' JAVED IQBAL, J.---By this common judgment we propose to dispose of the abovementioned eight appeals, with leave of the Court, assailing the judgment of learned High Court of Sindh, Karachi, whereby the eviction application filed by the respondent/landlord has been accepted with the direction to hand over the vacant possession of the shops in question within two months.
2. In order to appreciate the legal and factual aspects of the controversy, the leave granting order dated 30-12-1997 is reproduced herein below for ready reference:-- ' "We propose to dispose of abovementioned 8 petitions for leave to appeal as common question of law and facts arises in these petitions.
2. The petitioners in the abovementioned petitions are tenants of different tenements on the ground floor of plot bearing survey numbers 92, 93 and 94 situated at Somerset Street, Bohri Bazar, Saddar Karachi. The respondents herein inherited the above property on the demise of their father Sheikh Ahmed. It is an admitted position in the case that the predecessor-in-interest of respondents instituted 8 rent cases against the petitioners in the year 1957 on the ground of re- construction of the premises as the existing structure was stated to be in very dilapidated condition. The above cases were compromised between the parties on 23-9-1957. The predecess- or-ininterest of respondents agreed to re-induct the petitioners in the newly-re-constructed premises on its completion. However, it appears that neither building plans were submitted nor any sanction was obtained from the concerned authority for reconstruction of the building. It further appears that in July, 1964 another agreement was entered into between the predecessor-in- interest of the respondents and the petitioners, wherein it was once again agreed that predecessor-in;interest of respondents will now submit plan for re-construction of the building and upon its approval the building will be re-constructed and in the re-constructed building the petitioners will be re-inducted by the predecessor-in-interest of respondents. It is admitted before us that in pursuance of the above agreement, a building plan was submitted to the relevant authorities but so far no sanction for re-construction of the building has been granted by the relevant authorities.
2-A. In the above stated background respondents' predecessor-A-interest on 3-12-1970 instituted rent cases against the petitioners seeking their eviction from the shops on the ground of personal and bona fide requirement. The applications were resisted by the petitioners and the trial Court after recording evidence of the parties dismissed the applications on the ground that the respondents failed to prove their bofia fide requirement of the premises. On appeal, the learned Judge in Chambers accepted the appeals filed by the respondents and allowed eviction of petitioners from the shops in their respective possession of the following consideration:-- ' 'After having examined the material on record and having considered the respective contentions of the parties I am of the view that the appellant has proved his bona fide need for the demised premises. The appeals are, therefore, allowed as prayed. The respondents in all the appeals are directed to hand over the vacant possession of the said shops to the appellants. Keeping in view the facts that the respondents are carrying on business in the shops two months time is allowed to comply with the above direction. In the circumstances of the case, there would be no orders as to costs'.
3. We have heard Mr. Fakhruddin G. Ibrahim, the learned counsel for the petitioners in the above cases as well as Mr. Abdul Aziz Khan, the learned Advocate-on-Record for respondents. Mr. Fakhruddin G. Ibrahim the learned counsel for the petitioners, contended that the learned Judge in Chambers while reversing the finding of the Rent Controller on the question of personal and bona fide requirement of respondents failed to take into consideration the various reasons and factors mentioned by the Rent Controller in his order refusing to grant the applications for eviction. The learned counsel contended that there was categorical finding of Rent Controller that the applications filed by the respondents for eviction of the petitioners from the premises lacked bona fides for the reason that there were two agreements entered into between the petitioners and predecessor-in-interest of respondents wherein it was clearly stipulated that the premises Will be reconstructed on the same site and after such re-construction, the petitioners will be inducted as tenants in the building on the ground floor. While opposing grant of leave the learned counsel for caveators contended that the respondents did submit a building plan for re-construction of the premises but the same could not be sanctioned by the authorities concerned on account of ban imposed on re-construction of the premises in the area. The learned counsel contended that the landlord/respondents are not bound to re-construct the premises and in any case, the respondents had changed their mind in the existing circumstances not to build the premises and occupy the same in the existing condition for personal and bona fide requirement. After hearing the learned counsel for the petitioners and the learned counsel for the caveator, we are of the view that the question whether in the above stated background when the landlord has agreed with the tenants to re-construct the premises and re-induct them after re-construction thereof, the prayer made for personal and bona fide requirement of the same premises was genuine or not requires consideration. It also requires examination whether the learned first appellate Court was justified in reversing the finding of Rent Controller on the question of personal and bona fide requirement without examining the reasons given by the Rent Controller in support of his conclusion. Since the litigation between the parties is going on for over last two decades, we direct that these appeals may be fixed for regular hearing within six months. The appeals will be made ready on the existing record with liberty to the parties to file such other documents which they wish to submit in this regard. Mr. Abdul Aziz Khan has made a request that these appeals may be directed to be heard at Karachi as the parties and their counsel belong to Karachi and it is very inconvenient for them to attend the hearing of these cases at Islamabad. Such request can only be granted by the Hon'ble Chief Justice of Pakistan. The respondents are at liberty to make such prayer before the Hon'ble Chief Justice. The stay granted earlier in these cases will remain operative until disposal of the appeals subject to the condition that during this period, the petitioners shall continue to deposit the monthly rent as directed by the Rent Controller."
3. The eviction application revolves around the personal bona fide need which was resisted vehemently by the appellant being mala fide. The following issues were framed by the learned Rent Controller:-- "1. Whether the applicant requires in good faith the subject premises for his own self and for the use of his sons?
2. Whether the applicant or any of his sons in occupying any premises suitable for their business at Karachi?"
4. After recording the evidence pro and contra the learned Rent Controller dismissed the eviction application on 29-9-1988 by deciding the Issue No,1 in negative with the conclusion that the appellant could not prove personal bona fide need. Being aggrieved the order of Rent Controller was challenged before the learned High Court of Sindh, Karachi, which has been accepted and appellants were directed to hand over the vacant possession to the landlord within a period of two months, hence these appeals.
5. It is mainly contended by Mr. Fakhruddin G. Ebrahim learned Senior Advocate Supreme Court on behalf of appellants that the learned Single Judge has not appreciated the evidence in its true perspective which resulted in serious miscarriage of justice and the order of learned Rent Controller has been reversed without any rhyme and reason. It is contended that the landlord failed miserably to prove his personal bona fide needs which aspect of the matter escaped notice and resulted in prejudice. It is also pointed out that the appellants are small shopkeepers and they have been directed to vacate the premises without any lawful justification. It is urged emphatically that the landlord could not prove on the basis of concrete evidence that all shops were required for his personal bona fide use. It is further argued that the two agreements executed between the appellants and predecessor-in-interest of the respondents, having substantial bearing, were never considered by the learned High Court.
6. Mr. A. Aziz Khan, learned Advocate-on-Record on behalf of landlord has supported the impugned judgment by arguing that the personal bona fide need has been proved beyond relam of doubt by producing irrefutable and concrete evidence. It is contended that in case of reconstruction the appellants would have been surely inducted but the reconstruction plan was not approved by K.D.A., as the premises was to be acquired for some other scheme. It is also pointed out that no eviction proceedings were initiated after having ejectment certificate at one point of time in order to avoid any hardship to the appellants by subsequently under compelling circumstances the eviction application was moved as the landlord himself had migrated from Bangladesh, Pakistan.
7. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the order of Rent Controller dated 29-2-1988 and impugned judgment. We have thrashed out the entire evidence as led by the parties to substantiate their respective claims. The respondent/landlord, in our view, adduced cogent, concrete and worthy of credence evidence to substantiate his version.
Sheikh Ahmad (landlord) has explained his genuine, bona fide and personal needs in a simple, straightforward and convincing manner. He mentioned in an unambiguous way that "the shops in the aforesaid building have made walls and hard board partitions and as such without major alteration, I can convert the property for my requisite use in this case. Besides me my two sons named above also want to join me in this business which is our family business. None of these my two sons has any premises suitable for ours needs," (the statement of Sheikh Ahmad). There appears to be no dishonest concealment or exaggeration. He stood firm to the test of cross- examination and nothing beneficial could be extracted in spite of numerous searching questions.
His version has fully been supported by Khatib Ahmad, Mujeeb Ahmad and Hasib Ahmad. Nothing could be brought in rebuttal to show that the landlord was having some other place in the vicinity for doing the needful or the premises were not required for personal bona fide use or the premises were absolutely not suitable for establishing the intended business of hoteling/restaurant. It is well- settled by now that where the statement of landlord on oath was quite consistent with his averment made in the ejectment applications, neither his statement was shaken nor anything was brought in evidence to contradict the statement that would be considered sufficient for acceptance of the ejectment application. In this regard we are fortified by the dictum laid down in case titled Juma Sher v. Sabz Ali 1997 SCM R 1062 wherein it was held as follows:-- ' "Sole testimony of the landlord is sufficient to establish his personal bona fide need of premises.
Where the statement of landlord on oath was quite consistent with his averments made in the ejectment application and neither his statement was shaken nor anything was brought in evidence to contradict his statement and tenant had not even stepped in the witness-box to controvert the testimony of the landlord, Rent Controller was fully justified in accepting the evidence of the landlord and ordering eviction of the tenant."
' A similar proposition was discussed in case titled Akhtar Qureshi v. Nisar Ahmad 2000 SCM R 1292 wherein it was held that "statement of landlady on oath was quite consistent with her averments made in the ejectment application, neither her statement was shaken nor anything was brought in evidence to contradict the said statement---Rent Controller, in circumstances, was fully justified in accepting the evidence of the landlady and ordering the eviction of the tenant".
8. We are not persuaded to agree with the prime contention of Mr.Fakhruddin G. Ebrahim, learned Senior Advocate Supreme Court that since the construction could not be completed that the eviction application should have been dismissed for the simple reason that even in case of non- construction of the building the same could have been got evicted on the ground of personal bona fide use. In this regard reference can be made to case titled Dawood v. Muhammad Yasin PLD 1982 SC 227 wherein it was observed as follows:-- ' "If the eviction is under clause (vi) of subsection (2) of section 3 on ground of re-construction or erection of the building the consequences ensuing therefrom which are laid down in subsections (5), (5-A) and (5-B), would require (a) that the landlord shall demolish the property with four months from the date of taking possession: and (b) that he would also be required to re-construct or erect the building within a further period of two years. If the landlord fails to comply with these requirements, he would be liable to be punished under subsection (5). And, in case he is convicted, the original tenant would be entitled to seek restoration of the possession under subsection (5-A) unless of course in case of a building the same has been demolished. On the other hand, if the landlord after obtaining the possession in pursuance of the order of eviction under subsection (2)
(vi) satisfies the condition with regard to re-construction or erection or the building on the same site, the tenant would be entitled to seek a direction from the Controller under subsection (5-B) that subject to the payment of appropriate rent, he be put in possession of such area (in the new building as might be equal or less than the area occupied by him in the old building which would be appropriate keeping in view the location and type of the new building as also the needs of the tenant provided that the tenant makes an application before the completion of the new building 'and its occupation by another person'.
' The foregoing analysis of provisions contained in subsection (4) read with section 13(3)(a) and subsections (5), (5-A) and (5-B) read with subsection (2)(vi) of section 13 of the Ordinance clearly shows that in case of eviction on ground of personal use the property would not normally be occupied by the person concerned (the landlord, child or children within one month of the relevant date and if this is not done, the tenant would be entitled to seek restoration of possession. In a case where the other person occupies the building within one month but it is re-let within two months, even then the tenant would be entitled to seek restoration of possession. Thus, the tenant's interest would remain protected for a period of two months if the eviction is under subsection (3) of section 13 of the Ordinance. This period is much more if the eviction is under clause (vi) of subsection (2) of section 13, i.e, four months (for demolition) and two years thereafter (for purpose of reconstruciton/erection). The landlord, who has not contravened subsection (4), vis-a-vis the ground of eviction relatable to personal use of the property which has already come under his occupation or that of his child/children, would be required to demolish the building within a short period of occupation (which would not exceed four months from the date of taking of possession) for purpose of satisfying conditions regarding eviction on ground of reconstruction.
' Undoubtedly if the building plans are such that after the occupation if the property occupied has been vacated for purpose of construction, this would not mean any contravention of any of the provisions of section 13. The landlord would be entitled within a period of next two years to complete the building even if during this period he remains out of occupation of the whole or part of the property. Thus, the question of penalty provided in subsection (5) and consequences of conviction which would benefit the tenant under subsection (5-A) would not arise. The only question which remains to be examined is whether subsection (5-B) which protects the interest of the tenant after the building is completed, presents a difficulty indicative of any clash between the interest of the landlord and tenant on account of the eviction being on both the grounds, namely, personal use and re-construction. The seeming clash which was highlighted in the Peshawar judgment in the case of Sheikh Muhammad Yusuf would on proper scrutiny, be found to be unreal.
These provisions show (if the foregoing analysis is kept in view, according to which in a normal case), that the property, having already been occupied from the side of the landlord on ground of personal use, has already been re-constructed/erected thereon in satisfaction and pursuance of subsection (5). For occupying it if the tenant makes an application, he would not be able to satisfy the essential condition that no one else should by that time have come in occupation. The person occupying from the side of the landlord would be in lawful occupation in both cases if after occupying the original premises within a month of the relevant date he continues in physical possession and/or having occupied the premises vacates the same temporarily for purpose of demolition, reconkruction or erection of building. Thus, the essential condition of subsection (5-B) of section 13 would not be satisfied in so far as the application of the tenant is concerned provided if the landlord has already fulfilled the essential condition under subsections (4) and (5). On the other hand, if the relevant condition(s) under the said provisions have not been satisfied by the landlord, the tenant would not only be entitled to seek a remedy(s) under the said provision(s) but also in case of completion of the building would be entitled to seek the protection of his interest under subsection (5-B).
' Looked at from whatever angle (a) of principle, which, as would be shown presently, already stands settled in several rulings of the superior Courts and also (b) of interpretation and analysis of the relevant provisions of section 13 of the Ordinance the eviction of a tenant on both the grounds of personal requirement and reconstruction in same proceedings, would not be illegal, as the two grounds are not mutually destructive."
9. It is an admitted feature of the case that re-construction could not be completed but this does not constitute a bar for grant of eviction application on the ground of personal bona fide need.
Insofar as the objection that the premises in question are not suitable for establishing a restaurant seems to be fallacious as the selection of area and nature of business is the choice of the landlord which cannot be interfered with. It was held in case titled F.K. Irani & Co. v. Begum Feroze 1996 SCM R 1178 that "suitability of opening a departmental store by landlord in any one of the available premises entirely depends upon the choice of the landlord. Such need and choice, however, should be real genuine and not tainted with mala fides." It was also observed in the abovementioned case that "if the landlord wants to establish business in a particular area, then unless it is shown that the desired business can, in no circumstances be run in such an area or that in all probability, it cannot be used or will be suitable for the purpose for which the landlord requires it the bona fides of landlord cannot be attacked." Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832; Jehangir Rustam Kakalia v. State Bank of Pakistan 1992 SCM R 1296 and Tauhid Khanum v. Muhammad Shamshad 1980 SCM R 593.
10. We have also dilated upon the question as to whether the entire building would be needed or a part of and, we are of the view it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advisers. In this regard we are fortified by the dictum laid down in 1968 SCMR 1087. Let we mention here at this juncture that "the real test whether a premises is required for personal use is whether the need is based on good faith. This being a question of fact and finding on this subject cannot be taken exception to unless it is shown that it suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence." 1978 SCM R 437. Nothing solid or concrete could be brought in rebuttal by the appellants showing that the need of landlord is imaginary or based on mala fide.
11. Now adverting to the contention that ejectment application has been moved with mala fides and for the need enumerates therein can be met in a few shops and eviction of entire building is not necessary, hardly needs any elaborate discussion as it is well-settled by now that "so far as Ordinance VI of 1959 is concerned there is a qualifying word attaching to the requirement and that is of good faith provided in the law itself. There is a penalty provision of restoration of the property in case there is failure on the part of the landlord. These qualifications limitations and prescriptions clearly suggest the context by reference to which the law has to be interpreted and applied in a given situation. The requirement here does not mean the fancy, the desire, the fondness or the mere aspiration of an individual. There has to be something more. It has not to be on the other extreme the need in the sense of survival or in the sense of continuing physical existence or a dire need without which the man cannot do. The meaning has necessarily to be fixed somewhere in between dependent on the facts of each case and the condition of the parties to the litigation and the nature of the property involved. A person may be very affluent and well-to-do, may not need a property for his economic betterment. All the same he may want it to keep himself meaningfully pre-occupied, to advance and fulfil his educational and cultural aspirations, to meaningly contribute in his own way to his social and intellectual betterment." We are conscious of the fact that "mere wish, convenience, whim or fancy of landlord, held, would not be enough to show that landlord 'requires premises in good faith'. Landlord must prove requirement of premises for reasonable needs and that he was not seeking eviction on pretext of requiring additional accommodation with oblique motive of realizing some extraneous purposes. Order of eviction would require satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of premises. Eviction order could not be granted on vague allegations in eviction application. Mere ipse dixit of landlord that premises were required for accommodating of its senior staff was not enough. Plea of requirement would have to be supported by valid reasons as to how such requirement is genuine." PLD 1986 Kar.
84. The ejectment application and the evidence led by the landlord proves that the building in question is required to establish a restaurant/hotel. The objection that the landlord is having a Green Card hardly matters and would have no bearing on the genuine and the bona fide need of the landlord.
12. In the light of foregoing discussion, we are of the considered opinion that the conclusion as drawn by the learned single Judge of the High Court of Sindh, Karachi being unexceptionable hardly calls for any interference. Since the appellants have been doing business for the last so many years, we are inclined to grant one year time from today onward for handing over the vacant possession of the shops in question, to the landlord subject to payment of usual rent and other charges and in case of failure the writ of dispossession will be issued for doing the needful.