P L D 1993 Karachi 491 (PLP)

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the order dated 17-1-1989 passed by Mr. Qamruddin the then Rent Controller (South), Karachi whereby he allowed eviction application and directed appellant to hand over vacant possession of the premises in question to respondent within 60 days from the said order. The facts relevant for decision-of this appeal are as follows:- Respondent Mst. Surraya filed eviction application against appellant Nawadat Khan, stating that she is owner of the shop constructed on Plot No.K-19-2-S-10 Usmanabad, Faqir Mohammad Durra Khan Road, Karachi which she inherited from her mother Mst. Zulckha who expired on 15-10-1987. It is alleged that said shop was let out to appellant by her mother on monthly rent of Rs.300 and her mother during her lifetime had filed an ejectment application against appellant which was withdrawn after her death. Respondent has sought eviction of appellant on the ground that she requires said shop for her son Umar Hayat who is major and without any job. The appellant, in his written reply, has resisted the claim of respondent. He has alleged that respondent does not require the premises in question for personal use, as she is the owner of many other, residential and commercial premises. He has claimed that -before Jirga the mother of respondent had agreed that appellant could occupy said premises for the period he liked. From the pleadings of the parties learned Rent Controller settled the following issues:-- (1) Whether applicant requires the premises in question for her personal use and for use of her son? (2) What should the order be? In support of their respective cases respondent riled her own affidavit in-evidence and that of her witnesses namely Nisar Ahmad and Umar Hayat while appellant riled his affidavit-in-evidence and of Khan Afsar and Raja Rafiq. After looking into consideration the evidence brought on record, learned Controller. reached the conclusion that respondent requires the premises in question for her use and use of her son and consequently, he allowed the, eviction -application by the order which has been impugned in this appeal. It has been submitted by learned counsel for appellant that respondent failed to prove that she requires the premises for her personal bona ride use, as such the eviction application should have been dismissed by the learned Rent controller. He also submitted that bona ride personal requirement of respondent and of her son was not at all established from the evidence brought on record. A plea has also. been taken that respondent should have disclosed the nature of the business she intended to establish in the said premises. All these contentions are closely connected and are taken together. In support of above contentions, Mr. Ashiq Ali Rana relied upon (1) PLD 1985 Kar. 714, Syed Anis-ur-Rahman v. Mst. Sara Bai (2) 1988 CLC 1041, Noor Ahmad and another v. Khawaja Imran Ahmad, (3) 1990 CLC 1064, Mst. Fatima Bai v. Shaikh Muhammad Zaki and 6 others and (4) 1991 CLC 1047 Mukhtar Ahmad v. Muhammad Saleem Bakhshi. In Anis-ur-Rahman's case it was held by a learned Single Judge of this Court that mere wish, convenience, whim or fancy of landlord would not be enough to show that landlord requires the premises in good faith. Also it was observed that landlord must allege and prove certain circumstances or fact which can prove his requirement. The scope of the phrase "required in goo faith" was also considered. In Noor Ahmad's case a learned Single Judge observed that the landlord of said case neither disclosed nor made out a case with regard to business sought to be carried out in the demised premises an nor specifically mentioned about availability of requisite funds to set up new business as such landlord was not entitled for eviction of tenant on the ground of personal requirement. In Mst. Fatima Bai's case a learned Single Judge of this Court placing reliance upon two reported cases of Supreme Court held that on the ground of personal need, the landlord would have to establish honestly his genuine need. In Mukhtar Ahmad's case it was held by a learned Single Judge of this Court that landlord would be required to give full particulars of his proposed business, availability of capital his experience or knowledge of the business he intended to establish. The point of personal bona ride requirement of the landlord also came under discussion in two Supreme Court cases reported in (1) 1988 SCMR 819 Qamruddin v. Hakim Mahmood Khan (2) 1989 SCMR 1366 Mst. Saira Bai v. S. Anis-ur-Rahman. In Qamaruddin's case on this point the following was observed:-- "We have examined the contentions of the learned counsel for the appellant and agree that none of the facts would militate against the stand of the landlord to seek eviction of his tenant from the shop, required for his personal use and non-disclosure of this fact in his petition, would in no way, cut at the root of the appellant's case because it is neither requirement of any law nor any rule of evidence that the landlord shall disclose all the properties which he has rented out to other tenants. All that he has to show to the Court is that he requires the shop of a particular tenant for his personal use and the ,choice is his as regards the suitability of the said shop which he requires for his persdrial use. The only question which would disentitle a landlord to such a relief would be a case where he is in possession of other equally suitable shop in the same locality,' or had rented out a shop after the institution of eviction case and has contumaciously concealed the fact in his application or statement at the trial". In Mst. Saira Bai's case Hon'blc Supreme while discussing the issue of hot disclosing the nature of business in the application observed as follows:-- "Regarding the non-mentioning the nature of the business in application it may bc observed that an applicant has to state in his application, the material facts i.e. facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to-law and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise, could he change the nature of business. or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail." Seeking eviction of the premises on the ground of good faith in rent cases, has, in fact, been a plea, which in comparison to other grounds has more frequently been raised. The phrase 'good faith' has neither been defined in the West Pakistan Urban Rent Restriction Ordinance, 1959 and nor in the Sindh Rented Premises Ordinance, 19-79, but it rinds its place in section 2, subsection (27) of the West Pakistan General Clauses Act, 1956 and is as follows:-- "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not." The condition precedent for successfully claiming relief on this ground is that landlord should be honest in his approach, and sincerity of his purpose be manifested by irreversible evidence and surrounding circumstances. Since, each case of this nature presents its own peculiarities, therefore, final verdict will depend upon its own circumstances. After the authoritative pronouncements by the Hon'ble Supreme Court in the above mentioned two cases, wherein tangible guidelines have been provided on the point of bona fide personal use, it now has become clear that the landlord is required only to show what has been laid down in the above-quoted two cases of the Supreme Court. In the cases of this nature, the landlord would only be required to state facts, which, prima facie, will establish, bona rides of his requirements. It would not be essential for him to mention about the nature of business he intended to carry out. Since the disclosing of business is not essential, therefore, as a consequence necessary details, such as availability of capital, experience or knowledge, about the business intended to be carried out, would also not be essential. It is, however, to be noted that if the landlord in the application chooses to mention about above facts, he can do so. It is for the reason that Supreme Court in abovecited case has only ruled that the disclosure of above facts is not essential and not that so is prohibited. Coming back to the facts of the instant case, it is observed that no mentioning the nature of the business by the respondent was not fatal for he case. She in her main application, as well as in her affidavit-in-evidence, clearly stated that she required the said premises for her own personal use and that of her son. She also specifically mentioned that her son Umar Hayat is major an jobless. She was cross-examined and her assertions, were not disproved. The fact that her son is jobless by itself is enough to show that she and her son must C, be eagerly looking forward to do something for earning their livelihood. The conclusion, therefore, will be that her demand was justified and no exception could be taken against it. The pica of appellant that respondent's mother had agreed before a Jirga that appellant could continue in the demised premises as long as he liked, is untenable. It tantamounts to putting an unjustified restriction on her proprietary rights. Learned counsel for appellant also argued that the mother of respondent earlier had riled an eviction application on the ground of personal bona ride use and the same was withdrawn and this showed mala rides on her part. Since her mother had expired during the pendency of said application, and 'after her death the application was withdrawn, therefore, the element of mala rides is not at all established. In consequence, the appeal is dismissed with cost. Three months' time from now is, however, granted to appellant for handing over vacant possession of the premises to respondent. . premises consisting of only two rooms, which accommodation was insufficient for their needs

Marriages of two sons of landlord were held up for want of accommodation

Evidence of landlord was consistent with averments in his application and was not shattered in cross-examination or rebutted by evidence of -tenant

Evidence on record, in circumstances, was sufficient to establish that landlord required premises in good faith for accommodating his family members. [pp. 500, 5011 B, C & D Parvaiz Akhtar v. Dr. Muhammad Ahsan and others PLD 1988 SC 734; Abdul Ghani v. Abrar Hussain F.R.A. No. 740 of 1988, decided on 3-IZ-1991; Fakhruddin v. Syed Muhammad Rashid 1991 CLC Note 210 at pr.165; M. Altaf Hussain and others v. Peshawar Motors Limited 1990 MLD 337; Parvaiz Akhtar v. Dr. Muhammad Ahsan and others PLD 1988 SC 734 and Abdul Ghani v. Abrar Hussain Civil Petition No. 66-K of 1992/Civil Appeal No.53 of 1992'ref. Amir Malik for Appellant. Abdul WaJid Wyne. for Respondent No.l. Manohar Lal for Respondent No.2. Dates of hearing: 16th and 28th April, 1992. H.B.T./N-457/k' Appeal dismissed. JUDGMENT