1997 PLP 286 (CLC)

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 hereinafter called the Ordinance, is directed against the Order dated 3‑11‑1994, passed by the then IInd Rent Controller, Karachi, East, whereby the appellants were directed to hand over vacant possession of the premises in question to the respondents within 60 days from the date of said order. The facts relevant for decision of this appeal are as follows: The respondents on 22‑10‑1992 had filed the Rent Application No.805/1992 against the appellants for their eviction from the premises being a part of the building constructed on plot bearing No.SOL‑B‑270/71, Soldier Bazar, Karachi, on the ground of personal bona fide requirement. It is the case of the respondents that respondent No.1 is a widow of late Muhammad Siddiq Mannan, respondent No.2 is his daughter and the respondents Nos.3 to 5 are his sons. The appellants are tenants of the respondents in respect of said premises at monthly rent of Rs.2,

600. Aforesaid predecessor‑in‑interest of the respondents was running his business in the name of "U.K. Paint House" in a shop of the building constructed on Plot No.51‑H, Block‑6, PECHS, Karachi. During his lifetime said shop was purchased by one Mst. Sughra Kausar and she filed eviction application against the predecessor‑in‑interest of the respondents, which was dismissed by the Rent Controller, but was allowed by this Court as per order passed in F.R.A. No.543/1990 and the appeal against said order was dismissed by the Supreme Court. Thereafter, the possession of said shop was handed over to its owner named above. The respondents require the premises in question for their personal bona fide need for running the business of General Merchandise and of allied items therein. The appellants, through notice dated 28‑5‑1992 were requested to vacate the premises but they declined. The case of the appellants is that the respondents do not require said premises for their personal need and that the purpose of this litigation is only to pressurise the appellants to enhance the rent. They have also maintained that the entire building belongs to the respondents and they can carry out their business any other portion of it. The respondents in support of their application filed affidavit‑in- evidence of Asif Mannan and Amir Mannan. On behalf of the appellants Muhammad Amir Qasmi, who is an Assistant Vice‑President/General Attorney, National Bank of Pakistan, had filed his affidavit‑in‑evidence. All were cross-examined. On assessment of the evidence brought on record, learned Rent Controller reached the conclusion that the demand of the respondents was justified and they needed the premises for their personal use, as such, the eviction application was allowed and the appellants were ordered to be evicted from said premises by the order, which has been impugned in this appeal. It is contended on behalf of the appellants that learned Rent Controller has failed to appreciate the evidence as such reached a wrong conclusion. Learned counsel also argued that though it was established from evidence on record that the respondents did not require the premises in question for their personal need, yet, the eviction application was allowed and the appellants were directed to vacate the premises. In support of above contention, learned counsel cited (1) Mst. Anwar Jehan v. Ismail Khan 1984 CLC 2849, (2) Sultan Press Ltd. v. Muhammad Hasan PLD 1985 Karachi 624, (3) Messrs Eastern Express Co. Ltd. v. Tariq Hameed PLD 1986 Karachi 84, (4) Muhammad Yameen v. Yousuf Lakhani 1986 CLC 1507 and (5) Muhammad Aslam v. Muhammad Aslam 1987 CLC

686. In Mst. Anwar Jehan's case, it was held that landlord's personal requirement would not include requirement of his daughter as she was living with her husband and children separately. In the case of Sultan Press Ltd., the expression "requires in good faith" appearing in section 17(2) (vii) of the Ordinance was examined and it was held that the landlord was required to prove that he required premises in good faith and mere wish, convenience, whim, or fancy of landlord was not enough to show that he required the premises in good faith. In the case of M/s. Eastern Express Co. Ltd., the principle laid down in the case of Sultan Press Ltd. was followed. In the case of Muhammad Yameen, the question was whether or not the daughter of landlord was residing separately in adjacent building. Under the circumstances, it was held that the landlord failed to establish personal bona fide requirement of his daughter. In the case of Muhammad Aslam it was held that first landlord would have to prove his personal bona fide requirement and thereafter burden of proof in rebuttal could be shifted upon tenant. The contentions raised on behalf of the appellants have no force and above‑cited cases are not applicable to the circumstances of this case. It is established from record that the predecessor‑in‑interest of the respondents was doing his business in the shop referred to above and he vacated it following the order passed by the Supreme Court. Respondent's witness Asif Mannan, in his affidavit‑in‑evidence, stated that he and his brothers Asif Mannan and Amir Mannan were jobless and this factual position was not challenged in his cross-examination. Even the appellant's witness in his cross‑examination admitted that Asim Mannan (respondent No.4) was jobless. About Asif Mannan he stated that he could not say if he was jobless. Since this assertion of the respondents remained unrebutted it would be presumed that Asif Mannan was also jobless. Although the appellants have taken a plea that the predecessor‑in‑interest of the respondents was a man of means and had left lot of business and property, but no evidence was led in support of this contention. On the contrary, the appellant's witness on this point, in his cross‑examination has admitted that the appellants have not brought on record any evidence in support of above contention. It was also argued on behalf of the appellants that the respondents could start their business in any other portion of the said building, but this plea was negated by the appellants themselves when their witness in cross examination admitted that apart from the premises in question other portions of the building were residential. The respondents have claimed that they do not have any other property except the property in question and nothing in rebuttal thereof was brought on record by the appellants. The plea that the eviction proceedings were initiated for enhancing the rent is also not proved. The appellants are tenants in the premises for over 28 years and from the beginning they were paying rent at the rate of Rs.2,600 p.m. The appellant's witness, in his cross‑examination, clearly admitted that never the respondents had talked to him for enhancement of the rent. Mr. Sultan Ahmed Sheikh, learned counsel for the appellants also contended that the respondents do not have resources to establish their business. I think this fact by itself is not enough to hold that the respondents do not require the premises for personal bona fide need. Mr. Rehmat Ellahi, learned counsel for the respondents on this point cited Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCMR 1152 to contend that being the owner of the shop/premises the respondent could get the goods on credit from the manufacturers or by other persons in the business. The case cited by learned counsel for the respondents supports the contention raised by him. Relying upon the dictum laid down in the above‑cited case I hold that lack of resources cannot be a valid ground to negate the plea of personal requirement for bona fide use Learned counsel for the appellants also argued that there is inconsistency in the pleadings and the evidence in the wav that it was alleged in the application that respondent No.2 Saima Saeed would also establish business of General Merchandise, but she being a girl was not in a position to run said business and even her brother Amir Mannan, in cross‑examination, slated that he did not know if his said sister was running the business of her father. Learned counsel concluded that this was enough to show that she was not running any business. Although there is no bar or restriction for a girl to run any business, but even if it is assumed that she cannot run the proposed business, yet, her brothers, can do the same. So this contention is also without any force. Learned counsel for the appellants also contended that in a locality like Soldier Bazar, the respondents Nos.l and 2, being the ladies, could not run the business of General Merchandise. In the case of Mst. Sira Bai v. Syed Anisur Rehman 1989 SCMR 1366 it was observed by the Hon'ble Supreme Court that the choice of doing a particular business depends on many factors such as the nature of the locality or the nature of business being carried out in other shops in the neighbourhood, therefore, if there is any change in circumstances the nature of the business could also be changed. Main point is of bona fide requirement and if the same is established the nature of the business could be changed at any time according to the circumstances. There is no force in this plea also. Accordingly, I do not find any merit in this appeal and the same is dismissed with costs. The appellants are directed to hand over vacant possession of the premises in question to the respondents within four months from now. M.B.A./N‑18/K Appeal dismissed.