' SAIDUZZAMAN SIDDIQUI, J---The above appeal with the leave of this Court has arisen from the judgment of a learned Judge in Chambers of High Court of Sindh dated 16-8-1992 whereby F.R.A.
No.1127 of 1982 filed by the appellant was dismissed by the learned Judge and the order passed by the Rent Controller rejecting the application for ejectment filed on the ground of personal and bona fide requirement, was maintained.
2. The appellant, who is the owner of a commercial building constructed on Plot No.2/230 situated in Commercial Area, Liaqatabad, Sarafa Bazar, Karachi, filed an ejectment case against the respondent, who is in occupation of Shop No.1 in the said building, on the ground of personal and bona fide requirement for her son, Abdul. Hafeez. The respondent contested the above application and the learned Rent Controller by order dated 14-11-1982 dismissed the ejectment application. The appellant preferred R.F, A. No.1127 of 1982 against the order of Rent Controller rejecting her application under section 15 of the Sindh Rented Premises Ordinance, 1979, By order dated 21-10- 1986, the learned Judge in Chambers accepted the F.R.A. And ejectment application was allowed directing the respondent to vacate and hand over the premises to the appellant. The respondent filed civil petition for leave to appeal bearing C.P. No. 437-K of 1986 against the judgment of High Court of Sindh dated 21-10-1986 which was disposed of by consent as follows:-- "(1) That the parties be allowed to lead evidence on the question whether on the date of the filing of ejectment application by the respondent, she was in possession of any other vacant shop in the same building.
(2) That the High Court may itself record the additional evidence or may direct the Rent Controller to do it and remit it to the High Court for decision of the appeal."
' The learned Judge in Chambers, after remand of the case as aforesaid, recorded further evidence and after re-hearing and re-appraisal of the evidence rejected the application in these terms:-- "I have carefully gone through the depositions of the witnesses. Examined by the parties and also the documents produced by them. I am of the view that the respondent has prima facie proved that shop No.5 was occupied by the appellant/landlady and Ghulam Ali was not inducted as tenant as alleged by the landlady. I am influenced by the facts that Shop No.5 is part of the building which is owned by the landlady. It has come on record that the building consists of three floors and there are nine shops and one godown on the ground floor. The general survey was carried in the year 1968 and the entries were made in Excise and Taxation Register and in the Excise and Taxation record one shop has been shown as self-occupied.
' Ghulam Ali though filed affidavit-in-evidence, did not submit himself for cross-examination. In view of the evidence of Syed Khalil Hassan, the entries in the record of Excise and Taxation Department have some value on the question of occupation of shop by the landlady when the appellant has not led any evidence as to when Shop No.5 was given on rent to Ghulam Ali."
' Leave was granted in the above appeal to consider the following contentions:-- "4. In support of the above petition, Mr. Akhtar Mehmood, learned counsel appearing for the petitioner, has vehemently urged that this. Court, through the above order dated 8-12-1987, had directed the recording of additional evidence and not evidence afresh and, therefore, the evidence which was already recorded, should have also been taken into consideration while considering the additional evidence. It has been further argued by him that it is true that the tenant of Shop No.5, Ghulam Ali, filed his affidavit-in-evidence as a part of additional evidence and had not appeared for cross-examination, but his evidence was already on record in the form of affidavit-in-evidence dated 21-1-1982 and the cross-examination, which clearly proves that he was a tenant and which material has not been considered by the learned Judge in Chamber.
5. We are inclined to grant leave to consider the questions, whether the learned Judge in Chamber was justified in omitting to consider the above piece of evidence which was produced earlier and which was part of the evidence on record, and whether the impugned judgments of declining petitioner's applications on the ground of personal requirement of her son, Abdul Hafeez are warranted by the evidence on record. Leave is, accordingly, granted."
' We have heard the learned counsel for the parties at length and have gone through the evidence on record with their assistance and are of the view that the order passed by the learned Judge in Chambers rejecting the application of the appellant seeking eviction of the respondent from the premises (Shop No.1) on the ground of personal and bona fide requirement of his son, Abdul Hafeez, is not sustainable in law.
3. The appellant pleaded the ground of personal and bona fide requirement of her son, namely, Abdul Hafeez, in the ejectment application as follows:-- "(2) That the elder son of the applicant namely Abdul Hafeez has now grown-up and as such the son of the applicant has decided to run thereon business of Silver and Gold (Jewellery) in the shop in possession of the opponent.
(3) That the said son of the applicant is working with Firdous Jewellers, Liaqatabad, Karachi: since last about seven years and as such the said son of the applicant has acquired complete knowledge and experience of the business.
(4) That the applicant, therefore, requires the said shop in possession of the opponent in good faith for use and occupation of her said son, Abdul Hafeez so that he would be in a position to set up his independent life."
' The appellant also disclosed in the above ejectment case, the fact that she had earlier instituted ejectment case against the respondent being Ejectment Case No.290 of 1980 on the ground of default, addition and alteration, which was allowed by the Rent Controller on 31-8-1981 against which an appeal was preferred in the High Court which was then pending. In reply to the above ejectment case, the respondent filed written statement on 10-11-1981 wherein the only plea raised by him was that the appellant had filed he above application mala fide in order to extract higher rent of Rs.450 per month as against the rent of Rs.70 per month being paid by the respondent plus some 'Pagree'. Nowhere in the written statement the respondent pleaded that the appellant was in possession of any other vacant shop in the said building which was suitable for the need of her son. The landlady examined her attorney, Abdul Aziz, in the case and he substantially corroborated the statement made in the ejectment application. In the cross-examination of the attorney of the appellant, only one suggestion was put to him that the appellant was in possession of a shop near the staircase of the building which was denied. It was also denied by the attorney, when suggested, that 3 to 4 shops were lying in vacant condition in the said building. Nowhere in the cross- examination, any particular shop number was suggested to the witness. The appellant's son, Abdul Hafeez, also appeared in support of the application and he denied that the appellant was in possession of godown and that there were other shops belonging to the appellant which were lying vacant in her possession. Once again, no specific suggestion with regard to any particular shop was put to this witness. Ghulam Ali son of Qurban Ali, a tenant in one of the shops of the building, was examined to prove that son of the appellant, Abdul Hafeez, had been working with him for the last many years and that he had acquired sufficient, skill to run his own business of Jewellery. No suggestion was made to this witness that the shop in his occupation was let out to him after the institution of the case by the appellant against the respondent. He, however, admitted in cross-examination that he was paying the monthly rent of Rs.200 and a sum of Rs.800 to the son of the appellant as his salary.. The respondent filed affidavit-in-evidence in the case wherein he disclosed that he has been a tenant in the shop for more than 15 years and at the time he occupied the shop, all the shops were lying vacant. He also asserted in the affidavit-inevidence that during this period many shops in the building fell vacant from time to time which were let out by The appellant. In cross-examination, he admitted that Aslam and Siraj, the two tenants of the appellant, were tenants in, the building before he occupied the shop. Although he claimed that the two shops were lying vacant in the building but he did not disclose their numbers. He admitted that Shops Nos.2 and 5 were occupied by Abdul Qadir and Firdous Jewellers respectively, while Shop No.4 was in occupation of Rafiq Jewellers. Similarly, he admitted that Shop No.3 is occupied by Haq Jewellers and Shop No.6 bore the signboard of Shama Jewellers while he stated that Shop No.7 was lying closed and there was no signboard of this shop. He pleaded ignorance about occupancy of Shop No.8 and the nature of business carried on there. Similarly, he stated that he was not aware that who was the occupant of Shop No.9. He admitted that the son of applicant worked in the shop of Firdous Jewellers. After remand of the case, the attorney of the appellant once again appeared as witness in the case and in cross-examination he stated that at the time he filed the above case none of the shops was in his occupation and that the godown was at that time in occupation of leather-tanner, Muhammad Shafi, who later died. To a suggestion by the respondent, he replied that he was not aware that in the property register, the godown and 10 rooms were shown in possession of the landlady. He, however, stated that the survey of the property was conducted in 1968 and thereafter no further survey was made. Some suggestions were made to this witness that the tenancy receipts of some of the shops were changed in the meantime which he admitted.
4. The learned counsel for the respondent while supporting the judgment of the learned Judge in Chambers very vehemently contended that the statement of the attorney of the appellant, who was examined after remand of the case, clearly establishes mala fides on the part of the appellant inasmuch as he admitted in the cross-examination that the landlady changed the tenancy receipt of some of the shops during pendency of the rent case. Besides the fact that the mere change of the receipt by the landlady for some of the shops during pendency of the rent case by itself could not establish her mala fides in the case, the learned Judge in Chambers non-suited the appellant mainly on the ground that the appellant was shown to be in possession of Shop No.5 and that Ghularn Ali was not inducted as tenant of the shop as alleged by the appellant. The learned Judge was also much influenced by the fact that in the survey record of Excise and Taxation, one shop was shown in possession of the landlady/appellant. These conclusions of the learned Judge in Chambers are based on no evidence on the record. There is nothing in the evidence to show that Shop No.5 was in occupation of the landlady at the time of institution of the rent case against the respondent or that during pendecy of the rent case, the said shop came into her occupation.
Ghulam Ali, the tenant of Shop No.5, was examined by the appellant in the case on 21-1-1982. In cross-examination, he sated that he was tenant in the shop for the last 7 or 8 years. No further question was asked to discredit him. The learned Judge in Chambers has placed much reliance on the survey of the property held in 1968 to show that certain shops were in occupation of the landlady. The fact that some of the shops were in occupation of the landlady in the year 1968, had no relevance in the case as the ejectment application was filed by the landlady in, the year 1981 seeking ejectment on the ground that the shop was required by her for personal use of one of his sons, who had grown up and was aged about 22 years. The relevant date, therefore, was the date on which ejectment case was filed by the landlady against the respondent. As earlier stated by us, there is nothing on record to show that on the date of institution of the ejectment case by the appellant against the respondent, she was in occupation of any of the shops in the above premises. Even otherwise, the suitability of premises for personal requirement is to be judged by the landlady herself and she could not be compelled to, accept any other premises if she preferred her choice for one of the shops. Mr. Abdur Rahim Kazi the learned counsel for the respondent has relied on the case of Muhammad Rifatullah Alvi v. Imran Ansari (PLD 1990 SC 369) and Qamaruddin v. Hakim Mahmood Khan (1988 SCM R 819) to support his contention that the landlady, in the circumstances, was not entitled to get possession of the premises occupied by the respondent.
The cases cited by the learned counsel for the respondent are distinguishable on facts and are of no assistance to the respondent in the above case.
5. We, accordingly, allow the above appeal, set aside the judgment and decree of the learned Judge in Chambers and grant application filed by the appellant against the respondent on the ground of personal and bona fide requirement of her son. In the circumstances of the case, there will, however, be no order as to costs. The respondent is allowed six months' time from today to vacate the premises, subject to the condition that during this period he will continue to deposit the rent regularly with the Rent Controller and in case he failed to deposit the rent as directed by the Rent Controller or vacate the premises after expiry of six months, he will be evicted therefrom without any further notice.