1. ' These are two appeals directed against the judgment, dated 30-5-1998 passed by IInd Senior Civil Judge and Rent Controller, Karachi-Central, whereby the learned Rent Controller allowed Eviction Applications Nos.47 and 48 of 1991 (Muhammad Ali Abidi deceased through his Legal Heirs v. Mst.
2. Sultana Jafri) in respect of Shop Nos.7 and 8, situated on Plot No,C-37, Rizvia Society, Nazimabad, Karachi, and ordered eviction of the appellant from the. Said shop premises within thirty days, hence these appeals.
3. ' Brief facts of the case are that the respondent's predecessor-ininterest deceased Muhammad Ali Abidi filed Eviction Applications Nos.47 and 48 of 1991 against the appellant under section 15 of Sindh Rented Premises Ordinance, 1979, (hereinafter called the Rent Ordinance) for her eviction in respect of Shop Nos.7 and 8, situated on Plot No,C-37, Rizvia Society, Nazimabad, Karachi, on the grounds that he needed the shop premises for his bona fide requirement and that the appellant/tenant has made additions and alterations in the demised shop premises impairing materially the value and utility of the same.
4. ' During the pendency of eviction applications before the learned Rent Controller the applicant/respondent Muhammad Ali Abidi expired consequently his legal representatives were brought on record, as such, amended eviction applications were filed and thereafter the appellant/tenant also filed amended written-statement. After filing of amended written-statement, Syed Kazim Raza Abidi the son of the original landlord filed his affidavit-in-evidence in both eviction applications who filed photo copy of death certificate of deceased Muhammad Ali Abidi, photo copy of general power of attorney. The appellant/tenant filed separate affidavits-in- evidence in both the eviction applications who also examined Abdul Hameed, her Manager. All the deponents who filed affidavits-in-evidence were cross-examined by the respective adversary counsel for the parties. After recording of above evidence and hearing the counsel the impugned judgments were passed.
5. ' Both appeals involve same question of facts and law and same contentions has been raised consequently same are being disposed of by this common judgment.
6. ' I have heard the learned counsel for the parties and perused the record and proceedings of the case.
7. ' Contention of learned counsel for the appellant is that the learned Rent Controller has misread and misappreciated the evidence on record thereby erred in holding that need of the respondents in respect of shops in question is in good faith. The learned counsel for The appellant in the said respect has referred to paras.1 and 9 of eviction application and para.2 of written-statements and para.2 of affidavit-in-evidence of respondents thereby submitted that initially rate of rent in respect of shop premises was Rs,80 per month till November 1990 and from December 1990 it was enhanced to Rs,350 and instant applications were filed on 16-1-1991 and the affidavit-inevidence by the respondents was filed in 1995, therefore, the requirement of the respondents could not be said to be in good faith. He has further submitted that the respondents have asked for the disputed shop premises for their requirements on the ground that they would amalgamate the same with their shops in their possession for the expansion of their business but in between the said shops of the parties there was another small shop which has been let out to Maroof Sweet Meat Mart after 1990, therefore, there was no possibility of amalgamation hence need of the respondents could not be said to be in good faith. He has placed reliance upon (i) Latif Ahmad v. Mst. Farrukh Sultana 1996 SCM R 1233 wherein their Lordships of Supreme Court have observed that landlady although, had the prerogative to have premises of her choice and tenant had no right to challenge such right of landlady, yet it was incumbent upon landlady to have disclosed factum of vacation of shop and then renting out the same by dividing it into two shops and the reason as to why that shop was not suitable for her/her son's requirement particularly keeping in view that said shop and shop in question, were situated in the same market consequently no case for personal requirement was, thus, made out and Rent Controller had rightly and correctly declined to order ejectment of tenant,
(ii) Mrs. Ruby Misso v. Mrs. Kaniz Fatima and others 1990 CLC 1320 wherein the learned Judge in Chambers has observed that where the landlord rented out portions of premises during pendency of ejectment proceedings and there was no evidence that portion in possession of landlady was not suited to her needs, the bona fide requirement of landlady cannot be said to have been proved and (iii) Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCM R 2051 wherein their Lordships of Supreme Court have observed that where the counsel was unable to convince the Court as to how in absence of a specific pleading as to vacant premises not being sufficient for her needs, she could seek ejectment of respondent from the disputed premises. The finding of High Court with regard to ejectment of the tenant was held to 'be unexceptionable in support of his contentions.
8. ' Learned counsel for the respondents has submitted that respondents statement with regard to personal need in good faith is consistent in the eviction applications, in the affidavits-in-evidence and in the cross-examination and the said testimony of the respondents has not been challenged in the cross-examination consequently the requirement in good faith stood proved hence the finding of personal need is based on proper appreciation of evidence of law. He further submitted that the small shop was let out in 1988 and not after 1990 and it admeasured 10' x 10' whereas the shop in possession of the respondents admeasured 23' x 12' and the shops in possession of the appellant admeasured 20' x 10' consequently there was some portion vacant on the rear side of the shops which allowed the passage of amalgamation between the disputed shops with the shop of respondents, therefore, it could not be said that there could not be amalgamation of the shops hence the need of the respondents is based on good faith. He further submitted that mere fact that the rent was enhanced on account of the increase in the taxes would not deprive/disentitle the respondents from evicting the appellant from the shop premises when the good faith is proved under the law. He also submitted that even the alleged payment of 'Pagri' by the appellant to the respondents cannot be said to disentitle the respondents from getting eviction of the appellant in case good faith is proved. He further submitted that the choice is of the landlords/respondents and not of the appellant/tenant with regard to the possession of the shop for expansion of business by the respondents. He further submitted that the respondents have stated about the expansion in the business. He also submitted that initially, the respondents were carrying on business of readymade garments but after seven years of pendency of the eviction applications scope of readymade garments business decreased, therefore, after taking over of possession of disputed shop premises instead of expanding the business of readymade garments, business of snack bar has been started after carrying on heavy addition and alteration in the premises after amalgamating the disputed shop premises with that of shop already in possession of the respondents. He has placed reliance upon (i) Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394 wherein their Lordships of Supreme Court have observed that 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, (ii) Mst. Saira Bai v. Syed Anisur Rahman 1989 SCM R 1366 wherein after Lordships of Supreme Court have observed that landlord was not required to state the nature of business which he intended to carry on as same was neither essential nor formed part of cause of action and further demand of higher rent by itself would not cast any doubt on the personal bona fide requirement where the factum of bona fide requirement was independently proved, (iii)
9. Ejaz Ahmad Mir v. Mrs. Shamsa Khatoon 1996 M LD 648 wherein the learned Judge in Chambers has observed that it would be the choice of landlord to have any portion of his premises for his personal need and was his prerogative and such right of choice cannot be given to a tenant (iv)
10. Hajiani Zaina Bai v. Messrs Allied Bank of Pakistan Limited 1989 CLC 729 wherein the learned Judge in Chambers has observed that it is always open to landlord to choose his own premises for expansion of his business and no pre-conditions are prescribed to seek ejectment of tenant on that ground, except that requirement should be in good faith and further where the landlord instituted ejectment proceedings against the tenant on the ground of personal bona fide need after the expiry of agreementrof tenancy allegation of mala fide on the part of tenant that landlord was interested in getting the rent of premises enhanced was held to have no merit as law itself provided a check against relating of the premises after getting the same vacated on ground of personal requirement, (v) Abdul Ghani v. Mst. Maryam 1989 CLC 989 wherein the learned Judge in Chambers has observed that new requirements of landlady should not be ignored where there was clear evidence on record that such landlady has expanded business of her husband with the help of her sons and she needed the godown in that context, (vi) Khawaja Imran Ahmad v. Noor Ahmad and another 1992 SCM R 1152 at 1156 wherein their Lordships of Supreme Court have observed that indeed a landlord may think of doing a particular business and stated so in his application but nothing would prevent him under the law from doing any other business if the situation or the environment of the shop is changed or he found that the particular business cannot be carried on profitably in the shop. Any such restriction; even if provided by law, would be hit by Article 18 of our Constitution which provided freedom of trade or business or profession subject to the provision contained in the proviso contained therein and an unreported judgment in First Rent Appeal No,400 of 1995 (Haron Nara v. Abdul Karim Mainyar) in support of his contention that change in trade is permissible.
11. ' The respondents in the eviction applications have stated for the enhancement of rate of rent due to municipal and other taxes consequently it was enhanced to Rs,350 from Rs,80 per month since December, 1990 and further that the respondents required the demised shops in good faith for use and occupation for running their garment store in shops near/adjoining the, demised shop and because of expansion in business as the demised shop was suitable and required by the respondents for the said purpose. The said statement of the respondents is reiterated in the affidavits-in-evidence of Syed Kazim Raza Abidi. On going through the cross-examination of respondent Kazim Raza it would appear that said statement with regard to personal bona fide need has not been specifically challenged by the appellant/tenant in the cross-examination. The respondent was only suggested in the thrther cross-examination that he was not in the need of the shops, therefore, he let out the ship to Maroof Sweet Meat Mart to which the respondent replied that the said shop was let out in 1988 when he was not in the need of said shop and denied that it was let out after 1990 so also denied the receipt of Rs,65,000 Pagri', he also denied that eviction was sought because he wanted to rent out at enhanced 'Pagri'. The statement made in the cross- examination would show that the appellant has not challenged specifically the personal requirement of the respondents with regard to their expansion in business in good faith. The testimony and veracity of the respondents in the cross-examination could not be shaken. Mere fact that rent was enhanced in December, 1990 and the eviction application were filed in January, 1991 would not show that need of the respondents was not in good faith. The increase in the rent on account of increase in taxes cannot be considered to be unjustifiable, barring and disentitling the respondents from seeking eviction of the appellant/tenant on the ground. Of personal requirement in case good faith is proved by the landlord. Nothing has been shown which could disentitle in law the respondents from evicting the appellant/tenant from the the shop premises. So for the alleged payment of ' Pagri' to the respondents the same has not been proved and further even otherwise payment of " Pagri' would not be bar for seeking eviction of the tenant by the landlord on, the ground of personal requirement in good faith. So 'far letting out the small shop 10' x 10' in size to Maroof Sweet Meat Mart by the respondents in 1988 two years prior to the filing of instant eviction application against the appellant would also not disentitle in law the respondents/landlords from seeking eviction of the appellant on the ground of personal requirement as the letting out of said small shop would not negate the good faith if proved as no evidence has been brought on record to show that it was let out after 1990 or after the filing of eviction applications by the respondents. In the circumstances the contention of the counsel for the appellant has no merit and substance and no exception could be taken to the finding of learned Rent Controller in respect of order of eviction of appellant on the ground of personal requirement of the respondents in good faith in view of the evidence on record and in view of the principle laid down in the cited cases.
12. ' The next contention of learned counsel for the appellant is that the learned Rent Controller has erred in holding that there has been addition and alteration impairing the value and utility of shop premises on the part of the appellant, therefore, liable to eviction from the shop premises. In the said respect learned counsel for the appellant has referred to paras.4, 6 and 7 of eviction applications and submitted that nothing has been specifically said with regard to addition and alteration by the respondents and there was only his solitary statement and has also referred to cross-examination of respondents and also submitted that the respondents in the eviction applications and in their affidavits-in-evidence have not said about the intervening wall between two shops Nos.7 and 8 and earlier respondents have no grievance about the addition and alteration. He has referred to Muhammad Mirza v. Muhammad Hussain Ghani PLD 1983 Kar.
13. 162.
14. ' Learned counsel for the respondents has submitted that the appellant/tenant in para.3 of written- statement has stated that they (she) had uplifted the shops by spending huge amount to meet the latest requirement of business keeping in view the competition in business and the uplifting of the shop was done with the approval and consent of landlord and it was the only reason for the increase of the rent. He submitted that no consent was obtained by the appellant/tenant which was requirement of law and further that in cross-examination the appellant/tenant has stated that she had replaced the roof of the shop earlier and installed show-case and air-conditioners which are installed previously in the window and further she stated that she had not obtained any permission in writing for making any renovation or changes in the demised shop and further that it was correct to suggest that Kazim Raza Abidi had restrained her from making any further changes in the shops. He has referred to (i) Lala Niaz Ahmed v. Malik Ishtiaq Ahmad and others 1991 M LD 1655 at 1659 wherein the learned Judge in Chambers has observed that any structural addition or alteration in the rented premises by a tenant without prior permission of the landlord would be viewed from the point of view of the landlord and not the tenant. The tenant has no right to effect any such changes without the permission of the landlord. The appellant claimed an amount of Rs,1,00,000 as compensation for raising the said construction which was disallowed even by the Rent Controller on the ground that the same was raised without prior permission of the respondents. The spending of an amount of Rs,1,00,000 as alleged by the appellant itself was a proof that it was not a general type of repair but an addition to the property which was not liked by the respondents, therefore, the appellant was certainly guilty of damaging the property and was rightly ordered to be evicted on that score and (ii) Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SCM R 689 wherein their Lordships of Supreme Court have observed that it is the requirement of law that consent of the landlord should be in writing which admittedly was not given by him in support of his contention. From the above submissions the learned counsel for the respondents concluded that as per admission of the appellant that she had spend huge amount on the shop premises by installing show-case, air-conditioners and having the roof replaced earlier would amount to making addition and alteration in the premises which was admittedly without consent of the respondents, therefore, the finding of the learned Rent Controller as per evidence would be legal.
15. ' The respondents in the eviction applications in paras.4, 6, 7 and 8 have stated that the appellant has recently made certain addition and alteration in the demised premises by raising certain constructions and by making holes and damaging the demised premises without any consent or permission of the respondents which has caused damage to the demised shops and has also removed the internal wall which existed between the Shops Nos.7 and 8 and the said acts have decreased the value and utility so also have impaired the value of the shops. The said averments have been reiterated in the affidavits-in-evidence of Kazim Raza Abidi and the same could not be challenged in the cross-examination by the appellant/tenant and thereby the testimony of the respondents could not be shaken. It would further be observed that the appellant/tenant in the cross-examination admitted to have spent huge amount on the upliftment of the demised shops so as to meet the latest requirements of the business keeping in view the competition in the business which admittedly was carried out without consent in writing of the respondents consequently, it would lead to a conclusion that the appellant had carried out addition and alteration in the demised shop premises which in view of the respondents amounted to addition and alteration impairing the value and utility of the demised shops. Reference may be made to the above cited case (i) Lala Niaz Ahmad v. Malik Ishtiaq Ahmad and others 1991 M LD 1655 and (ii)
16. Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SCM R 689.
17. In view of the above evidence which could not be rebutted or shaken by the appellant and her admission, the respondents have successfully proved their case that additions and alterations have been made by the appellant in the demised shops without their permission consequently, the finding of the learned Rent Controller is legal, proper and according to the evidence on record which cannot be interfered with.
18. ' Accordingly, the appeals have no merit which are hereby dismissed in limine alongwith the listed applications. The period for vacating the shop premises by the appellant/tenant is not given because the respondents through execution applications have already obtained the possession of disputed shop premises from the appellant.