' MUHAMMAD BASHIR JEHANGIRI, J.---This is an appeal with the leave of the Court against the judgment and the order of a learned Judge in Chambers of the High Court of Sindh at Karachi dated 10-1-1996 whereby F.R.A. No,753 of 1989 was accepted and order of eviction of the appellant tenant from the demised premises was passed.
2. The brief facts of the case are that the respondents are the landlords of the building constructed on Plot No,7/174, Delhi Mercantile Cooperative Housing Society, Shaheed-e-Millat Road, Karachi, which consists of two floors. The first floor is in the use and occupation of respondent No,1 herein while the ground floor is in the occupation of the appellant-Bank wherein it has located its "Sahaheed-e-Millat Branch" (hereinafter referred to as "the rented premises"). The appellant-Bank occupied the rented premises under a lease deed dated 21-4-1976 for running its banking business at the original rate of Rs,1,200 per mensem which had been later on enhanced to Rs,3,750 per mensem, pursuant to the lease agreement dated 2-6-1985. The first floor of the rented premises was in occupation of respondent No,1 whereas respondent Nos.2 to 7 who were residing at Lahore after winding up their business intended to shift to Karachi. It was averred that the respondents required the ground floor of the rented premises in occupation of the appellant-Bank in good faith for respondents Nos.2 to 4 who wanted to live with their family independently. On refusal of the appellant-Bank, the respondents sought eviction of the appellant-Bank on the ground that the rented premises were required by the respondents for their personal bona fide use. The learned Rent Controller, Karachi East, after recording the evidence dismissed the ejectment application filed by the respondents against which F.R.A. No,753 of 1989 was preferred which was allowed by the High Court as per order dated 19-3-1992 and thereby directed the appellant to vacate the premises within two months. The appellant, feeling aggrieved, preferred Civil Petition for Leave to Appeal No,198-K of 1992 before this Court. The judgment of the learned High Court, in consequence, was set aside and the appeal was allowed and the case was remanded to the learned High Court of Sindh for disposal of the F.R.A. After taking into consideration the documents which had been exhibited by the learned Rent Controller but it had been ignored by the learned High Court of Sindh.
3. The learned Judge in Chambers of the High Court, who was seized of the F.R.A. Giving rise to this appeal, had observed that "demand of higher rent by itself would not negate the bona fide requirement of the respondents if the factum of bona fide requirement was independently proved".
In this context, it was noticed by the learned Judge that building in dispute consisted of two floors viz. First floor which was in occupation of the respondents while the ground floor was in occupation of the appellant-Bank which was used as commercial premises in pursuance of the agreement of tenancy dated 21-4-1976. The, learned Single Judge thus, concluded that the evidence of Anis Ahmad respondent No,1 was reliable and that it could not be shaken in the cross-examination and the personal requirement of respondents Nos.2 to 7 stood proved. Thus the appeal, as stated earlier, was accepted, the impugned order of the learned Rent Controller dismissing the Rent Application was set aside and the appellant-Bank was directed to vacate the premises within the period of 120 days subject to the condition that the rent of the said period continued to be deposited as was being done earlier.
4. Leave to appeal was granted in this case to consider the following propositions:
(i) Whether the Rent Application was competently filed?
(ii) Whether the issue of personal requirement for bona fide use, is not established?
(iii) Whether eviction of a tenant from a commercial tenement can be ordered on the ground of the landlord requiring the same for residential purpose?
(iv) Whether the landlords in their Rent Agreement dated 2-6-1985 gave up their right to seek eviction of the respondent through a Rent Controller, on any ground other than the ground of default in payment of rent? If so, what is its effect?
(v) Whether in deciding the Rent Application, the Rent Controller exercised his discretion legally and properly leaving no scope for interference by the High Court?
5. Mrs. S.Hamid Husain, learned Advocate Supreme Court for appellant-Bank has reiterated the same arguments which were raised before the learned High Court. He has argued that documents Exh.O-2 and Exh.O-5 to Exh.O-9 go to substantiate the assertions of the respondents that they wanted to enhance the rate of rent and get another agreement executed for further period of three years and were thus, having no intention to get the possession of the rented premises for their personal requirement and, therefore, the findings of the learned Rent Controller on the issue of personal requirement were legally sound besides being based on proper appreciation of evidence on the record. He further contended that the rented premises being commercial in fact could not be got vacated for residential use of respondents Nos.2 to 7 who claimed bona fide requirement thereof.
6. Conversely Ch. Muhammad Akram, learned Advocate Supreme Court appearing for the respondents, placed implicit reliance on the precedent of this Court in Shamsul Islam Khan v.
Pakistan Tourism Development. Corporation Ltd. (1985 SCM R 1996) to contend that there was nothing against the desire of the landlord either to seek more income by increasing of rent or let the tenant stay or if that does not materialise as it happened, to evict the tenarit so as to have the disputed premises for his own bona fide occupation and that there was nothing illegal or improper about it. The learned counsel further argued that Shahid Ahmad Kamran respondent No,2 alone who had been dealing with the appellant-Bank for himself as well as the attorney of other respondents has not filed the eviction application but it was Anees Ahmad respondent No,1 who had never dealt with the appellant-Bank with regard to the rented premises and, therefore, the eviction application was not competently filed. We regret we cannot concede to this hypertechnical objection, particularly when this was not taken up before the High Court. It is not denied that the building comprising of the rented premises was originally a residential building.
The change in character of residential building into non-residential building it would imply that although the building may be residential, the same or part thereof may be let for non-residential purpose. It would not be implied that the said conversion will permanently change the character of the building for the purpose of the eviction on the ground of personal requirement. In this context reliance can be placed on Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others (PLD 1985 SC 242) wherein at page 253, the ratio made descernible therein is as under:-- ' ...The definition of the 'building' in the Rent Restriction Ordinance itself visualises whole of the 'building' or a part of the 'building' which is let for any purpose; notwithstanding the fact, whether it is being actually used for that purpose or not'. The word 'building' as used in the definition for the second and third time in succession refers essentially to the initial character of the building though the phrase 'let for any purpose' after the third use of word 'building' would convey possibility of renting it out for a purpose which is against the character of the building. To apply this analysis of the definition of the word 'building' to the present case, it would imply that although the building may be residential, the same or part the reof may be let for non-residential purpose. When it is done the two questions: whether the persons involved in this conversion (landlord and/or tenant) without the permission of the Controller, are liable to punishment or not; and the other question, whether the said conversion will permanently change the character of the building for purpose of eviction under section 13 on ground of personal requirement, are totally two different subjects for processing the consequences, in two separate channels: In so far as the eviction under section 13 is concerned the character of the building remaining the same, notwithstanding the fact that it was put to a different use by the tenant with or without the consent of the landlord, will not bar the landlord regaining the possession of the building for the requirement of his own use in accordance with the original character of the building. Three remarks have been made in the context of the two cases before the Court and are not intended as of general rules in so far as three other relevant definitions are concerned; namely, 'non-residential building' ; 'rented' and 'residential building' as the character of the two buildings involved in the present discussion, admittedly was originally residential. It also needs to be remarked that for the purpose of the Rent Restriction Law this character would change when permission mentioned in section 11 of the Ordinance is granted by the Controller for converting a residential building into a nonresidential building."
7. We are, therefore, clear in our mind that the eviction of a tenant from a commercial .Tenement can be ordered on the ground of the landlord requiring the same for residential purpose.
8. We have perused the rent agreement dated 2-6-1985 carefully. No doubt there is a stipulation therein that the right to seek eviction of the appellant-Bank through a Rent Controller on any ground other than the ground of default in payment of rent and sub-letting was completely waived. This agreement was decidedly executed for a period of three years. No subsequent agreement has been placed on the record to support that any such stipulation has been drafted as has been agreed to be drafted therein. The earliest agreement executed between the parties subsist for a period of three years commencing from July, 1983. No further lease agreement duly executed between the parties for the further period of three years or more has been made available on the record. There is thus, nothing on the file to show that any such rent agreement exists between the parties evidencing giving up the right of the landlords to seek eviction of the appellant-Bank through a Rent Controller on any ground other than that of the default in the payment of rent.
9. We have already observed that the learned Judge in Chambers of the High Court had rightly accepted the proposition that demand of higher rent by itself would not negate the bona fide requirement of the appellant-landlord if the factum of bona fide requirement is independently proved. We can do no better than to reproduce the reasoning of the learned Single Judge adopted in the impugned order: ' "In the instant case the building in question consists of two floors viz. First floor which is in occupation of the appellant No,1 for his residence while the ground floor of said building was in occupation of the respondents/tenants which was being used as commercial premises as per tenancy agreement dated 21-4-1976. The appellants have sought eviction of the respondents on the ground of personal need of the appellants Nos.2 to 7 who will shift from Lahore to Karachi and first floor portion in occupation of the appellant No,1 was insufficient for the need of the appellants considering the size of the family of the appellants. It has come in evidence that first floor accommodation consists of one dining room, four bed-rooms along with attachment, where the appellant No,1, his wife, his four children and Mrs. Hajra Bai have been residing. It has also come in evidence that the appellants Nos.2, 3 and 4 are married when the family of appellant No,1 consists of himself, his wife and his six children while the family of appellant No,3 consists of himself, his wife and two children. It has also come in evidence that the appellants have no other building where they could accommodate their respective families at Karachi. The respondents have examined Mujtaba Rizvi who has shown his ignorance about the requirements of the appellants in the cross- examination and thereby could not shake the testimony of the appellant No,1. The evidence of the appellant is consistent with the pleadings and the testimony of the appellant could not be shaken in the cross-examination and no satisfactory evidence in rebuttal has been adduced by respondents to disbelieve the evidence of the appellants. I have already held that mere demand of enhanced rate of rent would not negate the personal requirement' of the appellants. The demand of enhancement of rent was made as per letter dated 31st, July, 1986 Exh.0/8 and eviction application was filed on 31-1-1988, i.e, after about two years. It is possible that during the period of two years there has been change in the need of the appellants whereby the appellants Nos.2 to 7 decided to shift from Lahore to Karachi in the circumstances which being better known to them and for which they needed the accommodation in occupation of the respondents. The said need of the appellants cannot be termed to be not based on good faith as the same has not been rebutted by the 'respondents. The contention of the learned counsel for respondents is that none of the appellants 2 to 7 has been examined to prove their personal requirement in good faith, therefore, it could not be said that appellants have proved the same. The appellants have examined Anees Ahmad who is the general attorney for rest of the appellants and he has deposed on behalf of the appellants Nos.2 to 7 in respect of their bona fide need of the premises in question.
There is no requirement of the law that the person for whose benefit ejectment is sought must be produced in Court to give evidence-. The evidence of Anees Ahmad is reliable and same could not be shaken in the cross-examination by the respondents' counsel and the personal requirement of the appellants Nos.2 to 7 stood proved. Reference is made to Zahoor Din v. Mirza Ayub Baig (1981 SCM R 1081) at page 1085 where the Supreme Court of Pakistan has held that there was no requirement in law that the person for whom extra-accommodation was needed ought to be examined as witness. Reference is also made to Muhammad Shafi v. M.S. Sultan (1981 SCM R 844) wherein it was held that there is no requirement of law that the person for Whose benefit the premises was required to be evicted must be produced in support of eviction application.
Reference is also made to: Muhammad Salim and another v. Mst. Amtus Saboor and 4 others (PLD 1989 Kar. 185) wherein learned Judge in Chamber observed that there was no requirement of law that the person for whose benefit ejectment was sought must be produced in Court. In the circumstances, the said contention of the learned counsel for appellants has no merit."
10. All the points raised by the learned counsel having been duly noticed by the High Court, the finding of fact on the question of bona fide requirement of the respondents does not suffer from any infirmity, legal or otherwise. According to the evidence, respondents Nos. 2 to 8 had set up, some sort of business at Lahore and were staying there. It appears from the evidence that their business could not take-off and they intended to go back to Karachi for which they bona fide required the accommodation in the demised premises including the rented premises. The need of the family of the respondents regarding suitable accommodation for all the members thereof cannot be met with the existing accommodation on the first floor. Similarly there was no legal requirement for the respondents to have examined each of them in support of their case. The evidence led from the side of the respondents was enough to prove their bona fide.
11. In view of what has been observed earlier, there is no force in any of the contentions raised by the learned counsel for the appellants. This appeal is accordingly dismissed. The appellant-Bank is directed to vacate the rented premises within a period of one year from today subject to the condition that the rent for the said period shall be deposited continuously by them as is being done earlier. On the expiry of the aforesaid period, writ of eviction shall be issued without filing any execution proceedings and if need be with the police aid.