1992 PLP 1155 (MLD)

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the order, dated 18‑7‑1988 passed by Miss Soofia Latif, Vth Senior Civil Judge and Rent Controller (South) Karachi, by which the appellant was directed to vacate the disputed premises within a period of 60 days.

2. The respondents are the owners/landlords of a building known as. Halai Manzil; situated on Plot No.SB‑2/59, Raymand Street, Karachi. The appellant is tenant of commercial premises bearing Nos.4 and 5, situated on the ground floor of the said building at a rent of Rs.550 per month, together with Rs.130 per month as electricity charges. On 24‑2‑1987 the respondents filed an application under sections 14 and 15 of the Sindh Rented Premises Ordinance, 1979, against the appellant seeking his eviction on the ground of default in payment of rent and personal requirement.

3. The appellant resisted his eviction on various grounds. He has disputed the default in payment of rent. The personal requirement of the respondent to occupy the disputed premises is also challenged on the ground that it is nothing but a smoke‑screen designed purposely as a sort of intimidation with a view to compel him to accede to the unreasonable demands in the matter of increase of rent. It was also pleaded that the respondents were interested to re‑let the disputed premises on higher rent after getting handsome amount of Pugree. It is also the case of the appellant that he too had paid Pugree to predecessor of respondents at the time of obtaining the disputed premises on lease.

4. The parties went to trial on the following issues:‑‑ (i) Whether the application is not maintainable? (ii) Whether the Opponent has committed default in payment of rent as alleged by the Applicants? (iii) Whether the Applicants require the premises in question for their personal bona fide use? (iv) What should the order be?

5. The respondents examined one of them, namely, Juzer Fakhruddin (P.W.1), while the appellant examined himself (D.W.1) and Fredy (D.W.2).

6. On the assessment of the evidence, both oral as well as documentary, the learned Rent Controller decided issue of default against the respondents, while the rest of the issues were decided against the appellant, giving rise to this appeal.

7. I have heard Mr. Hussain Shaikh, learned counsel for the appellant and Mr. Mubarak Hussain Siddiqui, learned counsel for the respondents. I have also gone through the record of this case carefully.

8. The ejectment application out of which this appeal has arisen was filed under sections 14 and 15 of the Sindh Rented Premises Ordinance, 1979. According to the description in the ejectment application it was of composite nature, but on a careful examination it is clear that the respondents had sought ejectment of the appellant under clause (vii), subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, and not under section 14 of the said Ordinance. The perusal of the record shows that the insertion of section 14 of the Sindh Rented Premises Ordinance, 1979, was due to mistake and the respondents had abandoned it from the very outset. The observation made by learned Rent Controller while deciding issue No.1 to the effect that section 14 was abandoned by the respondents, is therefore, fully borne out from the record. The intention of the respondents can be judged from the notice sent by them to appellant under section 18 of the Sindh Rented Premises Ordinance, 1979. Para. 3.of this notice is relevant which for the sake of convenience is reproduced below:‑‑ "My clients also intimate to you that they require the premises in your occupation for their own personal, bona fide use to run their own business."

9. It will, therefore, be seen that the appellant was not taken by surprise. He had taken the plea of mala fides which was allowed to be raised and he had in fact adduced evidence in that behalf. In dealing with this all important question it is imperative to look at the substance of the matter and not to the mere form.

10. Mr. Hussain Shaikh, learned counsel for the appellant has contended with force that the respondents have set up a new case in their evidence which is inconsistent with the case set up by them in their application under sections 14 and 15 of the Sindh Rented Premises Ordinance, 1979 and the application for eviction filed by them is liable to be dismissed on this score alone. Para Nbs.12 and 13 of the application for ejectment are relevant and they are reproduced in extenso:‑‑ "That the applicants have become orphans and they are neither educated nor technical hand. They are unemployed and have no source of income and as such; the applicants require the tenements Nos.4 and 5 for their personal bona fide requirement. That the applicants assure the Honourable Court and may assure that they will not pass on possession of the tenements Nos.4 and 5 after getting it vacated." Paras. Nos.9, 10 and 11 of the affidavit‑in‑evidence filed by respondent Juzer Fakhruddin (P.W.1) again read as follows:‑‑ "That the applicants have become orphans and they have large family to support and the widow ailing mother. That the applicants are uneducated and they are not technical hand.' They are unemployed as such have no source of income except the petty income of rent. That the applicants intend to carry on some business in these shops premises and as such the vacant possession is required in good faith.

11. On a careful examination of the averments made in the application for ejectment and the evidence adduced before the Court, I see absolutely no departure from the pleadings. The law does not prohibit the evidence being led to supplement or explain the pleadings, subject however, that there should not be any inconsistency. In such a situation the rule laid down in the case of Mst. Jana Bai v. Mst. Gulshan and another, reported in 1988 CLC 1061, is not attracted to the facts of the present case. Therefore, on this main question, the learned counsel has very little to say.

12. The respondents have sought the ejectment of the appellant on the ground that they intend to use the disputed premises for running their own business. Juzer Fakhruddin (P.W.1), who is one of the respondents has testified so in clear terms. He has also stated in his cross‑examination that they intend to run the business of tinsmith in the said premises. Mr. Hussain Shaikh, learned counsel for the appellant has criticised this evidence, mainly on the ground that the details of business and the source to start the same were not disclosed in the application for ejectment and in the affidavit‑in‑evidence. He has placed reliance upon the cases, reported as Sultan Press Ltd. v. Muhammad Hasan P L D 1985 Kar. 624, Syed Anisur Rahman v. Mst. Sara Bai P L D 1985 Kar. 714, and Noor Ahmad and another v. Khawaja Imran Ahmad 1988 C L C 1041, in an attempt to show that this omission was fatal to the plea of requirement raised by the respondents. The case cited at serial No.2, was in fact reversed by the Supreme Court in Mst. Saira Bai v. Syed Anisur Rahman 1989 S C M R 1366, wherein it was made clear that the landlord was not required to state the nature of business which he intended to carry on as the same was neither essential nor formed part of cause of action. I cannot do better than quoting the weighty observations made by the Supreme Court in the following terms:‑‑ "Regarding the non‑mentioning the nature of the business in application it may be observed that an applicant has to state in his' application, the material facts i.e. facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise; could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail."

13. The appellant has challenged the requirements of the respondents to use the disputed premises by attributing bad faith against them. It was pleaded on his behalf that the attempt made by respondents to seek his ejectment was with a view to relent the premises on getting huge amount of Pugree, which is customary in the area where the disputed premises are situated. In cross- examination he has however, showed complete ignorance about the respondents when he stated as follows:‑‑ "I do not know whether the applicant is educated person. I do not know whether the applicant is running any business."

14. It may be recalled that the respondents have claimed in their application for ejectment and also in their evidence that they are unemployed having no source of income. It was also pleaded by them that they are neither educated nor technical hand and consequently, they require the disputed a premises for their own use to start some business there. The assertions made .by the respondents are, therefore, consistent and the learned counsel for the appellant was not able to pick holes in the testimony of Juzer Fakhruddin (P.W.1).

15. An attempt was also made to differentiate the case of personal requirement in respect of a residential premises and a commercial premises. Reliance is placed upon the cases of Muhammad Aslam v. Muhammad Aslam, reported in 1987 CLC 686, and Muhammad Yamin v. Mrs. Khaliq Begum reported in 1988 C L C 1297, wherein it was held that a distinction drawn in a case of personal requirement in respect of residential premises and a commercial premises. In the first cited judgment it was observed that in order to evict such tenant who has established his business for years together, a heavy burden would lie upon the landlord to prove his requirement in faith. Clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, however, does not make any such distinction. Such discrimination existed under subsection (3) of section 13 of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed) and we should not read it in. this new Ordinance, when the legislature has made such departure deliberately.

16. Lastly it was contended that the co‑owner was not put in the witness box to prove his needs and consequently the application for seeking ejectment) on personal requirement of both the respondents was not competent. This contention is also devoid of any force. It was not obligatory on the part of respondents to put both of them in the witness‑box if the requirements are: proved from the evidence of one of them.

17. No case for interference is made out and the appeal is accordingly,, dismissed with no costs. The appellant is, however, allowed two months time, to vacate the demised premises. A.A./E‑53/K Appeal dismissed.