1986 PLP 821 (CLC)

Mirza Ghiasuddin Beg for Respondent. Date of hearing: 8th September, 1985. This second appeal is directed against the order of Joint Civil Judge and Rent Controller, Hyderabad, dated 11‑10‑1978 whereby the ejectment application filed by the present appellant was dismissed. This appeal is also directed against the judgment of IVth Additional District Judge, Hyderabad, dated 17‑8‑1981 whereby the appeal of the appellant was dismissed.

2. The. appellant is the landlord of the shop bearing No.A/1155/2, Market Road, Hyderabad. The respondent is his tenant at Rs.300 per month. The appellant had filed an ejectment case on the basis of default in the payment of rent and requirement of personal use. The same was resisted by the respondent.

3. Two issues were framed on default and personal requirements.

4. Hussain Bhoy, one of the appellants, examined himself in support of the application and was supported by Sirajuddin and Abdul Qadir. The opponent examined himself and also examined Haji Ismail and Muhammad Siddique. The other appellant, Fakhruddin, who is one of the owners of the shop and for whom the shop was required, was not examined. The Rent Controller held t1at there was no default in the payment of rent and further held that the appellant had failed to establish that they need the disputed shop for the personal use.

5. The appellants are two brothers who are running business together of hardware in the rented shop in Saddar, Hyderabad. The appellants stated that their landlord wanted to get their shop vacated. It was further stated that the appellants were real brothers who wanted to do separate business from each other as one. of them, namely, Fakhruddin had married two years back and wants separate business.

6. The appellants have not challenged the findings of the two Courts below on the point of default not having been proved.

7. Mr. Mumtaz Ahmed Shaikh, Advocate for the appellants has contended that it was the right of the landlord to get his shop vacated as the landlord was doing business in a rented shop. He further emphasised that the view taken by the two Courts below that examination of Fakhruddin in support of the case of personal requirement was vital is not correct and that the case of the appellant had been duly proved.

8. I find that the finding in respect of the lack of bona fide requirement by the two Courts below is concurrent and, therefore, the same should not be interfered with unless the view of the evidence taken by the two Courts below was palpably wrong or there was any illegality committed. I find that the appellants had examined their own landlord Abdul Qadir to support the plea that he wanted to get his shop vacated from the appellants. But Abdul Qdir admitted that he had given four shops on rent during 1977‑78 and he had further stated that the age of his son for whom he required the shops from the appellants was 18 years. On that basis, the view of the Rent Controller that the appellants could not establish that their landlord was in need of the premises of the appellants was quite justified. The other question was that Hussain Bhoy had stated that Fakhruddin wanted to start a separate business of his own. Since the claim for ejectment of the respondent was restricted to the personal need of Fakhruddin, therefore, in this case it was essential that Fakhruddin should have been examined to support the claim for establishing the separate business. Mr. Mumtaz had argued that after the marriage of Fakhruddin the expenses of the family had gone up and, therefore, Fakhruddin wanted to have a separate business but this statement as such has not been made by anyone. Fakhruddin never stated that the income of the family had gone low or that the expenses of the family had gone so high that one shop could not be sufficient to meet their expenses. In the particular circumstances of this case the failure of Fakhruddin to present himself before the ourt and to establish that he wants a separate business for himself and that he was not satisfied with the business carried on with the partnership of his brother or that he wanted a separate income for himself was necessary to be established and the same could be done by examination of Fakhruddin alone. The appellants have not alleged that Fakhruddin was not available for the purpose of examination in Court or that he was prevented by one reason or the other from attending the Court and, therefore, the non‑examination of Fakhruddin weakened the case for personal requirement of Fakhruddin and, therefore, the A view of the two Courts below cannot be said to be completely incorrect.

9. Mr. Mumtaz had pointed out certain views of the High Court and rulings of the Supreme Court that the non‑examination of the person for whom the premises were required was not fatal. It is correct that there can be circumstances in which the non‑examination of the person for whom the premises were needed would not be fatal. Every case would really depend upon the circumstances of its own case as to whether the non‑examination would adversely affect the bona fides of the requirement. In 1981 S C M R 895 (897) the non‑appearance of the son for whom the landlord required the shop was not regarded as fatal by the Supreme Court in view of the fact that the son was doing business in Karachi while the shop in dispute was situated in Gujar Khan, Rawalpindi, therefore, the facts of this case were quite different from the present case where the two brothers, appellants, were doing business together at Hyderabad and it was alleged that one of them, who was not examined in the case, needed the shop for his separate business. No one had stated that Fakhruddin was .not available. I am o,)' the view that examination of Fakhruddin in the present case was necessary to explain as to why he wanted a separate business. In 1968 SCMR 959, the non‑examination of person for whom the premises were needed was considered by the Supreme 'Court as the fact raising adverse presumption in view of the strained relationship between the father and son. In a Karachi case, 1983 C I. C 2093, the Hon'ble Judge had observed that it was not inflexible rule that in every case the person for whom the premises was required must be examined as the requirement depended upon the circumstances of each case. I am in respectful agreement that every case has to be decided on the facts and circumstances of its own. The non‑examination of the person for whom B the premises are needed cannot be regarded as fatal but in some cases it would be natural to raise an adverse presumption if such a person was not examined case appears Lo be one where non examination of Fakhruddin does appear to be adverse to the bona fide requirement of the premises by Fakhruddin.

10. I, therefore, do not find any justification to interfere with the judgment and decree of the lower Courts.

11. I may also mention that the Rent Controller had taken the view that the disputed shop was suitable for cloth business and not for hardware business of the appellants and there was some reasonable justification for that view as the shops around the disputed shop were having cloth business. This appeal is, therefore, dismissed. H . B . T . Appeal dismissed.