1993 PLP 2562 (MLD)

(1) Whether the opponent has committed default in payment of rent? (2) Whether the applicant required the premises in question for personal bona fide use of applicant No. 1? The learned Rent Controller on appraisal of evidence held, that appellant was not a defaulter and on issue No.2 held that the disputed shop was required for personal bona fide use of respondent No.1 and directed appellant's eviction. During the pendency of this appeal the respondent filed cross‑objections, challenging the findings of Rent Controller on the issue of default against him. To these cross‑objections I shall advert at the appropriate stage. Mr. Khalid M. Ishaque, the learned Advocate for appellant has contended that in all there are 5 shops in the building and at the time rent case was filed, the respondents 'were in occupation of Shops NO& 1, 2 and 3 while Shop No‑5 was in occupation of one Mst. Amtul Qayum, a tenant, against whom also ‑ respondents had filed ejectment application and by compromise dated 11‑12‑1989, the said tenant delivered possession of shop No. 5 to respondents. Thus on the day the impugned order was passed, respondents were having in their possession 4 shops, besides the one in dispute (Shop No.4). It is also contended that the fact of Shop No.5 having fallen vacant and taken possession of by respondents, was proposed to be brought to the notice of the learned Rent Controller for holding further enquiry, but before that could be done, judgment was announced. The fact of possession of Shop No.5 by respondents during pendency of proceedings against appellant was suppressed and it would require enquiry either by this Court or through Rent Controller inasmuch as it has to be determined, whether, even after getting vacant possession of Shop No.5, the need of respondent No.1 for disputed shop would still be bona fide and in good faith. He referred to Manzoor Ahmed and other v. Karim Bux and others PI.D 1986 Kar. 637 where this Court held that failure of landlord to prove that in spite of getting vacant possession of similar tenements during pendency of proceedings, he still required disputed premises, rendered order of Rent Controller for ejectment of tenant to be set aside in appellate jurisdiction of High Court. He then referred to unreported judgment of the Hon'ble Supreme Court in Civil Appeal No. 170‑K of 1990 (Hafiz Abdul Hameed v. Nek Muhammad) but the facts of this judgment are distinguishable as the point for consideration before the Hon'ble Supreme Court was, whether a partner who owns the premises can seek ejectment of the tenant from the premises for being utilized for the business of partnership firm of which he is a partner. This point was answered by the Hon'ble Supreme Court in the following words: "The business of the partnership firm is carried out for the benefit of all the partners and not only one partner alone. The possession by a partnership firm amounts to possession by all the partners. In such circumstances occupation and use by the firm even in view of the extended and liberal interpretation discussed above cannot be treated as partner landlord's own use and occupation. The appeal is dismissed with no order as to costs.' It is also contended by appellant's learned Advocate that it is not the mere desire of landlord or his wish to seek tenant's eviction but it is the requirement of the premises in good faith, based of genuine need which could be made basis for seeking eviction. He referred to PLD 198'1 Kar. 287 in support of above contention. It is also contended that a person who wants more than one shop must give reasons why he requires additional premises and in the instant case; respondents have not shown such reasons why they required the disputed shop in addition to 4 shops already in their possession. It is also contended that considerations for getting commercial premises vacated are different from the consideration of seeking ejectment from the residential premises, as, in the former case, it would cause great hardship to, a tenant who has established his business and created goodwill. On bona fide personal requirement, the learned Advocate referred to Nawab Khatoon v. Sadardin 1990 MLD 1096 where this Court dismissed landlady's appeal who had failed to prove that the shop in dispute was required by her is good faith for the use and occupation of her husband. Reliance is also placed on 1988 CLC 811 which was a case under Cantonment Rent Restriction Act where the landlord had failed to prove that his demand was based on good faith and not actuated by malice. The order of ejectment passed by the Rent Controller was set aside. Mr. Khalilur Rehman, the learned Advocate for respondent defended the impugned order had contended that it was successfully proved that disputed shop was required bona fide and in good faith for the use of respondent No.1 who was admittedly carrying on business of Ice selling and was keeping the Ice at the back of Shop No.3 for want of adequate accommodation. The details given by respondent No.1 in his evidence before the Rent Controller leave no rooms to doubt that his need was based on good faith and the bona fide requirement was fully established. He also referred to evidence of appellant who has admitted that: "It is fact that applicant is only in occupation of space lying on the back side of Shop No. 3 where he is storing Ice." The learned Advocate admitted that possession of Shop No. 5 in occupation of tenant Mst. Amtul Qayum was taken during the pendency of rent case against appellant, but that would not in any manner defeat the bona fide personal requirement of respondent No.1 for the disputed shop. He referred to Khawaja Muhammad Abdullah v. Sufi Faiz Muhammad 1980 SCMR 974, where it was observed: "In seeking leave to appeal the learned counsel for the petitioner contended that the Courts below erred in holding that the shop was required for the use of Ghulam Muhammad and Wali Muhammad as in the other petition which eventually ended in a compromise between the parties, the requirement of the shop for Wali Muhammad was alleged and that could not be the ground in this application. This contention is misconceived as the Courts below have concurrently held that even if it be for the need of one son that would satisfy the requirement of law and we agree with it. In this background even if the need for Wali Muhammad was mentioned in the other application that would have no effect on the bona fides of the requirement. Besides it was urged that Ghulam Muhammad was mentally incapacitated and, therefore, he "could not run a shop" which contention was rejected as it was held that there was no evidence to establish that he was an infirm person. Both the appellate Courts have concurrently held against the petitioner on questions of fact and we see no reason to disturb those findings in the absence of any legal error in the appreciation of evidence." Reliance is then placed on Muhammad Altaf Khan v. Mirza Rafaquat Ahmed etc. 1991 CLC 1410, where it was held that the facts that the landlord had entered into a compromise with other tenants after filing eviction application, grounded on personal requirement, would not detract from bona fides of landlord qua tenants whose eviction he is seeking as there was sufficient safeguard to tenant under section 13 (4) of Rent Restriction Ordinance, in case property was not occupied by landlord himself after eviction of tenant. In Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846, the Hon'ble Supreme Court while dealing with a similar point, held that the contention that landlord during pendency of proceedings had acquired another shop which was adjacent to the shop in dispute, would recoil on the bona fides of his requirements, was not tenable when landlord had taken un‑rebuted stand that he wanted two shops which were adjacent to each other for the purpose of his business. In Nighat Riaz v. Manzoor Hussain 1991 SCMR 1434 the Hon'ble Supreme Court set aside the finding of Courts below refusing landlady's prayer for ejectment of tenant from residential premises, on the ground that she was occupying other rented premises or was living with relatives as that was no ground to disentitle her from occupying her own premises. In Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394, the Hon'ble Supreme Court held that if the landlord possesses more than one house in the same urban area, the choice as to the house in which he would like to live in, is surely a matter within his prerogative and discretion and the law does not give either to the tenant or the Rent Controller the power to determine, where the landlord should personally reside. The learned Advocate then argued that the finding of the Rent Controller on issue of default against respondents was erroneous, as appellant had committed default in payment, of rent from December 1986 onwards. Further, that no circumstances as contained in section 10 of the Ordinance, were available to appellant to file application before the Rent Controller for deposit of rent. Reasonable grounds having not been available for depositing rent in Court, the tenant would not be absolved from the liability of default. He referred to Abdullah v. Hassan Abbas 1985 CLC 892, Allahdin v. Habib PLD 1982 SC 465 in support of this contention. The learned advocate therefore, contended, that his cross‑objections may be considered, although there is no provision in rent laws for filing cross‑objections, as provided in C.P.C. I have heard the arguments of the learned Advocate at length and perused the entire evidence and the case‑law referred. I would first refer to the decision of the Rent Controller on issue of default wherein it is held that appellant was not defaulter. The conduct of Haji Deen Muhammad in not issuing rent receipts in the past, and then issuing same after notice by appellant caused apprehension in the mind of appellants, and he deposited rent in Court even for the months for which he allegedly made payment of rent but for, which, receipts were not issued. Never in the past, appellant is alleged to have committed default and the perusal of evidence would show that whenever lie made payment of rent, and receipts were not issued, he required the landlord by written notice to issue such receipts. He, having established business over years, could not incur the risk of being a defaulter but has been vigilant in payment of rent throughout. The findings of the learned Rent Controller on that issue is based on evidence and does not need any interference. Subsection (3) of section 10 of the Ordinance, provides, where the landlord had refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate". The appellant thus deposited the rent in Court and this he did due to apprehension that he might consume time in exchanging notices and becomes defaulter. Coming now to the personal bona fide need of respondent No.1 for shop in dispute, it has come on record that while filing ejectment case against appellant, respondents had also filed a rent case against another tenant Mst. Amtul Qayum of Shop No.

5. This shop was got vacated during the pendency of case against appellant. This fad should have been brought to the notice of Rent Controller before he announced impugned judgments. However, it is not disputed by the respondent's learned Advocate that Shop No5 had fallen vacant during pendency of rent proceeding against appellant. It had to be shown by evidence, that even after getting possession of Shop No.5, the disputed Shop No.4 would still be required for bona fides personal need of respondent No.1 in good faith. Undoubtedly, the respondents can succeed in getting eviction of appellant from Shop No. 4, if they establish that even after getting possession of shop No.5 from tenant Mst. Amtul Qayum, they need disputed shop bona fide and in good faith. Through the evidence available on record, respondents had proved their bona fide requirement in respect of disputed shop but it still remains to be resolved, if after getting possession of Shop No.5, they still need disputed shop for the need of the respondent No.1. In my view, therefore, an enquiry in this respect needs to be held either by this Court or by the Rent Controller under subsection (3) of section 21 of the Ordinance. I feel that enquiry by Rent Controller in these circumstances would be proper. For the foregoing reasons, I allow this appeal, set aside the impugned judgment and remand the case to the Rent Controller, with direction to record further evidence on the point, whether after getting vacant possession of Shop No.5, the need of respondent No.1 for Shop No. 4 is still bona fide and in good faith. The appeal is disposed of in above terms leaving the parties to bear their own costs. The learned Rent Controller is directed to afford proper opportunity to the parties to lead evidence on that poi t alone, and then decide the case in accordance with the law. H.B.T./G‑311/K Case remanded.