1992 PLP 2488 (MLD)

(6) 1989 MLD 3390 Mst. Masooda Begum v. Tahwar Hussain; (7) 1991 CLC 1()47 Mukhtar Ahmed v. Muhammad Saleem Bakhshi: (8) PLD 1991 Kar. 226 Muhammad Yousif and another v. Muhammad Ibrahim Khandwani,

5. On the other hand the learned advocate for the respondent has contended that it is not the requirement of law that the landlord should disclose in the eviction application the nature of business intended to be done by him in the disputed premises; and if it is not disclosed even in the affidavit in evidence, but the requirement has been spelt out in the cross‑examination, the bona fides of the requirement cannot be assailed and shall be accepted as such unless there be circumstances which may mitigate the good faith. He has placed reliance on the following cases:‑‑‑ (1) 1989 SCMR 1366 Mst. Sara Bai v. Syed Anisur Rehman; (2) 1992 SCMR 1152 Khawaja Imran Ahmed v. Noor Ahmed and another. In the case of Anisur Rehman v. Mst. Sara Bai a learned Judge of this Court had set aside the order of the Rent Controller granting eviction application on the ground that the shop was required in good faith for use and occupation thereof by her son who had completed his studies and wanted to start his independent business. The said application was resisted by the tenant and it was pleaded that because of the fact that the goodwill and rental value of the disputed shop had greatly increased add the tenant had not conceded to the unjust and illegal demand of the landlady's husband for increase in the monthly rent, the respondent had filed frivolous eviction proceedings. This Court, however, expressed the opinion that to reach the conclusion that the premises is required in good faith the Rent Controller has to be satisfied about the genuineness of the claim. The Rent Controller must be satisfied about the reality of the claim made by the landlady and this can only be established by looking at all the surrounding circumstances, such as kind of business intended to be done by the son of the landlady, whether he had experience m such kind of business and the means to commence such business. The learned Judge further observed that it is not enough that the landlady should come forward and say that she wants to settle her son who expresses or entertains a particular intention, however, strongly said to be entertained by her son. The learned Judge then observed as under:‑‑ "No details have been given in the application as to whether it was required for what kind of business. It has also not been stated as to what kind of business he was doing. For this purpose he must put before the Controller all the necessary details which are required for granting relief. On such vague allegations as made in the ejectment application the respondent cannot expect to get relief on the ground of requiring the premises in dispute for the occupation of the son."

7. The aforesaid case came up before the Supreme Court which is reported as Mst. Sara Bai v. Syed Anisur Rehman (supra). The Honourable Supreme Court reversed the said judgment. It was observed by their Lordships that the Rent Controller under the, provisions of section 15 of the Sindh '~ Rented Premises Ordinance, 1979 has to make an order directing the tenant to put the landlord in possession of the premises, if he is satisfied that the landlord requires the premises in good faith for his occupation and use or for the occupation and use of his spouse or any of his children. Therefore the only condition to be satisfied by the landlord is that he requires the premises in good faith. Their Lordships have observed that good faith has not been defined in the Ordinance but it has been defined in section 2. subsection (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:' Their Lordships then examined the case of the landlady to find out whether she had made the application honestly. In the said case the landlady had not stated the nature of the business for which the shop was required and in her deposition she expressed unawareness as to the nature of business, which her son would carry on. However, her son in his deposition had stated that he would do paint business in the shop. The observations of their Lordships in this regard are as follows:‑‑‑ "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," . Their Lordships have then. referred to the case of Mst Toheed Khanurri v. Muhammad Shamshad 1980 SCMR 593 wherein the similar point was raised and it was observed as follows:‑‑‑, "Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application."

8. Similarly the judgment of the High Court in the case of Noor Ahmed and another v. Khawaja Imran Ahmed 1988 CLC 1041 came up before their Lordships of the Supreme Court and the judgment delivered is reported as Khawaja 1mran Ahmed v. Noor Ahmed and another 1992 SCMR 1152. The learned Judge in the High Court was impressed by the fact that the landlord did not disclose or make out the case with regard to the business sought to be carried on in the demised premises as he did not mention about the availability of requisite funds to set up any new business in the demised premises and observed: "It is imperative for a landlord to plead and prove the nature of business and financial ability or resources to set up the same in order to satisfy the Controller and the Appellate Authority the genuineness and the personal bona fide need." and concluded that the landlord had failed to prove that his requirement of the demised premises was bona fide and accordingly set aside the order of eviction passed by the Rent Controller. The Honourable Supreme Court relying on its earlier views expressed in the cases of Mst. Toheed Khanum (supra) and Mst. Sara Bai (supra) allowed the eviction application. While referring to the case of Sultan Press Ltd., Karachi v. Muhammad Hassan PLD 1985 Kar. 624 their Lordships observed:‑‑‑ "It was held in that case that mere ipsi dixit of the landlord that he requires the premises in dispute in good faith is not enough. It was further held that `what is meant by requires in good faith' is that the landlord requires the premises for his reasonable needs .... When a landlord, as in the case in hand, wants to do business after completion of his education and wants to become self‑employed in business, such a desire cannot but be termed as bona fide unless there are other attending circumstances which make his need not a bona fide need."

9. In the present case although the respondent had not disclosed the nature of business intended to be done by him in the shop but however in cross‑examination it was stated by him that he is a student of MBBS final. It was further deposed by him that he would establish his Clinic in the disputed shop. It may be pointed out that the judgment of the High Court reported in the case of Sara Bai (supra) indicates that the nature of business was for the first time disclosed by the son of the landlady in his cross‑examination. (See last three lines of the last but one para. at page 719 of the report). The facts of the said case and the rule laid down therein are fully attracted to the present case. The next contention raised by the learned counsel was that the demand of the increase in rent and additional security mitigates against the bona fides of the personal requirement and the said case has been filed with mala fide intention because of the refusal of the appellant to increase the rent. I do not find any force in the submissions. Suffice to refer to the observations of their Lordship in the case of Mst. Sara Bai (supra) to the effect that demand of the higher rent does not by itself cast any doubt on personal requirement if the factum of the requirement of possession, in good faith, is otherwise proved. Their Lordships for the said proposition have also referred to the case of Badruddin Hassan Farooqui v. Mangi Industrial Home PLD 1976 Kar. 620, the following observations wherein have been reproduced:‑‑ "But in any case a demand of higher rent by itself does not cast any doubt about the personal bona fide requirement if the bona fide requirement is independently proved." and observed that the above is correct view of law. , This appeal was filed in the year 1984 but the learned advocate for the appellant did not dispute the fact that the respondent had completed his studies during pendency of the litigation. But nonetheless urged that the case should be remanded to the Rent Controller for further evidence to establish bona fides of the requirement or otherwise. I do not think it necessary to do so as the fact that the respondent passed his MBBS examination has not been disputed, and the fact that the respondent requires the premises in good faith for his personal use has been independently established. In view of the rule laid down by the Honourable Supreme Court in the above cases it is not necessary to refer to other case‑law relied ‑upon by the learned advocate for the appellant. This appeal is therefore dismissed. Since the appellant is doing his business in the shop in dispute, he is allowed six months from the date of this order to vacate the shop in dispute and in case he fails to deliver the possession to the responder within the said period, the Rent Controller will issue writ of possession without notice to the appellant, in the execution proceedings that may be commenced by the respondent. H.B.T./A‑1254/K Appeal dismissed: