1989 PLP 3873 (MLD)

By this common judgment I intend to dispose of the above two appeals as the same involve common points of law and facts and also that the landlord/respondent in both the appeals is same who had sought ejectment of two shops situated adjacent to each other on the ground of requirement for personal use.

2. The facts are that the respondent in the present appeal is the owner of hops Nos. 2 & 1 on Plot No. 4-A, Gall! No.10, Aligarh Colony, Arangi Town, s ' which are in occupation of the present appellants respectively as the Karachi, tenants thereof. The respondent had filed the rcpt cases against the appellants earlier on the ground of default which were dismissed and subsequently his appeals were also dismissed in limine. The respondent then filed the present rent cases on the ground of default and personal requirement. The ground of default was subsequently given up but the ground of personal requirement was contested. The case of the respondent is that he used to sell cloth by vending on his bicycle and now that he is getting older, he is unable to do so and desires to open a hotel in the said shops for which he requires vacant - possession thereof. It is also contended that he has two wives, each having 5/6 children and the respondent wants to house one of his wives with her children on the first floor over the said shops. The appellants filed their written statements in which they admitted the relationship of landlord and tenant and also the rate of rent. However, they denied that the respondent required the said shops for personal use in good faith and further claimed that the respondent owned and occupied other premises also. The learned Rent Controller was pleased to order the ejectment of the appellants and thus the present appeals.

3. I have heard the learned counsel for the parties. Mr. Hassan Asghar Rizvi, Advocate for the appellants has contended that the burden of proof in the present case lies on the present respondent/landlord. He has contended that the respondent has to show that he not only requires the premises for his personal use but that his requirement is in good faith. He has placed reliance on the case of Muhammad Yamin v. Mrs. Khaliq Begum (1988 CLC 1297) to support his above contention. He has also relied on the case of Muhammad Aslam v. Muhammad Aslam (1987 CLC 686) to support his contention that in case of requirement of commercial purpose, the burden of proof is heavier on the landlord. There is no dispute with regard to the above proposition of law. However, in the present case it is to be seen where and to what extent the said burden has been discharged by the landlord. The respondent/landlord has examined himself and has stated specifically that he used to sell the cloth by vending on a bicycle and that now he cannot continue with such business and is desirous of starting hotel business for which he requires the two shops in dispute which are adjacent to third shop which is already in his occupation. He has further stated that he has two wives and has 5/6 children from each wife and that he desires to house one of his wives alongwith her children on the first floor of the said shops. He has also specifically stated that he does not own any other premises. This evidence of respondent has not been shattered in cross?examination or by any evidence produced by the present appellants. In these circumstances, the burden has been sufficiently discharged by the respondent.

4. Mr. Hassan Asghar Rizvi, learned counsel for the appellants, then contended that the respondent was also required to show that he needed the said premises in good faith. He has pointed out that the evidence shows that the respondent also owned the third shop adjacent to the two shops in dispute and that a document placed on record as ExA/19 shows the address of the respondent as residing in Soldier Bazar. He has also drawn my attention to the fact that the respondent himself has admitted in his cross-examination that some of his family members were in occupation of a house in Millatabad which had been vacated only a few days back. Mr. Rizvi has also submitted that the intentions of the respondent are mala fide which is apparent from the fact that earlier he had filed the rent cases against the appellants on the ground of default which were dismissed and the appeals filed therefrom were also dismissed in limine. After this the respondent dragged the appellants before the Martial Law Authorities where also he failed to achieve his object and again now he has filed the present rent cases. He has placed reliance on the case of M.S. Baroba v. Manzoor Ahmed (PLD 1986 Karachi 407) to support his contention that "good faith" would mean honesty on the part of the landlord. This case in my view would not help the contention of the learned counsel as the facts in the said case are quite different from those in the instant case. Mr. Rizvi has then placed reliance on the case of Messrs Eastern Express Co. Ltd., Karachi v. Tariq Hameed (PLD 1986 Karachi 84) in support of his contention that mere convenience of the landlord is not sufficient to call for the ejectment of the tenant.

5. Repelling the above contentions, Mr. Naqi Meerza, the learned counsel for the respondent, has submitted that the basic point which requires consideration in the present case is, whether the premises m dispute, which are commercial premises, are required for such purpose by the respondent and that even if he is in occupation of any residential premises that will have no bearing on the present case. He has contended that in the first instance nothing has been brought in evidence by the appellants to show that the respondent had owned the said residential premises in Soldier Bazar or at Millatabad. He has further contended that the respondent had specifically denied to have owned the above said two premises. Not only this, but the respondent in his evidence has categorically stated that some of his family members had occupied the Millatabad premises which were abandoned on account of the disturbances in the area. From this evidence it cannot be assumed that the respondent was in ownership or occupation of the above-said two premises at the tune when he filed the present rent case. Mr. Naqi Meerza has further submitted that even if it be so then also the said residential premises could not be used for the purpose of running a hotel. His contention is that for the purpose of said business of hotel the respondent required the premises in dispute. According to him the burden in such case was on the appellants to show that the respondent was in occupation of any other premises suitable for his use to run the hotel business and that the appellants have failed to prove the same. In my view, the evidence brought on record sufficiently proves that the respondent is not in occupation of any other premises suitable for running a hotel which is a commercial enterprise. From the above discussion I find no reason to disturb the findings of the Rent Controller and would maintain the same. The present appeals are, therefore, dismissed with no order as to costs.. However, the appellants are directed to hand over the vacant possession of the shops in dispute to the respondent within 60 days from the date of this judgment M.Y.H./A-607/K Appeals dismissed.