2017 PLP 244 (YLRN)

IRFAN SAADAT KHAN, J.

This constitution petition has been filed with the following prayer: "The petitioner therefore, most respectfully, prays that this Hon'ble Court may be pleased to recall, set aside and modify the impugned judgment dated 20.05.2015 (Annexure-A) Order dated 18.02.2015 (Annexure-B) as prayed with costs throughout and grant any other relief(s) which this Hon'ble Court may deem fit and proper or otherwise appropriate in the circumstances of case".

2. Briefly stated the facts of the case are that the petitioner is a tenant of respondent No.1 in respect of House No.C-78, Phase-1, Gulshan-e-Hadeed, Bin Qasim Town, Malir Karachi which was given on rent to him by virtue of first and second tenancy agreements dated 13.01.2015 and 01.05.2012 at the rates of 11,000/- and 15,000/- respectively. When the said premises was required by the present respondent No.1 for his own personal bona fide need, he approached the petitioner for vacating the same, which was denied. Thereafter a Rent Application under section 15 of Sindh Rented Premises Ordinance 1979 (SRPO) was filed by the respondent No.1. The matter proceeded before the learned Rent Controller in Rent Case No.17/2012, who vide order dated 18.02.2015 allowed the said application and directed the present petitioner to vacate the said premises within 30 days.

3. Being aggrieved with the said order, an appeal was filed by the petitioner before the District Judge, who also vide order dated 20.5.2015 dismissed the appeal and directed the present petitioner to hand over the vacant possession of the demised premises to the respondent No.1 within 30 days of the said order. Being aggrieved with the said order the present petition has been filed.

4. Mr. Raja Basantani, Advocate has appeared on behalf of the present petitioner and submitted that the orders passed by the two courts below are not in accordance with law and are liable to be set aside as both the courts below have not considered the merits of the case. He submitted that the two Courts below have not examined the matter in depth and passed the orders in a cursory manner and have totally ignored the facts of the case as the respondent No.1 has failed to establish his personal bona fide need, hence the parameters of section 15 of the SRPO have not been fulfilled, therefore, the orders passed by the two courts below are liable to be vacated and this petition may be allowed. The learned counsel has also placed reliance upon the decision given in the case of Nawadat Khan v. Mst. Surraya (PLD 1993 Karachi 491).

5. I have heard the learned counsel at some length and have perused the record and the decision relied upon.

6. It is seen that both the Courts below have examined the matter at considerable length and have also properly attended to the material placed before them and thereafter have come to the conclusion through exhaustive orders that the respondent No.1 has established his case of personal bona fide need and the present petitioner has failed to adduce any convincing evidence in support of his assertions. It is seen that in the present petition the only plea raised by the learned counsel is with regard to personal bona fide need of the respondent No.1 and has submitted that personal bona fide need is to be judged with the intention of the landlord and if the Court comes to the conclusion that personal bona fide need is connected/co-related with mala fide intention then in such situation application filed by a landlord under Section 15 of SRPO, is liable to be dismissed.

7. Before proceeding any further, the term "personal bona fide need" has been examined by me in detail in petition bearing C.P. No.S-1331 of 2011 (Abdul Mateen through his legal heirs v. Salman Butt and another), as under: "

10. It is also a well settled principle of law that while dealing with the cases of personal bona fide use it is for the tenant to prove that the said place is not required by the landlord for his or her personal bona fide use, which in the present case, I am afraid, has not been established by the petitioner. It is also a well settled proposition of law that it is the prerogative of the landlord to choose among a number of places which suits him or her best and no bar could be placed in this behalf upon him. The only criterian, which has to be fulfilled by the landlord, so far as the cases of personal bona fide use are concerned, is to establish that such place is genuinely required by the said landlord in good faith and such good faith has to be established from the facts obtaining in a particular case. The order passed by the Rent Controller would reveal that while allowing the said case he has relied upon a number of decisions given by the Superior Courts, which learned counsel for the petitioner has failed to either dislodge or distinguish. The appellate Court also, while dismissing the appeal, has categorically observed that it is the discretion of the landlord to choose a place which suits him best. Before me also the learned counsel for the petitioner has failed to adduce a single reason with regard to the fact that the said place was not required for the personal bona fide use by the respondent No.

1. Perusal of clause (vii) of sub-section (2) of section 15 of Sindh Rented Premises Ordinance, 1979, clearly stipulates that application to the Controller could be given in the case where landlord requires the premises in good faith for his occupation or use or for the occupation or use of his spouse or any of his children.

11. I was able to lay my hands on a decision given in the case of Mst. Akhtari Begum v. Muhammad Qasim (2000 SCMR 1937) wherein the landlady required the premises to set up her business in the premises and the High Court disallowed her claim by finding that the same was not bona fide. However, the Hon'ble Supreme Court set aside the judgment of the High Court and observed that: "Even otherwise, the suitability of premises for personal requirement is to be judged by the landlady herself and she could not be compelled to accept any other premises if she preferred her choice for one of the shops. Mr. Abdur Rahim Kazi the learned counsel for the respondent has relied on the case of Muhammad Rifatullah Alvi v. Imran Ansari (PLD 1990 SC 369) and Qamaruddin v. Hakim Mahmood Khan (1988 SCMR 819) to support his contention that the landlady, in the circumstances, was not entitled to get possession of the premises occupied by the respondent. The cases cited by the learned counsel for the respondent are distinguish-able on facts and are of no assistance to the respondent in the above case". At the other place the Hon'ble Apex Court observed that: "

5. We, accordingly, allow the above appeal, set aside the judgment and decree of the learned Judge in Chambers and grant application filed by the appellant against the respondent on the ground of personal and bona fide requirement of her son. In the circumstances of the case, there will, however, be no order as to costs. The respondent is allowed six months' time from today to vacate the premises, subject to the condition that during this period he will continue to deposit the rent regularly with the Rent Controller and in case he failed to deposit the rent as directed by the Rent Controller or vacate the premises after expiry of six months, he will be evicted therefrom without any further notice".

12. In another judgment given by the Hon'ble Apex Court in the case of Shakeel Ahmed v. Muhammad Tariq Farogh (2010 SCMR 1925) the landlord was doing the business of clearing and forwarding, then he decided to change his business to hardware business and needed the place for such purpose. The Hon'ble Apex Court while disposing of the matter observed that: "There is no denial of the fact that at the time of commencement of ejectment proceedings before the Court of Rent Controller on 10-11-2000, the clearing and forwarding license of the appellants was under suspension and they have moved the concerned authority for its restoration. In case the appellant No.1 has decided to change his business from clearing and forwarding' to hardware business and he needs the possession of rented shop from respondent No.1 for this purpose, mere fact that during the pendency of rent case his license for clearing and forwarding was restored, will not come in way from pressing his claim of personal need as bona fide. Here it may also be observed that the selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one, and therefore no restriction can be imposed upon the landlord/ appellant No.1 on the pretext of restoration of his clearing and forwarding license during the pendency of rent case".

13. In another judgment given by the Hon'ble Supreme Court in the case of Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others (2006 SCMR 117) the Hon'ble Supreme Court observed as under: "Sufficiency or insufficiency of accommodation available with a landlord is a matter of individual taste and discretion with which neither Controller nor the Appellate Authority would ordinarily interfere. All that Controller has to see or the Appellate Authority has to examine is whether the landlord requires the premises in "good faith" for his own occupation or use or for occupation or use of his spouse or any of his children. Expression "require the premises in good faith" cannot be confined to precise, identical and invariable definition nor any hard and fast rule can be propounded as to encompass all possible eventualities which could arise due to particular facts and circumstances of a case. Bona fide requirement cannot be turned down simply on assumption of tenant that proposed business could not be carried out profitably in the tenanted premises". The Hon'ble Supreme Court in the decision quoted supra also observed as under: "Once a landlord has elected to live in his own house or start a business in the premises earlier let out on rent, his demand for eviction of the tenant would be presumed to be bona fide and founded on "good faith" unless mala fide is alleged and proved by the tenant. Suitability of requirement of landlord to commence a lawful business in the premises in dispute can by no stretch of imagination be said to be mere desire rather than bona fide need. In law a landlord is required to discharge his onus and to satisfy the conscience of the Controller that his requirement is based on "good faith" and is bona fide. Once a landlord is able to satisfy the Controller about the truth and genuineness of his requirement, the latter is left with no discretion but to order ejectment of a tenant irrespective of the fact that it would result in uprooting its long standing trade or business".

14. In the light of the decisions given by the Hon'ble Apex Court mentioned above and in the light of the facts recorded above, I have come to the conclusion that the respondent No.1 was able to bring home the personal bona fide use and the concurrent findings given by the two Courts below are not found to be either suffering from any misreading or non-reading of the evidence. This Constitution Petition, therefore, is found to be devoid of any merit and is hereby dismissed along with the pending application".

8. In the above referred case a detailed discussion has been made with regard to "personal bona fide need" and in the above referred decision a number of judgments given by the Hon'ble Supreme Court of Pakistan have been reproduced wherein it has been held that it is the prerogative of the landlord to choose among a number of places which place suits him best. In the present case also personal bona fide need coupled with good faith, in my view, has duly been established by the respondent No.1. The decision relied upon by the learned counsel is distinguishable from the facts of the present petition, since in that case landlord was examined and his assertion was not proved. Whereas in the instant case, as is evident from the orders of the two courts below, that opportunity was provided to the present petitioner to prove that the respondent has many houses situated in the same vicinity but he failed to adduce any evidence in support of his contention. Moreover if it is assumed for arguments' sake that the respondent No.1 has many houses it is his prerogative to choose a house which suits him best.

9. I was able to lay my hands on a decision given by the Hon'ble Supreme Court of Pakistan in the case of Habib Bank Limited v. Dr. Munawar Ali Siddiqui (1991 SCMR 1185) wherein Dr. Munawar Ali Siddiqui, being the landlord of the property, required the Habib Bank, being the tenant, to vacate the premises on the ground that since he is about 29 years of age and desires to get married, hence he requires the said premises for his own personal bona fide need. The matter went-up the stage of Hon'ble Supreme Court of Pakistan and Hon'ble Supreme Court after hearing the matter dismissed the appeal filed by Habib Bank by observing that the personal bona fide need of the respondent i.e. Dr. Munawar Ali Siddiqui stands proved. In the instant case also the stand was taken by the present respondent that he requires the place in question for his personal bona fide needs since he intends to get married in nearby future. Hence the present case appears to be on same footing and, in my view personal bona fide need of the respondent No.1 in the attending circumstances stand duly proved and established.

10. Moreover, in the decisions reported as (1) S.M. Zaffar Pervez v. Syed Nasiruddin K. Kamal Shah (1995 CLC 1719), (2) Mrs. Rehana Abrar v. Inamuddin Malik (1989 CLC 616) and (3) Gulzar Begum v. Mst. Amtun Nisa (1985 MLD 119) it was held by different learned Single Judges of this Court that premises required for grown-up children for their marriage purposes is personal bona fide need.

11. I was also able to lay my hands on the decision given in the case of Allied Bank of Pakistan v. Syed Rahim Shah (1998 CLC 1034) wherein it was held that "if once a landlord steps into a witness-box and deposes that the premises is required for his personal bona fide need and his statement remained unshuttered then in such circumstances his application has to be allowed". In the instant case also the landlord i.e. Respondent No.1 was examined at length and during his cross-examination his deposition had remained unshuttered which is quite evident from the record and the judgments of two Courts below.

12. Moreover, it is also a matter of record that the petitioner had consented during his cross-examination that the premises is required by the landlord for his personal bona fide need and has given his consent which also strengthens the stand taken by the Respondent No.1 before the lower Courts. It is noted from the facts that when the petitioner was examined he stated that "he has no issue if the applicant is going to marry and to reside in his house No.C-78, Phase-1, Gulshan-e-Hadeed Bin Qasim Town, Karachi", which amounts to his consent" as rightly noted in the impugned decision.

13. Hence in view of the above referred admitted facts and the elaborate discussion made above, I am of the view that no case of interference is made out by the present petitioner. The present petition thus is found to be devoid of any merit and the same is hereby dismissed in limine along with the listed application. Above are the reasons of my short order dated 18.06.2015. ZC/G-18/Sindh Petition dismissed.