1994 PLP 48 (CLC)

(6) That I say that I have asked the opponent repeatedly to vacate the shop in his occupation even in the lifetime of my wife Mst. Amtul Fatteh Begum as the same is required in good faith for my personal bona fide use but the opponent has failed to vacate the same. (7) That I say that the opponent kept me on false promise since 1987 to vacate the shop in his occupation but has failed to vacate the same till to date. (8) That I say that applicant served a legal notice upon the opponent and asking him to vacate the shop in his occupation which is required in good faith for my personal bona fide use but the opponent in reply refused to vacate the same. Photo copy of legal notice is already on record as ExhA/2. (9) That I say that in the same legal notice the opponent was intimated regarding the change of ownership although this fact was very much in the knowledge of the opponent as he has attended burial ceremony of my wife Mst. Amtul Fatteh Begum. (10) That I say that since the day I have been retired from the service, I am doing nothing and as such the shop in occupation of the opponent is required in good faith for my personal bona fide use. Photo copy of retirement circular is attached herewith and marked as A/3. (11) That I say that I have got an experience of running printing press business which I had been running before partition of sub‑continent and also applied for installation for the same in Pakistan. Photo copies of letters issued by concerned competent authorities are attached herewith and marked as A/4 and A//5. (12) That I say that I have got sufficient funds to run the Printing Press Business. (13) That I say that no shop at present is lying vacant in possession of applicant and no Pagri from any of the opponent has been taken. The opponent is called for its strict proof." The appellants' case was resisted by the respondent on the ground that the need of the appellants was not genuine. The shop in question was situated at Tariq Road which had become a Pugri‑fetching area. It was further pleaded on behalf of the respondent that the appellant No.1 for whom the shop was required was an old and infirm person and had been permanently incapacitated and therefore made to retire from service and, therefore, he was not fit to do business. A further objection was taken that the eviction of the respondent had been sought by the appellant for the first time in 1989, although, admittedly, the appellant had retired in 1981. The appellant had sufficient opportunities to do business during the intervening period but in spite of two shops lying. vacant, the appellant did not avail the opportunity to start business but instead he preferred to lead a retired life. It was contended on behalf of the respondent that the wife of the appellant, namely, Mst. Amtul Fatteh Begum had earlier filed two ejectment cases against the tenants in the building and in one of the case, after she had succeeded in getting an eviction order, the shop which was lying vacant with her for years was let out to a tenant on heavy Pugri. In the year 1985‑86 another shop at the rear portion of the building was built and rented out after charging of Pugri. One of the shops was let out to one M/s. Diamond Enterprises and the other to Cold Ice Refrigeration. The learned Controller on the basis of the aforesaid evidence held that the evidence led in the case by the appellant was not sufficient to establish his good faith and consequently he dismissed the eviction application vide the impugned order. The learned Controller held that appellant No.l had failed to supply particulars in respect of his intended business. Although, the ejectment of the respondent was sought on the ground that the appellant wanted to install a printing press in the demised premises, however, admittedly, permission to install a printing press had neither been obtained nor the case in this regard had been pursued by the appellant. The learned Controller was further impressed by the fact that the appellant had retired from service in 1981 but during the intervening period two shops were lying vacant which had been let out by his wife during her lifetime and since no evidence was led by the appellant to indicate that the said shops were not suitable for his business, the case of the appellant was liable to be defeated on such grounds. After hearing Mr. Naraindas Motiani., learned counsel for the appellant and Mr. Sajjad E. Halal, learned counsel for the respondent, I find that the order passed by the learned Controller cannot be sustained in law. Although, there is no doubt, that it is incumbent upon the landlord to establish good faith and bona fides in regard to his claim of personal requirement and the initial burden would be on the landlord to establish the genuineness of his claim, but no hard and fast rule can be laid down in this regard and each case is to be decided on its own merits. Mr. Sajjad E. Halai has invited my attention to some of the judgments given by the learned Judges of this Court, wherein it was held that when the premises were required for business purposes a mere statement of the landlord in this regard was not sufficient and the landlord in such a case must supply further details in regard to the particulars of the intended business which may establish his requirement as distinct from a mere desire. The cases cited by him are reported as Muhammad Yamin v. Mrs. Khaliq Begum (1988 CLC 1297), Mukhtar Ahmad v. Muhammad Saleem Bakhsh (1991 CLC 1047) and Mst. Fatima Bai v. Shaikh Muhammad Zaki (1990 CLC 1064). I would like to point out with utmost respect that no such distinction has been made by section 15 of the Sindh Rented Premises Ordinance. Nevertheless, albeit, it is imperative for the landlord to establish good faith or bona fides of his claim in respect of personal requirement, however, the question whether the landlord has succeeded in discharging such burden would depend upon the facts of each case. The question is to be decided by the Court on the basis of preponderance of evidence. In the present case, the evidence led on behalf of the appellant clearly shows that he had cause of action to institute ejectment proceedings before the learned Controller. No doubt, it was established that the wife of the landlord had let out certain premises on rent during the intervening period, as earlier pointed out, but this evidence in no way can defeat the case of the appellant in regard to his personal need. Mr. Naraindas Motiani has referred to a number of judgments of the Supreme Court in this regard which are as follows:‑‑ (1) Sardar khan v. Riaz Ahmed (1986 SCMR 1981). (2) Allah Ditta v. Mst. Rasoolan Bibi (1976 SCMR 459). (3) Muhammad Latif v. Hakim Nisar Ahmed (1986 SCMR 650). (4) Dildar Hussain Nayar v. Niaz Muhammad Dar (1985 SCMR 1796). It was emphasized in the above cases that the selection of the premises is a matter of choice for the landlord and the mere fact that some shops had been let out earlier by the landlord is not sufficient to defeat his plea for personal requirement. I would like to point out that in case the tenant wants to rely upon such evidence, it will be necessary to seek explanation of the landlord on the point first. On the other hand, the evidence of the appellant was not shaken in the cross‑examination which was sufficient for establishing his plea of personal requirement. The appellant, according to him, was a retired person and in respect of this there appears to be no controversy between the parties. The claim of the appellant that he wanted to start a printing press did not p require further proof on the point, viz. that the appellant had obtained a licence for such business or that he had sufficient funds to start his business. As was held in the case of Mst. Saria Bai v. Syed Anisur Rehman (1989 SCMR 1366), the landlord was not required to state the nature of his business which he intended to carry on as the same was neither essential nor formed part of the cause of action. The other cases cited by Mr. Naraindas Motiani on the point are Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCMR 593) and two unreported cases of the Supreme Court namely, Civil Appeal No. 127‑K of 1989 (Hajx Ahmed Nawaz v. Abdul Hameed) decided on 16‑12‑1990 and CA. No. 311‑K of 1990 (Mst. Shahjehan v. Nazim Ali Khan) decided on 6‑3‑1991, which further support his contention. . In the result, this appeal is allowed and the respondents are directed to hand over vacant possession of the demised premises to the appellants within three months. The parties are left to bear their own costs. H.B.T./M‑1874/K Appeal allowed.