P L D 1983 Karachi 570 (PLP)

Rent Application No. 398 of 1978 was filed by the appellant/landlord seeking ejectment of the respondent/tenant on the ground of personal requirement. The premises in this appeal relate to a shop No. G-2095, Mukhi Garden, Tando Yousuf Road, Hyderabad, which had been rented out to the respondent on monthly rent of Rs.

60. Initially, the rent was Rs. 40 but then it was raised to Rs. 60 per month vide rent agreement dated 17-11-1976, which agreement was for a period of 11 months. In para. 6 of the rent application it is mentioned that the appellant needs the shop in question for his personal bona fide use. The rent application was granted by ?the Rent Controller by his order dated 23-12-1978. An appeal was filed by the respondent/tenant being Rent Appeal No. 28 of 1979, which was allowed by the learned IIIrd Additional District Judge, Hyderabad, by his judgment dated 25-3-1980 holding that the appellant had failed to prove either his bona fide or his reasonable need. Being aggrieved with the order of the learned Additional District Judge, the appellant/landlord has filed the present second appeal. 2. 1 have beard Mr. Usman Ghani Rashid, learned counsel for the appellant and Mr. Malik Muhammad Aqil, learned counsel for the respondent. Prior to the filing of the rent case a notice dated 3-6-1978 was served by the' appellant upon the respondent giving him one month's notice to vacate the shop and stating that he was "in dire necessity of the shop for his bona fide use." As observed earlier, in para. 6 -of the rent application it was mentioned by the appellant that he needs the shop in question for his personal bona fide use. In the written statement filed by the respondent it was denied that the shop was required for personal use by the appellant. It was pleaded that the appellant had asked the respondent to enhance the rent of the shop but the respondent refused and hence the appellant filed the rent application to harass the respondent. In para. 5 of the written statement the need of the appellant was denied and it was submitted that the appellant had one more shop and house, which he had given on rent to one Shafi and one Tausif. In his evidence the appellant deposed that he vas a retired Government servant and he was jobless and, therefore, he required the shop in which he intended to do general store business. He has further stated that he has two grown-up sons and he wanted to engage one of his sons in the business. One other witness namely Abdur Rehman was examined, who supported the assertion of the appellant that he was a retired Government servant and that he was doing nothing and he needed the disputed shop for his personal use, as be wanted to run the general store. On the evidence on record the Rent Controller came to the conclusion that the appellant was a retired Government servant and jobless at that time and that he required the tenanted shop for his personal bona fide use. In his appellate order the learned IIIrd Additional District Judge, Hyderabad, was of the view that the need of a retired Government servant for residential use can be termed as genuine and reasonable if he seeks the ejectment of the tenant from his residental house, as after retirement from service a Government servant is forced to vacate Government accommodation but for a non-residential building or a shop the need of a retired Government servant for a shop could not be termed as genuine automatically because all the retired persons do not run shops or are not capable of running shops. According to the learned Ist Appellate Authority, two conditions have to be proved by a retired Government servant, who requires his rented shop for his personal use and these were capital and some experience in the field of the business and unless these two factors are established, the requirement of a Government servant for a shop cannot be termed as a bona fide. In my view, the reasoning of the learned Ist Appellant Authority on this point is not correct. It has been proved by evidence that the appellant had retired from Government service and that he was jobless. In these circumstances if he wanted a shop for his use in which he wanted to carry on some business, it was not necessary for the landlord to establish that he had previous experience of business. If requirement of having previous business experience was mandatory, a retired Government servant would be debarred from claiming a shop, which he had rented out, on the ground of personal requirement. The law does not place any such embargo on landlord. As regards the question of capital, in my view, the landlord in the present case had given evidence, which was corroborated by the witness Abdur Rehman that he wanted the shop for starting the business of a general store and it was not necessary for the landlord to give evidence that he had capital available for starting such business. The appellant was not cross-examined on this point at all. If it was the case of the respondent that the appellant did not have any capital or that he was not in a position to arrange for sufficient capital to start the business of a general store in the shop in question the appellant should have been cross-examined. In the absence of any cross-examination on this point, it cannot be presumed that the appellant was not in a position to arrange for the requisite funds.

3. It was contended on behalf of the respondent that in the evidence the appellant had stated for the first time that he would be doing general store business in the shop in question but he did not state so either in the .rent application _or in the notice given by him to the respondent prior to the filing of the rent application and as such the rent application filed by the appellant on the ground of personal requirement is mala fide and also vague, I am not impressed upon this argument. In my view, the bare fact that applicant/landlord does not specify the kind of business that he proposes to carry on in the shop in respect of which the ejectment application is filed, is not fatal and the ejectment application cannot be rejected on this ground alone.

4. Apart from the grounds disclosed hereinabove, the Ist Appellate Authority was also of the view that the appellant was not entitled to grant of his ejectment application, as he had suppressed the fact that he possessed the shop and house in the same urban area. In his evidence, the appellant had stated in his cross-examination that he also owns one more shop, which was rented out to somebody at Rs. 100 rent. He further stated that his eldest son was at Karachi being independent and another son used to deal in carpets but he was now confined to bed. In the evidence of the respondent it was stated that the appellant has one more shop (i.e. apart from the shop in dispute) and that the appellant had approached for enhancement of rent and the rent which was originally Rs. 40 per month had been increased to Rs. 50 per month but still the appellant wanted enhancement, of rent to Rs. 100 per month, which was not agreed by the respondent, It was further deposed by the respondent that the appellant has three sons, one of whom was serving in the bank in Karachi and younger one was student while the middle one was dealing in carpets and his shop was on the top of the house. In my view, on account of the following reasons it could not? held that the appellant required the shop in question bona fide for his personal use :. (i) Neither in the rent application nor in the notice given by the appellant to the respondent before filing the rent application nor in his examination-in-chief, the appellant mentioned that he owned two other shops. (ii) In the evidence .of the respondent it has been alleged that apart from the tenanted shop there is another shop on the top of the house of the appellant in which one of the sons of the appellant carries on the carpet business. No cross-examination was conducted on this point on behalf of the appellant and therefore, it appears to be an admitted position that the appellant has three shops namely one on rent with the respondent, second shop on rent with another tenant and the third shop on the top of his house. The fact that be has three shops had not been disclosed by the appellant either in the pleadings or his evidence. (iii) In view of the appellant owning three shops out of which one was in his possession, it was necessary for the appellant to establish or prove that the shop in his possession was not sufficient for his requirement. No evidence has been led or adduced by the appellant in this regard.

5. The mere non-disclosure in the rent application of the fact that the landlord owns other premises apart from the premises in respect of which the ejectment application is filed, standing alone, may not be sufficient to non-suit the applicant/landlord but in my view the three factors in combination mentioned hereinabove are sufficient to disentitle the appellant in the present case from claiming the relief of ejectment of the respondent on the ground of personal requirement. As a result this 116d Appeal No. 256 of 1980 is dismissed but with no order as to costs. S. Q.??? Appeal dismissed.