1986 PLP 1628 (CLC)

(b) in the case of a commercial building, if‑ (i) he requires it in good faith for his own use; and (ii) ............................................................... (iii) ................................. .......................... It is not the respondent's case that if the disputed shop is vacated, she herself would sit there and run the medical‑cum‑general store‑ Her plea is that as she and her husband were jointly carrying on that business in the rented shop No.61‑C, they would maintain the same relationship even in the disputed shop. However, the learned counsel for the appellants referred to the admissions made by the respondent in course of her cross‑examination with a view to show that the landlady was never joint with her husband in running the medical‑cum‑general store in the rented shop which was wholly the show of her husband. The learned Rent Controller has taken note of these admissions in the following words: "During her cross‑examination on 4th March, 1985, the applicant stated that her husband was carrying on business in the premises adjacent to the disputed ones in the name and style of 'Queens Department Store', and this business included Chemist and General Store. Her husband had a Drug Licence in his name and also filed Income Tax Return as a sole proprietor of the business. She and her husband were working together in the business but not under any formal agreements and arrangements ..........................However, she did not have any documentary evidence to show that she shared business with her husband. Her husband must be maintaining accounts of business but she was not doing so." No doubt it can be safely deduced from the above admissions that the respondent's husband was solely responsible for the management of the medical‑cum‑general store and that there was no formal agreement between the husband and wife for doing that business jointly. But the important question that arises here is whether for above reason the respondent can be held to have no interest in the business of the said store inasmuch as that neither she made any contributions for running of the store nor she shared profits accruing therefrom. It may be observed that the respondent does not claim that she and her husband are bound by any formal arrangement such as legal partnership for the purpose of running the medical‑cum‑general store or tailoring business jointly. Consequently if the written proof about their business relationship is not forthcoming, it does not necessarily mean that the respondents plea about such relationship must be false and without any substance. Despite the fact that respondent and her husband are not bound in legal partnership, their ties as wife and husband are much stronger. Together they form a family, which in itself is a partnership with both social and religious attributes. Their income and expenditure can generally be regarded as the income and expenditure of the family and vice versa. In muslim society the husband who is the head of the family is primarily responsible for maintenance and well being of the members thereof. Therefore, the members of family including his wife are entitled to derive benefit from his income and in case it gets reduced for any reason, they will not remain un‑affected. As such when she pleads that she and her husband are joint in running the medical‑cum‑general store as well as tailoring business, she means to say that the management of these business centres is a family affairs and consequently both of them share the income and expenditure of these concerns. Viewed the respondent's plea of doing joint business with her husband in the light of above observations, I have no doubt in my mind that with the displacement of the medical‑cum‑general store run by her husband from the rented shop in the adjoining premises, her husband alone was not the sufferer but the economics of the whole family including the respondent herself were affected. Accordingly it was as much concern of the respondent as that of her husband to make alternate arrangement to ensure smooth running of their medical- cum‑general store. At this stage reference may be made to the authorities cited at the bar. The first case relied upon is of Ghulam Mohyuddin v. Mst. Nazir Bibi 1983 S C M R 715 wherein it was held:‑ "It has come on record that the husband of landlady is already doing business which shows that plea of doing business on the part of the husband is not a new enterprise to be now embarked upon by him for the first time. Similarly the plea that the shop already in his occupation is a rented shop supports his case further when he says, he wants to shift to the present shop. It has further been proved that the husband of the landlady had earlier another shop with him from which he was evicted and thereafter started doing business in the rented shop presently in his occupation. If in order to avoid such like constant threats of eviction the present shop is required by him for personal use, his need is quite genuine and perfectly bona fide." Another case cited at the bar is reported as Abdul Rashid v. Mst. Adila Musarrat 1982 C L C 149 wherein it was held:‑ "It seems to me that the term 'use' is intended to have a wider application than the word 'occupation' used in case of residential building. Can it, therefore, be said that the use of the shop by the husband who is head of the family and is maintaining the family is not the own use of the wife who happens to be landlady of the non‑residential building. The employment of the shop for running business by the husband for which the benefit is to accrue to the landlady would necessarily amount to putting the shop for the landlady's own benefit." The third case in the same context is of Abdul Rehman v. Hafiz Muhammad Yaqub and 2 others 1979 C L C 190 wherein it was observed: "I agree with the argument of the learned counsel for the respondents that if it is held that respondent No.1 required the shop for his personal use as well as for the use of his son, the use of his son would be ignored and the shop can be ordered to be vacated for the business of the son; but the learned District Judge should first find out whether the shop is required only for the business of the son or for the joint business of the father and the son." The fourth case on the same point is reported as Ghulam Mustafa v.Sharifan Bibi 1982 C L C 1012 wherein it was held as follows: "From the statement of respondent Mst. Sharifan and her husband Shabir Hussain who have been subjected to lengthy cross -examination, I am satisfied that the respondent requires this shop for her personal bona fide use for starting business of goldsmith through the husband. No exception can, therefore, be taken to the finding of the learned Rent Controller that the respondent was entitled to get possession of this shop." . The fifth case in the chain is of Noorul Islam Siddiqui v. Mst. Haidri Begum and others 1983 S C M R 18 in which in the appeal before High Court the legal ground taken up was that the personal need of the husband of the landlady was not the need recognized by law in respect of a non‑residential building and as such that ground was not available at all to the landlady. The learned Judge in the High Court rejected this ground and dismissed the constitutional petition. The next case referred to is of Col. (Retd.) Dr. Wahaj A. Mirza v. The District Judge, Karachi and 2 others 1983 C L C 1036 wherein it was held:

I find from the impugned judgment that the learned Appellate Court also considered the statement‑of the respondent No.3 on the record and arrived at conclusion of fact that respondent No.3 required the premises for his own use as well and not for exclusive use of his wife. This is finding of fact and if this finding can be sustained on the basis of evidence adduced by respondent No. 3 then, of course, it cannot be assailed by this petition in my opinion." The above authorities clearly support the respondent inasmuch as that she can seek ejectment of her tenants even if her husband is I to use the disputed premises or in the alternative she would use the said premises jointly with him. The next argument of the learned counsel for the appellants was that the respondent has failed to discharge the burden of proving that she needs the premises in dispute in good faith. In this connection he contended that apart from her solitary word, the respondent has not produced any other evidence, not even the evidence of her husband, in support of her plea, and therefore, in his opinion, she has failed to prove her case. I am afraid I cannot subscribe to this view. The respondent's own evidence supported by admissions made by the appellant Amin Gaya goes long way to prove her case. The learned counsel has referred to two cases in support of his arguments. The first case relied upon by the learned counsel is of Kaniyalal v. Muhammad Ismail 1982 C L C 1106 wherein it was held: "It was incumbent upon the respondent to show as to why he had let out the shop on 19th August, 1977 and as to why he needed .the shop in February, 1980. There is no plausible explanation given by the respondent. The allegation of the appellant was that in fact the respondent wanted to enhance the rent. He had also denied the respondent's bona fide personal requirement. In my view the learned Rent Controller erred in holding that the respondent's personal bona fide requirement stands proved on the basis of the bare averment of the respondent and of one witness Sarwar without any further explanation referred to hereinabove." This case is obviously not applicable in the instant case as the facts of the reported case are totally different. Similarly another case reported as Muhammad Ilyas Alvi v. Zaffar Pasha 1982 C L C 1324 has no application in the instant case for the same reasons. It is not denied that the store run by the respondent's husband in the adjoining premises No.61‑A has been uprooted with his eviction from the said premises. It is also admitted that her husband's efforts to retain the rented shop for running the said store have failed to bear any fruit as the appeal filed in the Supreme Court also failed. Admittedly even the ejectment application was filed much after the Court's order about eviction of the respondent's husband. In these circumstances, the only alternative available to the husband and wife was to shift the store to the disputed shop which not only situates in the same locality, as it is adjoining to the shop to be vacated by the respondent's husband but also is owned by the respondent and, therefore, no rent will be payable for the same. It is admitted even by appellant Amin Gaya that the respondent filed the ejectment application against the appellant corporation because of her husband's ejectment from the adjoining premises No.61‑C. Whether the respondent was joint in running the store in the adjoining premises, it is also the admission of Amin Gaya that he did not know nor had even asked the respondent or her husband if they were running the business jointly or as a partnership. He has further admitted that he could not say if the respondent and her husband had any oral agreement for running their business in partnership. Even if it be assumed for the sake of argument that the respondent had nothing to do with the medical‑cum‑general store which was wholly the concern of her husband, still they were not prohibited in joining hands in running the same store in the new premises. The respondent has expressed in unmistakable terms in her ejectment application as well as affidavit‑in‑evidence that she and her husband) wish to carry on the business of the said store jointly in the disputed shop. There appears no reason to disbelieve her in this respect. Her husband who has lost the previous rented premises, would be too willing to share the store business with his wife on consideration for getting the latter's shop for the said business. Thus, even if they had been no partners in the store before, it would suit them both to run the store jointly in future. Merely because there is no written proof to indicate that they have entered into any formal partnership for this purpose, that by itself would not be enough to defeat the respondent's] demand for eviction of the appellant from the disputed shop. As against the above admissions on the part of the appellant, the argument was raised on their behalf that respondent has been in occupation of the entire first floor in the disputed building, implying thereby that the displaced store of her husband could be accommodated on that floor. In this connection once again reference may be made to admissions made by the appellant Amin Gaya which tend to show that on one hand he knows for sure that no where in the entire Defence Housing Society Chemist Shop is run on the first floor of any building and on the other hand he admits that the access to the first floor of the disputed building is through back‑lane which has no shop‑fronts. Moreover, as has been pointed out above both the wife and husband are already running tailoring business on the first floor. In these circumstances the said floor of the disputed building could not be held as alternative to the disputed shop. In view of above discussion, no doubt is left in my mind that the respondents plea of personal requirement is genuine. The disputed shop is manifestly needed by her to accommodate the medical‑cum‑general store run by the respondent's husband. In the circumstances pointed out, the need of her husband is the respondent's own need. Accordingly it cannot be argued that the respondent's need for the disputed shop is not rooted in good faith. At this stage I may refer to the case relied upon by the learned counsel for the appellants. It is reported as Syed Israr Alam v. S.M. Hussain 1983 C L C 468 wherein it was held. ... the mere use of word 'need' would envelope the concept of bona fides. After all, it has to be established that a person needs the premises, and, in such enquiry, it can never be said that the word has to be interpreted as if it were divorced from the concept of bona fides, or, mala fides. Taking that view would mean that even unreasonable and fanciful need will have to be met only if the landlord were to come and say that he needs the premises. Such an intention could never be attributed to Legislature " There is no dispute with the proposition laid down in the above reported case. As already held the respondent has proved that her need for the shop is bona fide. It was next contended on behalf of the appellants that the real intention underlying the respondents move for seeking ejectment of the appellants is that she wants to relet it on enhanced rent. In support of this assertion the learned counsel for the appellants pointed out that the appellants were actually approached in this connection and were pressed not only to enhance the rent to Rs.1,000 but also pay the premium (Pugree) of Rs.50,

000. However, the respondent has made a categorical denial that she or her husband ever made such demand to the appellants. However, as admitted by the appellant Amin Gaya in cross‑examination, that respondent herself had not approached for this purpose but her husband had made that demand. First of all the respondent who is the landlady of the disputed premises cannot be; held responsible for any unauthorized representations made by others on her behalf; Secondly the respondent has refuted the allegation by stating that even her husband had never approached the appellants for. enhancement of the rent. Even if he had done so, such move on his part should not stand in the way of the respondent to have the appellants evicted from the disputed shop; and thirdly, since ejectment application has been filed after the Court's order about eviction of the respondent's husband from the rented premises, it cannot be believed that after vacating of the disputed shop by the appellants, it would be relet by the respondent at the enhanced rent. Thus, the above argument of the learned counsel for the appellants is devoid of any substance. It was further submitted by the learned counsel for the appellants that the respondent for proof of her case has learned more on deficiencies of the appellants' case than on the strength of her own evidence which is not permissible in law. In this connection he cited following two cases: (1) Bibi Amna v. Mst. Asiat and others P L D 1958 (W.P.) Kar. 420. (2) Amin Muhammad and another v. Muhammad Bux and others PLD 1961 (W.P.) Kar.

173. In the first case it was held: "According to law, the case of a party cannot be established by the weakness of the case of his opponent." In the second case it was held: "At first he considered the case set up by the defendants and after demolishing it and being influenced by its weakness considered the evidence produced by the plaintiff. This cannot meet our approval." The observations made in the above reported cases are unexceptable. I cannot agree with the arguments that respondent has attempted to prove her case by deficiencies found in the appellants; case. As has been discussed above, her own evidence supported by the admissions made by the appellant Amin Gaya has proved her plea of personal requirement. Accordingly she has been rightly held by the lower Court to be entitled to possession of the disputed shop. The appeal is, therefore, dismissed with no order as to costs. The appellants will deliver the vacant possession of the disputed shop to the respondent' within next three months. A . A . Appeal dismissed.