1992 PLP 2235 (CLC)

(1) Whether the premises is required by the applicant for personal bona fide use to carry out its object? (2) Whether the application as framed is maintainable? (3) What should the order be?" Learned IIIrd Rent Controller, Karachi decided all the issues in favour of the respondents, and dismissed the ejectment applications. Learned counsel for appellant while assailing the judgments first took me through the recital of the Gift Deed, which inter alia states: "(b) The Donor upon the request of the Donee has decided to make a gift of the said property to the Donee for the purpose of carrying out religious rites and ceremonies therein as hereinafter stated. (c) The Donee is willing to accept the proposed gift and covenants with the Donor that Imam Bara shall be constructed on the said premises and the said premises shall not be used for any other purpose whatsoever." Reference then was made to para. 1 of the Gift Deed which runs as follows: "The Donor hereby transfers and. conveys by way of gift the said property to the Donee to use the said property for carrying out and conducting of religious activities, rites and ceremonies conforming to and in accordance with the Khoja Shia Isna Ashri faith." Next reference was made to the Trust Deed and the amended Trust Deed of the appellant which, inter alia, states that the properties of the Trust shall be used for the purpose of Imam Bara and particularly for the observance and performance of Majalis and other ceremonial occasions according to Khoja Shia Isna Ashri faith or such other religious purposes as may be deemed necessary or proper. The appellant Trust produced one Mohsin son of Haji Habib one of its trustee, who in his affidavits‑in‑evidence reiterated the appellants' bona fide personal requirements and adduced a copy of resolution dated 9‑1‑1987 passed at a meeting of the Board of Trustees of the appellant as under: "Resolution resolved that Mr. Mohsin s/o Haji Habib, a trustee of this trust is hereby authorised to file ejectment applications against (1) IM/s. Hakim & Co. (2) Ra7a H. Ghulam H.(3) Osman Bros. (4) Abdul Sattar Vali Mohammad (5) Ebrahim H. Hamid Naviwala for their eviction from respective premises in their respective occupation in the concerned Rent Controllers Court at Karachi and for this purpose, sign ejectment application on solemn affirmation, make applications to Court, swear affidavits and file affidavits‑in‑evidence and adduce evidence by submitting to cross‑examination and conduct the five respective ejectment applications on the ground of personal bona fide need and use of the trust for reconstructing the premises as Bara Imam Bara Annexe and carrying the same through appeal to final execution and eviction." The argument advanced by Mr. Zafar Hadi Shah learned counsel for the appellant was that the good faith of the appellant is traceable even before the property was conveyed to it inasmuch as the Gift Deed in its recitals declares in very clear terms that the apli6llant approached the said Agha Khan Foundation for the purpose of transfer of the said property for holding Majalis and other religious activities pertaining to Khoja Shia Asna Ashri. In no time after the said transfer, the appellant not only intimated the respondents of the said transfer by serving upon them a notice under section 18 of the Sindh Rented Premises Ordinance, 1979 but also required all of them of its personal bona fide requirement which is further evidenced by the above resolution of the Board dated 9‑1‑1987. With this background it is difficult to disbelieve the good faith of the appellant. Reference was made to para. I of the Gift Deed dated 19‑11‑1986 which specifically states that the gifted property shall be used for the purpose of carrying out and conducting religious activities, rites and ceremonies conforming to and in accordance with Khoja Shia Isna Ashri faith. In para. 2 all the rights assessments etc. in the property were subject to the restrictions mentioned in clause

1. It was urged that the appellant having established its case for personal requirement in good faith, the Court is left with no discretion but to pass an order of eviction of the respondent tenants in terms of section 15(2) of the Sindh Rented Premises Ordinance, 1979 as the word used in section 15(2) is "shall" and not "may" as found in section 13 of repealed West. Pakistan Urban Rent Restriction Ordinance. In this context reliance was placed on Tayyava Khatoon v. Mohammad Fariduddin, SBR PLD 1971 Kar.'.747 in which it was held: " A question would arise here as to what is the import of the word may'? It is true that 'may' is substitute for 'shall' and, therefore, the flexibility which connotes cannot be disregarded.. While conceding this we must also realise that the flexibility which it cannot be utilized sometimes by way of the 'courtesy of the legislation in dealing with the judicature', sometimes to convey a duty sometimes simply to confer discretion. Its flexibility is maximum when it confers discretion, but discretion does not mean wilfulness or thoughtlessness or waywardness. On the contrary, it connotes discrement and prudence or exercise careful judgment." As to the objection that the premises was not required for permanent use but temporarily and occasionally learned counsel contended that even if the personal bona fide requirement is not of permanent nature but arises occasionally or temporarily the landlord will be within his right to seek eviction of the tenant under section 15(2)(vii) of the Sindh Rented Premises Ordinance, 1979. In support reliance was placed on Mst. Ahmedunnisa and others v. Mst. Parveen , Siraj, in which it was held that the provisions of the order could be rendered nugatory in cases where a landlord residing outside Pakistan bona fide requires his own house in Pakistan for his own occupation or use or for the occupation or use of his spouse or for any of his children when they come to visit Pakistan or return for permanent settlement. I am entirely in agreement with Mr.Zafar Hadi Shah learned counsel for the respondent and am of the view that the provisions relating to personal requirement in good faith would also press into service even in these cases where the requirement of the landlord may not be of day to day use of the premises. But this requirement must remain constant and subsisting for a reasonable time and should not be of purely temporarily nature and otherwise be reasonable. Now reverting to the requirement of the appellant, the case of the appellant is that it shall be requiring the said shops/godown for the purpose of holding Majalis and religious activities particularly in the months of Moharram and Safar, which requirement prima facie appears to be reasonable and subsisting from time to time. As to the question of good faith, it was shown that the donor had made the ' gift of the property to appellant for no other purpose but for carrying out the religious rites and ceremonies of Khoja Shia Isna Ashri faith with the condition that the property shall not be used for any other purpose. It is for this reason that on 10‑12‑1986 the appellant soon after the Registered Gift dated 19‑12‑1986 sent a letter of intimation under section 18 of the Sindh Rented Premises Ordinance, 1979 to all the respondents and required them to vacate and hand over their respective godowns/shops to the appellant., There is no, dispute that the area in which these shops/godowns are located is a Pugree fetching area and it is not possible for anyone to obtain any shop or godown there without payment of Pugree. According to learned counsel for appellant these premises are being used by all the respondents, for commercial purpose but are required in good faith by the appellant for religious purposes and it would not make any material difference at all as no distinction had been made in section 15(2)(vii) between residential, commercial or religious use of the premises. Reliance was placed on Abdul Malik v. Haji Aijaz Ahmed, 1985 SCMR 1555. This position is not disputed by the respondent's Advocate. Learned counsel for respondents Mr. M.S. Khanzada contended that it is an admitted position that the respondents have been occupying valuable commercial shops/godowns situated in a Pugree fetching area. All of them have stated in unequivocal terms that they had paid huge Pugree at the commencement of the tenancy. This fact is admitted by P.W.1 Mohsin, stating that in the disputed Ilaqa no tenancy can be obtained without Pugree but no receipt is given by the landlord. Further, upon surrender of tenancy the landlord pays back the Pugree to the tenant. Mr. Zafar Hadi Shah while repelling this argument referred to Shaikh Muhammad Yousuf v. District Judge, Rawalpindi 1987 SCMR 307, in which it was held that even if Pugree was received by the landlord, it was a mutual arrangement and would not debar the landlord from instituting eviction proceedings on the ground of bona fide personal need. Be that as it may, I may add here that where payment of Pugree by tenant is proved, greater degree of caution must be exercised by the Rent Controller while ordering eviction of a tenant. in Muhammad Aslam v. Muhammad Aslam, 1987 CLC 686 a learned Judge of this Court observed tliat "in the instant case the applicant was in occupation of the shop in question and was carrying on business in the shop since before 1960, when the shop was transferred by settlement authorities to respondents. To evict such person and to uproot his business which he has established for more than 25 years the burden lies heavily upon the respondents to prove his requirements in good faith". The solitary evidence adduced by the appellant is of one Mohsin, one of the Trustees of the appellant. According to his version the present Imambara is on Plots 30, 31, 34 and 35 of Survey Sheet OT 7/7, Khoja Lane, Kharadar, Karachi and consists of ground plus two floors. It is admitted by him that 1st floor of the Imambara is residential and the 2nd floor is vacant. On one side, in between the Imambara and the disputed shops/godown, is Plot No.41 on which a multi‑storey building with shops on ground floor has been raised, while, in between the rear side of disputed shops/godown. and the Imambara, there is a vacant plot of land. Thus, the Imambara is not adjacant to the disputed shops and godown. It is also admitted by him that in the present condition, the shops/godown cannot be used as the back portion of the shops has a wall, which has to be demolished. Respondents produced themselves and took up common defence as to payment of Pugree amount to the original landlords, denial of bona ride requirement of the appellant etc. Raza Hussain, respondent in F.R.A. No.200/89, had specifically stated that there is no shortage of accommodation or space at the Imambara for holding Majalis and other religious activities. The depositions of other respondents in F.R.As. Nos.196, 197, 198 and 199 of 1989 are also to the same effect. Now coming back to the resolution dated 9‑1‑1987 hereinabove referred to, the Trust had empowered the ‑said Trustee Mr. Mohsin to file ejectment proceedings against the respondents "on the ground of personal bona fide need and use of the trust for reconstructing the premises as Imambara Annexe and carrying the same through appeal to rile execution and eviction." The language of the resolution is not free from ambiguity and does not clearly indicate the intention of the appellant as to whether it had intended to evict the respondents on the sole ground of, reconstruction or on two grounds so as to include its personal requirement in good faith. According to learned counsel for appellant Mr. Zafar Hadi Shah, the ground for reconstruction was out of question as neither such a ground is found in the ejectment application nor any approved plan on that basis was being approved by the appropriate authority. Be that as it may, there is no dispute that a landlord has to establish his personal requirement in good faith. A statement simpliciter on oath by a landlord is not enough. The requirement has to be explained satisfactorily in the light of which the Rent Controller may infer good faith on his part., A condition imposed by a donor to the donee landlord as found :in the Gift Deed that the property shall be used for religious ceremonies shall not improve the case of the latter against eviction of its tenants on personal bona fide ground. There is not a word either in the resolution or in the ejectment application or in the deposition of the appellant Trust as to what is the necessity of requiring the shops and godown for purposes of holding Majalis and other religious ceremonies there. Nothing is brought on record to show as to number of person s attending Majalis during the month of Moharram at the Imambara or at religious ceremonies. No details of the religious ceremonies have been provided. It has also not been shown as to how the disputed shops and godown will be suitable for the requirement of the appellant. No explanation is found that while the Majalis and other ceremonies will be held in the Imambara how those assembled in disputed shops and godown separated by a building on one side and vacant plot of land on other side will be accessable to the main congregation at Imambara. Hence I am clearly of the view that the appellant has failed to make out a case for personal requirement in good faith. While parting with the case, I would refer to the contention raised by the learned counsel for the appellant Mr. Zafar Hadi Shah that the word "shall" used, in section 15(2) of the Sindh Rented Premises Ordinance is mandatory in nature. No doubt when read in conjunction with the expression "if he is satisfied', the word "shall clearly conveys that it is mandatory and penal in nature and leaves no discretion with the Court except to order eviction of the tenant once any of the grounds as enumerated in clauses (ii) to (vii) is established. But it may be added here that while construing the expression filed to pay rent" used in section 15(2)(ii) the intention of the legislature may not be lost sight of as it essentially relates to wilful and deliberate failure in the payment of rent and would not cover hardship cases where non‑payment of rent is attributable to natural calamities or circumstances beyond a tenant's. control or power such as his arrest or accident. In such cases heavy onus lies on the tenant. In the result the appeal is dismissed but with no order as to costs. W.B.T./P/228 Appeal dismissed.