1. This first rent appeal has been filed against the order of the IVth Rent Controller, Karachi (South) in Rent Case No, 170 of 1996 filed by the respondent/applicant for ejectment of the appellant/opponent on the ground of his personal need. The IVth Rent Controller by aforesaid order had allowed the application of the respondent/applicant holding that he had succeeded in establishing his personal bona fide need requirement in respect of the premises in dispute and directed the appellant to hand over the vacant possession thereof to the respondent within sixty days of the order.
2. The brief facts leading to the filing of this appeal are that one Sakina Bibi, mother of the respondent inducted the appellant as a tenant in Shop No.1, on the ground floor in the building bearing No.1737, Jinnahabad No.1, Ghas Mandi, Siddique Wahab Road Karachi on a monthly rent of Rs.150 vide an agreement of tenancy dated 27-6-1973. With the passage of time, the rent was enhanced to Rs.350 per month. After the death of Mst. Sakina Bibi, the property devolved upon the respondent as one of the legal heirs. The other legal heirs of Mst. Sakina Bibi relinquished their rights/shares in the demised premises in favour of respondent and he became the exclusive owner of the demised premises. Vide notices dated 12-9-1995, 20-9-1995 and 7-11-1995, the aforesaid facts were brought to the knowledge of the appellant and he was also called upon to vacate the demised premises as the same was required for personal use by respondent and his son Muhammad Riaz. It was further stated that the respondent and his son were doing the business of tailoring and stitching of clothes/garments and they required the demised premises for carrying on the aforesaid business of tailoring arid stitching of the clothes/garments. The appellant, however, refused to vacate the said shop.
3. The appellant in his written statement, admitted the creation of the tenancy. He further stated that the other legal heirs of deceased landlady Mst. Sakina Bibi offered the demised premises to the appellant for sale but the same could not be finalized. He further submitted that the demised premises is situated in Timber Market where the business of timber and wood is being carried on exclusively and that the same was not suitable for a tailoring shop. It was further submitted on behalf of the appellant that the respondent did not require the demised premises bona fide and that he wanted eviction of the appellant with mala fide intention and ulterior motives with a view to obtain a huge amount of Pagri and higher rent as the demised premises has now become very valuable as compared to 1973, when it was let out by mother of the respondent Mst. Sakina Bibi. It was further stated on behalf of the appellant that the respondent and his son had appropriate place for carrying on the business of tailoring and stitching of clothes/garments and that the same was not being carried on by them in the residential premises and no hardship or inconvenience was being caused to the family members of the respondent.
4. On the basis of the pleadings of the parties, the Rent Controller framed the following points for determination.
5. "(1) Whether premises are required by the applicant for-his own use and use of his son Muhammad Riaz?
(2) What should the order be?"
6. Both the appellant and respondent examined themselves in support of their respective pleadings and produced relevant documents to substantiate the contents of the pleadings and oral evidence.
7. On the basis of the evidence recorded, the IVth Rent Controller, Karachi (South) decided the points for determination as under:-- "Point No. 1 In the affirmative.
8. Point No.2Application allowed ordering eviction of the appellant."
9. Hence this appeal.
10. I have heard the arguments of Messrs K.B. Bhutto and Mr. Shaikh F.M. Javid, the learned counsel for the parties and have also perused the material on record, the relevant provisions of law and the case-law relied upon by the learned counsel in support of their respective contentions.
11. The respondent in order to succeed in the rent application was required to establish that the demised premises was required by him for his personal use with bona fide intention and in good faith. However, the evidence adduced by the respondent before the Rent Controller in my view, was not sufficient to establish the bona fides, honesty and good faith on the part of the respondent.
12. There are several very pertinent reasons. On the basis of which I have come to the above conclusion. The first such reason is that the appellant in his affidavit-in-evidence categorically stated that the respondent was already having two shops, one bearing No.73 in Gul Centre, Saddar and the other in Marwari Lines, Karachi. The assertion of the appellant had gone unchallenged and unrebutted as no suggestions to the contrary were put to the appellant in his cross-examination. In view of the above, the contention of the respondent that he was carrying on the business of tailoring and stitching of the clothes/garments in the residential premises, which was causing inconvenience and hardship to the other family members, would appear to be a false statement. It is an established principle of law that when a party makes a specific assertion on Oath then in the absence of its H being challenged in the cross-examination by the other side, the said statement was to be accepted and would be deemed to carry weight in deciding the issues involved. In support of the above contention, reliance is placed on the case of Noor Jehan Begum v. Syed Mujtuba A.I Naqvi (1991 SCMR p.2300), Another ground which negates the bona fides and good faith I of the respondent for obtaining the possession of the demised premises is his insistence and adamant attitude to carry on the business of tailoring and stitching of clothes/garments in the premises in dispute. It is the case of the appellant that the demised premises is situated in a place which is known as Timber/Wood Market and except for the work of sale of timber/wood, cutting and sewing thereof, no other business, whatsoever is being carried on in the said market. It has further been submitted on behalf of the appellant that the business of sale, cutting and sewing of wood/timer can only be carried out on the ground floor and in the circumstances, the offer of the appellant to the respondent to shift on the first floor which he (appellant) had undertaken to construct on behalf of the respondent, would not be feasible. On the contrary, no difficulty or hardship would be faced or caused to the respondent in carrying on the business of tailoring and stitching of clothes/garments on the first floor, undertaken to be constructed by the appellant. As a matter of fact, the respondent in his cross-examination admitted that the business of tailoring and stitching of clothes/garments could easily be carried on by him on the first floor. In the circumstances, the refusal of the respondent to accept the offer of the appellant, who is prepared to raise the construction on the first floor at his own costs and to hand over the construction to the respondent for carrying on the business of tailoring and stitching of clothes/garments and his insistence to obtain the possession of the demised premises for carrying on the aforesaid business would appear to be tainted with malice, and lack of bona fides. The object for which he is seeking eviction of the appellant from the demised premises can easily be achieved by him if the appellant is allowed to raise construction on the first floor at his cost for the purpose of business of tailoring and stitching of clothes/garments as well as display and sale thereof, if so desired, by the respondent.
13. Mr. Shaikh F.M. Javaid, the learned counsel, for the applicant/respondent submitted that the evidence on record was satisfactory and sufficient to establish the bona fide and honest need and desire for obtaining the possession of the premises in dispute and in support of his contention he placed reliance on the cases of--
(1) M/s. F.K. Irani & Company v. Feroza Begum (1996 SCMR 1178), (2) Ishratullah Siddiqui v. A.I Bhai (1996 SCMR 1833), (3) M/s. United Ampex and another v. Fazal Ahmed (PLD 1995 Karachi 147), (4)
14. Muhammad Amin v. Mst. Nafeesa Khatoon (PLD 1996 Karachi 340) (5) Khushi Muhammad v. Anwar Begum (PLD 1982 Lahore 295).
15. Upon the above discussion, I am satisfied, beyond and doubt, that from the evidence and material on record, it cannot be established that the demised premises is required by the respondent for his bona fide personal requirement, and the ejectment application filed by him was liable to be rejected. Accordingly, I allow this appeal, set aside the order of eviction and dismiss the eviction application filed by the respondent.