1997 PLP 947 (CLC)

I have heard learned counsel for the appellant/tenant and perused the record and proceedings of the case. He has placed reliance upon Sher Muhammad and others v. Muhammad (1988 SCMR 881), Tahir M. Ibrahim v. Yousuf Ali and 2 others (1988 MLD 2470), Syed Abdul Hakim and others v. Ghulam Mohiuddin (PLD 1994 SC 52), Messrs Bara Imam Bara Trust v. Messrs Hakim & Co. (1992 CLC 2235), Muhammad Aslam v. Muhammad Aslam (1987 CLC 686), Major (Retd.) Jamshed Khudadad Irani v. Abdul Rehman (1987 CLC 1988), Abdullah v. Abdur Razak (1987 MLD 1067) and Sardar 'Muhammad Asim v. Sheikh Allah Dad (1987 SCMR 1778. I have also heard Mr. Suleman Kassatn, learned counsel for the respondent/landlord who has placed reliance upon Muhammad Suhail v. Mst. Fatima Begum (1987 MLD 2106), Sheikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others (1987 SCMR 307), Muhammad Ilyas v. Mst. Khursheed Begum (1989 CLC 506), Mst, Sughra Kausar v. Muhammad Siddique Manan alias Muhammad Siddique (1992 MLD 903), Ahmad v. Haji Khair Muhammad (1992 CLC 2504), Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394), Rajab Ali v. Darius B. Kandawalla and another (PLD 1984 Karachi 14), Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185), S.M. Zafar v. Vice‑Admiral (Retd.) Iqbal F. Qadir (1991 CLC 1137), Nooruddin and others v. Asghar Ali and others (1968 SCMR 1087), Tariq Shafi v. Mrs. Shamshad Begum (1990 CLC 698) Muhammad Mehtab v. Muhammad Ismail and another (1990 MLD 1682) and Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCMR 216) in support of his contentions. The learned Judge in Chambers in F.R.A. No.71/89 at page 6 of judgment observed:‑‑

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It may be pointed out that if the appellant had succeeded in establishing such factual position in the case a question would certainly have arisen whether the need of the respondent to acquire possession of the shop in occupation of the appellant was in good faith or bona fide ‑‑

No doubt, in the counter‑affidavit filed before the learned Controller it was shown that the property consisted of a godown but the learned Controller should not have relied upon the counter‑affidavit of the respondent alone as it had clearly been pointed out by the appellant that the property consisted of four shops as pointed out earlier. In my opinion, the matter could not be determined merely on the basis of affidavit but it was essential to provide an opportunity to the parties to lead evidence on the point. No doubt, the evidence in the matter had already been recorded by the learned Controller but since according to the appellant the said factual position was not earlier known to him the learned Controller should have allowed the appellant to bring such subsequent events on record of the case I am, consequently, of the view that, the learned Controller was not justified in shutting out oral evidence on the point which was absolutely necessary for helping him in arriving at the correct conclusions ‑‑

In the result, I accept this appeal and set aside the order passed by the learned Controller directing eviction of the appellant from the demised premises and remand the case to him for recording of further evidence in the matter in the light of the request made by the appellant in his said application dated 5‑12‑1987. The learned Controller shall also permit the parties to amend their pleadings accordingly and then lead evidence on the point before the learned Controller. " The only point which necessitated the remand of the case by this Court to the learned Rent Controller was that respondent/landlord being in occupation of another premises viz. G/3, did not adjust his son in the said premises but disposed of the said premises during the pendency of ejectment proceedings when application dated 5‑12‑1987 was filed by the appellant/tenant to adduce the evidence was pending to determine the effect of availability of premises viz, G/3 with the respondent/landlord on his bona fide requirements in good faith for his son in respect of disputed shop. In other words whether the sale of G/3 would negate the personal need of the respondent's son in respect of disputed shop. Section 15(2)(vii) of Sindh Rented Premises Ordinance, 1979 runs:‑‑ "Where a landlord seeks to evict tenant‑‑

he shall make such application to the Controller that he requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children." Admittedly, there is no provision in the Rent Ordinance, 1979 as it was in section 13(3)(ii) of West Pakistan Urban Rent Restriction Ordinance, 1959, that "in case of non‑residential building, a tenant could be evicted from the premises if the landlord requires it in good faith for his own use or for the use of any of his children when he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time and he has not vacated such building or rented land without sufficient cause. However, under the present Rent Ordinance the landlord has to prove only his requirement in good faith in respect of the premises asked for. In the instant case evidence shows that the respondent/landlord who is already in occupation of a shop, has asked for the disputed shop for the requirement of his son who has now grown up and for him the respondent/landlord wanted him to be adjusted in the business after completion of the education. The respondent/landlord has also disposed of premises G/3 used as godown during pendency of ejectment proceedings in respect of disputed shop against the appellant. There is no evidence on record to say that the son of respondent is having a possession of any other shop suitable for his needs. Contention of learned counsel for the appellant/tenant is that as there was a premises viz. G/3 available at the time when the ejectment application was filed, the respondent/landlord should have accommodated his son in the said premises and because he failed to adjust his son in the said premises but instead of that he sold out the same and asked for his eviction, the same would negate the good faith requirement of the respondent. Respondent and his son in the additional affidavit at pages 133 and 169 of R & P have given the details as to why premises G/3 was sold and why the same was not suitable for the use of his son for opening the business as the said godown premises was in the lane which was 3‑1/2 wide and in the end of the several buildings. The respondent in paras.3, 8, 9, 10, 11, 12 and 13 of additional affidavit at page 133 of R & P, has stated as under:‑‑ ‑‑

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3. That the situation of said godown premises was such that from main Khajoor Bazar there was a narrow lane about 3/1‑2 ft ‑ 4 ft wide and more than 100 ft. in length and thereafter there was several buildings and in those building godowns were there and my godown G/3 was in that area. The area in which the godown was situated was not a Bazar and business could not be done there. Since it was a godown and was not situated in the main bazar business could not be run there but it could be used only as a godown. ‑‑

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8. That premises G/3 being godown premises and not in the main bazar was not suitable for my need and after considering this factor I and my son Mohsin for whose personal need I require the shop premises in possession of the opponent we decided to get vacated as it is most suitable for the needs of my son.

9. That I do not possess any other commercial premises suitable for the need of my son and since the shop in possession of the opponent faces main Khajoor Bazar the business of general merchandise which my son wants to do can very sell be done there only and as such it is suitable for the needs of my son.

10. That I attached herewith a sketch showing position of premises G/3 and that also shows that it was a godown. I also attached herewith a copy of the sale‑deed executed by me in favour of the purchasers in which also a site plan was attached and that also shows that it was a godown and that godown was consisted of one premises only measuring 29 ft. 6 inches x 25 ft.

11. That the purchaser after purchase of this godown premises has demolished the godown and has reconstructed whereby has constructed 3 small godowns at ground floor and flat above it but when I sold it was one premises.

12. That the shop premises part of which is in possession of the opponent and the back portion which is in possession of me has been numbered as G/ 15 by the Settlement Department and G/10 by the Excise and Taxation Department and this is the one premises and not two premises as alleged by the opponent. At present in Karachi I am owner of only one commercial premises part of which is in possession of the opponent and back portion in my possession and in the City of Karachi I have got no other commercial premises. Beside this I have got a residential house in the name of my wife. I am doing my own Import and Export business in the back portion and I want my son to his own independent general merchandise business in a portion in possession of opponent.

13. That premises G/3 besides being not on the main bazar and being a godown premises was no more suitable for my use even as a godown because in that area trucks were not allowed in but only Suzuki and Hand Carts were allowed as a result of which goods in bulk could not be brought and hence I decided to sell the same which I did as it was not worthwhile to keep it even as a godown, previously trucks used to come from Lalmandas Street but since number of residential buildings were constructed and as such trucks were not allowed to come in. In that area the ground floor premises are being used as godowns. " Mohsin, the son of respondent, in his affidavit has stated in the same terms. The appellant/tenant could not shake the veracity of the respondent and his son Mohsin in the cross‑examination so as to negate the good faith requirement 'of the disputed shop premises. There is no cavil about the fact that onus to prove good faith is always on the landlord which in the instant case has been fully discharged by the respondent. Mere fact that there was another premises or building would not be itself be sufficient to disentitle the respondent' from seeking eviction of the appellant/tenant from the disputed shop when it has been shown and proved that the shop premises in occupation of the appellant was more suitable to the need of the son of the respondent while the godown premises G/3 which was then available with the respondent was not suitable for the son of the respondent for carrying out the business. Reference may be made to cases Tariq Shafi v. Shamshad Begum 1990 CLC 698, Muhammad Mehtab v. Muhammad Ismail and another 1990 MLD 1682. In the case of Major (Retd.) Jamshed Khudadad Irani v. Abdul Rehman 1987 CLC 1988, the learned Judge in Chambers observed that the Rent Controller must ascertain extent of portion in occupation of landlord and whether such accommodation was or was not sufficient for requirement of landlord and if not, whether portion occupied by tenant is required to be made available to the landlord. In the instant case sufficient material has come on record to show that the disputed shop premises is required by the respondent's son in good faith who has to start his business and there has been no other material to show that the said son was having any other suitable accommodation for running his business. The facts, of cases above cited by learned counsel for the appellant are quite different and distinguishable to the facts of the instant case. The learned Rent Controller has properly appreciated and evaluated the evidence on record so far the suitability and requirement of the premises in good faith for the respondent's son, therefore, no exception could be taken to the said findings. The next contention of learned counsel for the respondent is that the learned Rent Controller has not framed additional issue in terms of remand order. I do not find any substance in the said contention. There is already, an issue on the point of requirement of the disputed shop by the respondent for his son in good faith and under the said issue the effect of the sale of premises G/3 has been properly discussed by learned Rent Controller. There was no need to settle or frame any separate or additional issue as to the effect of the availability of the premises G/3 and its disposal by the respondent. The third contention of the learned counsel for the appellant/tenant is that an amount of Rs.45,000 was paid as Pugri for the disputed shop premises to the respondent/landlord about 17 years back and now Pugri of the said premises has gone up to the extent of rupees seven to eight lac hence seeking the eviction of the appellant from the same was mala fide on the part of respondent. In fact, remand order of this Court did not state as to the effect of alleged payment of Pugri to the respondent for the disputed premises, but there has been neither sufficient nor satisfactory evidence on record to show that Pugri amount was, in fact, paid to the respondent. Even the appellant has made no such suggestion in the cross‑examination of the respondent or his son that Pugri of the disputed shop has gone up to rupees seven or eight lac. Be that as it may, alleged payment of Pugri would not debar the respondent from seeking eviction of the appellant if the personal need is established. Reference may be made to case Sheikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others (1987 SCMR 307). In the case of Messrs Bara Iman Bara Trust v. Messrs Hakim & Co. (1992 CLC 2235) cited by learned counsel for the appellant, the learned Judge in Chamber has observed that where payment of Pugri by tenant was proved, greater degree of caution must be exercised by the Rent Controller while ordering eviction of the tenant on the ground of personal bona fide need. However, in the instant case alleged payment of Pugri by the appellant to the respondent has not been proved, therefore, the facts of cited case would be distinguishable to the fact of present case. However, the appellant can seek his remedy for the recovery of alleged payment of Pugri before the competent Court of law in accordance with law. Accordingly, the said contention has not merit, consequently, alleged payment of Pugri would not negate the personal requirement of the shop premises in good faith by the respondent. Lastly, it is contended by the learned counsel for the appellant that as the learned Controller has failed to frame issue and give finding that the disputed shop premises was more suitable to that of G/3 premises and as to the alleged payment of Pugri amount, which amount is said to have enhanced, therefore, this case may again be remanded to the learned Rent Controller. I do not find substance in the said contention as well. Sufficient required material evidence has been adduced by the parties and the counsel for the parties frankly conceded that nothing was left which could be brought on record, therefore, no useful purpose would be served to remand it again on account of said contention which too has been found to have no merit and substance. Reference may be made to case of Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCMR 216). In the instant case, further remand in view of the facts of present case is not warranted by law, considering the sufficient material on record brought by the parties consequently, the contention of the learned counsel for the appellant has no merit. The case of Syed Abdul Karim and others v. Ghulam Mohiuddin (PLD 1994 SC 52) cited by learned counsel for the appellant wherein it has been laid down that remand of the case is not to be made under section 21 of the Rent Ordinance as a matter of course but the appellate authority has to address itself to the question, whether the remand in the particular case is warranted by the facts thereof. Nothing has been pointed out whereby it could be said that the facts of present case warrant further remand or that there has been misreading of evidence or that the evidence on record has been ignored by learned Rent Controller or that he has gone beyond the order of remand, consequently the case Sher Muhammad and others v. Muhammad (1998 SCMR. 881) cited by the learned counsel for the appellant would also not be applicable to the facts of instant case. The facts of other cases cited by the learned counsel for the appellant are also different and distinguishable to the facts of the instant case. In view of aforesaid discussion, reasonings, contentions raised by the learned counsel for the appellant have no merit, consequently, the appeal is hereby dismissed. However, the appellant is directed to hand over vacant possession of the premises in dispute within the period of sixty days, subject to the deposit of rent for the said period. H.B.T./A‑97/K Appeal dismissed.