1. Appellant Saleemuddin has assailed the judgment dated 12-8-1996 passed by learned VIII Senior Civil Judge and Rent Controller, Karachi Central, in Rent Case No. 516 of 1995, directing the appellant/tenant, to vacate the shops in question and to deliver its vacant and peaceful possession to the respondent/landlady, by granting 60, days time to the appellant/tenant to vacate the said premises. Hence this appeal.
2. The brief facts 'of the case are that respondent/landlady Mst. Bibi Jan is the owner of Shops Nos.5 and 6. Constructed over Plot No.1/94 situated at Main Bazar, Shah Faisal Colony, Karachi and the appellant is the tenant on monthly rent of Rs.150 for Shop No.5 and Rs.5 for Shop No.6 excluding electricity and conservancy charges which are payable by the appellant/tenant to the concerned Department. The respondent/landlady has further stated that appellant/tenant has not paid monthly rent for the month of December, 1991 and has also not paid electricity charges amounting to Rs.9,497 up to 16-8-1985. Thereafter, respondent/landlady filed ejectment application being Rent Case No. 48 of 1995 and 49 of 1995 on the ground of her son, namely, Mehboob Khan who at present doing his business in rented premises and paying rent of Rs.350 per month and the Legal Notice was also sent to the appellant/tenant for personal bona fide use. The son of respondent/landlady is carrying his business under the name and style of Bismillah Gas and Electric Welding Works and the demised premises is very much suitable for the use of the son of respondent/landlady, therefore, Ejectment Application was filed.
3. The appellant/tenant was served and he filed written statement wherein he has challenged the maintainability of the ejectment application. He has denied the contentions raised in application.
4. However, the rate of rent in tenancy is not disputed. Appellant/tenant has further stated that in total he has paid an amount of Rs.23,480 as advance out of which Rs.3,40 was adjustable and Rs.20,000 is fixed deposit; the respondent/landlady has filed two Rent Cases Nos.48 of 1995 and 49 of 1995 on the ground of default in order to enhance the rent. He has further stated in his written statement that respondent/landlady recently has let out one shop to some other tenant and the said shop is situated on Plot No.1/94, Shah Faisal Colony, Karachi. According to appellant/tenant the respondent/landlady has not come to the Court with clean hands and prayed for dismissal of the ejectment application.
5. Learned Rent Controller from the pleadings of the parties formulated the following issues:-- (1)Whether the ejectment application is maintainable (2)Whether the premises is required by the applicant for her son bonafidely?
6. (3)Whether the opponent has committed wilful default in payment of electric charges which is included in rent?
7. (4)What should the order be?
8. Respondent/landlady examined herself and her son Mehboob Khan; both have been subjected to cross-examination. Whereas the appellant/tenant has examined him; Abdul Ghaffar, Saddullah Khan and Muhammad Usman and they have also been subjected to cross-examination.
9. The learned Rent Controller, after going through the evidence and arguments of the learned counsel for the parties and decided Issues Nos. 1 and 2 in affirmative whereas Issue No.3 was decided in negative and Issue No.4, the application of respondent/landlady was allowed and appellant/tenant was directed to vacate rented premises and deliver the physical possession of the premises to the respondent/landlady within 60 days.
10. Learned counsel for the appellant/tenant Mr. Abdul Hameed Bhopali has submitted that as far as the ground of default is concerned that has not been proved and now the question of personal bona fide use is to be proved by learned counsel for respondent/landlady and has contended that respondent/landlady has got total six shops and she has also filed two Rent Cases Nos.48 of 1995 and 49 of 1995 against the present appellant/tenant on the ground of default and against which such first rent appeals are also pending before this Court and so far the resppondent/landlady is .Avoiding to accept the service in those first rent appeals. He has further submitted that this is 3rd application for qtectment against the present appellant/tenant vide Rent Case No. 516 of 1995 on the same grounds. According to him, the respondent/landlady has not come with clean hands.
11. Learned counsel for the appellant/ tenant has contended with full force that before filing the present Rent Case No.516 of 1995, the respondent/landaldy let out Shop No.2 to Suleman, the another tenant which has been admitted by the son of respondent/landlady, namely, Mehboob Khan in cross-examination. So also, this fact has been admitted by the respondent/landlady in her cross--examination. He has also submitted that rent receipt No.1l dated 5-4-1996 and No.13 dated 6-4-1994 are regarding Shop No.2 let out to Suleman. According to him, the respondent/landlady has not come with clean hand as she has suppressed the material facts and according to him another shop has been vacated by tenant which has been let out by respondent/landlady to another tenant namely Suleman which she has admitted in her cross--examination and the purpose of filing of the ejectment application against the appellant/tenant is nothing but to increase the rent and no case for personal bona fide need is made out by respondent/landlady.
12. 1985 CLC 562, 1989 CLC 241-247, 1990 CLC 1320: 1991 M LD 651: 1992 M LD 1685: 1997 CLC 1531; 1999 CLC 1273; 1994 SCM R 1900; 2000 CLC 90: 2000 CLC 1314; 1986 SCM R 594; 1999 M LD 2989; 1999 CLC 454 and 1999 CLC 266.
13. On the other hand, learned counsel for respondent/landlady has drawn my attention on objections of the main appeal and has submitted that personal bona fide need has been proved as the son of respondent/landlady, namely Mehboob is doing his business in a rented premises; when asked, as to whether any witness of the locality has been examined by the learned counsel for respondent/landlady before the lower Court on the factum of personal use, the learned counsel for respondent/landaldy replied in negative. He has placed reliance 1996 SCM R 1178; 1992 M LD 1225; 2000 CLC 1756 and 2000 CLC 2302000 CLC 997.
14. I have heard Mr. Abdul Hameed Bhopali, learned counsel for the appellant/tenant and Mr. Zahid Hussain, learned counsel for respondent/landlady; have gone through the record and proceedings of the case; their affidavit-in-evidence and cross-examination.
15. The respondent/landlady in her cross-examination has admitted that his son, namely Mehboob is doing business of welding. She has also admitted in her cross-examination that Shop No.2 was-let out to Nawabuddin who handed over the possession of the same to his nephew Suleman; she has also admitted in her cross-examination that her son is not jobless. I have also examined the affidavit-in-evidence of Mehboob son of respondent/landlady and his cross-examinatuion he has admitted in his cross-examination that tenant of Shops Nos. t and 4 have paid 'Pagri' to his father; he has also admitted in his cross-examination that Shakir is a tenant of Shop No. 1; he has also admitted in cross-examination that Nawabuddin was previously tenant of Shop No. 2 and Iqbal is the tenant of Shop No. 3 and he is the tenant of Shop No.4.
16. Admittedly, there are six Shops in the said premises and one of shops has been let out to one Nawabuddin who has handed over its possession to his nephew Suleman and in these circumstances, if there was any need for personal use, the respondent/landlady should have not rented out the Shop No.2 to Nawabuddin and have retained the same for personal use of her son.
17. Admittedly, the respondent/landlady has filed two other Rent Cases and the question of personal bona fide use is not being proved and it is also very clear from the admission of Mehboob son of respondent/landlady that 'Pagri' has been received by them from other tenant and sole object of the respondent/landlady is nothing but to get increased the rent from the present appellant/tenant which is borne out from the record and the evidence. It is also an admitted position, that respondent/landlady is also in possession of other Shops and one of the Shops being Shop No. 2 has been let out and in view of these circumstances, it cannot be said that respondent/landaldy has come out for personal bona fide use for her son with clean hand and the need of respondent/landlady is not appearing bona fide, therefore, no case for personal bona tide need is made out by the respondent/landlady. I am being also fortified by the cases cited by the learned counsel for appellant/tenant.
18. The upshot of the above discussion is that the respondent/landlady has miserably failed to make out a case for ejectment against the appellant/tenant on personal bona fide use and accordingly I allow the appeal and set aside the impugned order dated 12-8-1996 passed by learned VIIIth Senior Civil Judge and Rent Controller, Karachi Central, in Rent Case No.516 of' 1995 with no order as to costs.
19. The above-are the reasons of my short order dated 25-1-2001.