1999 PLP 3269 (MLD)

(2) Whether wilful default in payment of rent has been committed by the opponent? (3) Whether the opponent No. 1 has sublet and hand over the possession of the demised premises to opponent No. 2? (4) What should the order be? Findings on the issue of default as well as sub-letting has peen decided favourably to the appellant whereas findings in respect of personal bona fide need has been decided in favour of the respondent by the learned Controller and, vide impugned order, the appellants had been directed to vacate and hand over the peaceful possession of the premises to the landlord within 90 days of the impugned order. I would, therefore, elect not to dilate upon the two issues which have been decided in favour of the appellant but in order to resolve the present controversy, it would be necessary to examine the findings on personal bona fide need arrived at by the learned Additional Controller of Rents, Clifton Cantonment. It seems that personal bona fide use of application No. 3 namely, Tassaduq Hussain was stated to have been found on the basis of him being a tenant himself of one Muhammad Ejaz Ahmed in respect of shop situated, in Hazara Colony, Karachi. The applicant No. 3 continued to demand vacant possession of the shop for personal need as he intended to start his own business of general store in the said shop. The respondent through her husband has stated in her evidence that there are three shops in premises in question, two are let out to Bashir Ahmed and Noman Ansari (the present appellant and appellant in Rent Appeal No. 358 of 1995), whereas the third shop is stated to have been in possession of the respondent. He has stated on oath that his son Imtiaz Hussain is doing business in the shop, which is in his possession whereas his son Tassaduq is doing business of jewellery in the name of Chaudhry Jewellers in Hazara Colony, which is on rent. The said shop was stated on Oath to be on rent since 1985. It had been denied by the respondent on Oath that the shop in possession of the present appellant was not required by the respondent for the use of her son. It had further been denied that the respondent had purchased the shop in Hazara Colony. It further seems that the appellant has in his evidence before the Controller on Oath stated that Mussadduq Hussain, Tassaduq Hussain and Imtiaz Hussain are the sons of the respondent. He has further stated that the respondent's husband and her son Imtiaz Hussain are working in the premises adjoining the demised premises. He has further stated that Tassaduq Hussain was doing business in Hazara Colony in the name and style of? "Chaudhry Jewellers". Having considered the evidence that has been brought on record, the learned Controller had arrived at the findings that the premises in question were bona fidely needed by the landlord. That the appellant had failed to controvert or rebut the contention of the landlord. Mere denial in respect of personal bona fide need of the landlord would not warrant to disbelieve the claim of the landlord in terms of personal bona fide need. The learned counsel for the appellant has contended that the shop in question has not been required bona fidely by the landlord. He has attacked need of bona fides on the basis of the very conduct of the landlord who had opted to press into service more than one ground being default and subletting, which according to the learned counsel for the appellant, had been decided in favour of appellant. Based on such assertion, the learned counsel for the appellant proceeded to argue that the question of personal bona fide need to be false and as the appellant has been conducting his business since long, he cannot be up rooted merely on the ground that the landlord needs the premises for the use of her children. He has further contended that there are, in fact, more than one shops, which the landlord could use. On the other hand, the learned counsel for the respondent has, at the first instance, invited my attention to the preliminary legal objections raised by the appellant in their written statement (Page 111 of the R & P). He has further proceeded to canvass that the position taken by the appellant stood altered before the Controller as in the written statement it was being pleaded that the respondent only possessed one shop whereas in affidavit-in-evidence it had been admitted that two shops of the building in question are in occupation of the respondent (page 203 of the R & P). He has further questioned to establish the bona fide need by examining the cross-examination of the appellant as well as of the respondent wherein, according to the learned counsel not a single suggestion has been put to the respondent-landlord challenging the bona fide need pleaded by her. The learned counsel for the respondent has placed his reliance on 1996 SCMR Page 1178 (M/s. F.K. Irani & Co. v. Begurn Feroze), 1996 SCMR page 19 (Sheikh Muhammad Ayaz and 2 others v. Malik Ishtiaq) and 1996 SCMR page 97 (Taj Muhammad Abbasi through legal heirs v. M/s. Ferozesons (Rawalpindi) (Pvt.) Limited, Rawalpindi, through Managing Director). On the other hand, the learned counsel for the appellant has placed reliance on 1998 C L C page 648 (Ghulam Nabi v. Qadeemullah and another). For the purposes of resolving the controversy in this appeal principles governing to examine the bona fide need of a landlord are that if statement of a landlord on Oath has been made and the same is consistent with the application for ejectment and is not been shaken in cross-examination or disproved in rebuttal, the same ought to be sufficient on part of the landlord who establishes the bona fide need. Yet another principle to examine the personal need to have been established is that suitability depends to be determined by the landlord and it is for the landlord to decide which particular property is bona fidely required by him and for what particular purpose. Such is the position for determining the sufferings or otherwise in terms of requirement of a landlord in respect of the pleadings. It is only for the landlord to urge such requirement and it is for the Court to determine the proprietary of such requirement. Having said as much, it seems that the respondent had been able to demonstrate in establishing the personal bona fide need and with her statement on Oath and having under gone the test of veracity (through her attorney). Consequently, this appeal fails and is, accordingly, dismissed. At this stage, after this order has been dictated on merits, the learned counsel agree that execution for eviction of the appellant shall not be pressed into service for a period of four months from today whereafter execution shall be proceeded without notice to the appellant. Mr. Muhammad Saleem, Advocate for the appellants, states that the nature of evidence, record and proceedings are the same as are available in R. F. A. 356 of 1995 except that the subletting has also been proved in addition to personal bona fide need, which is admitted by the learned counsel for the respondent. In the light of the reasons arrived in R. F. A. 357 of 1995, R. F. A. No. 358 of 1995 also fails and is, accordingly, dismissed. Q.M.H./M.A.K./N-88/K ??????????????????????????????????????????????????????????????????? Appeal dismissed.