2005 PLP 633 (CLC)

Petitioner Asghar Hussain is admittedly tenant in the shop No.1 situated on ground floor, on Plot No.225, Group No.1 Commercial Area Liaquatabad, Karachi and respondent/applicant Mst. Tauheed Begum is admittedly owner thereof; she filed ejectment case bearing No.345 of 2003 in the Court of learned IInd Senior Civil Judge/Rent Controller, Central, Karachi on the ground that the same is required for personal use of her son namely Iqbal Sabir, aged about 33 years, who has since graduated in the Commerce subject, as also having got married in the year, 1998, has two children, and needs to run his own independent business; some more grounds were also raised in the ejectment application, but for the purpose of this Constitutional petition, the only ground of requirement of the said shop for such personal bona fide use is pressed into service. The petitioner/tenant resisted the said ejectment application by filing his written statement and, after framing of issues, parties were afforded with full opportunity to produce their respective evidence in support of their respective pleas. The Rent Controller vide order, dated 17-1-2004 allowed the said ejectment application and directed ejectment of the tenant/ respondent from the above stated shop with his finding that the applicant/respondent successfully proved that the shop in question is required for the personal bona fide need of her son Iqbal Sabir; the petitioner/tenant filed F.R.A. No.26 of 2004 against the said ejectment order which was heard by learned District Judge, Karachi Central who vide judgment dated 6th May, 2004, dismissed the same with his observations, as regards, issue of personal use the settled position of law is that it is the sweet will of the owner to choose any of the premises for his/her personal use. In this context applicant has sufficiently produced strong and valid evidence and as such is entitled to the relief claimed in the ejectment application. On the other hand, opponent/ appellant failed to show that the premises in question is not required for bona fide use. There appears no misreading or misappreciation of evidence led before the Court of Rent Controller and as such no interference is required by this Court in this appeal ; hence the tenant/petitioner has filed this Constitutional petition against the said concurrent findings recorded by the two Courts below. Heard Mr. Abdul Wajid Wyne, Advocate for petitioner and Mr. Muhammad Siddiq Mirza, Advocate for respondent No.1. Learned counsel for petitioner argued that previously a compromise was entered into in between the parties whereby the earlier ejectment application filed by the applicant/landlady was withdrawn, and the tenant/petitioner was allowed to continue to remain in the disputed shop, as such, and that she had also accepted some amount towards Pugri by further agreeing that the tenant/petitioner was never to be ejected from the disputed shop until and unless he committed default towards payment of rent, and there being no allegation of any such default, the landlady stands debarred/precluded from claiming the ejectment of the petitioner/tenant from the disputed shop. Learned counsel cited Muhammad Azizullah v. Abdul Ghaffar 1984 CLC 2837 placitum C&D wherein Mr. Justice Saleem Akhtar (as he then was) held to the effect that wherein a landlord enters into an agreement with a tenant that under no circumstances he will demand eviction of the tenant from the premises, such agreed condition could be proved by the tenant, and further that the landlord by such an agreement having parted away his personal requirement of the premises could not be allowed to press such a ground into service for the purpose of ejectment of the tenant from such a premises; such a landlord, though knowing and could have visualized his need of the premises for personal use, agreed not to press it and having waived such a right for valuable consideration (Pugri) he was not entitled to apply for ejectment on such a ground during currency of the agreement . Learned counsel has further cited S.M. Nooruddin and 9 others v. SAGA Printers 1998 SCMR 2119 wherein Honourable Supreme Court of Pakistan was pleased to hold that concept of good faith for personal need of the landlord of the premises involves the elements of honesty of purpose and reasonableness; it is further argued for the tenant/petitioner that the petitioner has remained as a tenant in the shop in question since the year 1947 and the landlady having received the Pugri from him, she stands debarred from seeking his ejectment from the disputed premises. Learned counsel further cited Muhammad Yameen v. Khaliq Begum 1988 CLC 1297 and has argued that a distinction has to be made in cases of personal requirement pleaded for residential house in one case, and a commercial premises in another, and that such a requirement cannot be taken to be of the same nature in the two cases, and is to be minutely scrutinized in accordance with the facts and circumstances of the two cases, respectively. In reply, learned counsel for landlady/respondent has cited Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 wherein Honourable Supreme Court was pleased to record the following observations:-- The learned counsel for the appellant then contended that from the evidence on record particularly produced after the remand order, bona fide requirement is not proved. The appellant has filed additional affidavit of Najib Ali Yousuf and attorney of the respondent to the effect that Najib is a young man now about 35 years old, a commerce graduate and a Director in a construction company of the respondent family. Najib has further stated that he had taken training in the Agha s Super Market for running business of departmental store. A certificate to that effect has also been produced. A letter from Tee Vee Corporation has also been produced, who are agreeable to appoint Najib as their sub-agent for dealing with all sizes of Samsung Refrigerators and standard and Deluxe Washing Machines manufactured by their principal Messrs Indesit. They also offered to provide other products for the store being opened by him at Tariq Road. He further stated that an area of 160 square yards will be sufficient for establishing a departmental store business. The learned counsel for the appellant attacked these pieces of evidence by saying that the certificate and the letter from Tee Vee Corporation were false and manoeuvred. However, even if we exclude these two documents, the fact remains that the respondent and her son have consistently stated that Najib would establish a departmental store. He has also filed his wealth tax assessment order to show the assets he owns. There is nothing on record by way of rebuttal evidence that Najib cannot establish or run a departmental store in the premises. The establishment and running a departmental store by the respondent as stated by him cannot be ruled out. Unless there is cogent evidence and sufficient proof that it is not possible or practicable to run such a business, the Court would be inclined to hold that the requirement is bona fide. The learned counsel for the respondent has referred to Hasan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832 and Jehangir Rustam Kamalia v. State Bank of Pakistan 1992 SCMR 1296. In the latter case, while approving Hasan Khan and relying on Tauhid Khanum v. Muhammad Shamshad 1980 SCMR 593 it was observed that on the issue of personal need, statement on oath, if consistent with the application and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that it is bona fide. Applying this test, we find that the respondent has been consistent and the evidence produced is not in conflict or inconsistent with the ejectment application. No evidence in rebuttal has been produced to shake the testimony nor in cross-examination the witnesses have shown any infirmity to discredit it. The question whether 160 square yards is sufficient to run a departmental store was also raised to attack the bona fides of the respondent s requirement. The premise is situated on Tariq Road, which presently is the most busy and lucrative commercial area of Karachi. On two sides of the premises are roads. In such a highly valuable commercial area, 160 square yards is a sufficient and reasonable area in which a departmental store or any other business can be run. Moreover, if the landlord wants to establish a business in a particular area, then unless it is shown that the alleged business can, in no circumstances, be run in such an area or that in all probability, it cannot be used or suitable for the purpose for which the landlord demands it, the bona fides cannot be attacked. There is no evidence to show that super markets cannot be opened or run or established in the premises comprising 160 square yards in a commercial area. The learned counsel for the appellant then contended that the respondent had constructed several shops and apartments in the Defence Housing Authority area which were let out during the pendency of the case. It was further contended that it was open to the respondent to have occupied the premises, which were available in those buildings. From the evidence it seems that a company, namely, Ali Associates Ltd., in which the respondent and her son are Directors has been carrying on business of construction and have made apartments and shops, which were either disposed of on hire purchase basis or have been rented out. These buildings are in the Defence Housing Authority and from evidence it seems that there is a commercial area where shops and departmental stores are in existence. The suitability of opening a departmental store in anyone of the available premises entirely depends upon the discretion of the landlord. However, such need and discretion should be real, genuine and not tainted with mala fides. Reference can be made to Malik Muhammad Ramzan v. General Iron Stores and another 1995 SCMR 1125. From amongst the apartments and buildings constructed in Defence Housing Authority; the respondent has stated that they are not suitable for running a departmental store as the commercial area has not fully developed there. The commercial area at Tariq Road, which has become hub and center of commercial activity in Karachi is a better place of establishing profitable business there, as compared to an area where commercial activities have not developed fully. Furthermore, it has been stated that in the area where apartments have been made, there are three or four departmental stores. Naturally in the fact of such departmental stores, unless it is a highly developed commercial area attracting a large number of people, it may not commercially be profitable to run such a business. In any event, in the judgment dated 10-4-1988 by which remand order had been made, our learned brother Ajmal Mian, J. as he then was, had observed that merely the fact that respondent s husband had 62 shops in Defence Society and 21 shops in Gulshan-e-Iqbal would not disentitle the respondent to apply for ejectment on the ground of personal requirement of her son, as it is for a landlord to select which of the buildings he wishes to use personally or to provide the same to his children . Therefore, this argument raised again is a closed chapter. The learned counsel for the appellant contended that the appellant has been a tenant from the year 1964 and has invested huge amounts on establishment of business, which has earned goodwill as well. That may be so, but the fact remains that these considerations are irrelevant if the ejectment case falls within the four corners of section 15 of the Sindh Rented Premises Ordinance. Ejectment of a tenant is regulated by statute, which provides specific grounds on which a landlord can seek ejectment. Once such ground is proved, the contentions now raised become completely immaterial. Learned counsel further cited Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398 wherein also Honourable Supreme Court of Pakistan was pleased to record the following observations:-- Learned counsel for the respondent outrightly challenged the bona fides of the landlady by referring to the ejectment proceedings as a mere effort to enhancement the rent. Rest of his submissions were confined to upholding the reasons advanced by the two forums. The relationship of landlady and tenant, the factum of tenancy and the rate of rent, are all admitted in the instant case. The only question that requires to be determined is as to whether, in the given circumstances, the personal need of the landlady is bona fide or not. It appears that different verdicts of this Court on the subject rendered from time to time have escaped the notice of the Rent Controller as well as the High Court. In Muhammad Abdul Rauf v. Mst. Mahmooda Begum 1985 SCMR 1960 a landlady though living with her husband in a better house and yet sought ejectment of her tenant on ground of personal need. The inference drawn by the Rent Controller that in the circumstances her plea was mala fide, was held by this Court to be palpably erroneous and unsustainable, for, a wife could independently hold property and had a right to live in her own house. The repeated verdicts of superior Courts in general and the Supreme Court in particular have almost become absolute on the point that even if a landlord has many premises in a vicinity, it is his own subjective approach, choice and decision as to which one in particular is desired to be occupied. No one else has a right to interpret the circumstances from his own point of view and by making allusions to different attending circumstances of the case. In the instant case, the other bungalow stated to have been vacated and not occupied by the appellant, is one that belongs to her husband and not to herself. If she in her own discretion intends to take up residence in her own house, the intention could never be doubted for the reason that the husband s house was not occupied. In law, the two ownerships are altogether different as well as independent from each other. We are of the view that the factual background in the instant case was not properly taken to its logical and legal consequences by the two forums. Learned counsel for landlady has read out the contents of the agreement entered into by the parties, copy whereof is available at page 91, wherein there is no mention that the tenant ever paid any amount towards the Pugri to the landlord; in his cross-examination he has admitted to the effect that no mention of any such payment of Pugri amount was ever made in the said agreement; so also there is no mention in the said agreement that the landlady ever agreed that excepting on the ground of the default in payment of rent, she was never to file ejectment application against the tenant or she ever meant to allow him to permanently remain as such in the disputed shop. Be that as it may; the fact remains that there is nothing on record in rebuttal of the evidence produced by the landlady to the effect that her third son namely Sabir Iqbal has presently no independent business of his own and that he has graduated in Commerce subject and needs to run independent business of his own in the disputed shop; it is a settled principle of law that landlord/landlady shall be entitled to seek eviction of the tenant from a premises on the ground that the same is bona fide required for the personal use of his/her son having no independent business of his own, to utilize it for such a purpose; further more, it is also by now a settled principle of law that even if a landlady/landlord has many premises under his/her ownership, even then the choice will always remains with her to choose the shop best situated for the purpose that his/her son may properly utilize the same for running his own independent business therein; as stated above, it stands established that the son of the landlady has to establish his own business and therefore, her need to get the tenant/petitioner evicted from the disputed shop stands proved to be a bona fide one. Consequently, the learned two Courts below rightly directed for ejectment of tenant/petitioner from the disputed shop; there being no illegality in the finding of the two Courts below, nor any misreading of the evidence produced by the parties, this Constitutional petition does not appear carrying any merit therein, which is hereby dismissed in limine, along with listed application. On the request of learned counsel for petitioner, the tenant/petitioner is granted time of four months to peacefully vacate the disputed shop and to hand over its possession to the landlady, provided that he shall continue paying the rent to her, and in case he does not vacate the same within the said period, the landlady shall be competent to get the writ of possession in the execution proceedings, for which the tenant shall not be entitled to any notice. H.B.T./A-160/K Petition dismissed.