P L D 1997 Karachi 242 (PLP)

The background giving rise to this appeal is that appellant Dr. Rana Zulfiqar Ali is the owner and landlord of the shop bearing No. 18, admeasuring 129.58 sq. ft. in Afzal Apartments on Plot No. SB-12, situated in KDA Scheme No. 1-A, Karachi, while Mst. Aisha Abdullah, the respondent herein, is the tenant.

2. The appellant/landlord is a doctor by profession and he was serving in Saudi Arabia when he had rented out this shop to Aisha Abdullah. In 1991 the appellant filed a Rent Case No. 242/ 91 against the respondent/tenant pleading that he had returned back from Saudi Arabia after winding up his affairs in Saudi Arabia and that he wanted to occupy the shop in question personally in order to establish his clinic. He also pleaded that he had no other suitable accommodation available to establish his clinic. Thus, on the ground of personal requirement the appellant filed the rent case for ejectment of the respondent. The respondent contested this rent application and pleaded that the appellant needed some large and independent building as he was a qualified "Air Space Medicine Expert" and that since the respondent had occupied the premises in dispute as tenant after payment of 'Pugri' worth Rs.50,000 the appellant was seeking possession to usurp the amount of 'Pugri'. It was also pleaded that the claim of the appellant was incorrect and false and that the appellant was carrying his practice at his residence and that he did not need any clinic. On these pleas the Rent Controller framed the following issues:-- "(1) Whether the applicant required the rented premises for his personal bona fide need in good faith, honestly? (2) What should the order be?"

3. The appellant/landlord filed his affidavit in support of his claim and also produced copies of his passport, clearance certificate from Ministry of Health, Saudi Arabia, and the letter of non-renewal of his contract in Saudi Arabia. The appellant in his affidavit stated that he had finally returned back to Karachi after winding up his affairs in Saudi Arabia for permanent settlement and that now he had to establish clinic of his medical practice. He also stated ire his affidavit that he had no suitable place to establish his clinic except the shop in possession of the respondent. In cross-examination he disclosed that his wife had signed the tenancy agreement in favour of the respondent in the year 1986 when he was serving in Saudi Arabia as a medical practitioner. He stated that he had remained in Saudi Arabia for ll years. His services were discontinued by the Saudi Arabian Government and that he had permanently returned to Pakistan. He also disclosed that he had obtained diploma for "Air Space Medicine" in the year 1977 from Pakistan. He also stated that he was not employed since 1991 and that he was waiting for opening of his clinic in the shop in dispute since then. He also disclosed in the cross-examination that he had another shop to the same locality, the size of which was 7 x 10 vu stated that it was not fit for his clinic and, therefore, he could not use the same for establishing his clinic in it. He denied that he had received a sum o1 Rs.50,000 as 'Pugri' from the respondent. 4.. From the side of the respondent/tenant, the affidavit-in-evidence was filed by the respondent Mst. Aisha herself and she was cross-examined. The other affidavit-in-evidence from the side of the respondent was filed b3 Muhammad Hanif, the son of the respondent. The respondent in her affidavit had stated that she neither disputed the relationship of the landlord and tenan nor she disputed the agreement of tenancy. She however, in her affidavit, states that the appellant was earning more than Rs.50,000 p.m. in Saudi Arabia an( that therefore, he shall go back to Saudi Arabia after obtaining the possession o: the shop and renting it out to some other person on enhanced rent. .She alsc stated that the appellant was an expert in "Air Space Medicine" for which he needed large independent building for opening a clinic and that therefore, the claim of the appellant was not genuine. She also stated in the affidavit that appellant had been paid a sum of Rs.50,000 towards 'Pugri' through her sot Muhammad Hanif in her presence when no one else was there and that the appellant was carrying out his professional work at his residence and the location of the disputed premises was not suitable for the appellant to start hi "Air Space Medicine Clinic": In her cross-examination she admitted that the appellant was living in Karachi for the past 2-1/2 years and that she did not meet the appellant personally. While contradicting the statement in the affidavit, shy also stated that the was not present at the time of payment of 'Pugri' to the extent of Rs.50,000 to the appellant, but she stated that it was actually paid to the appellant by her son Muhammad Hanif on the next date of the execution o the tenancy agreement in her absence.

5. Muhammad Hanif stated in his affidavit that on 28 1-1986, i.e. the dad on which the agreement of tenancy was executed, he had accompanied hi mother to the place of the' appellant, where the rent agreement was executed and his mother had paid a sum of Rs.50,000 as security deposit. He further stated it the affidavit that soon after the execution of the agreement the appellant has demanded more money from his mother for enhancing the security deposit fron tcs.50,000 to Rs.100,000 and, therefore, a further sum of Rs.50,000 was pair by him to the appellant in presence of his mother in cash for which no receipt was given. However, he, did not speak about payment of any amount in respect of the 'Pugri'. In his cross-examination he stated that he had paid the amount o 'Pugri' viz. sum of Rs.50,000 on the date of execution of the tenancy agreement i.e. 28-1-1986 in presence of his mother at the residence of the applicant However, he did not clarify n, the cross-examination that this sum of Rs.50,000 was in addition to the amount of security deposit, or he was speaking about the same sum of Rs,50.000. He showed his ignorance as to the place where the appellant was doing his practice at that time. He stated that no receipt in respect of the 'Pugri' was issued and that he did not issue any notice calling upon the appellant to issue any receipt for the amount of Rs.50,000 the amount of Pugri.

6. In view of the above evidence, the Rent Controller came to the conclusion that the appellant did not require the premises in dispute for his bona fide personal need because he had admitted that, he had the other shop measuring 7' x 10' and that he had taken no efforts to start his clinic in that shop..

7. I have considered the arguments of the learned counsel advanced before me and also read the evidence of the parties. It is quite apparent that a shop having an area of 7' x 10' (70 sq. feet) will be a very small shop for establishing a clinic of a medical practitioner, whereas the shop in dispute measures 129.58 sq. feet an area which is much larger than the shop which is suggested by the tenant to be fit for the use of the appellant for starting his practice. Apart from this, I find material contradictions in the statement of the respondent Mst. Aisha Abdullah and her son Muhammad Hanif in respect of the payment of 'Pugri' amount to the appellant. Muhammad Hanif had stated that he had paid the amount of Pugri to the appellant in presence of his mother at the time of execution of agreement whereas the, mother has stated that she was not present when the Pugri amount, was paid to the appellant, on the next day of the execution of the agreement.

8. Although the actual payment of Pugri amount of Rs.50,000 to the appellant is not the deciding factor for this case but tile respondent/tenant while challenging the statement of the appellant that he needed the premises to dispute for his personal bona fide use has tried to establish a defence to the effect that since the amount of Pugri was paid, the appellant, wanted to grab the same by getting the possession of this shop from her on a fictitious ground. After taking such plea in defence, it was incumbent upon the respondent/tenant to prove the sane. In case of failure on her part to prove such plea, obviously the only plea which remained in field, was that the appellant could stair his practice in the other shop measuring 7' x 10' and, therefore, he was not entitled to get the present shop vacated for his personal bona fide need. Although this does not lie with the Rent Controller to decide as to which of the shops was, suitable for the practice of the appellant, yet this plea of the respondent was quite unsound, because the shop which was lying vacant, measured only 70 sq. feet, whereas the shop in dispute had area of 130 sq. feet (about). Thus, it is nearly double in, area. The appellant had expressly stated that the shop which measured 7 x 10 did not satisfy his requirement and that the shop in dispute was more suitable than the small shop measuring 7 x 10'; in which lie could not open to his clinic. There is no evidence from the side of the respondent to show that this assertion of the appellant was incorrect or mala fide. Therefore, the Rent Controller has erred in coming to the conclusion that the appellant was not entitled for the possession on the ground of his personal need.

9. As regards the ground of personal bona fide need, generally the word of the landlord should carry the weight with the Rent Controller unless the tenant succeeded in establishing that the landlord was either taking this plea A incorrectly, or was taking the same in bad faith, with some mala fide intention. Here the landlord had succeeded in proving his need from his own evidence, while the tenant had led no evidence to disprove the same. Therefore, the finding of the Rent Controller is without - substance on the issue of bona fide personal need of the landlord. as regards the proof required by the landlord to establish the ground of bona fide personal use the case of Arshad Umar and another v. Begum Nazrul Askari, reported in PLD 1985 SC 38 lends support to the view that the Rent Controller should have accepted the assertion of the landlord himself, which assertion has not been shown to be materially incorrect and mala fide by the tenant. It has also been held in the above reported case by the Full Bench of the Supreme Court as under:-- "No limitations are prescribed in the law to fetter the discretion of the Rent Controller in this connection nor is there any prescription with regard to the nature of the evidence which must be produced before him to satisfy him on this point. His satisfaction is to rest on the material placed before him by the parties and no conditions are laid down as to the exact nature of the evidence which must be produced before him so that he can be satisfied."

10. The material which was placed before the Rent Controller in this case, therefore, clearly suggested that the appellant had succeeded in proving his personal bona fide need, while the tenant had failed in proving any bad faith on the part of the landlord. It is not open to the Rent Controller to force the landlord to use a particular premises for his personal bona fide need when he 'I prefers the other premises in the same vicinity. The preference of the landlord g should prevail with the Rent Controller and not the choice of the tenant or for that matter the choice of the Rent Controller. In this case it has been proved that the shop, which is suggested by the tenant, is muchless in area than the shop to dispute, and the appellant, who is a qualified, medical practitioner having a Diploma in "Air Space Medicine" has chosen to start his clinic in the-disputed shop, which is also larger in area.

11. The other aspect of the case, which perhaps had weighed with the Rent Controller in refusing the ejectment is the fact that appellant is holder of "Air Space Medicine Diploma" which he acquired from Pakistan in 1977, therefore, he must need a very large building for his clinic. The landlord has expressly stated that the shop in dispute will satisfy his need. It is not necessary that the appellant may need a large building to practise as "Air Space Medicine Expert", when the landlord himself in his evidence has shown his inclination to start his practice in the disputed shop. Even otherwise, the qualification of a Air Space Medicine, in my view, should attract very few patients, as it caters to the needs of Crew service in Airlines. specially those who are involved in ovine duties. Such patients must be very limited in numbers. The appellant, who is basically having a degree of M.B.,B.S., could practise as a general practitioner and, therefore, obviously his assertion that the needed the disputed premises for his personal bona fide need appeared to be genuine. Under all these circumstances, the order of the Rent Controller is not sustainable. This appeal is allowed. The order of the Rent Controller is set aside. The application for ejectment is allowed, The respondent/tenant is ordered to be ejected from the premises in dispute, possession of which should be handed over to the appellant/landlord in four months' time from the passing of this order. H.B.T./Z-12/K Appeal allowed.