1992 PLP 1304 (CLC)

(i) Whether the demised premises is required by the applicants for their, personal bona fide use? (ii) What should the order be?

4. The appellants examined one of them, namely, Anis Ahmad, appellant No.1 (P.W.1), and then closed the side. To rebut this evidence the respondent examined Mujtuba Rizvi (D.W.1), one of the officers of the bank. On the assessment of evidence available on record the learned Rent Controller decided issue No.1 against the appellants and consequently dismissed the application filed by them under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the ejectment of the respondent. This order. dated 3‑10‑1989 is the subject‑matter of the present appeal.

5. I have heard Mr. Khalil‑ur‑Rehman, learned counsel for the appellants and Mr. A.R. Akhtar, learned counsel for the respondent. I have also gone through the record of the case carefully.

6. There are certain facts and circumstances in this case, which are either admitted or proved from the record. These are:‑‑ (i) That the building situated on Plot No.7/174, D.M.C.H. Society, Shaheed‑e‑Millat Road, Karachi, is a residential unit. (ii) That the buidling consisted of two floors only, the first floor is being used by appellant No.1 as residential unit. (iii) That the ground floor of this building was leased out to respondent for its use as commercial premises by Attique Ahmad, predecessor‑in‑interest of the appellants under a lease agreement dated 21‑4‑1976. (iv) That the character of the building, the ground floor of which is used as commercial, has remained as residential. (v) That Shaid Ahmad Kamran, the appellant No.2, who was the previous attorney of the remaining appellants was handling the affairs with the respondent in respect of the disputed premises on his behalf and on behalf of remaining appellants. (vi) That Shahid Ahmad Kamran, the appellant No.2 executed lease deed in favour of respondent on 2‑6‑1985 for a period of three years commencing from 1‑7‑1983. (vii) That the rent of premises was mutually enhanced from Rs.1,200 to Rs.3,750 p.m. (viii) That no fresh lease‑deed was executed after the expiry of the above period on 1‑7‑1986.

7. Bearing in mind the above admitted/proved facts it is now to be seen whether the appellants have made out a case of personal need in good faith. Anis Ahmad, the appellant No.1 (P.W.1), as his own witness has testified the circumstances leading to this eviction proceeding. He has made it clear that the building consists of two floors only, the ground floor is the disputed one, ‑while the first floor is in his occupation. His evidence shows that the accommodation in his occupation consists of dravring/dining rooms and four bed rooms alongwith attachments, where he, his wife, four children and mother, namely, Mrs. Hajra Bi, the appellant No.8 reside. Paras Nos.5 and 6 of the affidavit‑in‑evidence filed by Anis Ahmad, the appellant No.1 deal with the needs of other appellants in the following words:‑ '"That applicants Nos.2, 3 and 4 Messrs Shahid Ahmed Kamran, Zahid Ahmed Kamran and Abid Ahmed Kamran are also married and have their own family, comprising as follows:‑‑ Applicant No.2 ....himself, wife and six children. Applicant No.3 ....himself, wife and two children. Applicant No.4 ....himself, wife and two children. That the applicants No.c,2 to 7 are at present residing at Lahore, but after winding up their business at Lahore, they want to shift to Karachi. The applicants have no other building or property to accommodate the applicants Nos.2 to 7 with their families at Karachi. Thus the applicants need the ground floor premises under the tenancy of the opponent reasonably, bona fidely and in good faith for their own use and occupation."

8. Nothing is brought out in corss‑examination to show that the need of the appellants to use their own premises is not genuine. Mujtuba Rizvi (D.W.1), who is examined on behalf of the respondent has simply shown his ignorance about the need of appellants in cross‑examination. The main attack on the evidence of Anis Ahmad, the appellant No.1 (P.W.1) is that the ground floor which is being used as commercial unit since 1976 cannot be used for residential purposes and the demand of the appellants in this behalf is mala fide, made with the sole purpose to get the rent of the disputed premises enhanced. The use of ground floor of the building owned by the appellants for commercial purposes will not change its character and as observed by the Supreme Court in the case of Syed Amjad Ali Shah v. Iqbal Ahmad Farooqui and others reported in PLD 1985 SC 242, the change in the use of a residential unit to a non‑residential unit, with or without the consent of the landlord would not amount to change of character of the building for the purpose of eviction as from a residential building. The appellants Nos.2 to 4 for whom the disputed premises is needed are engaged in business at Lahore and if they had any ulterior motive for getting the premises vacated they could have conveniently stated in their application for eviction that the premises was needed for establishing their business at Karachi. They had only confined themselves to why they in reality need. I think the learned Rent Controller was not justified in brushing aside the evidence of Anis Ahmad, the appellant No.1 to this effect.

9. Coming now to the question whether it was obligatory on the part of the appellants to have examined appellants Nos.2 to 7 for whom the disputed premises is required so as to depose about their needs, it may be observed that there is no rule of law that question of `good faith' being a subjective matter 18 can only be proved by the persons for whom the premises is needed stepping into the witness‑box It can be proved like any other fact in issue and no adverse presumption can be drawn due to this failure alone. .

10. The third contention is about the demand of higher rent by the previous attorney of the appellants who had executed fresh tenancy agreement on 2‑6‑1985 for three years commencing from 1‑7‑1983 after getting the rent of the premises increased from Rs.1,200 to Rs.3,750 p.m. In my view a demand of higher rent by itself does not cast any doubt about the personal requirement, if it is proved that the premises is required by the landlord in good faith. There ate several factors to be considered in assessing this demand of higher rate of rent and the high rate of inflation could be the main reason for such an increase. Even otherwise such increase of rent which the appellants were otherwise entitled to make under the existing law cannot be taken as a factor militating the bona fides of the appellants in respect of personal requirement.

11. The appellants Nos.2 to 4 are admittedly residing at Lahore. They can i acquire property anywhere in Pakistan and can also adopt any lawful profession or trade in any part of this country. Such rights are guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. There is, therefore, nothing unusual in the proposed shifting of appellants Nos.2 to 7 to Karachi and their desire to occupy their own premises. The case of Mst. Ahmedunnisa and others v. Mst. Parveen Siraj, reported in 1985 SCMR 2012, is the nearest parallel to the present case, wherein following observations were made:‑‑ "We wholeheartedly agree with these views, for, otherwise the provisions of the Ordinance would 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 any of his children when they come to visit Pakistan or return for permanent abode."

12. The application filed by the appellants under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the eviction of the respondent was dismissed by the learned Rent Controller, mainly on the basis of letters (Exhs.0/1), (0/5), (0/6), (0/7). (0/8) and (0/9), in which no demand of vacant possession was made. All these documents are photo copies of some letters alleged to have been sent to the officials of respondent by Shahid Ahmad Kamran, appellant No.2 who was the previous attorney of the remaining appellants. The Courts cannot act on copies where originals have not been. produced without any reason. None of these letters were also shown to Anis Ahmad, the appellant No.1 during‑ the course of cross‑examination to prove that Shahid Ahmad Kamran, the appellant No.2 was in fact the author of these letters. The legal position in this respect is clear and a was so observed in the case of Messrs Bengal Friends & Co., Dacca v. Messrs Gour Benode Saha & Co. Calcutta and another reported in P L D 1969 SC 477, that copies of documents other than judicial record cannot be received in evidence without proof of signature and handwritings of persons alleged to have signed or written them. It may be added that the Qanun‑e‑Shahadat, 1984, applies to all judicial proceedings in or before any Court, including a Court Martial, a tribunal or other authority exercising judicial or quasi judicial powers of jurisdiction. Thus the finding recorded by learned Rent Controller was based on inadmissible evidence and, therefore, cannot be sustained.

13. In the circumstances stated above, the order of the learned Reni Controller by which he had dismissed the application for eviction filed by the appellants against the respondent, does not seem to be justifiable and is set aside. The appeal is allowed and, the respondent is directed to vacate the demised premises within a period of two months. The parties are, however, left; to bear their own costs.