1990 PLP 331 (CLC)

2. The parties adduced evidence and on the assessment thereof the learned Rent Controller vide order dated 8‑4‑1984, allowed the application directing the ejectment of appellant from the disputed shops. The appellant challenged this order in. F.RA. No. 509 of 1984, which was heard by my brother Syed Haider Ali Pirzada, J. who vide judgment dated 25‑5‑1987, allowed the appeal and remitted the case to Rent Controller with the following observations: "The respondent sought eviction of the appellant on the ground of personal requirement. The appellant stated that the respondent constructed shops which are available with him, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the shop is to negative the very raison d'etre of the Ordinance. Undoubtedly, if it is shown by the appellant tenant that the respondent landlord has some other shops in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Controller would expect the landlord to establish that the shops which are vacant are not suitable for the purpose of his occupation or for the purpose for which he requires the shop in respect of which the action is commenced before the Controller. This aspect was not considered by the Controller. I am of the view that the Controller should advert to this aspect of the case. Accordingly,. I allow the appeal, remit the case to the Ist Senior Civil Judge Controller, Karachi West. There will be no order as to costs. The Controller will allow the parties to adduce evidence only on this aspect that the respondent constructed shops and which are still in his possession, whether these shops are suitable for his occupation. The hearing of the case may be expedited and if possible, the rent case may be disposed of within four months from the date this judgment is communicated to the Controller. Parties are directed to appear before the Controller on 5‑7‑1987."

3. On remand the learned Rent Controller formulated the following issues:‑‑ (1) Did the applicant construct any new shops of his own that he could occupy pending instant ejectment proceedings and are the same still in his possession, if so why are they not suitable for the applicant's personal use and occupation? (2) What should be the order?

4. The respondent did not lead further evidence, whereas the appellant examined himself and two witnesses, namely Kamaluddin and Iqbal Ahmad.

5. The learned Rent Controller again found issue No.1 against the appellant and consequently directed his ejectment from the demised premises. This order dated 10‑1‑1988 is the subject matter of this appeal.

6. I had the advantage of careful arguments from both the sides. The evidence which has come on record shows that the respondent owns in all four shops, two of them are in occupation of the appellant, which are required by the respondent for his personal bona fide use. The evidence which was adduced by the parties was examined by the Rent Controller (Sayed Ghulam Nabi Shah), who vide order dated 8‑4‑1984 came to the following conclusion: "I have very carefully considered the evidence of the parties and find that the applicant has clearly stated in his application as well as in his affidavit‑in‑evidence that the shops in question are required by him for his personal use and occupation. He was cross‑examined at length by the learned counsel for the opponent but nothing could be brought on record which can shake the credit of his evidence. The applicant has admitted that there are four shops in his market of the shops in question. The opponent in his written statement as well as in his affidavit‑in‑evidence has denied that the premises in question is required to applicant for his personal use and occupation. But, however, there is nothing on record to suggest that the requirement of the applicant is not genuine and/or in good faith."

7. The appellant has challenged the bona fide requirements of the respondent mainly on the ground that he had constructed another market during the pendency of the ejectment application, out of which this appeal has arisen and for this limited purpose the case was remitted to Rent Controller with a view to find out if the shops constructed in the said market were not suitable to the requirements of the respondent. This averment was seriously disputed by the respondent by stating that the shops so constructed did not belong to him. This position is practically admitted by the appellant himself by making the following statement: " I have not mentioned the plot No. on which all these shops are situated. Voluntarily says that they are on plot No.40. The case shop is situated on plot No.41. It is wrong that plot No.40 is not owned by the applicant but by one Ghulam Muhammad."

8. From the above admission it is thus established that disputed shops are situated on plot No.41, while the shops which are alleged to have been constructed by respondent during the pendency of ejectment case were constructed on plot No.40. The respondent has disowned the ownership of these shops. In such an exigency the onus shifted upon the appellant to prove that the shops constructed on plot No.40, actually belonged to respondent, which he failed to discharge although such documentary evidence could be easily available.

9. The use in the evidence of photographic pictures and the limits within which they are judicially receivable by way of proof of matters of fact are not free from difficulty. The mere production of photographs, however, cannot be accepted as means of proof of matters of fact. In such a situation I endorse the view taken by learned Rent Controller when he states:‑ The opponent on the other hand led his affidavit and produced three photographs marked A, B and C to show that the applicant had constructed four shops on the case plot pending instant ejectment proceedings. These and other photographs which were earlier not considered by the learned Rent Controller, do not prove what the opponent was directed to substantiate by the Honourable High Court. They merely show some shops and the shutters pulled down on them (said to be bearing Nos. .15, 16, 17 and 18). These photographs do not prove if the shops are owned by the applicant or situated in the case building or constructed by him either before or pending instant ejectment proceedings."

10. The evidence of Kamaluddin and Iqbal Ahmad who were examined by the Rent Controller after remand was disbelieved by him for good reasons. The evidence of Kamaluddin appears to be vague and sketchy and it does not inspire confidence. Muhammad Iqbal is certainly an interested witness. Admittedly he is tenant of one Wafati who has filed an ejectment case against him and the appellant had appeared as witness for him in that case. It, therefore, does not require much of calculation how to multiply 2 by

2. Thus it is proved beyond any shadow of doubt that the respondent owns only four shops and he wants the shops in possession of appellant for his personal bona fide use. The only fact that the respondent did not disclose the nature of business to be carried on in these shops in his application for ejectment is hardly relevant. This question was examined by the Supreme Court in Civil Appeal No.119/K of 1986 (Mst. Saira Bai v. Syed Anisur‑Rehman), decided on 24‑1‑1989, and it was observed:‑ "It was next argued, as it was argued before the Controller and the High Court, by the learned counsel for the respondent that the appellant, in her application, has not stated the nature of the business for which the shop is required and in her deposition, she expressed her unawareness as to the nature of business which her son would carry on. However, her son, in his deposition, has stated that he would do paints business in the shop. Regarding the non‑mentioning the nature of the business in the application it may be observed that an applicant has to state in his application, the material facts i.e. facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that that business can no more suitably and profitably be carried on in the shop, the question might arise: could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because Sin law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail. In any case, there is authority of this Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 S C M R 593) wherein a similar point was raised and it was observed as follows: "Again the High Curt fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application..." Further, as mentioned herein before, it was unambiguously stated by the applicant that she requires the shop, in good faith, for use and occupation of her son, and her son, in his deposition, has in clear terms, stated that he would carry on the business of paints in the shop. Therefore, this objection has no force and ought not have been given any weight by the High Court."

12. Even the intention to start a business can be considered as "need" within the meanings of clause (vii), subsection (2) of section 15 of the Sind Rented 10 Premises Ordinance, 1979. Again the ownership of shops by the wife or son of the respondent cannot be equated with the ownership of such shops by respondent. There is, therefore, no force in the contention of learned counsel for appellant when he states that the Rent Controller has side tracked from the principal issue and was carried away by considerations not entirely germane thereto.

13. For all these reasons, I see no substance in this appeal ‑which is accordingly dismissed. The appellant is, however, allowed two months time to vacate the demised premises. Z.S./S‑502/K Appeal dismissed.