the ground of personal requirement in the future, cannot be enforceable, being repugnant to the scheme of the Rent Ordinance.
However, in the present case, as was pointed out earlier, nothing can be spelt out from the lease agreement to indicate that any lease had been created in perpetuity by the parties concerned or that the petitioner under the lease agreement had reserved for itself the exclusive right to extend the period of lease. Therefore, even the last contention of Mr. Nafees Siddiqui is of no assistance to him.
11. We are consequently of the view that the judgment of the learned Judge in Chambers is not open to exception.
12. In the result, the petition is dismissed and leave is refused. However, a year's time is allowed to the petitioner to vacate the premises in dispute.