1989 PLP 4443 (MLD)

(b) Sind Rented Premises Ordinance (XVII of 1979)-- --Ss.15 & 21--Personal requirement--Mala fides--Mala fides cannot be imputed to claim of personal requirement merely on ground that landlord has taken so many grounds for ejectment--Plea of personal requirement should be decided on its own merits. Abdul Aziz v. Ziaulla Khan 1986 CLC 1970 rel. Maqbool Ahmad Khan for Appellant. Muhammad Ahmad for Respondents. Date of hearing: 4th April, 1989. The only ground on which ejectment of the appellant is ordered is the personal requirement of the respondents. According to the averment made in the ejectment petition, the shop in question is required by respondent No.2 Sharaf Ahmad for his personal use but no further details were given. The averment was equally vaguely denied in the written statement without stating why respondent No.2 did not require the shop and whether he was engaged in any business. However, respondent No.2, who is father of respondent No.2, stated in his affidavit-in-evidence that respondent No.2 was without a job and was without any place of business. He was cross-examined extensively but nothing was asked of him about the personal requirements of respondent No.2. Only a suggestion was put to him as to whether it was a fact that he did not require the shop m question for his personal use and desired the same to be vacated for renting out anew on higher rent on handsome pugri and he, of course denied the suggestion. Respondent No.2 in his affidavit-in-evidence said that he was jobless, had no business premises of his own and sometimes had to resort to selling goods on push-cart but he had no licence for the same and this work was of a temporary nature and, therefore, he required this shop bona fide. In cross-examination he reiterated the same thing and denied the suggestion that eviction of the appellant was sought merely to rent out the shop again on higher rent after getting handsome Pugri. One Abdul Majeed Khan Ghori is the third witness of the respondents. His evidence is in respect of rate of rent and its payment and receipts and not on the point of personal requirement of respondent No.2 but nevertheless he is a neighbour of the respondents and knows them for the last 20 or 22 years. He was expected to know something about the personal requirements of respondent No.2 but no question on this point was put to him in cross- examination. So far, in the written statement and during the cross-examination of respondent No.1 and respondent No.2, the stand of the appellant was that them respondents intended to re-let the shop on enhanced rent after getting handsome pugri and this was the motive behind the filing of ejectment petition but during the cross-examination of Mr.Ghori, this imputation was abandoned. Now the appellant imputed that the respondents had promised to give the shop to Mr. Ghori after it was vacated by the appellant. A suggestion to this effect was put to Mr. Ghori which was duly denied. The appellant then again took a somersault, abandoned the imputation that the respondents had promised Mr. Ghori that the shop would be given to him after its vacation by again alleging in para 9 of his affidavit that the respondents actually wanted to enhance the monthly rent and to get pugri after obtaining possession from him. The appellant denied the personal requirement of the respondents but did not say anything about the unemployment of respondent No.2. However, he was cross-examined on this point and then he stated that he did not know whether respondent No.2 had no shop and admitted that respondent No.2 was selling fruits on push-cart. He showed ignorance as to whether the push-cart had been confiscated by K.M.C. Second witness of the appellant is his son Rehman Ellahi who also denied the bona fides of the personal requirement of the respondents and alleged that the respondents in fact wanted to re-let the shop on higher rent after obtaining pugri. In cross-examination he denied a suggestion that respondent No.2 required the shop but expressed his ignorance when asked whether respondent No.2 had no other shop. Muhammad Yameen (O.W-3) and Ali Jan (O.W-4) have not deposed on the point and need not be. discussed. This is all the evidence on record and on its bases learned Rent Controller has come to the conclusion that respondent No.2 bona fide required the shop for his personal bona fide requirements.

2. Admitted position that emerges from the above evidence is that the only trade in which respondent No.2 ever engaged himself was selling fruit or other merchandise on push-cart and that he did not have any shop for carrying on his business. Difference between the parties arises when the respondents say that since respondent No.2 had no licence for push-cart, the same was confiscated by KMC. The appellant states that respondent No.2 is still selling fruits on push-cart. Even if the contention of the appellant is accepted that respondent No.2 is still selling fruits on push-cart, the question is whether he should be forced to continue selling fruits on push-cart and his desire to set himself up in business should be disbelieved. As we have seen above, the appellant is not consistant in imputing mala fides to the claim of personal requirements of respondents. The appellant at first stated that the respondents merely desired to re-let the shop on enhanced rent after getting pugri but later on abandoned this imputation and suggested that the respondents desired to give the shop to A.W-3 Abdul Majeed Khan Ghori. These two imputations contradict each other and show that the appellant can give no plausible justification for disbelieving the bona fides of the requirements of respondent No.2 and is merely probing into the dark for some explanation. In my view it will be nothing short of cruelty to hold that respondent E No:?, in spite of owning a shop, should be condemned to roaming the streets vending his merchandise on a push-cart. It was argued that the respondents had taken all possible grounds for the ejectment of the appellant and it reflected on the bona fides of the claim of the respondents as regards personal requirements. Learned counsel of the appellant referred me to 1984 CLC 2469, PLD 1985 Karachi 639, and PLD 1985 Karachi 624 in support of his contention that the requirements of the respondents were not bona fide. Sum total of these decisions is that if the ground of personal requirement if made a pretext for increasing rent, it is of no consequence and that mere wish, convenience, whim or fancy of landlord is not enough to establish bona fides of personal requirements and in case of commercial premises, it should be shown that existing premises with the landlord are inadequate and that the landlord should put all necessary details before the Court. I think the requirements of respondent No.2 measure upto the standard laid down in these judgments. Respondent No. 2 has no business premises in his possession. All he did in the past was selling fruits on push-cart. His desire to establish his business in a shop cannot be termed whimsical and mala fide. It was also argued on behalf of the appellant that the respondents had taken a number of grounds for seeking ejectment but they could not prove them which showed that they were untrustworthy and their failure to prove so many allegations must adversely reflect on the bona fides of their personal requirements. This argument was successfully repelled by learned counsel of the respondents who referred to the judgment reported as 1986 CLC 1970 (Abdul Aziz v. Ziaulla Khan) in which it is held that the failure of a landlord to prove certain grounds, initially taken by him for seeking ejectment, cannot be considered to disbelieve some other plea raised and successfully proved. I am in agreement with the view that mala fides cannot be imputed to the claim of personal requirements merely on the ground that the landlord has taken so many grounds for the ejectment and the plea of personal requirements should be decided on its own merits. The very fact that respondent No.2 is plying push-cart and has no place to sit honourably and carry on his business is enough to prove C the bona fides of the respondents. In this context, judgment reported as 1985 CLC 922 (Shaikh Jamilur Rehman v. Akbar Hasan) is of some relevancy wherein it is held that even when some accommodation. belonging to someone else, is available to landlord, he is still entitled to seek ejectment of his tenant on the ground of his personal requirements. In the present case, the landlord is in even worse position inasmuch as he does not have any shop in his possession and is reduced to the plight of carrying on his trade on a push-cart.

3. In view of the above discussion I agree with learned Rent Controller and hold that respondent No.2 bona fide requires the shop in question. The appeal is, therefore, dismissed and the order of eviction is maintained. The appellant is, however, allowed two months from today to vacate the shop. M.Y.H./M-842/K Appeal dismissed.