1986 PLP 1129 (CLC)

Muhammad Ibrahim Abbasi for Respondent. Date of hearing: 23rd April, 1985. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the appellant/ landlord against the order of Rent Controller whereby he rejected Rent Case No.6807/80 instituted by the appellant on the ground of personal and bona fide requirement. The personal and bona fide requirement pleaded by the appellant in his application is as follows:‑ "(5) That the said son has permanently returned and intends to start his business of tyres and tubes at Karachi in the disputed shop as there is neither any shop belonging to the applicant nor in possession of both the father and the son. ](6) That behind the disputed small accommodation which is used by the applicant as office and about 12' x 12' godown for his business of import and export which the applicant and his son wants to extend which can only be done by occupying the shop in dispute which exist on the main road. (7) That the said shop premises are required bona fide good faith by the applicant for his own as well as for the business of his son who has permanently returned from U.K. The application was resisted by the respondent who alleged in his written statement that the application is not bona fide as the appellant on an ‑earlier occasion filed application for eviction of the respondent but compromised the same after enhancing the rent from Rs.60 to Rs.100. It was also alleged in the written statement that the appellant's son returned from U.K. in February, 1980 while the appellant instituted another rent Case No.3340/1980 against the respondent in the month of May, 1980 in which he did not plead that the premises occupied by respondent was bona fidely needed by him or his son which shows that the present case instituted by the appellant was not bona fide. The Rent Controller after recording evidence of the parties dismissed the application. Learned counsel for the appellant contends that there was sufficient evidence on record before the Rent Controller to show the premises was bona fide required by the appellant for his son and therefore, the Rent Controller should have granted ejectment of respondent. The learned counsel for the respondent on the other hand supported the order of Rent Controller. The appellant in support of his application examined himself as well as his son. The appellant stated that his son had gone to U.K. to settle there but after living there for several years could not settle and returned to Pakistan on 4‑2‑1980 with intention to settle in Pakistan permanently. He also stated that his son intends to start business of tyres and tubes in the shop occupied by the respondent. The applicant further stated that he is in possession of a small space behind the disputed shop measuring 12' x 12' which is used by him as office for import and export business. In cross‑examination he admitted that he instituted Case No.3340/80 against the respondent which was filed on 29‑5‑1980 and that he did not mention in that. case that, he needed the premises for the personal and bona fide requirement of his son. He also stated in his cross‑examination that his son wrote to him from U . K . that he is coming to Pakistan and he will carry on business of tyres and tubes and such a letter was written a year before arrival of the son in Pakistan. He stated that when his son came to Pakistan he also decided to start such business of tyres and tubes in the premises occupied by the tenant. He admitted that he did not give any notice in writing but approached and requested respondent verbally. He also stated that his son also requested the respondent in this connection after about 5/6 months of his arrival in Pakistan. He however could not give the name of person to whom he approached. The appellant's son in his evidence before the Rent Controller stated that he had gone to U.K. in 1965 where he settled and started doing service as well as business. That he stayed in U.K. upto February, 1980 and then returned to Karachi. lie further stated that in U.K. he did not maintain good health and therefore he left the country and now abandoned the idea to return to U.K. and wants to start business of tyres and tubes in Karachi and also to help his old father. He also stated that when he declared his intention to permanently settle at Karachi his father filed the present application for eviction of the tenant. In cross‑examination he stated that he had not written to his father that he wants to settle in Pakistan and would run business of tyres and tubes and even in Pakistan he did not tell his father that he wanted to start the business of tyres and tubes. He however stated that he asked his father later on that he wanted to start such business after about 5/6 months of his arrival in Pakistan. He also stated that he is not doing any business since his arrival in Pakistan as he was ailing for all this period. The Rent Controller did not believe the personal and bona fide requirement urged by the appellant in the case on the ground that there was contradiction in the evidence of the appellant and his son. He specifically referred to the statement of the appellant wherein he stated that his son on arrival had told him that he wanted to start business of tyres and tubes but his son in cross- examination stated that he has not said so to his father. The Reno Controller in reaching the conclusion that the application was not been fide also took into consideration that there was previous litigation between the parties in which the appellant accepted enhanced rate of Rs.100 per month and that prior to the filing of the rent Case No.6807/80 the appellant instituted another rent case against the respondent being No.3340/80 but in that he had not raised the plea of personal and bona fide requirement. The above considerations on which the application of the appellant was held by the Rent Controller as not bona fide, in my l opinion, is not correct. No doubt the appellant on an earlier occasion instituted rent, proceedings against, the tenant and settled the matter after respondent had agreed to pay enhanced rent of Rs.100 but this application was filed in the year 1973 whereas the need for the present application arose in 1980 on arrival of appellant's son from U K and upon declaring his intention to settle down permanently in Pakistan. Therefore, acceptance of enhanced rent by the appellant in Case No.276/73 has no relevancy and could not be considered, for the purposes of holding the application filed in 1980 as mala fide. It is also true that after about 3 months of the arrival of his son from UK the appellant instituted another rent case against the present respondent being Rent Case No.3340/80 in May, 1980 in which he sought eviction of respondent on ground of default and transfer of possession of shop but this fact alone was not sufficient to hold that the subsequent application filed on the ground of personal and bona fide requirement was males ‑fide. There is no requirement of law that the landlord must take all available grounds in one ejectment case or that if he instituted ejectment case on one ground he could not file another case on another ground allowed by law. The Controller should have also considered while examining) the bona fide nature of application filed by the landlord that a tenant is now provided sufficient safeguard under section 15‑A of the Ordinance against a mala fide application by a landlord. The Rent Controller therefore should have considered whether on the evidence produced before him the appellant had succeeded in establishing the bona fide requirement alleged in the application. The learned Rent Controller attached much importance to the contradiction referred to above in the evidence of the appellant and his son with regard to starting of business of tyres and tubes in the shop but failed to consider that both appellant and his son consistently stated that they wanted to start business in the shop occupied by the respondent and that appellant's son has permanently come back to Pakistan with intention to settle here and to start. business in Pakistan. The evidence of both the appellant and his son in this aspect could not be shaken in cross‑examination,, nor anything could be brought on record to contradict this statement of appellant and his son. In my opinion in view of the safeguard provided to respondent under section 15‑A of the Ordinance against a mala fide action by the appellant, the Rent Controller should have accepted the above evidence as sufficient to prove the bona fide requirement of appellant. The plea of respondent that the appellant, wanted to enhance further rent or that he had demanded a sum of Rs.50,000 from the) respondent for allowing him to remain as a tenant of the premises remained totally unsubstantiated. After assessing the evidence in the case I am of the view that the applicant has succeeded in establishing the personal and bona fide requirement. I accordingly allow this appeal, set aside the order of the Rent Controller and grant ejectment application filed by the appellant. The respondent is allowed six months' time to vacate the premises. As the respondent, has succeeded before the Rent Controller the parties will bear their respective costs in this appeal. A. A. Appeal allowed.