1. These are two appeals under section 21(1) of Sindh Rented Premises Ordinance, 1979 (hereinafter called the Rent Ordinance) against the same judgment dated 30-9-1993 passed by IVth Senior Civil Judge and Rent Controller, Karachi South, in Rent Case No.629 of 1989 (Yousuf A.I and five others v. H. Akbar A.I & Company Limited) whereby the eviction application under section 15 of the Rent Ordinance filed by the respondents/applicants Yousuf A.I and five others was allowed on the ground that the respondents required the premises in good faith for personal use of respondents Nos.2 and 3, namely, Saifuddin and Zakiuddin thereby appellants/tenants were ordered to hand over the vacant possession to the respondents/landlords within sixty days from the date of impugned order. The F.R.A. No.581 of 1993 has been filed by the appellants/landlords being dissatisfied by the order of eviction dated 30-9-1993 on the ground that the learned Rent Controller did not consider that the original tenant of firm transferred the possession of the shop premises to Messrs Badruddin and others without written consent of the landlords for which neither issue was struck nor any finding was given though evidence was led by the parties.
2. Respondent Yousuf A.I has filed eviction application under section 15 of Rent Ordinance against the appellants/tenants stating therein that building on Plot No.SR-3/7 and 7-A. Serai Road, Karachi, is owned by them which consisted of four shops on the ground floor when Shop No.4 on the extreme left was in possession of Yousuf A.I landlord who was being assisted by his brothers respondents Saifuddin and Zakiuddin, who were having no separate shop in their occupation when respondent Tahir A.I was in occupation of Shop No.3 who was being assisted by respondents Amir A.I and Najmuddin and the Shop No.2 was in occupation of tenant Messrs Rajab A.I & Sons and shop No. 1 in the extreme right was rented out to tenant H. Akbar A.I & Co., but now business was being carried out by one Badruddin S/o Ghulam Hussain thereby the original tenants had handed over the possession of demised shop to Badruddin. It is stated that respondents /landlords required the shop in occupation of appellant/tenant for their own use in good faith. The appellants/tenants filed written-statement wherein they denied the contents of eviction application stating therein that the appellant/tenant was son of original tenant and the same firm was being run by said Badruddin and father that the respondents Saifuddin and Zakiuddin were carrying on business in the shops in their occupation hence their need was not in good faith. The respondent Yousuf A.I filed his affidavit-in-evidence and also filed photo copies of some documents. Respondent Saifuddin also filed his affidavit-in-evidence. Badruddin one of the director of the appellants/tenants, filed his affidavit-in-evidence who also filed certain photo copies of the documents so also three certified true copies of Form No.XII showing the particulars of directors of H. Akbar A.I Company Limited. The deponents who filed the affidavits-in-evidence were cross-examined by the respective adversary counsel of the parties. After recording the above evidence and hearing the learned counsel the impugned judgment of eviction was passed.
3. I have heard the learned counsel for the parties and perused the record and proceedings of the case.
4. Mr. Mumtaz Ahmad Shaikh, learned counsel for the appellants/tenants has submitted that the respondents were already running a partnership business in another shop premises but the learned Rent Controller erred in holding that requirement of the respondents/landlords was in good faith consequently the finding was erroneous. He further submitted that respondents have no sufficient funds to start new business, therefore, the need was neither genuine nor bona fide and further that no particulars of proposed business have been furnished by the respondents/landlords, therefore, they would not be entitled to the relief of eviction in respect of the shop in possession of the appellants/tenants. He further submitted that there was no question of subletting or handing over possession to the appellant/tenant as the appellant became tenant of the demised shop premises after the death of his father and succeeded his firm business.
5. Learned counsel for the appellant/tenant has submitted that the case of the respondents/landlords as stated in the eviction application is inconsistent to what has been brought on record by the said respondents/landlords and further that the said respondents have got possession another shop premises from another tenant but the same has not been put to business use by the landlords for whose personal need eviction was sought in respect of the same, therefore, personal requirement was not in good faith. He has placed reliance upon (i) Mst. Sarwari Begum v. Ata-ur-Rehman (1997 CLC 1500 at 1503), (ii) Messrs Paramount Hosiery Mills Limited, Karachi v. Syed Mustafa Hyder (PLD 1984 Karachi 143 at 145), (iii) Haji Muhammad Ibrahim v.
6. Hamzood Khan (PLD 1987 Karachi 520 at 522 (iv) Altaf Ahmad Khan v. Dr. Muhammad Naseer Akhtar (1991 CLC 1861) and (v) Mukhtar Ahmad v. Muhammad Saleem Bakhshi (1991 CLC 1047) in support of his contentions.
7. Raw Mr. Badrudduja Khan, learned counsel for the respondents/landlords, has submitted that insufficiency of funds to run the business would not be a ground to disentitle the respondents/landlors to the eviction of shop premises. He further submitted that respondents/landords' statement on oath has not been shaken consequently they would be entitled to the possession of shop premises. He further submitted that there is no inconsistency in the pleadings and the evidence brought on record and further that eviction sought in respect of another shop was being used by the landlords Amirali and Najmuddin for the business purpose for whose benefit eviction was asked for. He further submitted that the listed applications have no merit considering that there was no evidence on record to show that another shop premises of which possession was obtained by the landlords of the building was not being used for the purpose for which eviction was sought, therefore, no additional evidence could be allowed to be adduced. He also submitted that the learned Rent Controller has erroneously failed to strike issue of handing over possession by the original tenant to the present appellant and also failed to give finding on the said plea. He has placed reliance upon (i) Khawaja Imran Ahmad v. Noor Ahmad and another (1992 SCMR 1152); (ii) Qamaruddin through his Legal Heirs v. Hakim Muhammad Khan (1988 SCMR 819), (iii) Miss Zaffar Fatima Rizvi v. Syed Saleem Raza (1993 CLC 270), (iv) National Development Finance Corporation v. Shaikh Naseem-ud-Din (PLD 1997 SC 564), (v) Muhammad Saeed v., Akhtar Ahmad and another (1999 GILD 1945) and (vi) late Maboob Saghri through Legal Representatives v. Mst. Zubeda Begum (1999 MLD 2070) in support of his contentions.
8. The respondents/landlords in the eviction application have sought eviction of shop premises in possession of appellant on the ground that it was required for the personal requirement of respondents Saifuddin and Zakiuddiri the landlords in the joint property left by their deceased father in good faith so that they could carry on their business independently in the demised shop.
9. The said statement.Has been reiterated by respondent Yousaf A.I in his affidavit-in-evidence wherein he has stated that he and respondents Saifuddin and Zakiuddin are the brothers and are the sons of late Ibrahim Jee while respondents Tahir A.I, Amir A.I and Najmuddin are sons of late Fida Hussain who was son of late Ibrahim Jee and the said respondents Saifuddin and Zakiuddin were not having their own independent business, therefore, they needed in good fiath the shop premises in possession of the appellants/tenants and the shop premises in occupation of Messrs H. Rajab A.I & Sons was required for respondents Amir A.I and Najmuddin. He further stated that all the respondents/brothers would provide funds to the respondents viz. Saifuddin and Zakiuddin in establishing their business of hardware. The testimony of Yousuf A.I has also been corroborated by respondent Saifuddin in his affidavit-in-evidence. The testimony of respondents/landlords could not be shaken so far as their personal requirement in good faith is concerned: Nothing has been brought on record to show that the said respondents Saifuddin and Zakiuddin were in occupation of any other suitable shop of their own for running the business to be established by them. Mere fact that ejectment of another shop from another tenant was sought for other respondents/landlords, namely; Amir A.I and Najmuddin would not disentitle the claim for respondents/landlords Saifuddin and Zakiuddin so that they could establish their own business separately for their livelihood. Insufficient funds for running the business would not negate the entitlement of seeking possession on the ground of personal requirement if the same has been proved to be in good faith. In the instant case the respondents/landlords have succeeded in proving their personal requirement in good faith which testimony has not been disproved through reliable and satisfactory evidence by the appellant/tenant. In the circumstances no interference is called for to the finding arrived at by the learned Rent Controller on the point of personal requirement in good faith. The facts of cited cases relied upon by the learned counsel for the appellant/tenant are quite different and distinguishable to the facts of instant case hence would not help the appellants/tenants.
10. So far the listed applications (C.M.A. Nos. 1244 of 1998 and 626 of 1997), in F.R.A. No.483 of 1993 for appointment of Commissioner to inspect the site as to whether the Shop No.3 was lying vacant and for permission to lead additional evidence respectively the same are not maintainable considering that no such plea was raised before the learned Rent Controller that the Shop No.3 was lying vacant considering also that no such suggestion was even made in the cross-examination of respondents/landlords and further that the learned Rent Controller was not asked for additional evidence to be adduced or that the said evidence was required by this Appellate Court so as to pronounce the judgment consequently no case for additional evidence as required under rule 27 of Order 27, C.P.C. Read with section 21(3) of Rent Ordinance, has been made out and that the appointment of Commissioner for such purpose would not be necessary in the circumstances of present case and further no such additional evidence could be permitted under the law so as to allow the appellants/tenants to fill in the gaps left by them before the Rent Controller consequently both applications have no merits which are hereby dismissed.