1986 PLP 1784 (MLD)

(2) Whether the appellant has sublet the premises? (3) Whether the appellant has caused damage to the building and thereby impaired the material utility of the shop in dispute? (4) Whether the respondent requires the shop in dispute for her son's bona fide personal use? . Rent Controller decided issues No.1, 2 and 4 against the appellant. Issue No.3 relating to damage to property his findings are against the respondent landlady. Before Rent Controller the landlady examined her attorney Ghulam Muheyyuddin Sheikh Exh.4, Zainul Abedin Exh.5 and Mazhar Bashir Exh.6. Whereas appellant examined himself, his evidence is at Exh.7. In support he also examined Arshad Ahmad Shah Exh. 8 and Musarat Nawab Exh.9. I have heard Mr. Wajihuddin Ahmad for apellant and Mr. Zaffar Hadi Shah for the respondent. Ghulam Muhayyuddin Shaikh in his evidence stated that shop No.2 on the ground floor of the premises was let out to appellant by his wife at monthly rent of Rs.250 p.m. plus Rs.5 p.m. as water charges as per agreement, dated 1st November, . 1969. He has stated that appellant committed default in payment of rent since April. 1979, and that their son Zainul Abedin Shaikh is grown up and wants to start business of Screen Printing Cloth and he will get support from Mazhar their relative who is expert in that business. He stated that shop is required in good faith for the business of their son. He states that one shop is already in his possession which is not suitable for business as it is too small. His evidence further goes that shop in dispute was let out on rent to Amiruddin Shaikh and not to Servall Distributors or Modern Associates. He has produced agreement, dated 1‑11‑1969 Exh.4‑A and some letters. In his cross‑examination he has stated that one shop on ground floor and first floor arein his possession. He has stated that he does not know the owner of Messrs Servall Distributors and Modern Associates but he has seen sign‑board on the disputed shop. He has admitted that respondent demanded increase in rent from the tenant from time to time. He has produced copy of such letter Exh.8. Zainul Abgdin in his evidence stated that he wanted to start business of Screen Printing on cloth in the year 1977, and for the business his relativt, Mazhar Bashir will help him. He has admitted that except disputed shop (he entire building is in possession of the respondent, and shops in the locality are being sold at‑ the rate of 3 to 4 lacs. Mazhar Bashir stated that he is family friend and related to respondents and he wants to help Zainul Abeden if he starts the work of screen-printing. He has stated that this business could only be carried out on ground floor and printing on cloth cannot business on first floor because it requires great space and area of ground floor is more than the area of first floor. Appellant Amiruddin in his evidence stated that at the time of possession of shop appellant executed a receipt in favour of Servall Distributors, Karachi. He has produced photostat copy of receipt as Exh .7‑D . He has stated that respondent got a shop vacated from another tenant which is lying vacant, since 1977. On default he stated that water connection was discontinued and rent of shop was deposited in the Account of respondent and on the contrary he has found extra amount relating to electricity charges etc. amounting to Rs.2,

000. He has taken pleas that Zainul Abedin is not and he has no intention to start business of printing. He admitted that he is partner of appellant is that the water connection was discontinued by the respondent. He has also alleged that appellant paid electricity charges and he has produced such bills duly paid. On perusal of agreement the landlady received deposit equivalent to rent and to return the amount after the termination of agreement subject to realisation of any water‑charges, electricity dues etc. This agreement is at Exh.4‑A Mr. Wajihuddin Ahmad has referred to a case reported in P L D 1980 S C

298. In the instant case the period of default and arrears were not given in rent application nor Rent Controller in his order has specified the period of default. He has not held appellant responsible for default in payment of rent. In terms of agreement default of water charge is adjustable towards the advance. Even otherwise it is not clear whether respondent paid water charges of the shop or building to any authority. No such document has been furnished. The Rent Controller did not pass any tentative Rent order nor such application under section 16(1) was made by the respondent. Therefrom the above facts the wilful default in payment of water charges has not been proved. The next issue is of sublet. The agreement was executed on 1st November, 1969 and according to para. No.3 of the agreement appellant could use the premises for the purpose of running his business, as what sale agent or for such other purpose. The first receipt Exh.D‑1 acknowledged by the respondent in respect of rent show that she received amount of Rs.1,7501 from Messrs Servall Distributors on 10th October, 1969. The contents of the receipts are as follows:‑ "Received from Messrs Servall Distributors, 22‑Ferozpurwala Chambers, Bunder Road, Karachi‑2 the sum of Rs.1,750 (one thousand seven hundred and fifty rupees only) through cheque No.106003 of D.A.B , dated 10‑10‑1969 on account Advance rent from November 1969 to February, 1970 @ 250 p.m. 1,000 and three months deposit 750 (refundable at the end of tenancy) as per tenancy agreement of Shop No.2, plot No.867‑C Central Commercial Area, P.E.C.H.S., Karachi owned by me." Letter, dated 7‑10‑1974, Exh.5 written and signed by respondent is addressed to appellant case of as Servall Distributors and letter Exh.7 written to Mr. Amin Shaikh on 1st September, 1974, is on the following address:‑ "Mr. M. Amin Shaikh, Servall Traders, 867‑C, P.E.C.H.S. Block‑II, Karachi‑II . and reply of appellant is letter Exh.9 on pad paper of Servall Distributors. It is in the evidence that appellant is carrying on business in the disputed shop. He has not surrendered premises to any body else. Therefore, it cannot be said that appellant has sublet the shop to any one else. Now I come to personal requirement. Mr. Zaffar Hadi Shah argued that it is choice of landlord to get premises which he requires for his need. He was cited P L D 1974 S C 315; P L D 1973 Note 113 at p. 172; 1982 C L C 603 and 1983C L C 2781. It is argued that personal bona fide requirement of shop for son of landlady has been proved. On the other hand, Mr. Wajihuddin Ahmad submitted that rent case has been filed with mala fide. He has referred to a case reported in P L D 1983 Lah. 425 and 1983 C L C 1149. It is also contended that landlady has not been examined which is fatal to this case. He has also submitted that son of landlady is not qualified for the business, therefore, not entitled to get premises. He has referred to judgment of this Court in F R.A. No.1170‑

82. He has cited decision of this Court in F.R.A. No.802/803/83 on the point of non‑examination of landlady. On this issue it is an admitted fact that building consists of two shops on ground floor one flat on first floor. One shop is lying vacant since 1977. The upper portion is also lying vacant. About nine years have passed the vacant portion has not been utilised by the respondent, for any other purpose or business but waiting since then for getting the disputed shop vacated. Mr. Wajihuddin Ahmad at the bar stated that appellant is prepared to vacate this disputed shop provided if he is given small shop for carrying on business, which is the only source of his income and tentatived. The respondent did not agree to this proposal. It appears that Zainul Abedin is not interested to start business. Not only this but upper portion of the building is also lying vacant. Witness Musarat Nawab Exh.9 is designer and running business of Screen-printing and is member of American Screen Printing Association. He has stated in cross‑examination that Screen Printing Business' cannot be carried out in the disputed shop. He has also stated that screen-printing is done on upper floor to avoid dust. Which will spoil the work. His experience has not been challenged in C cross‑examination. Mazhar Bashir is interested witness as he. is related to landlady. Moreover, Zainul Abedin has also not produced any document to support that he intends to start business which is of technical nature. The respondent is being given disputed shop but .he is not ready to surrender small shop. Which is being vacant since 1977. In para. 12 of the Rent Application respondent stated that small shop adjacent to the premises in question is lying vacant but that shop is very small in size and does not suit at all for the business, which the applicant's son proposes to start. He has no where stated that Zainul Abedin will start business in that shop. Therefore, in my view the bona fide requirement has not been proved. For the reasons stated above I allow the appeal and set aside the impugned order, dated 9th March, 1983, of the Rent Controller. I leave the parties to bear their own costs. H.B.T Appeal allowed.