1986 PLP 2009 (CLC)

‑‑‑Ss. 15(2)(vii) & 21(1)‑‑Personal' bona fide requirement‑‑Proof‑ Evidence produced on record by landlady in respect of her bona fide requirement of premises in dispute for use of her grandson was not refuted by respondents‑‑Even one of respondents supported plea of landlady‑‑Evidence of landlady, held, should not have been brushed aside on mere surmises in circumstances. Abdul Rehman Memon for Appellant. Ghulam Muhammad Ebrahim for Respondents. Date of hearing: 11th August, 1986. The appellant, Zulekha Hajiani filed Rent Case No. 3502/80 in the Court of XVIIIth Rent Controller, Karachi on 31‑5‑1980, for ejectment of the respondents from her shop situated on a plot No. K‑28‑6 S‑4.Sher Shah, Karachi, on the grounds of default in payment of rent, subletting and personal requirement. Respondent No.1 conceded to all the grounds advanced for seeking the ejectment while the respondents fibs. 2, 3 and 4 resisted the application. The matter was decided by the learned XVIIIth Rent Controller, Karachi by his order, dated 28‑2‑1984, whereby he dismissed the ejectment application, The appellant has preferred this appeal against that order.

2. The learned counsel for the appellant has assailed the impugned order on the findings of the learned Controller on the issues of subletting and personal requirement, while issue in respect of default in payment of rent was not pressed before the learned Controller. He has urged that the rented premises was originally let out to one Haji Yousuf who died in September, 1979, leaving behind two wives, Mst. Sakina Hajiani and Mst. Amina Hajiani, the respondents Nos. 1 and 2, and two brothers Saleh Muhammad and Abdul Latif, the respondents Nos. 3 and

4. According to him, the respondents Saleh Muhammad and Abdul Latif were inducted in the premises as subtenants by the respondents Ms Sakina Hajiani and Mst. Amina Hajiani. He has contended that this fact of sub‑letting has been proved by the evidence of the appellant Mst Zulekha Hajiani. He has also contended that it stands proved by the evidence of the appellant that she needs the rented premises for her own use as to put her grandson there to do business. On the other hand, the learned counsel for the respondents Nos. 2, 3 and 4 has argued that the rented premises was, no doubt, let out to Haji Yousuf, but he was doing business there alongwith his brothers Saleh Muhammad and Abdul Latif, the respondents Nos. 3 and 4 and, on his death, both respondents Nos. 3 and 4 became the tenants alongwith original tenant Haji Yousuf's widows Mst. Sakina Hajiani and Mst. Amina Hajiani, the respondents Nos.1 and 2, as provided under section 2(j) of the Sind Rented Premises Ordinance, 1979, and no question of sub‑tenancy was involved. He has further argued that the appellant, being a lady, cannot put the rented premises for her own use and her grandson was already doing his business somewhere else and she did not bona fidely need the premises for her own use. Respondent No. 1 has not contested the appeal for the obvious reason that she has supported the appellant's case in the written statement filed by her.

3. It is a case of both the parties that the rented premises was let out to Haji Yousuf who died in September, 1979. It is also their case that Haji Yousuf left behind two wives Mst. Sakina Hajiani and Mst. Amina Hajiani, respondents Nos. 1 and 2, and two brothers, Saleh Muhammad and Abdul Latif, respondents Nos. 3 and

4. Haji Yousuf did not have any issue. Consequent upon his death, the widows became the tenants of the rented premises by virtue of definition of "tenant" under clause (j)(ii) of section 2 of the Sind Rented Premises Ordinance, 1979, being his heirs, but his brothers Saleh Muhammad and Abdul Latif, respondents Nos. 3 and 4 did not come in the category of heirs for the purpose of tenancy rights as to be deemed to be the co‑tenants with the widows. Of course, they have advanced the plea that they were doing business alongwith the deceased tenant Haji Yousuf, but there is no satisfactory evidence to that effect. One of the widows of the deceased tenant did not support their case that they were jointly carrying on their business with the deceased in the same shop. The contesting respondents filed before the Controller a joint affidavit asserting that the respondents Nos. 3 and 4 were jointly doing business with the deceased Haji Yousuf, but neither the respondent Mst. Amina Hajiani nor the respondent Abdul Latif appeared for cross‑examination after their affidavit did not constitute evidence. Of course, Saleh Muhammad did appear for cross‑examination but he has made damaging admissions by stating that he was doing business there in the shop after the death of Haji Yousuf and that the respondent Abdul Latif had done business with him there for only few days and then left Pakistan. He further stated that they had obtained verbal permission from the landlady for carrying on the business in the rented shop. It is obvious that respondents Nos. 3 and 4 inducted themselves into the premises after the death of the original tenant Haji Yousuf and with the connivance of his widows. There is no evidence that the appellant /landlady had expressly consented to their doing business in the shop. Of course, the learned counsel for the respondents has advanced the argument that the original tenant Haji Yousuf had expired in September, 1979 and rent for the months of September, October, November and December was paid to the landlady by the respondents and she had accepted them too as tenants by accepting the rent from them, and there was no question of sub‑tenancy. In this context, he made reference to a notice given to the landlady by the respondents indicating their position that they were in occupation of the shop as the tenants through Haji Yousuf and they had tendered rent for the months of January to April/May, 1980 by money order but she had not accepted it. He also made reference to a money order coupon put in evidence as an annexure to the affidavit in evidence. No doubt, rent for the months of September, October, November and December, 1979 was paid to the landlady, but there is no evidence that it was paid by all the four respondents and in the capacity of the tenants, The notice and the money order coupon filed in evidence and relied upon were the subsequent events, the notice marked Exh. 4 is, dated 3‑5‑1980. The money order coupon is, dated 4‑5‑1980, whereas the rent had not been paid for the months of January, February, March and April, 1980. The ejectment case was also filed in the same month of May, 1980. The money order coupon shows the name of the remitter as Msf. Amina Hajiani wife of Haji Yousuf and others. The respondents' case seems to have been developed in the month of May 1990 to lay claim that they had become statutory tenants as heirs of the original tenant Haji Yousuf. It is not denied that respondents Mst. Sakina Hajiani and Mst. Amina Hajiani had become the statutory tenants, being heirs of original tenant Haji Yousuf, but Saleh Muhammad and Abdul Latif introduced themselves through the widows to be the co‑tenants and they were not accepted by the landlady as the tenants. It has been discussed above that the respondents Saleh Muhammad and Abdul Latif had not become the statutory tenants as heirs of the original tenant Haji Yousuf. It follows that widows of the original tenant Haji Yousuf impaired their statutory tenancy by the induction of the respondents Saleh Muhammad and Abdul Latif in the shop and that action amounted to establishing sub‑tenancy. The learned Controller did not examine the case in the perspective of aforesaid circumstances and erred in holding that no case of sub‑tenancy was made out.

4. The issue regarding the landlady needing the shop for her uses and that for her grandson Muhammad Ibrahim also decided by the learned Controller against the landlady on the grounds that she, being a lady aged about 70 years, could not herself do any business there and that her grandson Muhammad Ibrahim was doing some other business somewhere and he also did not need the shop for doing business there. He adopted this view only on the basis of his own thinking and rejected the evidence of the landlady/appellant, which was not substantially refuted by the respondents. As already stated above, only one of the respondents i.e. Saleh Muhammad appeared to give evidence, whereby he supported the appellant's case by stating in cross‑examination that the appellant and her grandson might have been in need of the disputed shop. In the circumstances, the evidence of the landlady/ appellant or this issue should not have been brushed aside on mere surmises.

5. For the reasons recorded above, it is held that the appellant has established her case that the respondents had indulged in establishing sub‑tenancy and that the rented premises is bona fidely needed by the appellant for the use of her grandson and the impugned order is liable to be set aside. Accordingly, the appeal is allowed, the order of the learned Controller, dated 28‑2‑1984 is set aside. In the result the Rent Application No. 3502 of 1980 filed by the appellant is allowed and the respondents are directed to deliver vacant possession of the rented shop to the appellant within a month. The appellant is awarded costs of the ejectment application as well as of this appeal against the respondents Nos. 3 and 4.