SARMAD JALAL OSMANY, J.--- This petition impugned the judgment dated 8.3.2002 passed by the learned 1st Addl. District Judge in F.R.A. No. 14 of 2001 whereby the appeal filed by respondent No. 1 /landlord was accepted and the petitioner/tenant directed to vacate the rented premises within sixty days of the judgment.
2. Briefly stated the facts of the matter are that the respondent No. 1's father had purchased the premises in question viz. a shop in Shahi Bazar, Thatta from the previous owner in 1988 in which the petitioner was already .a sitting tenant. Upon the death of his father, the respondent No. 1 became the landlord. On 11.6.1998 the respondent No. 1 served a legal notice through his counsel upon the petitioner asking him to vacate the shop in question as the respondent No. 1 being a jobless though qualified doctor, needed the premises in order to establish a clinic in the same. The said legal notice was replied to on behalf of the petitioner through his counsel wherein it was denied that the respondent No. 1 had any personal bona fide need for the shop in question as it was too small for establishing a clinic. Further that the respondent No. 1 had been pressuring the petitioner to vacate the shop and had also refused to accept the rent whereupon the latter was forced to deposit rent in Court.
3. Thereafter the respondent No. 1 filed R.A. No. 5 of 1998 for the eviction of the petitioner based on his own personal bona fide need which was dismissed on the ground that the same had not been established. He then filed R.A. No. 14 of 2001 against the petitioner which as stated above was allowed.
4. Mr. K.B. Bhutto appearing for the petitioner has submitted that both from the respondent No. 1 's conduct and his evidence before the learned Rent Controller, it is quite clear that he did not require the shop in question 'which was only 16 sq. Yds., in area for establishing a clinic/hospital. In this connection learned counsel has referred firstly to the cross-examination of the respondent No. 1 wherein he has admitted that the shop in question is only 16 sq. Yds., and that it is not big enough to run a clinic and that his father had a building in Lohar Street which has two shops in it and the same is only 1000 yds., away from the demised premises. The respondent has also admitted that earlier in 1996, he had asked the petitioner to vacate the premises as the same were needed for reconstruction. However, in 1 998 another legal notice was issued based on the ground of personal bona fide need. So also per learned counsel the respondent No. 1 had admitted that previously he had tried to get the shop vacated through the Khidmat Committee whereupon the petitioner had filed a civil suit before the Civil Judge, Thatta in which status quo had been granted and finally the suit disposed off on the statement of the respondent No. 1. Hence, per learned counsel the impugned order is based upon a misreading of the evidence on the record.
5. In view of the aforegoing learned counsel has submitted that the respondent No. 1/landlord has not been able to establish his personal bona fide need for the shop in question. He has relied upon the following case-law Noora v. The Settlement and Rehabilitation Commissioner and another (1969 SCM R 517), Mst. Noorunisa v. Qamarul Huda (1988 CLC 1833), Muhammad Siddique v. Sayed Hasan (1998 CLC 1003), Messrs Eastern Express Co. Ltd. Karachi v. Tariq Hameed (PLD 1986 Kar. 84) and Faisal A.I v. Mst. Noor Jehan Begum (1991 CLC 1902).
6. Mr. Akhlaq Hussain appearing for respondent No. 1 has on other hand submitted that under cro-, examination the petitioner has, admitted that the respondent No. 1 is jobless and lives in Karachi.
Per learned counsel immediately giving the notice in the year 1998 and filing the eviction application the respondent No.1/landlord moved to Karachi and is still living there. Finally, learned counsel has submitted that per settled law the Tenant cannot question as to what sort of business the landlord proposes to carrying in the demised premises and whether it is suitable for the same.
For this proposition he has relied upon Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394), Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCM R 1178) and Fazal Azim and another v. Tariq Mahmood and another (PLD 1982 SC 218).
7. In reply Mr. K.B. Bhutto has submitted that the respondent No. 1 till the filing of the rent case was in Thatta since he has given that address in all the documents. Filed in Court and thereafter suddenly he moved to Karachi in the year 1999 as admitted by him under cross-examination. Per learned counsel this is quite strange since earlier in the cross examination the respondent No. 1/landlord has admitted that he lived in Thatta along with his father in Lohar Street about 1000 yds. Away from the demised premises. Hence, per learned counsel, respondent No. 1 has been changing his stand and accordingly has not been able to establish his personal bona fide need. He has relied in this regard upon Faqir Muhammad and others v. Mst. Muhammad Bibi and others (PLD 1991 SC 590).
8. I have heard both the learned counsel my conclusions are as under:--
9. It would be seen that as regards the ground of. Personal bona fide need, it is settled that the tenant cannot question the suitability of the premises for the landlords need or where a number of shops are available as to in which shop the landlord wants to establish his own business. For the proposition reference can be made to F.K. Irani & Co. v. Begum Feroz (supra). However, it is equally well-settled that such need should be bona fide and the landlord must approach the Rent Controller with clean hands. In the present case it would be seen that admittedly earlier on 12.5.1996. a legal notice was served upon the petitioner by the respondent No. 1 as to vacation of the shop in question since the same was needed by the latter for reconstruction. Thereafter this ground was abandoned by the respondent No. 1 and another legal notice was issued in 11.6.1998 on the basis of personal need. While the need of a landlord for the rented premises can change from time to time, in the peculiar circumstances of the case when before filing of the application in the Rent Controller's Court the landlord had tried to get the shop vacated through the Khidmat Committee, the need of the respondent No. 1 does not appear to be bona fide. Secondly although as stated above the tenant cannot question the suitability of the premises for establishment of the landlord's business, the bona fide need is to be translated into practical terms. In my view it is quite impossible to comprehend that a clinic can be opened in a small area of 16 sq.Yds. As this could hardly accommodate even two persons, a table and chair. Finally it would be seen that in the application before learned Rent Controller and all the affidavits filed by the petitioner he has shown himself to be a resident of Mankani Mohallah, Thatta Town whereas under cross-examination he has admitted that he was settled in Karachi where his wife's family also lives. Again this reflects the lack of bona fides on the part of the petitioner viz. That he intends to establish a clinic in the demised premises which is located in Thatta as nowhere has be stated that he intends to return to this Town.
For all the foregoing reasons I am of the opinion that the respondent No. 1/landlord does not need the premises for his personal bona fide need. Hence the petition is allowed and impugned order set aside. .