' Brief facts giving rise to the appeal in hand are that Muhammad Saleem son of Haji Ghulam Mohiyudin landlord of Shop bearing No,32 situated at Cantt. Cho'k Abbottabad filed eviction petition against Sardar Muhammad Yaqoob tenant/appellant in the Court of Controller of Rents Abbottabad Cantt on the grounds of personal bona fide need, default in payment of rent and impairing/damaging the shop in dispute on 9-4-1994. The appellant/tenant contested the eviction petition by submitting his written reply. Out of the pleadings of the parties the following issues were framed:-
(1) Wether the petitioner has got the cause of action?
(2) Whether the present petition is not maintainable in its present form?
(3) Whether the petitioner is estopped by his own conduct to file the present petition?
(4) Whether the Court is competent to try present petition?
(5) Whether the petition was filed for purpose of enhancing the rent?
(6) Whether the petitioner required the suit shop for his personal need?
(7) Whether the petitioner is landlord of the suit shop?
(8) Whether the present petition is filed with mala fide intention and respondent is entitled for special costs?
(9) Whether the respondent has defaulted in the payment of rent? ( I 0) Relief.
2. Parties produced their respective evidence. In support of eviction Petition, the landlord Muhammad Saleem appeared as P.W.1. He had not produced any other evidence in support of his petition. In rebuttal the appellant/tenant produced Muhammad Yamin Town Inspector as R.W.1, Abdul Waheed Postman as R.W.2, Muhammad Saleem son of Abdul Rehman.As R.W.4 and appellant/tenant himself as R.W.3, Muhammad Jamil as R.W.5 and Master Sher Ahmed was examined through local commission as R.W.6. After hearing the parties the learned Controller of Rents accepted the eviction petition and passed eviction order in favour of the respondent/ landlord vide order/judgment, dated 17-11-1998. The appellant/tenant has now challenged the said order/judgment, dated 17-11-1998 through the appeal in hand.
3. Mr. Muhammad Younas Khan Tanoli, Advocate, the learned counsel representing the appellant/tenant argued that the appellant was inducted in shop in dispute as a tenant in 1970-71 by the father of the respondent, namely, Ghulam Mohiyuddin. During last 28/29 years Ghulam Muhiyuddin the father of the respondent had been receiving rent from the appellant, hence respondent is not landlord of the shop in dispute and the petition filed by him is incompetent.
4. Regarding change of ownership in favour of the respondent, the learned counsel for the appellant argued that no notice of change of ownership was served upon the appellant by the respondent, hence the appellant was not aware of any change of ownership.
5. The learned counsel for the appellant further argued that eviction of the appellant was sought on three grounds, i,e, default in payment of monthly rent, imparing/damaging the shop in dispute and personal bona fide need of the respondent. So far as the question of default is concerned, the learned counsel stated at bar that the appellant has never been defaulter. He was always paying the monthly rent in time. Rent for the month of October, 1993 was taken to Haji Ghulam Mohiyyudin for payment but the appellant was informed that Haji Sahib had gone to Karachi. Jehangir son of Haji Ghulam Mohiyyudin refused to receive the monthly rent, hence he was constrained to remit the same through money order which was returned. Money order receipts have been placed on record as Exhs.R.W.1/1 and 1/2. Thereafter, the respondent filed eviction petition and the appellant started depositing monthly rent in the Court. That the respondent has not led any evidence to substantiate the plea of damaging the shop by the appellant and he also had not pressed the same before the Controller of Rent.
6. The learned counsel for the appellant also argued that the main ground stressed by the respondent/landlord was that he needs the shop in dispute for his personal bona fide use. He has filed eviction petition against his tnenat who is occupying adjacent Shop bearing No,33 also. The respondent/landlord would make two shops, i,e,, Nos.32, 33 as one and then start his business in the said shops. He argued that in order to seek eviction on the ground of personal need under section 17(4)(b) of the Cantonment Act, 1963 the landlord has to satisfy judicial conscious of the Court that he requires the property in good faith for his use and that he is not occupying any other building in said cantonment area. Both the conditions as envisaged by law were not fulfilled by the respondent/landlord, hence he was not entitled for an eviction order in his favour.
7. The learned 'counsel for the appellant also argued that the respondent/landlord has withheld proper information from the Court that he was already in occupation of an adjacent shop owned by his brother where he was running his business alongwith his brother. He has concealed this fact from the Court and has not come to the Court with clean hands. His eviction petition, therefore, deserves dismissal. Reliance was placed on the following judgment:--
(1) Muhammad Rioshan Khan v. Ashfaq Ali 1995 CLC 702 (Karachi).
(2) Mst. Ashraf Alia v. Dr. Asif Majeed 1991 CLC 53 (Karachi).
(3) Mst. Razia Khatoon through legal heirs v Abdur Razaq 1991 CLC 1236 (Karachi).
(4) Messrs Ibrahim Agencies v. Panorama Interprises Ltd. 1997 MLD 3035 (Karachi).
(5) Muhammad Saleem Khan v. Zameer Ahmad Khokhar 1997 CLC 1531.
5. On the other hand, Syed Abdus Salam Sarwar, Advocate, the learned counsel representing the respondent/landlord argued that no doubt that the appellant' was inducted in the suit shop by the father of the respondent but the father of the respondent, Haji Ghulam Mohiyuddin had transferred Shops bearing Nos.32 and 33 to the respondent/landlord through registered deed Exh.P.W.1/1. This document was placed on record without any objection from the appellant's side. Moreover, the appellant had admitted having paid rent to the respondent/landlord and he has admitted having remitted the monthly rent through money order to the respondent/landlord. After having attorned to the tenancy of the respondent/landlord, now the appellant is estopped to raise the plea that the respondent is not the landlord of the property in dispute and that notice of the transfer of the property was not served upon him.
9. Regarding default in payment of rent and impairing the utility of the shops the learned counsel for the respondent/landlord stated at bar that since he had proved personal bona fide. Need, therefore, he would not press the grounds of default and damaging/impairing the value and utility of the shops.
10. Replying the arguments regarding the personal need the learned counsel for the respondent/landlord argued that the respondent has in his statement recorded in the Court of learned Controller of Rent stated on oath that he needs property in question for his personal bona fide business as after completing his studies in 1975 he started business in 1985 in the shop of his brother. He had been learning the job of gas-heaters. His brother was a watch maker and his brother has started asking him to quit his shop as they cannot run the business together. He stated that after removing the wall in between Shops Nos.32 and 33 and making the same as one he would start business in the same. It was further argued that it was not necessary to mention the nature of business and its details in eviction petition. Regarding occupation of adjacent shop the learned counsel argued that the respondent has not withheld any information from the honourable Court as in his statement, he has given details of the business he was conducting in the shop of his brother and the business being conducted by him was a joint business. He was not conducting any independent business; therefore, it is the option/ choice of the respondent to choose the property for his business. In this case he has chosen to start his own business in the shop owned by him as well as in the adjacent shop (Shop No,32). He relied upon the following dictums of the superior Courts:--
(1) Muhammad Haleem Siddique v. Dr. Huma Khusro 1997 CLC 905,
(2) Anwar Habib v. Durdana Yousafi 1998 MLD 99,
(3) Mst. Sahira Bhai v. Syed Anisur Rehman 1989 SCMR 1366,
(4) Muhammad Siddiq etc. v. Syed Mansoor Ali Shah 1989 SCMR 511
(5) Mst. Firdoos Sabir v. Haji Mushtaq Ahmad Parvez 1994 SCMR 355.
11. I have heard the learned counsel for the parties and perused the record carefully.
12. The first argument of the learned counsel for the appellant was that he was inducted in the shop in dispute by the father of the respondent, namely, Haji Ghulam Mohyuddin and the appellant had been regularly paying rent to him. The petition filed by the respondent was, therefore, incompetent as he was not the landlord of the property in dispute. This argument is not tenable because the appellant himself admitted having paid monthly rent to the respondent/landlord. He further admitted that rent for the month of October, 1993 was remitted to the respondent/landlord through money orders Exhs.R.W.1/1 and 1/2 having attorned to the tenancy of the respondent/landlord, the appellant cannot raise such a plea. In fact the learned counsel for the appellant during last leg of his arguments, admitted the respondent to be the landlord of the appellant and did not press this plea. He also did not press the pleas that the respondent/landlord had not served any notice of change of ownership to the appellant. Even otherwise notice regarding purchase of property by landlord was not required to be served upon tenant, for, there was no such provision in Cantonment Rent Restriction Act, 1963 like section 13-A, West Pakistan Urban Rent Restriction Ordinance, 1959. Reliance is placed on Sabz Ali Khan v. Bismillah Khan and others 1997 MLD 675.
13. The pleas of default in payment of rent and dainaging/imparing the value and utility of the shop in question were abandoned by the learned counsel for the respondent/landlord, hence there is no need to dilate upon these issues.
14. The argument of the learned counsel for the appellant that the respondent landlord has failed to show that he was in occupation of adjacent shop where he was running his business in the last many years and he has concealed this fact from the Court. Withholding such information from the Court disentitles him for favourable order. This argument cannot help the appellant because his failure to mention in his ejectment petition that he was not occupying similar commercial property or suitable for his needs would not he fatal for his case. In case Haji Mohibullah & Co. And others v.
Khawaja Bahauddin 1990 SCMR 1070, it was held, "This Court has already held that there is no legal requirement on the part of the landlord to disclose the nature of the business he intends to conduct in the premises, for which he has made an application seeking possession. It has also been held by this Court, notwithstanding the statutory requirement as contended under section 13(3)(a)(ii)(b) of the West Pakistan. Urban Rent Restriction Ordinance, .1959, that though there may be a failure on the part of the landlord to mention in his eviction petition that he was not occupying similar commercial property in the same area suitable for his needs, it would not be fatal to his case, if otherwise, his bona fide need was established."
' The next argument of the learned counsel for the appellant was that the respondent/landlord has failed to prove his plea of personal bona fide need. This argument has no weight at all. The respondent. Landlord, as mentioned above, in so many clear words has stated that he completed his education in 1975 and started business of Gas-heaters and cassettes in the shop of his brother which is adjacent to the shop in dispute and his brother has so many times asked him to make arrangements for a separate place. His statement on oath could not be shattered though he was subjected to lengthy cross-examination. Affirming the stand of respondent/landlord the appellant Sardar Muhammad Yaqoob in his cross-examination admitted that the respondent/landlord has been running the joint business in the adjacent shop but ironically he showed his ignorance about the type of business, the respondent/landlord was conducting in the shop belonging to his brother, namely, Jehangir. He even did not know respondent/landlord as he has not been conducting his business personally. The appellant who claims to be the tenant in the shop in dispute even did not know the number of the shop in dispute. In his statement recorded in the Court of Controller of Rents, Abbottabad he 'stated that he does not know the number of the shop in dispute, his brother Saleem may know the number because he sits on the shop. He even did not know that in whose name the money order was remitted by Saleem. Similarly, Muhammad Saleem who was examined as R.W.4 by the appellant also admitted that respondent/landlord was running joint business in the shop of his brother Jehangir. All this indicate that the respondent/landlord has proved that he requires the shop in dispute alongwith adjacent Shop bearing No,33 for his personal bona fide business. It is well-settled legal proposition that the assertion or claim of the landlord on oath that he requires the premises for his personal use should be accepted by the Controller as bona fide if such claim or assertion although by itself C may be insufficient, yet consistent with his statement in the ejectment application and is not shaken in the cross-examination'or proved in rebuttal.
Reliance is placed on Muhammad Haleem Siddique and another v. Dr. Huma Khusro 1997 CLC 905 and Gohar Rashid v. Fazal Hussain Mazhar PLD 1995 Lah.
469.
' The next argument of the learned counsel for the appellant was that the respondent/landlord has failed to mention the nature of business in his eviction petition, therefore, eviction petition was liable fof dismissal. This argument of the learned counsel for the appellant equally has no force at all. There is no law that the landlord must spell out the details of his requirements in the application for eviction which may well,be established by leading evidence as ruled by Supreme Court of Pakistan in Zahoor Din v. Muhammad Anwar Baig 1981 SCMR 1081. In the abovementioned case an application for eviction was filed against the tenant on the ground of personal need in which it was not asserted that he required the property for the residence of his son who was going to be married. It was ruled that the said omission has no consequences. Againin Muhibullah v. Khawaja Bahaoddin 1990 SCMR 1070 it was observed:- "This Court has already held that there is no legal requirement on the part of the landlord to disclose the nature of the business he intends to conduct in the premises, for which he had made an application seeking possession. It has also been held by this Court, notwithstanding the statutory requirement as contended under section 13 (3)(a)(ii)(b) of the West Pakistan Urban Rent Restriction Ordinance, 1959 that though there may be a failure on the part of the landlord to mention in his eviction petition that he was not occupying similar commercial property in the same area suitable for his needs, it would not be fatal to his case, if otherwise, his bona fide need was established."
' Similarly, in case of Mst. Sahira Bhai v. Syed Anisur Rehman 1989 SCMR 1366 it was held, "Landlord has to state in his application. The material facts, i,e,, facts which constitute cause of action alongwith those facts which prima facie show that requirement was according to law and was made in good faith. Landlord was not required to state the nature of business which he intended to carry on and same was neither essential nor formed part of cause of action."
' Likewise in Muhammad Sharif v. Nisar Ahmad 1988 SCMR 1587 it was held, "Defects in pleadings of the parties or conduct of the lawyers at the time of examination of the witnesses would not make any difference in so far as finding of fact regarding the bona fide personal requirement of landlord was concerned."
' Similarly in another case M. Amjad Bhutta & Co. Through M. Amjad Bhutta and another v. Malik Abdul Hameed Tawana District Judge Sialkot and others" PLD 1990 Lah. 412 it was held, "Proceedings before Rent Controller being of quasi judicial nature were not to be adjudicated upon from the point of view of mere techincalities--Landlord could not be non-suited merely because he had failed to specifically plead certain facts so lang as he had brought evidence on record to prove his bona fide personal requirement. "
' The arguments of the learned counsel for the appellant that father of respondent/landlord, namely, Ghulam Mohiyuddin had got a shop vacated from Master Sher Ahmad and divided the same into three portions and gave it on rent to different tenants. Had the tenant/respondent really needed a shop for his personal business he could easily occupy one of the said shops and run his business there. This argument of the learned counsel is not tenable because firstly that the shop which was got vacated from Master Sher Ahmad belonged to the father of the respondent/landlord. The father of respondent, namely, Ghulam Mohiyuddin had in his lifetime transferred two shops, i,e,, Shop No,33 and shop in dispute in the name of respondent/landlord and one shop in the name of Jehangir. He had kept one shop for his own requirement and if he has given the said shop on rent to other tenant that would not cause any doubt to personal bona fide need of the respondent/landlord because he has nothing to do with the shop owned by his father.
The fact that father of the respondent/landlord owned another shop had not direct bearing on the question of landlord's bona fide requirement. Reliance is placed on Abdul Kalam v.-Mst. Dilshad 1991 SCMR 1421 wherein it was held.
"In our view, the fact that the respondent's mother owns a palatial bungalow which fact has not been accepted by the High Court or the fact that she owns another bungalow and/or other properties situated in Karachi has no direct bearing on the question of the respondent's bona fide personal requirement. The pertinent question is as to whether the respondent is living in her own house. Once the factum that she has been living with her mother alongwith her son is proved in the absence of some reliable evidence in rebuttal, the respondent's personal bona tide requirement stands proved. We are inclined to hold that the respondent is not under any legal or moral obligation to put up with her mother alongwith her son for all time to come. The finding of the High Court on the question of personal requirement seems to be in consonance with the evidence on record and, therefore, no exception can be taken to the same."
'It is the choice and prerogative of the respondent to choose a shop/shops for his business and in the case in hand the shop in dispute .Alongwith Shop No,33 which are small in width would be amalgamated into one by removing the Parda Wall, and thus, the respondent would start his business herein. Reliance is placed on Dildar Hussain Dar v. Niaz Muhammad Dar and another 1985 SCMR 1769 wherein it was held, "Landlord seeking eviction of three tenants from three adjoining shops on ground of his personal need of all three shops-landlord-,held, had a choice and if he needed three shops at same time, it had to be considered rather in a pragmatic manner--."
' In a similar case titled Mst. Firdoos Sabir v. Haji Mushtaq Ahmad Pravez 1994 SCMR 355, it was held, "Landlord in her application for eviction had categorically stated that shop already in her occupation was not sufficient for her requirement and she needed two shops in question for her business. Husband of the landlady after her retirement was looking after the landlady business.
Term any use as appearing in section 17 Cantonment Rent Restriction Act, 1963 would not be restricted to mean that landlady conduct business through her husband and other relative."
' Likewise in Bashir Ahmad v. Muhammad Shafi 1989 SCMR 538 it was held, "It is the judgment and need of landlord about which he is best judge, regarding status also the primary consideration is choice about the need and comforts of landlord---The Court could only interfere in that field when claim of landlord was visibly extraordinary. 'In this case, it is obvious that the statuswise and needwise the landlord has not at all made an extravagant claim."
' Similarly, in case Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SCMR 394 it was held, "If the landlord possesses more than one house in the same urban area the choice, as to the house in which he would like to live in, is surely a matter within his prerogative and discretion and the law does not give either to the tenant or the Rent Controller the power to determine where the landlord should personally reside---Question as to which portion of the building would suit the landlord better must be left to his discretion and there was nothing unreasonable in the landlord's insisting that a particular portion of the building should be made available to him."
' In another case Adeeba Musharaf v. Muhammad Ishaq and another 1993 SCMR 2354 it was held, "Tenant's other contention that landlords requiring premises for doing business could do their business in the upper storey of the premises which was in their possession was devoid of force for it was the choice of landlord to do business in the portion of building of his own choice---Simply because some other businessm en were doing business in upper storey was not a clog on the right of landlords."
' The respondent/landlord has proved that he needs shop in dispute alongwith Shop No,32 for his personal bona fide needs. On vacation he would be running his own business in the said shops. The learned counsel for the landlord/respondent did not press the plea of default and damaging/ imparing the utility of the shop in dispute. When landlord succeeds on one ground it is not necessary for Rent Controller to go into other grounds. Reliance is placed on Messrs Rabka Pest Control Ltd. v. Mrs. Mahmooda Khalil 1989 SCMR 515. Moreover, section 17 subsection (6) provides sufficient safeguard to the tenant.
' The appellant-tenant as per his own statement has been running a separate business for the last many years under the name of S.Y. Tarcoal Dealer Near Sethi Mosque, Mansehra Road, Abbottabad and the shop in dispute, as rightly held by the Controller of Rent, has been sub-let to Saleem. The appellant was examined as R.W.3. In his examination-in-chief he did not mention that he was conducting his business through his brother Saleem. Similarly, in written statement also he did not mention this fact. But during the cross-examination he admitted that he was running his business at Mansehra Road, whereas his brother Saleem sits on shop in dispute and he occasionally sits on the shop. Although he has stated that Saleem is his brother but the record negates this version.
Sardar Muhammad Yaqoob is son of Sardar lnayatullah whereas Saleem is son of Abdur Rehman.
So, Saleem is not brother of Sardar Muhammad Yaqoob, the tenant. Even the tenant in his statement has stated that he does not know the respondent/landlord, he was not aware of the nature of business the landlord was doing in the adjacent shop and even he did not know as to whom rent was remitted through money order as the money order was sent by Saleem. All this indicates that he has sub-let the shop to Saleem and he is left with no interest at all in the shop in dispute. Although the landlord in his application has not taken the plea of sub-letting but the learned Controller of Rents has rightly reached to the conclusion that Sardar Muhammad Yaqoob has sub-let the shop to Saleem. This finding of the Controller of Rents finds support from the material available on record. Since the actual tenant Sardar Muhammad Yaqoob has handed over the possession of the shop to Muhammad Saleem who has been wrongly shown as his brother, therefore, the conduct of the appellant also disentitles him any relief.
' I, therefore, find no merits in the appeal in hand and dismiss the same. Since business is being run in shop in dispute, therefore, I allow one months' time to appellant to hand over vacant possession of shop in dispute to the respondent/landlord. There shall be no orders as to costs.