1986 PLP 681 (CLC)

This First Rent Appeal is directed against the order of XIVth Rent Controller, Karachi, dated 27‑4‑1982 whereby he rejected the request of the appellant for ejectment of the respondent from the two shops under lease to him, situated on Plot No.C/11/2, Liaquatabad, Karachi.

2. The ejectment application was made on 18‑3‑1980 when the appellant was due to retire from Government service. The appellant had stated that he needed the shop for his personal use as after his retirement he will have to vacate Government accommodation, and he intended to run some business as means of his livelihood and that after possession he shall amalgamate one other shop situated at the same plot.

3. The notice had been given by the appellant to the respondent in January, 1980 for requiring the two shops. The respondent in his written statement denied the allegations of the appellant and stated that he had acquired vested interest in the said shops and the need of the appellant was stated to be not bona fide but based on greed. Notice was however admitted.

4. Two issues in respect of the maintainability of application and requirement of the disputed shops for personal use were framed.

5. The appellant in support of his case filed affidavit where he stated that he will have to surrender his Government accommodation after his retirement. He stated that he wanted to take these two shops and he would then amalgamate them with the other shop for which he had filed ejectment application against the other tenant. He further stated that he wanted to make it residential accommodation leaving small portion for business. In cross‑examination he stated that he would demolish the 3 shops and then he will reconstruct one shop. He further admitted that he had not got the plan approved for reconstruction of the shops. He stated that there were 3 shops on this plot. Each shop is 8 x 8 sq. feet. The remaining portion of the plot is covered by residential use which is lying vacant. Total area of the plot is stated to be 80 sq. yards which was residential. He admitted that respondent used to pay Rs.50 per month for the two shops but now he pays Rs.70 per month since last 2‑3 months. He admitted that there was Pugri of these disputed shops. He further admitted that he or his son never did any business so far. He further admitted that he can use the vacant house on this plot which was lying vacant for the last about 2 years. He denied that he wanted Pugri for these shops.

6. The respondent Zaheer Ahmed Khan stated in his affidavit that the appellant had demanded Rs.1,00,000 (one lac) and since he could not pay the same, therefore, he filed the ejectment application. He admitted in cross‑examination that appellant has retired from Government Service but denied that he required the shops for his personal use. He also stated that the appellant can use the house besides these shops for his business if he wants to do any business.

7. The Rent Controller took the view that since the notice issued by the appellant to the respondent under section 14 of Sind Rented Premises Ordinance, 1979, had required the respondent to vacate the premises within two months of the receipt of the notice, therefore, the same was illegal as section 14 required giving of a notice of minimum months He therefore, held the application to be not maintainable.

8. Mr. Diwan Bashir Ahmed has submitted that the Rent Controller has taken an absolutely incorrect view in this respect and that the application was maintainable and notice was valid. I agree with the submission of the learned counsel for the appellant. The notice had been issued on 14‑1‑1980 and of course the notice had called upon the respondent to vacate the shops within two months but the application for ejectment was filed on 18‑3‑1980 and, therefore, the respondent had more than 2 months' time for vacating the two shops in question. Section 14 only requires that at least 2 months should be allowed to a tenant under section 14 and more than that time has been allowed in this case. Mere mention of the words "within a period of two months from the notice", in notice does not make the ejectment application as not maintainable when the application itself has been filed more than two months after the said notice. I have, therefore, no hesitation in coming to the conclusion that the application was maintainable and I, therefore, reverse the finding of the Rent Controller on, issue No.l.

9. In respect of issue No.2 the Rent Controller took the view that the appellant has left unoccupied the house attached to these shops and he had accepted enhancement of rent of these shops from Rs.50 to Rs.70 during the pendency of the case and, therefore, the ejectment case was filed with mala fide intention. He was further of the view that the appellant had stated that he wanted to amalgamate one shop in the residential portion and making one shop for his business but he had not got an approved plan for this and, therefore, he did not require the same bona fide.

10. On 18‑8‑1985, the respondent's counsel made a statement at the bar that the appellant had received possession of the shops from other tenants during the pendency of the proceedings and has rented out the same to some other person. The same needed clarification and I had, therefore, examined Ghulam Muhammad, appellant, who stated that about 2 years back Muhammad Shafi handed over the possession of his shop to him and he gave that shop to Abdul Wahab Sidiqui on the understanding that he will vacate the said shop as soon as the appellant got the possession of the shops from Zaheer, respondent. In cross to Mr. Asghar, Ghulam Muhammad admitted that he issued the rent receipt of the 3rd shop in the name of Abdul Wahab and the rent is Rs.70 per month.

11. The appellant's contention is that since the matter is under section 14 of Sind Rented Premises Ordinance, 1979, therefore, he was entitled to get the shops in question vacated without any enquiry into the real requirement or actual requirement of the said shops.

12. I do not agree with this extreme view propounded by the appellant's counsel. Of course, bona fide requirement is not required to be proved by the landlord under section 14, but at least he has to prove that he needs the building. Section 14 of the Sind Rented Premise; Ordinance, 1979 used the word "needs". This word does indicate that the landlord has to establish that it is not his arbitrary desire to have a particular premises vacated but that he has a need for the same an. the need has, therefore, to be proved and the proof of course would be different in the circumstances of each case but unless and until some prima facie need is established the landlord cannot insist that irrespective of his need he should be given the premises because he desires to have them. The legislature did not intend to invest the landlord with that arbitrary wish and, therefore, in its wisdom it used the word "needs" in section

14. Therefore, some necessity of requiring the premises or some genuine want of the premises and the necessity of possession has to be proved by the landlord.

13. In the present case I do not find that need having been established. In Oxford English Dictionary the word need has been explained as "unavoidable", "by necessity", "necessity arising from the facts or circumstances of the case". At another place in the same dictionary need had been treated as necessary or needful. Therefore it is obvious that need is not just a mere wish or desire on the part of' the landlord but he has to prove the necessity of getting the accommodation.

14. In this particular case before me I do not find such need established. In the application before the Rent Controller the applicant had stated that after retirement he intended to run some business as means of livelihood and after possession shall amalgamate one other shop situated at the same plot. In the notice under section 14 the appellant had stated the same need that he needs the said shop for establishing his personal business by amalgamating the same with another shop on the said plot which is in occupation of his another tenant. Therefore, till the time of application the appellant had shown his personal need for these two shops. But in the affidavit he stated that after vacation he wanted to make it a residential accommodation leaving a small portion for starting his business. Therefore, the appellant changed his need from 3 shops to only a small portion for starting his business and the other shops were now required by him for amalgamating them with the residential accommodation. I may state here that the residential accommodation is already lying vacant with the appellant for sometime and he had not used them. In any case in the application and notice he wanted these two shops for business purposes. Thus in the affidavit of proof and the application there is inconsistency. In cross‑examination he changed the position again and stated that he will demolish the three shops and then he will reconstruct only one shop but he had to admit that he has not got the plan approved for the same, therefore, the need for the construction is not established. This examination shows that they appellant wanted to have one shop created out of 3 shops but this position is inconsistent with the affidavit where he had stated that he wanted to make it a residential accommodation leaving a small portion for starting his business. Another important fact, however, is that the small portion of the building in the form of one shop did come to the possession of the appellant during the pendency of the proceedings as admitted by him in his statement in the High Court on 18‑8‑1985. But instead of occupying the said shop and meeting his need the appellant let out the said shop to one Abdul Wahab for which he is issuing receipts, therefore, it is clear to me that if the appellant had actually needed the same premises for his business then he would have pounced upon the opportunity of starting some business as soon as he had received the possession of the other shops and would not have rented out to some other tenant particularly when he has admitted that the Pugree for one shop in that area is Rs.25,

000. I am, therefore of the opinion that the appellant has been inconsistent in his approach and has allowed the opportunity of doing business to slip from his hands and, therefore, he did not need the two shops of the respondent. The need of the two shops of respondent was negatived when the appellant had stated in his affidavit dated 11‑2‑1981 that he anted to leave a small portion for starting business and even that small portion he did not utilize for his business when the opportunity arose and he got the possession of the shops. The appeal is, therefore, dismissed. H.B.T. Appeal dismissed.