' Through this appeal the appellant has impugned an order, dated 25-5-1999 passed by the IVth Controller (South), Karachi requiring the appellant to vacate the premises in question and hand over the same to the respondent within sixty days.
2. Succinctly stated, the facts of the case are that the respondent moved an application under section 15 of Sindh Rented Premises Ordinance, 1979 requesting the inter alia, for vacation of the appellant from Shop No,10, Saba. Plaza M.R.760/2. Weaver Lane, off New Neham Road, Karachi. His case was that he had rented out the aforementioned shop to the opponent at a monthly rent at Rs,170 payable by the first of every month with liability to pay electricity charges. It is stated that the appellant committed default, in payment of rent since 1999 despite repeated demands including the, one through legal notice wherein the appellant was also required to vacate premises since the same were required by the respondent bona fide to accommodate his son for imitation jewellery business. It was also averred that the appellant had sublet the premises in question to one Mr. Abdul Majeed without the consent of the respondent.
3. The appellant contested the matter. He filed his written reply disputing the rate of rent and other allegations made by respondent. He stated that the rent was being deposited in Miscellaneous Rent Case No,818 of 1989 and that the premises continued to be in his occupation and use.
4. Later on, the respondent filed his affidavit-in-evidence and was cross-examined at length by the appellant who, thereafter, filed his affidavitin-evidence and was cross-examined at length.
4. Learned trial Court framed the following points for consideration:-
(1) Whether opponent has committed wilful default in payment of rent from June, 1994?
(2) Whether applicant needs the premises in good faith for use of his son Murad Ali Saba?
(3) Whether the opponent has sublet the premises to Majid without the consent of applicant?
(4) What should the order be?
5. Learned trial Court answered points Nos. 1 and 3 in negative but answered point No,2 in affirmative and passed the impugned order on the around of personal bona fide need. The appellant has impugned the said order with a prayer that this appeal be allowed and the impugned order be set aside.
6. Both the learned counsel for the parties have argued their respective case. Learned, counsel for the appellant, at the very outset, argued that the respondent failed to adduce any evidence to prove that his son had become major and for that matter if he had any experience to carry pn business. According to him, mere statement of the respondent that he required the premises for business purposes of his son was not enough but, bona fide of requirement is to be proved by him with tangible evidence and to state that he had no other premises to own or occupy. Learned counsel stated that the applicant admitted in his evidence that he had 18 shops in the building, where the disputed shop is located and he could accommodate in any one of them. He placed reliance on a case reported as Muhammad Yameen v. Mst. Khalida Begum 1988 CLC 1297. He submitted that since the respondent had many other shops, he ought to have specifically mentioned that the premises in question were most suitable for the business of his son. In this, he placed reliance on case-law reported as in Shah Zarin Khan v. Hameed Gul 1998 M LD 903.
7. Learned counsel for the respondent argued that the respondent had sufficiently discharged his burden that the premises were required by him for personal bona fide use of his son. According to him, the respondent is a moneyed man which can be understood from the circumstances, even then failure, if any, of the landlord to disclose his financial capability to run the business does not adversely affect the bona fides of the respondent. To fortify his argument, he placed reliance on case-law reported as Khawaja Imran Ahmed v. Noor Ahmed 1992 SCM R 1152. He, therefore, contended. That the case-law cited by the respondent regarding this proposition of his, is not relevant. He submitted that it is the choice of the respondent to select the place i,e, premises for running his business. He placed reliance on case-law reported as M.F.K. & Co. v. Begum Feroze 1996 SCM R 1178.
8. I have considered the arguments of the parties and have also examined the R&P.
9. It is observed that the respondent/landlord has stated in his evidence that his son Murad Saba, who is aged about 18 years, had completed his education and premises were required to accommodate him for imitation jewellery business and that the premises were required in good faith for personal bona fide use of his said son so also he has categorically stated that he had issued legal notice dated 31-8-1998 calling upon the respondent to vacate and hand over the premises in question to the respondent. This evidence of the respondent does not seem to have been shattered. In his own evidence also the appellant does not seem to have successfully countered the evidence of the respondent.
10. Coming to the case-law cited by the appellant, it may be stated that in case of Muhammad Yameen v. Mst. Khalida Begum 1988 CLC 1297, it is observed that distinction has to be made in cases where personal requirement is pleaded for residential house and commercial premises; and further that if the premises is required for business purposes then mere statement that he requires the premises for his business purpose is not enough and that he should give details and particulars of the intended business which may establish the requirement as distinct from mere desire.
According to section 15(2)(vii) of the Sindh Rented Premises Ordinance, 1979, the landlord is entitled to be put in possession of the premises when he requires the premises in good faith for his own use or for the occupation or use of his spouse or any of his children. In this case the respondent has required the premises for the occupation and use of his son Murad Saba and has explicitly described the business. Therefore, in my view, the aforementioned case-law referred to by learned counsel for appellant does not appear to be applicable to his case. Another case referred to by learned counsel for appellant is reported in Shah Zareen Khan v. Sada Gul 1998 M LD 903. In this reported case, the following has been observed:-- "However, in a case where the landlord owns more than one . Premises in the same area of locality then he has to mention this fact in his pleadings and give cogent and satisfactory reasons for his choice of the particular premises which he wants to have for his personal bona fide requirement.
Furthermore, in view of the fact that the other premises being bigger would be more suitable, proper and spacious for the business which was to be undertaken therein, and the tenant therein has agreed to vacate the same and hand over vacant possession, therefor, to the respondent as and when so demanded by the respondent, why the respondent chose to eject the appellant from the premises in dispute and insisted on vacating him. In the case of Messrs Ibrahim Agencies v.
Messrs Panorama Enterprises Ltd. (supra) this Court observed that withholding of information about landlords occupation of another premises in the same building, in the first instance, and then failing to explain as to why premises already in his occupation was not suitable for his needs, would cast serious doubts on his bona fide."
' It is noted that in this case circumstances are quite different as much as that no other bigger or spacious premises other than disputed premises are pointed by the appellant to be available or likely to be made available to the respondent to accommodate his son. On the other hand, learned counsel for respondent, in order to establish his point has relied upon case of F.K. Irani &Co. v.
Begum Feroz reported in 1996 SCM R 1178 in which it is observed as follows:-- "The suitability of opening a departmental store in anyone of available premises entirely depends upon the description of the landlord. However, such need and discretion should be real, genuine and not tainted."
' For parity of reasons, the above dictum appears applicable' to the case of the respondent particularly in absence of any mala fide explicitly alleged against him. Besides, following observations made in the above-cited case also strengthen the case of respondent:- "Moreover, if the landlord wants to establish a business in a particular area, then unless it is shown that the alleged business can, in no circumstances, be run in such an area or that in all probability, cannot be used or suitable for the purpose for which the landlord demands it, the bona fide cannot be attacked.
' In the judgment, dated 10-4-1988 by which remand order had been made, our learned brother Ajmal Mian, J. As he then was, had observed that ... Merely the fact that the respondent's husband had 62 shops in Defence Society and 21 shops in Gulshan-e-Iqbal would not disentitle the respondent to apply for ejectment on the ground of personal requirement of her son as it is for a landlord to select which of the buildings he wishes to use personally or to provide the same to his children."
' Learned counsel for the appellant has lastly referred to case of Noor Ahmed and another v.
Khawaja Irnran Ahmed reported in 1988 CLC 1041 to establish his case that failure of respondents to disclose the availability of funds casts serious doubts on his bona fides. It may be stated that no doubt it has been observed in the aforementioned case-law that it is imperative for a landlord to plead and prove the financial ability or resources to set up the business, however, it is significant to note and express herein that Mr. Muhammad Mazhar Ali, J. As then he was, while making the aforementioned observation in the said judgment has also cautioned in the same sequence that he should not be taken to hold it to be a condition sine qua non in all cases. Notwithstanding, it is noted that the judgment in the above-referred case was consequently, reversed by Honourable Supreme Court in Civil Appeal No,49-K of 1989, decided on 19-5-1991, which is reported in Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCM R 1152. In addition to whatever is stated above,.
The record also shows that the respondent is owner of 18 shops on ground floor of the building which he purchased in 1984. This fact is sufficient to understand that financially he appears to be sound enabling his son to start his business. He has also stated that he has no property in the area rented shop is situated.
Accordingly, considering the above-stated facts, circumstances and C the case-law, I do not find any merit in this appeal which is dismissed in limine alongwith listed application.