1993 PLP 148 (CLC)

At the very outset Mr. Muhammad Sadiq, the learned counsel for the respondent dropped the issue of subletting involved in the case of appellant Ghulam Nabi, Therefore, the common issue argued upon by the learned counsel for the parties in the two appeals is as under: Whether the applicant requires the premises in question for his personal bona fide use and use of his brothers? I have heard the learned counsel for the parties and gone through the record and proceedings of the lower Court. In each case, the respondent has filed his own affidavit‑in‑evidence while the appellant has filed his own affidavit‑in‑evidence and also the affidavit of one Ashiq Hussain as his witness. All the three have been cross‑examined. Mr. Mohammad Jameel, the learned counsel for the appellants has submitted that in the first instance section 15 of the Sindh Rented Premises Ordinance, 1979 does not provide a ground for ejectment of the tenant on the ground of requirement for brothers. His second contention is that the burden to prove the requirement in "good faith" is on the landlord; and that he has miserably failed to prove the same in the present case. It may be helpful to reproduce the relevant provisions of section 15 (2) (vii) of the Ordinance as under: (vii) The landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children." In view of the above provisions, there is no cavil to the proposition that these provisions are not applicable to seek ejecmtent of tenant for the requirement of brothers. A landlord can resort to proceedings under the above provisions where he requires the premises in `good faith' for his own use or that of his spouse or any of his children. However, the material point which requires consideration in this case is whether the said requirement is in `good faith ' and how far the burden to prove lies on the landlord. In the instant case, the landlord has also claimed ejectment on the ground of his requirement as his case is that he has purchased this property in order to run his own business therein. Of course the respondent has stated that he wants to, open one General Store but at the same time, he has stated that the three shops in dispute are quite small and he wants to amalgamate them into one shop where he would run a General Store. It is not the case of the present appellants that he owns of occupies any other building/premises in the locality. It is also not the case of the present appellants that the respondent is engaged in any other business, profession or calling. The respondent in his evidence has very specifically stated that he is sitting with his father at a rented shop where his father is running business; and that rented shop is quite small and insufficient for all of them, The appellant's own witness has stated in cross‑examination that the father of the applicant is running a Cold Drink shop. This obviously implies that it would not be a large shop. This witness has also further stated in his cross‑examination that he did not know the present respondent but had seen him for the first time when he is alleged to have come to the shop of the other appellant Abdul Majeed He further states in his cross‑examination that he does not k ‑now if the respondent requires the said shops for his personal use. Similarly, the appellant also in his cross‑examination has stated that the father of applicant is running a Cold Drink shop; and that he has seen the applicant sitting on the said Cold Drink shop occasionally. The respondent in his cross‑examination has stated that his age at that time was 21 years. He has further stated that he has six other brothers of which one is elder him while the others are younger to him. He has placed on record a photostat copy of sale‑deed under which he has purchased the said property. This sale‑deed is dated 25th May, 1988 while the rent cases were filed in July, 1988. All these circumstances show that the respondent is an adult who has no independent business of his own and sits with his father on a small Cold Drink shop which is situated in a rented premises. From this evidence it also appears that he had purchased the said premises with an intention to start his own business therein for which he has stated in his evidence that he has sufficient funds. Business of running a General Store does not require any special or technical qualifications or know‑how. Mr. Muhammad Jameel, the learned counsel for the appellants has submitted that there is an allegation made by the appellants that the real intention of the respondent is to enhance the rent and pressurise the appellants to pay a sum of Rs.15,000 by way of Pugree. From this, the learned counsel has submitted that the respondent has failed to prove "good faith"; and that the present case has been filed with mala fide intentions. He has placed reliance on the following cases: (i) Muhammad Asiam Manghi v. Mohamamd Aslam Zuberi 1986 CLC 686): (ii) Samiullah v. Mst. Begum Jehan 1986 CLC 2628. (iii) Sultan Trust Ltd v. Muhammad Hassain PLD 1985 Karachi 624. (iv) Ikhlaqun Nabi v. Nawab Ahmed Shamsi 1986 CLC 1100. The ratio decidendi in all the above cases is that initially the burden to prove the bona fides or `good faith' lies on the landlord; and that mere ipse dixit of landlord that he requires premises for his personal occupation or use was not enough. In these cases it has also been held that mere wish, convenience, whim or fancy of landlord would not be enough to show that the landlord requires the premises in `good faith'. In the last of the above cited case a learned Single Judge of this Court has observed that assertions and claim on oath by landlord about personal requirement of premises should be accepted as bona fide, if such claim or assertion, although by itself insufficient, yet was consistent with the averments in application and not shaken in cross‑examination or disproved in rebuttal. In view of this observation, the respondent's evidence in the present case is quite consistent with his stand taken in the application for ejectment and has not been shaken at all. Mr. Muhammad Sadiq, the learned counsel for the respondent has referred to number of judgments of the Hon'ble Supreme Court given on this point. In the case of Muhammad Bashir v. Sakhawat Hussain (1991 SCMR 846) Hon'ble Supreme Court has observed that there is no legal impediment in the way of landlord if he wanted to start business in the demised premises. It was further held in this case that landlord could do whatever he likes with his property and if interest of tenant was involved because property of landlord was rented out to him, his rights would be protected under law. It was also held that if the landlord did not contravene the provisions of law which allowed him the relief then it was not open to the tenant or even for that matter to the Court to make a comment as to what the landlord should do or should not do. Another case cited by the learned. counsel is that of Syed Mustafa. Hussain v. Muzaffar (1990 SCMR 917). In this case it was observed as under:‑‑ "It is .an admitted fact that appellant is running his bicycles hiring business in an adjacent shop having an area of 7 x 7 sq. ft., to the shops in dispute. The said shop with such a small dimension, in our opinion, is hardly sufficient for improving and expanding the business of the appellant which he runs himself. Thus, there is no reason to disbelieve the contention for the appellant that he needs some more space, in good faith and for self‑use, in order to carry on his business progressively." He has also placed reliance on the case of Mst. Saira Bai v. Anisur Rehman (1989 SCMR 1366) wherein the Hon'ble Supreme Court has held as under:‑‑ "Regarding the non‑mentioning of 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 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 a part of the cause of action to state the nature of business which the applicant intends to carry on." In this case it has also been held as under:‑‑ "In the case of Badruddin Hassan Farooqui v. Manghi Industrial Home (PLD 1976 Kar. 620) it was observed by a learned Judge of the Sindh and Balochistan High Court at page 622 as follows:‑‑ "But in any case a demand of higher rent by itself does not cast any doubt about the personal bona fide requirement if the factum of bona fide requirement is independently proved. This is correct view of the law." In the case of Pirzada Rafiq Ahmed v. Ch. Abdul Rehman (1980 SCMR 772) it has been held by the Hon'ble Supreme Court that demand of higher rent by landlord does not by itself cast any doubt about personal bona fide requirement of premises by landlord if factum of bona fide requirement is independently proved. From the above discussions it is clear that the initial burden is on the landlord to prove that he requires the premises for his personal use in `good faith'. The pertinent requirement is that he should show that such requirement is in `good faith'. This good faith can be gathered from the circumstances of each case. No hard and fast rule can be laid down as every case has to be judged on the basis of its own peculiar circumstances. The word "good faith" has not been defined in the Ordinance but it has been defined in section 2 (27) of the West Pakistan. General Clauses Act, 1956 as follows:‑‑ "A thing shall be deemed to be done in `good faith' where it is in fact done honestly, whether it is done negligently or not." From this definition, it is implied that the demand for possession of the demised premises must be honestly made. Honesty is a state of mind and is, therefore, a psychological fact capable of proof or disproof only by evidence or, conduct. The word bona fides would also appear to mean the same as good faith. Mala fides conversely means in "bad faith". Any action taken for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law would thus be mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the such considerations. If a landlord has led the evidence to show the reasonableness of his need then he would be said to have satisfied the conditions mentioned in clause (vii) of subsection (2) of section 15 of Sindh Rented Premises Ordinance, 1979 In view of above discussion, it can be concluded that the respondent has established his requirement of the demised premises in good faith. In this view of the matter, the present appeals are dismissed with no order as to costs. The appellants shall hand over the vacant possession to the respondent within sixty (60) days from the date of this order. H.B.T./A‑1260/K Appeals dismissed.