2001 PLP 1817 (MLD)

Latif-ur-Rehman for Respondent. Date of hearing: 7th November, 2000. This Appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the impugned order, dated 18-5-1998 passed on' application under section 15 of the Sindh Rented Premises Ordinance, 1979 in Rent Case No. 6 of 1996 passed by learned Rent Controller, Thatta, whereby the ejectment- was ordered on the ground of personal bona fide use of the subject premises for the son of the respondent. The facts relevant for decision of this appeal are as follows:-- The appellant succeeded the tenancy from his deceased brother in respect of the subject premises of which the respondent is the landlord. The case set up by the respondent in his ejectment application was that his son namely Abdul Hannan Pathan is jobless and intends to establish Pan Berri shop in the subject premises to earn his livelihood. The appellant denied such requirement on the ground that the respondent is the owner is carrying on his business and not the jobless as alleged. The respondent in support of his case examined himself and so also Abdul Hannan Pathan, his son for whose alleged need the eviction was sought, one Abdul Rasheed and Abdul Aziz in support of his case. Whereas the appellant examined himself, one Muhammad Yaqoob and closed his side. Learned counsel for the appellant contended that the landlord/respondent has already given two shops to his said son who is realizing rent himself from the same and the fact that he has not sought eviction of the shops which are owned by him instead the respondent who is the father has sought eviction of the premises on the ground of need of his son which according to him reflects mala fide is further contended that the respondent's son is not jobless. Therefore, his need is not in good faith. It is further urged that the landlord/respondent has suppressed the fact of owning other shops and so also the fact that during the pendency of the instant proceedings, one similar tenement was admittedly given on rent on 1-3-1988 to one Sarazi on the rental of Rs. 2000 per month. In support of his contention, he has relied upon the citations (1) Habibur Rehman v. Faqir Muhammad (PLD 1983 Lah. 425), (2) Noor Muhammad v. Iqbal Ahmed (1985 CLC 1007), (3) M.S. Khan v. S.M. Sirajuddin (1985 CLC 362), (4) Fida Hussain v. Noor Muhammad Bana (1985 CLC 3014), (5) Mst. Noorun Nisa v. Qamarul Huda (1988 CLC 183), (6) Muhammad Yousuf v. Muhammad Ibrahim (PLD 1991 K. 226), (7) Faqir Muhammad v. Mst. Muhammad Bibi (PLD 1991 SC 590) and (1993 CLC 1350). On the other hand, learned counsel for the respondent contended that the shops which were given to the son by the respondent were meant for his maintenance. He further contended that his son is doing the business of Cold Drinks on the Thalla near the Hotel and it, was also argued chat it is choice of the landlord to pick and choose the premises which are under the occupations of the several tenants and such prerogative cannot be taken away. He forcefully contended that the letting out of the shop to one Sarazi is a subsequent event and such defence was not taken in the written statement same cannot be taken into consideration now. In support of his contention, he has placed reliance upon the citations (1) Shamsul Islam Khan v. Pakistan Toursim Development Corporation Ltd. (1985 SCMR 1996), (2) Muhammad Murtaza Khan v. Haji Abdul Rasheed (1988 MLD 1041), (3) Muhammad Sharif v. Nisar Ahmed and others (1988 SCMR 1587), (4) Messrs Leather Gooas international through its Sole Proprietor, Nazimabad, Karachi v. Mst. Asiya Khatoon Sherwani (1986 CLC 333), (5) Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366), (6) Haji Mohibullah and Co. and others v. Khawaja Bahauddin (1990 SCMR 1070) and (7) Muslim Commercial Bank Limited, Karachi v. Haji Shaikh Yaqinuddin and 2 others (PLD 1992 Karachi 314). Having heard the contentions of both the learned counsel, I have perused the record. It is an admitted position that the respondent has given two shops to his son Abdul Hannan Pathan, who is realizing the rent as owner/landlord from his respective tenants. Under section 15 of the Sindh Rented Premises Ordinance, 1979 no doubt it is prerogative given to the owner of the premises to claim the ejectment of a tenant in case the premises is required for his own use or for the use of any of his children. But before such right is pressed, foremost requirements is to satisfy the Rent Controller of good faith and bona fide of his requirement and such fact is to be established through tangible evidence, more particularly when challenge is thrown by the tenant casting mala fide. In the instant case, the respondent was not able to plausibly explain as to when the said son of the respondent Abdul Hanan Pathan, who himself was the owner of two shops then what necessitated the father to seek eviction of a tenant to satisfy the need of his son. Had the personal need of the son been bona fide and good faith then the son himself could have sought the eviction of his tenant rather than seeking to dislodge a tenant of his father. Another aspect of the case which has been urged in seeking the eviction was that the son is unemployed. In cross-examination, it had come on record that the said son is carrying on business of Cold Drinks outside the hotel on a Thalla. Such factum came on- record during the course of evidence in cross -examination. The assertion of the landlord/respondent that the son was unemployed could not be substantiated. Even if the son was doing the business on Thalla, respondent could have conveniently pleaded such fact rather than suppressing the same in order to justify the claim to evict the tenant. The respondent in his cross-examination has also made fatal admission to his case that during the pendency of the litigation on 1-3-1998, one of the Cabin was let out to one Sarazi on a rental of Rs. 2000. Even at the time of final arguments, learned counsel for the respondent was not able to satisfy as to why such cabin was not used by his son for whose alleged requirements eviction of the appellant was sought. Another aspect in the same line that has come on record that as another Cabin on the Eastern side of the appellant's Cabin has been installed which was also fixed during the pendency of the case as has been admitted by one of the witness of the respondent namely Abdul Aziz in his cross-examination. All the witnesses of the respondents have candidly admitted that the son of the respondent is running his business. Good faith and bona fide as stated above are to be established by some cogent and convincing evidence; once the tenant is able to put a dent in such claim then it becomes all the mode necessary to establish such fact and it is cumulative effect of the evidence that is to be assessed objectively and collectively to decipher bona fide need and if there is enough material that reflects adversely then the ejectment cannot be granted. From the assessment of evidence that has come on record, firstly that the respondent's son himself is' the owner/landlord of two shops and has not chosen to seek eviction of his tenant, secondly he is not the jobless as claimed and thirdly that another premises that had fallen vacant during the pendency was let out on a higher rent in 1998 and lastly another cabin was carved out and let out. All facts contributing to reflect adversely on the good faith of the respondents and the consensus of the opinion by the Superior Courts also appears to be that if the good faith is not established by tangible evidence then eviction cannot be allowed. On assessment of the evidence stated briefly, I am of the view that under the circumstances, respondent had failed to establish good faith and bona fide. In the result, the discretion is, therefore, exercised in favour of the appellant and the Application for Ejectment filed by the respondent against the appellant is dismissed. In consequence, the appeal is allowed with no order as to costs and the impugned order is set aside. H.B.T./M-180/K Appeal allowed.