1986 PLP 714 (MLD)

(b) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑Ss.15(2)(vii) & 21(1)‑‑Bona fide requirement‑‑Burden of proof‑ Burden to establish bona fide requirement of disputed premises vas entirely on landlord‑‑Landlord failed to explain nature of business, shortage of accommodation and position of his son for whom premises was alleged to be required‑‑Although statement on oath was consistent with averment made in eiectment application‑‑Facts and circumstances of case were inconsistent‑‑Landlord, held, failed to establish his bona fide requirement in circumstances. A. Aziz Khan for Appellant. Sher Muhammad Khan for Respondents. Date of hearing: 6th November, 1984. The appellant is the owner of a shop on Plot No.G‑5‑N, P‑9/31 on the corner of Juna Market and Jodia Bazar Karachi. Adjacent to this shop is a space of about sq. ft. of which the respondents are the tenant. This property was purchased by the appellant in December, 1969. On 26‑2‑1972 a notice under section 13‑A of Sind Urban Rent Restriction for attornment was served and another notice of the same date was also served on the respondents asking them to vacate the premises as the appellant bona fide required it for his own personal use and occupation. The respondents did not reply this notice nor did they vacate the premises. On 6‑5‑1976 the appellant filed an ejectment application alleging in that his children have grown up and the appellant wants to expand the shop for his personal use. The respondent denied this claim and the learned Controller by the impugned order dismissed the ejectment application. Mr. Aziz Khan, the learned counsel for the appellant has contended that the bona fide requirement of the appellant was established and the Controller has dismissed the ejectment application on technical ground and extraneous consideration. The learned Controller has mentioned that in the ejectment application the appellant did not state that the disputed premises was required for his son Mansoor Ali and his name has been introduced in the evidence. This ground is not the only basis for rejecting the application. It seems that this fact was lurking in the mind of the learned Controller but he has not rejected the application entirely on this ground. The application could not be rejected on such a plea as in the ejectment application the appellant has clearly stated that he requires the disputed premises for expansion of a business as he has grown up children. He had not mentioned the name of Mansoor Ali in the application but stated in his evidence. This is neither a contradiction nor deviation from the pleading. It will not amount to variance in pleading and proof. In any event on the other ground the learned Controller came to the conclusion that the premises is not bona fide required for the appellant's personal use. The learned counsel for the appellant contended that the property was purchased for expansion of business and for personal use of the appellant and his children. This contention is not borne out by the appellant's conduct because if this was the intention then the appellant would not have waited for three years after purchase to serve the notice and thereafter waited another four years to file ejectment application. Therefore, the object of purchasing the premises was not to bring it in personal use immediately. He had purchased the shop in which he is carrying on business together with the disputed premises which is adjacent to it. The appellant's case has been that he wants to expand his business and to establish his son who is grown up and married. The striking feature to the case is that the appellant owns and occupies a shop in which he is carrying his businesses with his son. The area of his shop is 6 x 8 feet whereas the disputed premises according to the appellant himself is 1 sq. ft. The burden to establish that the space of 1 sq. ft. is required by the appellant for his personal use and occupation is entirely upon him. Although the statement on oath is consistent with averment made in the application, in the fact and circumstances of the case the bona fide requirement is not established. The appellant has not explained the nature of his business and the manner how the existing shop is short and cannot accommodate his business nor the appellant has stated in what manner he wants to expand his business and whether such expansion will be possible b acquiring 1 sq. ft. The appellant has also not stated whether his so is working as an associate, employee or partner in the business. If for argument sake he wants to establish his son independently then it seems to be a remote possibility he will remove him from his shop and sake him to carry on the business in the space measuring 1 sq. ft. where a man cannot even sit. The appellant has also not explained how a space of 1 sq. ft. added to his shop will provide sufficient space to meet his expansion. In view of these facts it seems that bona fide requirement has not been established and, therefore, the impugned order does not call for any interference. The appeal is, therefore, dismissed. H . B . T . Appeal dismissed.