1993 PLP 1595 (CLC)

Reverting back to the submissions made by the learned Advocate for the appellant with regard to the first submission suffice to say that the record shows that the power of attorney was filed alongwith the application and not subsequently. No question in this regard was put to the respondent's attorney, who had examined himself in support of the case. As far as Shop No.2 is concerned, no question was put to the said witness to the effect that it was in his possession before it was let out to Manzoor Ahmed. On the contrary. it was suggested that Shop No.2 was previously rented out to a vegetable merchant and presently it was in possession of Manzoor Ahmed. It was, however, admitted by him that he had received a sum of Rs.23,000 from the said Manzoor Ahmed for change of receipt. The above evidence indicates that before the shop was rented out to the vegetable merchant, it was in possession of the respondent's husband. No question was put to bring on record the date when the said shop was rented out to the said vegetable merchant. It was, however, disclosed by him in the cross -examination that he was doing business in the said shop since last 8 years. He was cross‑examined on 2‑3‑1989 which shows that the shop was rented out by him in or about 1980 or 1981. The learned Advocate took the stand that apart from changing the receipt of the shop in possession of Manzoor Ahmed, the respondent's husband had also changed the receipts of Shops Nos.4 and 5 in favour of one Nabi Ahmed after taking a sum of Rs.50,000 for the said change. The mere fact that the respondent allowed the change of receipt from the name of one tenant to another, does not reflect on the bona fides of a requirement. It is not the case of the appellant that the physical possession of any of the shops was delivered by any of the tenants to the respondent or her husband. The learned Advocate referred to the following cases in support of his submissions,‑ (i) Haroon Oasim and another v. Azam Suleman (1989 SCMR 246): The above report contains leave granting order. The relevant portion reads as under:‑‑ "The contention is of first impression. In view of the admitted facts that tenancies of 20 tenants in the building owned by the respondent were transferred in favour of new tenants, implies that the landlord was a party to these transactions and could well acquire possession of the required accommodation for his personal use in those flats, unless he explained the reasons why they would not be suitable for his purpose. Indeed in law the termination of one tenancy and the beginning of another tenancy is tantamount to surrender of possession in favour of the landlord irrespective of the intervening time period. In any case we are, prima facie, of the opinion that this fact was material and did seriously effect upon the bona fides of the landlord's claim, which was not adequately dealt with by the learned Single Judge." The petition was converted into Civil Appeal No.10‑K/88, which was dismissed by judgment dated 30‑3‑1989 with following observations in the above context:‑‑ " ....The question, therefore, falls within the short campus of the argument that the respondent should have instead gone and occupied any one of the flats in Pak Mansion as and when the same (if at all) became available for occupation of him. We need not discuss here as to whether in the course of change of tenancies, a landlord is deemed to have been put in possession of the premises, even for a fraction of a minute, when the landlord, at the request of the outgoing tenant, becomes a willing party to the change of tenancy by issuing afresh receipt to the new tenant, which is a common practice to be taken judicial notice of in Karachi:' (ii) Sultan Press Ltd. v. Muhammad Hassan (PLD 1985 Kar 624): In this case a vague ground was taken by the landlord in the eviction application stating that he wanted to start his own business of motor training school but in his affidavit‑in‑evidence he took a different stand stating that he had gained much experience in the business and wanted to expand his business. Since the above two pleas were inconsistent, it was inferred that the landlord was lacking in bona fides or good faith and he failed to establish the bona fide of requirement. (iii) Anisur Rahman v. Sara Bai (PLD 1985 Kar. 714): In this case also a vague allegation was made by the landlady that her son had completed his studies and wanted to start his independent business. In the affidavit‑in‑evidence also similar bald allegation was made. The son, for whom the shop was required, also entered into the witness‑box but did not disclose as to what kind of business he wanted to do. The learned Judge of this Court on the basis of such evidence held that there were no circumstances available that could satisfy the Rent Controller about the genuineness of the claim. (iv) In Province of Sindh and 3 others v. Sikandar Ali Khan (1990 CLC 1644), the eviction order passed by the Rent Controller on the ground of personal requirement was reversed with following observations:‑‑ Admittedly the respondent is in occupation of other premises which belong to him. In such a situation it was necessary on his part to have proved that the said premises do not cater his needs. Even the details of the family members are not disclosed by the respondent to find out if the premises already in occupation of the respondent are not sufficient to accommodate him and his family members. The demand of possession of the premises must be honestly made and the landlord cannot get the premises vacated simply because he wants it." (v) Muhammad Arif v. Gulzar Ahmed (1991 CLC 1850).‑‑ In this case the eviction was refused as it was found by the learned Judge on perusal of the evidence on record that the landlord had not given details of his business or the manner in which he was expanding it nor he had given the area in his possession and the area sought to be required for expansion of the business. The respondent had made rather very vague assertion in this regard. (vi) In the case of Associated Sale Agencies, Karachi v. Standard Insurance Company Ltd. (1985 CLC. 2419 )the respondents, who were a limited company, had riled the case for eviction of the tenant on the ground that the property in dispute was purchased by them for their own use as their business was increasing day by day and the premises in their occupation had become inadequate and insufficient. However, in the evidence it was pleaded that the premises was required for their head office as well as to accommodate there several branches. Saleem Akhtar, J. (as he then was, now Judge of the Supreme Court), found that the above assertion of the company was not supported by any evidence on record inasmuch as they had failed to show that the, existing accommodation in their possession was nut sufficient to cater their need. It was further observed that though the landlords were a registered company, they had failed to produce any resolution to show that the Board of Directors had decided to shift the registered Head Office and it was also noted that in the evidence the entire thrust of demand was in respect of branches only. The bona fides was held as not proved for want of convincing evidence. On the facts, the aforesaid authorities relied upon by the learned Advocate for the appellant are distinguishable. Firstly, in so far as this case is concerned, the respondent has consistently pleaded that the shop in question is required for use by her husband who is doing goldsmith business on mezzanine floor where he cannot accommodate his customers. The very fact that the shop is situated on mezzanine floor and its height is only 5' or 5‑1/2' can hardly be said to be a proper place for carrying on the aforesaid business and particularly the case of the respondent that her husband intended to expand the business lends further support to her case. It is a matter of first impression that the goldsmith business cannot be befittingly carried on in a mezzanine floor with six feet width and above‑stated height where customers cannot be suitably accommodated. The shop in possession of the appellant is suitable for such business where the customers can be accommodated and so also the artisans. It is not the case of the appellant nor it has been so urged at the time of hearing that the aforesaid accommodation, where the business is being carried on by respondent's husband, is suitable or sufficient for the said business. The only defence taken is that the respondent was interested in enhancing the rent, 1 which fact has been denied in evidence produced on behalf of the respondent. The appellant had examined two witnesses but they could not stand the test of cross‑examination on the above subject. The other allegation that the eviction is being sought for renting out the shop on Pugree, does not inspire any confidence. Section 15‑A of the Sindh Rented Premises Ordinance, XVII of 1979 provides punishment for the landlord where he has obtained the possession on the ground of personal requirement, relets it to any person other than the previous tenant or puts it to a use other than the personal use within one year of such possession. The learned Advocate for the appellant submitted that since the proper evidence was not brought on record. by the appellant and there is evidence which if produced, is bound to mitigate the good faith of the alleged requirement, it would be proper if the case is remanded for further evidence. He sought support for such submission from the cases of Ghulam Haider v. Abdul Ghaffar and another (1992 SCMR 1303) and MA.H. Siddiqui v. Fazlur Rahman and others (1992 SCMR 2391). The cases were remanded in the above‑reported cases keeping in view the peculiar circumstances that Were obtaining therein. The learned Advocate, however,, failed to point out as to what evidence he intended to produce. I find no substance in the above submission. The appeal being without any force was dismissed by short order dated 4‑4‑1973 and above are the reasons therefor. H.B.T./M‑1843/K Appeal dismissed.