1992 PLP 2395 (MLD)

Kishinchand for Appellants. Raja Khan for Respondent. Date of hearing: 28th May, 1989. By this common judgment I intend to dispose of the above two rent appeals as in both the cases the landlord is the same and common points of facts and law are involved. Briefly the facts leading to F.R.A. No.168 of 1987 are that the respondent had purchased the premises bearing No.E/446 at Thora Chari, Fakir‑jo‑Pir, Hyderabad, from its previous owner which consists of ground floor and Ist and 2nd floors. It is the case of the respondent that the appellants are in occupation of the shop in said premises admeasuring an area of 207 sq. ft. on the monthly rent of Rs.200 The respondent on 4‑3‑1985 gave a notice of intimation under section 18 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) to the appellants wherein he also asserted that the said shop was required by the respondent for his personal use and that they should hand over the vacant possession of the same to the respondent. The appellants replied through their Advocate on 16‑3‑1985 to the effect that they had not received the sale‑deed or city survey extract evidencing the ownership of the respondent. The respondent showed the title documents to the appellants who promised to vacate the shop in six months time but they did not do so and therefore another notice was sent on 9‑1‑1986 alongwith copy of city survey extract and the same request was repeated but the appellants, neither vacated the premises nor remitted the rent. The respondent therefore after waiting for one month filed the application for ejectment being R.A: No.61 of 1986 on the grounds of non‑payment of rent and personal requirement. The rent application was allowed only on the ground of personal requirement and therefore the present appeal is filed. Similarly in the case of F.R.A. No.169 of 1987 the respondent claims that the appellant is in occupation of the godown on the ground floor at the rent of Rs.50 per month. In this case also the respondent required the said godown for his personal use and so he gave a notice to :.the appellant on 4‑3‑1985 and a similar reply was given. The rest of the facts in that case arc also similar as to the case of F.R.A. No.168 of 1987. The appellant therefore filed the application for ejectment being RA. No.62 on the grounds of default and personal requirement which was allowed only on the ground of personal requirement and therefore the present appeal is filed. I have heard the learned counsel for the parties. Mr, Raja Khan Advocate for the respondent has submitted that he may be allowed to argue on the issue of default also which was decided against the landlord. He has contended that since the overall decision was in his favour therefore there was no need for him to file the appeal. In this view of things I have allowed him to submit his arguments on the issue of default also. Mr. Raja Khan has submitted that no doubt there was a previous litigation between the present appellants and the previous owner and that the appellants were depositing the rent in Court but after the service of notice under section 18 of the Ordinance. the appellant was mandatorily required to pay the rent to the new landlord within the period of 30 days and that he is still continuing to deposit rent in Court would show his mala fides and would render him liable for the legal consequences. He has placed reliance on the case of Mst. Muhammad Nisa v. Anwar Ali 1989 CLC 157 wherein it has been held:‑ "In my view she had full knowledge of the sale of this property to the respondent and she deposited rent in the name of the previous landlord merely to harass the respondent. In these circumstances the finding of the learned Controller with regard to default in payment of rent cannot be questioned." He has also placed reliance on the case of Sayed Saheb Jan v. Muhammad Aslam and 3 others (1986 CLC 1878) and also the case of Shamshad Ahmed Khan v. Aijaz Ahmed (1986 MLD 1624). Repelling the above contention, Mr. Kishan Chand the learned counsel for the appellants has submitted that it is the case of appellants that they had deposited a security amount of Rs.17,000 and Rs.15,000 respectively in each case with the previous landlord and that the present landlord has expressed that he is willing to return the said security amount in case the appellants hand over the vacant possession. This fact has come in evidence. From this the learned counsel has contended that the present respondent has admitted the liability for the said security deposit and therefore the default, if any, has to be adjusted against the same. According to the learned counsel for the appellants no written documents showing the terms and conditions on which the said amount of security was paid to the landlord, has been produced in evidence and therefore the tenant would be entitled to adjustment of arrears of rent from the said amount. In view of the above contention of the learned counsel and admission on the part of the respondent I am inclined to hold that the default, if any, is for the amount less than the said amount and same could be adjusted from the security deposit. I, therefore, agree with the findings of the learned Controller on this issue. Taking up issue of personal requirement, Mr. Kishan Chand learned counsel for the appellants has argued that it has come in evidence that the respondent is running the business of Chalia Katha in the space adjacent to the staircase of the premises and as such his business cannot be said to be such a large one so as to require the shop and godown as well for the said purpose. He has further contended that the sons of the respondent are already settled having their own independent business and that the present respondent being an old man of 60/65 years would not be in need of running his independent business. I cannot agree to this contention to the learned counsel. Merely because the sons of the respondent are' having their own business does not mean that the respondent can be made to depend on them and would be barred from running his own business for his livelihood. Mr. Kishan Chand has placed reliance on a number of cases reported in 1989 CLC 287, 536, 951, 975 and

962. As against this Mr. Raja Khan the learned counsel for the respondent has submitted that the evidence brought on record very clearly shows that previously the present respondent was running business. of Chalia with his nephew which partnership has since been terminated and thereafter the present respondent became jobless so he started his own business of Chalia Katha in the space adjacent to the staircase in the said premises which space by itself is neither suitable nor sufficient to run his said business and therefore he requires the premises in dispute for his personal bona fide use. Mr. Raja Khan has contended that the respondent needs the shop in F.R.A.No.168/87 to run his business and godown in F.R.A. No.169/87 to store his merchandise. He has placed reliance on the case of Mirza Yawar Baig v. Usman Chani Chippa (1989 CLC 247) and the case of Shaukat Ali and others v. Syed Israr Ahmed (1987 CLC 574). Relying on the above two cases he has contended that where the landlord's statement on oath is in conformity with averments in rent application, not having been shaken in cross‑examination or disproved by other evidence, the same would be taken to be sufficient to prove the bona fide requirement of the landlord. I have no hesitation in agreeing with the above contention of the learned counsel for the respondent but there is one point in the present case which is to be distinguished. It has come in evidence that at present the respondent is running the business of Chalia Katha in a very small space with the staircase of the premises which fact by itself would show that his business is not a very large one. No evidence has been produced by the respondent to show if he is desirous of enhancing his business nor has be brought any thing on record to show the extent of his business. Such business of Katha Chalia normally is not a very large business and therefore it cannot be said that the respondent would require the godown in addition to a full‑fledged shop for the purpose of his business. Mr. Raja Khan has contended that he would need the godown to store the bags of merchandise which would be sold by him in the said shop. I am afraid nothing has been said in the evidence in this behalf nor even the dimensions of the said shop and godown have been described. Of course the landlord's word, if not rebutted, would be taken to be sufficient with regard to his requirement but as the burden to prove this issue is on landlord he is also required to prove as to how the premises sought for by him arc required for his use. In the present case it was incumbent upon the respondent to have brought something in evidence to show as to how shop by itself would not be sufficient for his use so as to make the requirement of godown also necessary. In view of the above reasons I am of the view that the 1 respondent requires the shop for his bona fide use to run his said business but as far as his prayer for the said godown is concerned, the same is not supported by any evidence. In view of these circumstances I dismiss F.RA. No. 168' of 1987, maintaining the orders of the Rent Controller. The appellant is allowed a period of h() days to hand over the vacant possession of the shop bearing No.E/446 to the respondent. The other appeal F.R.A. No. 169/87 is allowed and the orders of the Rent Controller arc set aside. However, there will be no orders as to costs. A.A./N‑431/K Order accordingly