1989 PLP 2496 (MLD)

(d) Sind Rented Premises Ordinance (XVII of 1979)

Ss 15 & 21-Personal requirement--Claims which are false and frivolous on face of it or lack bona fides cannot `be accepted--Personal requirement of landlord stands proved if landlord's statement on ejectment application and affidavit in consistent and in cross-examination same has not been shaken--Where landlord made a false and frivolous claim lacking bona fides and repeated same in his affidavit and maintained it in cross-examination it cannot be accepted--Entire evidence has to be scrutinised and considered on its own merits. 1985 C L C 2904 and P L D 1976 Kar. 832 rel. Ibrahim Moosa Lakhani. for Appellant. S.M. Afzal for Respondent. Date of hearing: 5th March, 1989. The respondent filed an application for ejectment against the appellant in respect of shop on plot bearing No.1729/63 situated in Gujrat Colony, Baldia Township, Karachi. This ejectment application was filed on two grounds namely default in payment of rent and personal bona fide requirement. So far the default is concerned as is obvious from the order of the learned Controller it was not pressed; however, the ejectment has been granted on the ground of personal requirement of the respondent. The appellant had denied the claim and pleaded that the application lacks bona fides as the respondents had entered into an agreement on 4-2-1980 and without disclosing this fact either in the notice or in the ejectment application filed the case on 14-5-1980. It was pleaded that the respondent is engaged in his own work and does not require the premises in good faith. Mr. Lakhani, the learned counsel for the appellant has contended that in view of concealment of facts made by the respondent, the claim for bona fide requirement lacked good faith. From the record it is clear that the tenancy started in 1974 but on 14-2-1980 the respondent entered into an agreement of tenancy for eleven months under which the rent was enhanced from Rs.100 to Rs.110 and a deposit of Rs.800 was obtained from the appellant. This fresh agreement was entered into after expiry of the previous agreement and it regulated the relationship between the parties. The respondent has however taken the plea that this agreement was not proper and legal as it did not comply with the conditions laid down by section 5 of the Sind Rented Premises Ordinance, 1979. From the evidence it is clear that factually the agreement has not been denied only its form as provided by Section 5 of Sind Rented Premises Ordinance has been attacked. There seems to be an agreement between the parties which was reduced in writing and was acted upon by the parties. Under these factual background we have now to consider whether the claim made by the respondent lacked bona fides. Under section 15 subsection (2) (vii) a landlord is entitled to obtain ejectment if he requires the premises in good faith for his own occupation or use or for occupation of his spouse or children. The principal element in making such claim is that it should be in good faith. Good faith has not been defined but it should mean that there is no lack of bona fides and the requirement put up by the landlord is genuine fair and not for any extranous purpose. It is also well-settled that if the landlord conceals material facts which adversely affect the claim of personal requirement it will amount to lack of bona fide. It may however be clarified that it is not every concealment or non-disclosure which may lead to the conclusion that it lacks bona fides. Such concealment or non-disclosure should be material to the controversy and should adversely reflect upon the claim. In the present case the evidence conclusively proves that the respondent alleges that he required the premises even before he entered into the agreement dated 4-2-1980. The respondent thus knew well that he required the premises for his own personal need but allowed the appellant to continue in the premises at an enhanced rent for a period of another eleven months. Disclosure of this fact would have adversely reflected upon the-bona fides of the respondents claim and with this view in mind- he did not disclose the execution of agreement in the ejectment application. If the respondent was in need of the shop from before 14 2-1980 instead of executing the agreement he would have told the appellant to vacate the premises and refused to allow him to continue for another eleven months on an enhanced rent. The learned counsel for the respondent contended that the agreement was not valid as it was not executed in terms of section 5 of the Sind Rented Premises Ordinance. The requirements of Section 5 are intended to prove tenancy by a document of unimpeachable character. It does not render the agreement void. Here there is no dispute about the tenancy and the tenancy and the rate of rent. The only relevant point for consideration is that an agreement was entered on 14-2-1980. Even if it is not taken into consideration the respondent does not dispute that he had enhanced the rent on 14-2-1980 and accepted deposit which was agreed upon by the appellant. The plea taken by the respondents is neither valid nor honest. He himself has relied on this agreement for making claim of default. Mr. Afzal, the learned counsel for the respondent has contended that even if the tenancy is for a specific period the landlord is entitled to obtain ejectment on ground of personal requirement. He has relied upon 1986 C L C

808. There can be no cavil with this proposition of law but this right is qualified by the provision of law itself i.e. the claim made by the landlord should be bona fide and in good faith. Where the ejectment application on ground of personal requirement lacks bona fides and good faith, it cannot be sustained in law. The learned counsel for the respondent also contended that the respondent's application and affidavit are consistent and on the plea of personal requirement he has not been shaken in cross-examination therefore the requirement of the respondent has been proved. In this regard reference has been made to 1985 C L C 2904 and P L D 1976 Kar.

832. It is true that where the statement in the ejectment application and the affidavit is consistent and in cross examination it has not been shaken personal requirement of the landlord stands proved. But it does not mean that where the landlord has made false and frivolous claim which lacks in bona fides and he repeated the same in his affidavit and maintains it in cross-examination then it should be accepted to be correct. The entire evidence has to be scrutinised and considered on its own merit. Claims which are false and frivolous on the face of it or lack bona rides, cannot be accepted. The respondent claims to be out of job. He has been engaged in fixing shutterings. No cogent reason has been given to prove why he has left that work and remained jobless. The witness produced by him seems to be an interested witness and no reliance can be placed upon him. In my view the respondent has failed to establish that he requires the shop for his personal requirement in good, faith. The impugned order is set aside and the appeal is allowed. M.Y.M./A-538/K Appeal accepted.