1989 PLP 951 (CLC)

S.Z. Haque for Appellant. Khajumal D,. Ladhar for Respondent. Date of hearing: 29th August, 1988. Mst. Amna Begum is landlady of Quarter No.T/6C8, Korangi No.2, Karachi‑31 and appellant Mst. Zeenat Ara is tenant at the rate of Rs.225 per. month, in terms of written tenancy agreement dated 29‑5‑1983. Respondent filed rent case on the grounds of default and personal bona fide requirement of shop in good faith for personal use and occupation and use of her husband and children for their business as they want to open a shop of a Provision and General Store in the premises in question. Rent Controller framed two issues on the pleadings of the parties. The issue of default has been decided in favour of the appellant /tenant while issue No.2 regarding personal bona fide requirement is decided against the appellant by the VIth Senior Civil Judge and Rent Controller on 15‑4‑1986. Being aggrieved the appellant has filed this rent appeal. Before the Rent Controller Muhammad Ismail attorney and husband of the respondent /landlady was examined when appellant Mst. Zeenat Ara and her witnesses Asif and Muhammad Ramzan filed their affidavits‑in‑evidence and were cross‑examined. Mr. S.Z. Haque, learned counsel appearing for the appellant contended that personal bona fide requirement has not been proved as respondent's son is already running business in the same locality. He has referred to 1985 C L C 3014, P L D 1988 Quetta 83. Mr. Khajumal D. Ladhar, learned counsel appearing for the respondent submitted that respondent is without job and they want to start business in the premises to be vacated by the appellant. It is argued that appellant has committed default for which ‑the respondent filed objection. He has referred to the cases reported in P L D 1976 Kar. 620, P L D 1976 Kar. 233, 1988 SCMR 772 and 1988 S C M R 819. Before the Rent Controller Muhammad Ismail husband and attorney of respondent Mst. Amina Begum has stated that tenancy agreement was for 11 months which expired on 30‑4‑1984, thereafter, appellant refused to vacate the premises in spite of repeated requests. He has further stated that appellant has failed to pay or tender the rent due from 1‑5‑1984 to 30‑11‑1984. In para.5 of the affidavit he has stated that premises in question is reasonably and in good faith required by the respondent for her bona fide use and occupation of herself and husband (himself) and children. And he is not doing any thing unless the premises is vacated and his son would set up business. He was cross‑examined and has admitted that he collects the rent and no Paka receipt is acknowledged but entries are made in the register maintained by the appellant. He has no record. He has admitted that another shop in the same quarter is in his possession where his elder son runs the shop in the name of Bismillah Medical Store. He has admitted that the shop in occupation of his son is more than the area of disputed premises. Appellant in her evidence stated that rent receipts were not issued and on expiry of the agreement the respondent executed another agreement of tenancy and he never issued any receipt. It is stated that rent of November, 1984 was paid. She has stated that shop was taken at the rate of Rs.80 per month but from time to time, rent was increased. She has stated that respondent has her own shop which is much bigger in area than the disputed premises and in this shop her husband and son used to sit and run it. Previously it was in the name of Real Estate Agency but later on they have started Medical Store. The rent case has been filed to disturb the business of the appellant due to jealousy. She has produced the document Annexure "A", showing the rent of November, 1984. Asif Ex.3 has stated that one shop is in possession of the appellant and medical store is being run in the name of Tariq Medical Store whereas respondent has also Medical Store in the name of Bismillah Medical Store. In the shop of respondent her husband and son used to sit. He has stated that he is working as salesman in the shop of respondent and he used to pay rent regularly to her and no receipts were issued but entries in the book were maintained for this purpose. In cross‑examination he has stated that he left the service in December, 1984. Muhammad Ramzan Ex.4 has stated that he used to purchase medicine from the shops of the appellant as well as from the respondent as both are running medicine shops in the same locality. He has stated that Muhammad Ismail respondent's husband and her son used to sit and sale the medicine. The Rent Controller has decided that no default has been committed as it has been admitted by the attorney of the respondent that no receipts were being acknowledged but some entries were made in the register maintained by the landlord. One receipt has been produced by the appellant Mst. Zeenat Ara as to Annexure "A" I showing that rent of November, 1984, was paid. This receipt has not been challenged in the cross‑examination of Mst. Zeenat Ara nor such question has been put. Asif Ex.3, previous servant of the respondent has also stated that rent was paid up to November, 1984. He was not cross‑examined on this substantial point of his being in service of appellant. In the absence of any document I am of the view that Rent Controller has rightly decided this issue against the respondent /landlord. Now I come to the personal requirement of the respondent. On this Muhammad Ismail, attorney and husband of respondent Mst. Amina Begum has been examined. He has admitted that in the same quarter medical store in the name of 'Bismillah' is being run by his son. In the rent application nowhere it is stated that respondent has any other son but she requests for shop for occupation of husband and children for their business. Ismail has not given number of his children but al: along it is only mentioned that his son wants to; start business and her husband is without work. It is an admitted position that appellant is also running a medical store and the ground taken by the appellant is that previously respondent had Estate Agency thereafter they have started business of medical store. Both the premises are adjacent to each other and due to jealousy a rent case has been filed. There is force in the submissions. The respondent has not examined her son nor she appeared herself for the purpose of evidence and she has not given any reason of non‑appearance before the Rent Controller. The evidence of solitary witness Muhammad Ismail her attorney is not sufficient. In the application it is stated that her husband and children want to open the shop of Provision General Store but now Muhammad Ismail has stated that he and his son want to open medical store when they are already running medical store. Muhammad Ismail has not stated in his affidavit in evidence that he wants to open a shop independently. In case of Mazha Hussain v. Mukhtar Begum reported in P L D 1988 Quetta 39 it was held that requirement must be proved in the ordinary way like an other fact and mere desire of the landlord cannot be equated with, bona fides. The cross' objections have already been taken into consideration and the learned counsel for the respondent has right referred to 1988 S C M R 772. The facts of case reported in P L 1988 Kar. 835 are different as the case was remanded back. On this I also refer to 1985 C L C 3014, where it has been held that failure of landlord to state this factum in his cross‑examination disentitle him to seek eviction. From the evidence it is clear that both the parties are running medical store and also are earning livelihood since long. I, therefore do not find that requirement has been proved. For the reasons stated above I allow the appeal and set aside the order of the Rent Controller on issue No.2 by which ejectment has been ordered. The parties to bear their own costs. M.Y.H./Z‑71/K Appeal allowed.